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PETITIONER: HIRALAL KAPUR

       Vs.

RESPONDENT: PRABHU CHOUDHURY

DATE OF JUDGMENT19/02/1988

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MUKHARJI, SABYASACHI (J)

CITATION:  1988 AIR  852            1988 SCR  (2)1058  1988 SCC  (2) 172        JT 1988 (1)   371  1988 SCALE  (1)360

ACT:      Civil  Procedure  Code,  1908-Section  115-High  Court- Powers of  revision under  Rent Control Acts-Not entitled to enter into  merits of  factual controversies between parties and reverse findings of fact.      Delhi  Rent  Control  Act,  1958-Section  14(i)(e)  and section 25  B(8)-Landlord-An  advocate-Whether  entitled  to possession of  premises for  bonafide  personal  residential requirement of  himself and  for setting  up an  office in a part thereof-Premises  let out  pursuant to  oral agreement- Monthly rent  Rs.600 tenant  paying  rent  by  two  separate cheques-Rs.250 drawn by himself and Rs.350 drawn in the name of trust-Whether there are two separate tenancies.

HEADNOTE: %      The appellant  is an  advocate.  Pursuant  to  an  oral agreement, he  let out  to the  respondent  a  part  of  his residential premises  comprising  of  two  rooms  above  the garage, referred to as "servants’quarters" and a hall on the ground floor,  in July  1976 at  Rs.600 p.m.  Since November 1976 the  respondent started  paying two separate amounts of Rs.250 and  Rs.350 the  latter amount by means of cheques in the name of Balkunj, a registered trust, of which he was the Secretary.      In January 1980 the landlord filed an eviction petition under proviso (e) to section 14(1) of the Delhi Rent Control Act, 1958  on the  ground that  he  required  the  servants’ quarters for  his servants  and the  hall for his office and library. The respondent resisted the petition on a number of grounds. The  two grounds with which this Court is concerned are that  (1) two  separate tenancies  came to be created in respect of the premises in dispute and hence the petition as filed was  not maintainable  and (2) the intended use of the hall  as  office  constituted  a  non-residential  use,  and therefore outside  the purview  of proviso  (e)  to  section 14(1).      The Rent  Controller  held  that  there  was  a  single tenancy, that  the landlord  bona fide required the premises for his use, and that setting up his office and library fell within the  scope of  the relevant  statutory provision. The

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High Court in the revision petition under sub 1059 section (8) of section 25B of the Act, reversed the findings of the  Rent Controller  and  modified  the  eviction  order passed by him restricting it to the servant’s quarters only.      In regard  to the  first ground, the respondent submits that the  fact that the landlord was aware of the use of the hall by  the trust  and his  acceptance of  the  cheques  on behalf of  the trust  prove that the trust had been accepted as the tenant in respect of the hall. In this connection the respondent relies on the appellant’s letter dated 26.11.1978 to the respondent, in which the landlord specifically refers to the  fact that  five of  the  dishonoured  cheques  being returned by him "belong to the trust". The appellant, on the other hand,  submits that  acceptance of  two cheques  alone cannot lead  to the  conclusion that  a separate tenancy had been created  in respect of the hall between Balkunj and the petitioner. The  appellant further relies on the two letters dated  5.8.1977   and  15.1.1978   written  by  him  to  the respondent categorically  denying the  tenancy on  behalf of Balkunj. He  further submits  that the  finding of  the Rent Controller  that   there  was  only  a  single  tenancy  was essentially  a  finding  of  fact,  based  on  material  and circumstances, with  which the  High Court  should not  have interfered.      In regard  to the  second ground  the respondent  urges that the intended use of the hall by the appellant as office and library could not amount to a residential requirement.      Allowing the appeal this Court, ^      HELD: (1)  It is  no doubt  true that the rent has been paid by two cheques since November 1976 but the mere payment of rent  by two  cheques, in the circumstances of this case, cannot mean  that there were two tenancies. The landlord was entitled to  a rent of Rs.600p.m. and so long as he got this amount it was immaterial for him whether the amount was paid in a  lump sum  or by one cheque or more than one cheque and who the  makers of  the cheques  were. It  is not unusual to come across  cases where  a tenant  pays the  rent not  by a cheque drawn  by himself but by a cheque drawn by some other concern in  which he  has an  interest such as a partnership concern, a  limited company  etc. It  is also  true that the landlord might  have been  aware that  certain activities of Balkunj were being carried on in the hall. But this can only mean that the landlord permitted the tenant to use a portion of the  premises for  running the  activities of  the trust. Even  assuming   that  these   two  facts  might  have  been sufficient to  draw any  such inference as is suggested, the two letters of the landlord, dated 5.8.77 and 15.1.78 1060 place  the   matter  beyond  all  doubt.  The  landlord  had categorically asserted  in these  letters that  he  did  not recognize Balkunj as his tenant. [1063G-H; 1064A-E]      (2) The  finding of  the Rent Controller that there was only a single tenancy was essentially a finding of fact with which the  High Court  should not  have  interfered.  Though under Section  25(B)(8) of  the Delhi  Rent Control  Act the powers of  the High  Court are  somewhat wider  than similar powers of  revision under section 115 of the Civil Procedure Code, it  is well  established by  a series  of decisions of this Court that the power of revision under the Rent Control Act does not entitle the High Court to enter into the merits of the  factual controversies  between the  parties  and  to reverse findings of fact in this regard. [1064F-H; 1065A]      (3) Any  professional man of standing would necessarily

