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PETITIONER: DR. GOPAL DASS VERMA

       Vs.

RESPONDENT: DR. S. K. BHARDWAJ AND ANOTHER

DATE OF JUDGMENT: 02/05/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1963 AIR  337            1962 SCR  (2) 678  CITATOR INFO :  R          1968 SC 438  (4)  D          1978 SC  22  (13,16)  RF         1979 SC 460  (13)  D          1987 SC2179  (11)  R          1992 SC 799  (11)

ACT: Tenancy--Created   or   used  both   for   residential   and Professional  Purposes-Termination of-Delhi and  Ajmer  Rent Control Act, 1952 (Act XXXVIII of 1952), SS. 2(g), 13(1)(e), 13(1)(h).

HEADNOTE: The respondent as a tenant of tile appellant was occupying a portion  of the premises in question for residence  and  the other  major  portion for his professional work as  an  ear, nose,  throat  specialist.   The  appellant  sued  for   the ejectment  of  the  respondent on the grounds  that  (i)  he required  the premises for his own residence and  that  (ii) the respondent had built a suitable residence for himself in another  locality.  The first plea was based on  the  ground mentioned in s. 133(1)(e) and the second plea on S. 13(1)(h) of  the Delhi and Ajmer Rent Control Act, 1952.   The  trial court decreed the suit but the appellate court and the  High Court dismissed it on the finding that from the beginning of the  tenancy a substantial part of the premises was used  by the respondent for his professional work obviously with  the consent of the appellant. Held, that premises let for residential purposes but used by 679 the tenant with the consent of the landlord incidentally for commercial,  professional  or  other purposes  cease  to  be premises let for a residential purpose alone and as such the landlord would not be entitled to eject the tenant under  s. 13(1)(e)  of  the  Act.  Nor can such a  tenant  be  ejected independently under s. 13(1)(h) because a tenancy created or used both for residence and profession cannot be  terminated merely  by showing that the tenant had acquired  a  suitable residence. Premises  let both for residence and commercial purposes  do not cease to be premises under s. 2(g) and continue to be so

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under the last clause of s. 2(g).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 278 of 1959. Appeal  by special leave from the judgment and  order  dated April  2, 1957, of the Punjab High Court, in Civil  Revision No. 239 of 1956. C.   K. Daphtary, Solicitor-General of India, S. N.  Andley, Rameshwar Nath and P. L. Vohra, for the appellant. S.   T. Desai and Naunit Lal, for the respondents. 1961.  May 2. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-The appellant Dr. Gopal Das Varma owns  a double-storeyed  house  known as 28,  Barakhamba  Road,  New Delhi.   The ground floor of this house consists of a  block of offices and the first floor consists of four flats; three of  these are in the occupation of the appellant  while  the fourth has been let out to respondent 1, Dr. Bhardwaj.   Dr. Bhardwaj  is an ear, nose, throat specialist, and in one  of the  four rooms of the flat be and his wife,  respondent  2, reside, while the, three other rooms are used by him for the purpose  of his profession.  Respondent 1 ap. pears to  have taken  the  premises on lease as early as 1934  although  he executed an agreement of tenancy in favour of the  appellant on  November  8,  1935.   This  agreement  shows  that   the appellant  agreed to let out his flat to respondent 1  on  a rent  of Rs. 90 per month payable in advance.   The  tenancy was  to commence from October 1, 1935, and was  intended  to continue up to _September 30, 1936.  Parties agreed that the said 680 tenancy  could be renewed on terms to be settled later.   In fact the tenancy has been renewed from year to year and  the flat is still in possession of respondent 1. In  October 1953 the appellant sued the two respondents  for ejectment  on two grounds.  He alleged that he required  the premises in question for occupation as residence for himself and for the members of his family and that respondent 1  had recently built a suitable residence for himself in Golf Link Area, New Delhi.  The first plea was made under s.  13(1)(e) of  the Delhi and Ajmer Rent Control Act, 1952 (Act  XXXVIII of  1952) (hereafter called the Act), while the  second  was raised by reference to s. 13(1)(h) of the Act.  According to the  appellant, since both the requirements of the Act  were satisfied  he was entitled to obtain a decree for  ejectment against  the  respondents.   The  claim  thus  made  by  the appellant  was  denied  by the  respondents.   Respondent  2 pleaded that she was not the tenant of the appellant and she alleged  that it was she and not respondent 1 who had  built the house in Golf Link Area.  Respondent 1 admitted that  he was  a tenant under the appellant.  He,  however,  contended that  the appellant did not require the premises  bona  fide for  his  personal use, and he urged that he was  using  the premises for carrying on his medical profession and as  such the  appellant was not entitled to eject him.  He  supported his wife in her plea that the house built in Golf Link  Area belonged to her and not to him. On   these   pleadings  the  learned  trial   judge   framed appropriate  issues.  He found that respondent 1  alone  was the  tenant  of  the  appellant and  that  the  premises  in question  had  been  let to  respondent  1  for  residential purpose.  According to the trial judge the premises in  suit had  been constructed for residential purposes and the  flat in  question was let out to respondent exclusively for  that

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very  purpose.  The trial judge further held that  the  fact that a portion of the premises was used by respondent 1  for his  profession or business would not make the  tenancy  one for nonresidential purposes.  In that view he rejected the                             681 argument  raised  by respondent 1 on the explanation  to  s. 13(1)(e) of the Act.  The trial judge also held that it  was respondent  1  who had built a house in Golf Link  Area  and since  the  said house was suitable for  his  residence  the requirements of s. 13(1)(h) were satisfied.  On the question about  the  bona  fide requirements  of  personal  residence pleaded  by the appellant under s. 13(1)(e) the trial  court made  a  finding against him.  Even so, as a result  of  his conclusion under s. 13(1)(h) the trial judge passed a decree for ejectment in favour of the appellant. Both the respondents challenged this decree by preferring an appeal before the Senior Sub Judge at Delhi.  The  appellate Court held that on the facts proved in the case it cannot be inferred   that  the  premises  in  suit  were   built   for residential  purposes alone, and that evidence did not  show that  the premises in question had been lot to respondent  1 for  residence  alone.   The appellate  judge  examined  the conduct  of the parties and held that it was  proved  beyond any shadow of doubt that respondent 1 was using the premises both  for his residence and his professional work since  the inception of the tenancy without any objection on behalf  of the appellant, and so in his opinion the premises could  not be said to have been let for residence alone.  He also found that under the proviso to s. 13(1)(e) it cannot be said that the  premises were used incidentally for profession  without the  consent of the appellant; in that view s. 13(1)(e)  did not  apply to the case.  Since the appellant had  failed  to prove that the premises were residential premises within the meaning of s. 13(1)(e) and (h) the appellate Court held that respondent 1 could not be ejected.  In the result the appeal preferred by the respondents was allowed and the decree  for ejectment  passed by the. trial Court against them  was  set aside. The appellant then took the dispute before the High Court of Punjab by his revisional application.  The High Court has in substance agreed with the view taken by the appellate Court, confirmed its main findings and has dismissed the revisional application.   The  High  Court has  observed  that  in  its opinion the 682 appellate  judge  was fully justified in  holding  that  the premises  were  let  out to the tenant for  the  purpose  of residence and for the purpose of his work as a member of the medical profession.  It has made an alternative finding that even  if  it was assumed that the premises were let  out  to respondent  1 for the purpose of residence the plea of  bona fide  requirement made by the appellant was not  proved  and the argument based upon s. 13(1)(h) was not available to the appellant because the Golf Link building which respondent  1 had  acquired cannot be said to be suitable for the  conduct of business if the neighborhood or the locality in which  it is situated is not suitable for that purpose.  In the result the   High  Court  dismissed  the   appellant’s   revisional application  It is against this decision that the  appellant has come to this Court by special leave. It  is relevant to refer to the material provisions  of  the Act before dealing with the points raised for the  appellant by the learned Solicitor-General in the present appeal.  The Act  applies  to premises which are defined by  s.  2(g)  as meaning,  inter  alia, any building or part  of  a  building