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have to  set apart  a portion  of his  residence as a study, office or  library and  the premises  do not cease to be his residence because  of that.  In ascertaining  the bona  fide need of  residence, in the case of a lawyer, the fact that a room has  to be  used as an office cannot be a consideration extraneous to  the scope  and content  of clause(e)  of  the proviso to s. 14(1). It may be that in a case where a lawyer seeks to  evict a  tenant on  the  ground  that  the  entire premises sought  to be  got vacated are solely needed by him for use  as his  office and library, his requirement may not satisfy the  requirements of  clause(e) of the proviso to s. 14(1). [1066A-B; 1065F-G]      (1) Sheodhari  Rai v. Suraj Prasad Singh, AIR 1954 S.C. 758; (2)  Helper Girdharbhai  v. Saiyed Mohmad, [1987] 3 SCC 538; (3)  Sushila Devi  v. Avinash  Chandra Jain,  [1987]  2 S.C.C. 219;  (4) Mohanlal  v. Kondi, [1979] 3 S.C.R. 12; (5) Subramania Mudaliar v. Kolapur Traders, [1981] 4 SCC 511 and (6) Khanna v. Batra, [1966] 2 D.L.T. 306, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3015 of 1987.      From the  Judgment and order dated December 11, 1985 of the Delhi High Court in Civil Revision (R) No. 47 of 1984.      Rajinder Sachhar,  P.C. Mudgal  and S.P.  Gupta for the Appellant.      Anil Nauria and Mrs. Rekha Pandey for the Respondent.      The Judgment of the Court was delivered by 1061      RANGANATHAN, J. The appellant is an advocate. He is the owner of  premises No. H-2/6 Model Town, Delhi. He let out a part of  this premises  comprising a  set of rooms above the garage (which  may be  briefly  referred  to  as  ’servants’ quarters’) and a hall on the ground floor of the building to the respondent.  The letting  was oral and on a monthly rent of Rs.600  (exclusive of electricity and water charges) from July 1976.      2. In  January 1980,  the landlord  filed  an  eviction petition under  proviso (e)  to section  14(1) of  the Delhi Rent Control  Act. He  claimed that  he needed  the premises bona fide  for  the  personal  residential  requirements  of himself and  the members of his family. His case was that he was having his office at Chandni Chowk on a first floor but, as he  had been advised by the doctor not to climb upstairs, he desired  to move  the office  and library  to the  ground floor hall of the premises in question. He also claimed that the servants’  quarters were  required for  the use  of  his servants and their families.      3. The  petition was  resisted by  the respondent  on a number of grounds. We are, however, concerned here only with two of  the grounds  put forward  by the  tenant. His  first submission was  that though  the premises had initially been taken only  for the residential use of himself, subsequently two separate  tenancies  had  been  created  in  respect  of premises in  dispute. He claimed that he was the tenant only of the  servants’ quarters  and that  the hall or the ground floor had  been let  out to  Bal Kunj  (a society registered under the  Societies Registration Act, 1860) of which he was the Secretary.  It was  pointed out  that from November 1986 onwards, the  petitioner was  being paid  two sums, a sum of Rs.250 by the respondent and another sum of Rs.350 per month by the  respondent on behalf of Bal Kunj. It was, therefore, contended that  the petition  as filed was not maintainable.