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which is, or is intended to be, let separately for use as  a residence  or for commercial use or for any  other  purpose. Section 13(1) provides that notwithstanding anything to  the contrary  contained  in any other law or  any  contract,  no decree  or  order  for the recovery  of  possession  of  any promises  shall  be  passed by any Court in  favour  of  the landlord  against any tenant including tenant whose  tenancy is  terminated.  This provision is, however, subject to  the exceptions  provided  under  the  several  clauses  of   the proviso.   We  are  concerned with two  of  these.   Section 13(1)(c)  allows a decree for ejectment to be passed if  the Court  is  satisfied that the premises let  for  residential purposes  are required bona fide by the landlord who is  the owner  of  such premises for occupation as a  residence  for himself  or  his family and that he has  no  other  suitable accommodation.  The explanation to this clause provides that for the purpose of this clause residential premises  include any  premises which having been let for use as  a  residence are, without the                             683 consent of the landlord, used incidentally for commercial or other purposes; and s. 13(1)(h) provides for ejectment in  a case  where  the  Court is satisfied  that  the  tenant  has whether before or after the commencement of this Act  built, acquired  vacant  possession  of, or has  been  allotted,  a suitable residence.  It is with these three provisions  that we are concerned in the present appeal. It  would  be noticed that as soon as it is found  that  the premises  in  question  have  been  used  by  respondent   1 incidentally  for  professional purposes and it  is  further established  that this use is made with the consent  of  the landlord  then  the  case goes outside  the  purview  of  s. 13(1)(e) altogether.  In the present case it has been  found by  the appellate Court and the High Court that  right  from the  commencement of the tenancy a substantial part  of  the premises  is  used  by respondent  1  for  his  professional purpose,  and they have also found that this has  been  done obviously   with  the  consent  of  the  landlord.   It   is unnecessary  to refer to the evidence on which this  finding is  based.  Even the trial Court was apparently inclined  to take the same view about this evidence but it did not  fully appreciate the effect of the explanation; otherwise it would have  realised  that the professional use of  a  substantial part  of  the  premises with the consent  of  the  appellant clearly takes the case outside s. 13(1)(e).  In other words, where  premises are let for residential purposes and  it  is shown  that  they are used by the  tenant  incidentally  for commercial, professional or other purposes with the  consent of the landlord the landlord would not be entitled to  eject the tenant even if he proves that he needs the premises bona fide for his personal use because the premises have by their user  ceased  to be premises let  for  residential  purposes alone.  This position cannot be seriously disputed. Faced  with  this difficulty the  learned  Solicitor-General attempted to argue that the very finding made by the  Courts below  about  the nature of the tenancy takes  the  premises outside the purview of s. 2(g) of the Act.  The argument  is that the premises cannot 684 then be said to have been let for use as a residence or  for a commercial use and so they ceased to be premises under the Act.  It is suggested that any other use which is  specified by s. 2(g) would not include a combination of residence with commercial  or professional purposes.  The other  use  there referred to may be use for charity or something of that kind

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which is different from use as residence or commercial  use. In our opinion this argument is not well-founded.  The three kinds of user to which the definition refers are  residence, commerce  and  any  other  purpose  which  necessarily  must include  residence  and  commerce  combined.   It  may  also include   other  purposes  as  suggested  by   the   learned Solicitor-General.  As soon as it is shown that the premises have  been  let  both  for the  use  of  residence  and  for commercial  purposes  it does not follow that  the  premises cease  to  be premises under s. 2(g); they  continue  to  be premises under the last clause of s. 2(g).  This position is wholly  consistent  with the division of the  premises  made with  reference  to their user in paragraphs 3, 4 and  5  of Part A in the Second Schedule to the Act.  Therefore, in our opinion, the argument urged by the learned Solicitor-General on the construction of s. 2(g) cannot be sustained.  It will be  recalled  that the present suit has been  filed  by  the appellant  himself  praying for the  respondent’s  ejectment under  the provisions of the Act, and so the  argument  that the  Act does not apply to the premises in question  can  be justly characterised as an argument of desperation. Then  it is contended that even if the appellant may not  be entitled  to claim ejectment under s. 13(1)(e) he  would  be justified  in  claiming a decree for ejectment  against  the respondent  independently  under s. 13(1)(h).  It  is  urged that as soon as it is shown that respondent 1 has acquired a suitable residence he can be ejected even though s. 13(1)(e) may  not  apply to his tenancy.  In our opinion,  even  this argument   is  fallacious.   Section  13(1)(h)  applies   to tenancies  which are created for essential purposes, and  it provides  that  in the case of such tenancies  even  if  the landlord may not be able to prove his case under s. 13(1)(e) he  would nevertheless be entitled to eject the tenant  once it is shown                             685 that  the  tenant has acquired another  suitable  residence. The  requirement  is  that the  tenant  must  have  suitable residence.   Both words of the requirement are  significant; what  he has acquired must be residence, that is to say  the premises  which  can  be used for  residence  and  the  said premises must be suitable for that purpose.  If the promises from  which  ejectment  is  sought are  used  not  only  for residence  but’  also for profession how could  s.  13(1)(h) come  into  operation?  One of the purposes  for  which  the tenancy is acquired is professional use, and that cannot  be satisfied by the acquisition of premises which are  suitable for residence alone, and it is the suitability for residence alone,  which is postulated by s. 13(1)(h).   Therefore,  in our  opinion, it would be unreasonable to hold that  tenancy which  has  been  created or used  both  for  residence  and profession can be successfully terminated merely by  showing that the tenant has acquired a suitable residence.  That  is the  view  taken by the High Court and we see no  reason  to differ from the conclusion of the High Court. The last argument urged by the learned Solicitor-General  is that  respondent  1 should not be allowed to  approbate  and reprobate as he has done in the present case.  This argument is  based on the conduct of the respondent at  the  previous stages of the dispute.  It is true that in 1941 and  onwards respondent 1 has successfully urged that the tenancy was for residence,  and in consequence has secured the extension  of tenancy  under cl. 11A of the New Delhi House  Rent  Control Order,  1939,  issued under r. 81(2)(bb) of the  Defence  of India  Rules.  The statements made by respondent 1  in  that behalf  indicate that he exercised his option  of  obtaining

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extension of the lease on the ground that the premises  were let out to him for residence.  The argument is that since by the  said  representations  he  had  actually  obtained   an advantage  he  cannot be permitted now to contend  that  the lease is not only for residence. On  the other hand the conduct of the appellant  himself  is also inconsistent with the stand taken by 87 686 him in the present proceedings.  In 1942 when he demanded an increased rent from respondent 1 he made out a case which is inconsistent  with his present story that the premises  were let  out to respondent 1 only for residence.  The case  then made  out by him appears to be that the tenancy  fell  under paragraph 4 of Part A in the Second Schedule to the Act, and that would mean that the premises had not been let only  for residence.  Indeed the conduct of both the parties has  been actuated  solely by considerations of expediency  and  self- interest  in this case, and so it would prima facie be  idle for the appellant to contend that respondent 1 should not be allowed  to approbate and reprobate.  But, apart  from  this fact, it is obvious that the appellant cannot be allowed  to raise this contention for the first time before this  Court. The  plea  sought  to be raised can be  decided  only  after relevant evidence is adduced by the parties, and since  this plea  has  not been raised by the appellant  at  the  proper stage  respondent 1 has had no opportunity to meet the  plea and that itself precludes the appellant from contending that though  the  lease  may  not  be  one  for  residence  alone respondent 1 should not be permitted to urge that it is  not for  residence but for residence and profession, It  is  the settled, practice of this Court that new pleas of this  kind which need further evidence are not allowed to be raised  in appeals under Art. 136 of the Constitution. The result is the appeal fails, but in the circumstances  of this  case we direct that the parties bear their  own  costs throughout.                      Appeal dismissed.                             687