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The second  plea  taken  by  the  respondent  was  that  the intended use  of the  ground floor hall as the office of the petitioner-lawyer constituted a non-residential use and was, therefore, outside the purview of proviso (e) to s. 14(1).      4. The  Rent Controller rejected the contentions of the tenant. He  held that  there had  been a single tenancy. The premises had  been let  out by  the  landlord  only  to  the respondent, Prabhu Chaudhury, on a rent of Rs.600 per month. On the  second aspect,  the claim  of the  landlord that  he required the  entire premises  for use  by himself  and  his servants and that the ground floor was needed for setting up his office  and library  was held  by the Rent Controller to fall within the scope of 1062 the  relevant  statutory  provision.  The  Rent  Controller, therefore,  directed   eviction  as   prayed  for   by   the petitioner.      5. The above order had been passed under the provisions of section  25B of  the Delhi Rent Control Act. The landlord having succeeded  in his eviction petition, the tenant filed a revision  petition before  the Delhi High Court under sub- section (8) of that section. The learned Judge who heard the petition reversed  the findings  of the  Rent Controller. He held that  the landlord  would be  entitled  to  be  put  in possession only  of the  servants’  quarters  and  that  the petitioner could not claim the use of the hall on the ground floor. In  the result, therefore, the learned Judge modified the order  passed by  the Rent Controller. He restricted the eviction  order  granted  by  the  Rent  Controller  to  the servants’ quarters.  We may mention here that, in compliance with the  order of  the learned  Judge, the  respondent  has since  vacated   and  delivered  vacant  possession  of  the servants’ quarters  to the  landlord. The controversy before us is restricted to the hall on the ground floor.      6. The first question that arises for our consideration is whether  the High  Court was  right in holding that there were two separate tenancies, one in respect of the servants’ quarters and  the other in respect of the hall on the ground floor. The  position is this. There was oral evidence let in by the petitioner to show that the premises had been let out to the respondent in July 1976 at Rs.600 p.m. It appears the respondent started paying two separate amounts of Rs.250 and Rs.350 since  November 1976. It also appears that the former amount was paid by the respondent and the letter by means of cheques in the name of the trust. It also seems to be common ground that  the  respondent  was  occupying  the  servants’ quarters and  the Bal  Kunj was  occupying the  hall on  the ground floor  though it  is not  clear at what point of time this happened.  Counsel for  the respondent  relies on these circumstances. He  wants to use the fact that the petitioner who was  also occupying  a hall on the ground floor adjacent to the  hall occupied  by the  trust clearly  must have been aware of  the use  of the  hall to submit that the trust had been accepted  as a  tenant in respect of the hall at Rs.350 p.m. He  also relies  on  a  fact-which  he  says  the  Rent Controller completely  missed-that in 1978, when a number of cheques given to the landlord had been returned dishonoured, the landlord  wrote a  letter dated 26.11.1978 to the tenant in which  he specifically  referred to the fact that five of the cheques  "belong to Balkunj." It is submitted that these facts clearly  put the  matter beyond all doubt that, though initially the premises had been taken only by the 1063 respondent, it  had subsequently  been  converted  into  two tenancies. Learned  counsel for  the landlord  on the  other

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hand submitted  that the question whether there was a single tenancy or  two tenancies is essentially a question of fact. The   Rent    Controller,   after   appreciating   all   the circumstances, had  come to  the conclusion that there was a single tenancy.  There  was  clear  evidence  to  show  that initially, in  July 1976,  the  landlord  had  let  out  the premises only  to the  respondent  for  a  monthly  rent  of Rs.600. It  is true  that subsequently,  after a few months, the tenant  paid the rent by way of two cheques-one drawn by himself and  the other  drawn on  behalf  of  Balkunj.  But, learned  counsel   submits,  relying   on  the  decision  in Sheodhari Rai v. Suraj Prasad Singh, AIR 1954 S.C. 758, this alone cannot  lead to the conclusion that a separate tenancy had been  created in respect of the hall between Balkunj and the petitioner.  Learned counsel  also pointed  out that the Rent Controller  had referred to two important documents, AW 8/18 and  AW 8/20. These were two letters dated 5.8.1977 and 15.1.1978.  In   these  two   letters   the   landlord   had specifically and  categorically denied the tenancy on behalf of Balkunj.  What had  happened was  that the  respondent on behalf of Balkunj had written to the landlord making certain claims for  repairs etc.  in respect of the hall occupied by Balkunj. Immediately  the landlord wrote back saying that he had nothing to do with Balkunj, that the tenancy was only in favour of  the respondent,  and that  he did  not  recognise Balkunj  as   his  tenant.   These  two   letters   remained unanswered. Learned  counsel for  the  landlord,  therefore, submitted  that  there  was  ample  material  and  clinching evidence  before   the  Rent   Controller  to  come  to  the conclusion that  there was  a single  tenancy and  that  was between  Prabhu   Chowdhary  and   the  landlord  and  that, therefore,  there   was  no  question  of  there  being  two tenancies as held by the High Court.      7. We are inclined to agree with this submission of the landlord. The  initial tenancy  was only  an  oral  tenancy. Nevertheless there  were two  witnesses who deposed that the original tenancy  agreement was  only between the petitioner and the  respondent. At  that time, admittedly, there was no question of  Balkunj being  the tenant  in  respect  of  any portion of  the premises.  All that  the respondent  says is that subsequently  cheques were  being issued in the name of Balkunj also  and that  this must  be taken  to lead  to  an inference that  the petitioner  had accepted  Balkunj as its tenant. It  is very difficult to accept this argument. It is no doubt  true that  the rent  has been  paid by two cheques since November  1976 but  the mere  payment of  rent by  two cheques, in the circumstances of this case, cannot mean that there were  two tenancies.  The landlord  was entitled  to a rent of Rs.600 p.m. and so 1064 long as  he got  this amount,  it  was  immaterial  for  him whether the  amount was  paid in a lump sum or by one cheque or more  than one  cheque and  who the makers of the cheques were. It  is not unusual to come across cases where a tenant pays the  rent not  by a  cheque drawn  by himself  but by a cheque drawn  by some  other concern  in  which  he  has  an interest such  as a partnership concern a limited company or other entity  in which  he is  interested. So, the mere fact that for  some reason  the respondent  chose not  to issue a single cheque  for the  rent of  Rs.600 but that he gave two separate cheques,  one for  Rs.250 drawn  by himself and one for Rs.350  drawn in  the name  of Balkunj cannot lead to an irresistible conclusion  that the  tenancy  was  created  in favour of  Balkunj with the concurrence of the landlord. The letter dated 26.11.78, far from "clinching" the respondent’s

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claim, as  held by  the High  Court, does  not in  our  view improve the tenant’s case at all. It only evidences the fact that the  landlord was  receiving the  cheques issued in the name  of   the  trust   in  discharge  of  the  respondent’s obligation to  pay the  rent of  Rs.600 p.m. It is also true that, since  the landlord  was also  occupying a part of the ground floor premises, he might have been aware that certain activities of Balkunj were being carried on in the hall. But this can only mean that the landlord permitted the tenant to use a  portion of  the premises  let  out  for  running  the activities of  the trust.  Even assuming  that, standing  by themselves these  two facts  might have  been sufficient  to draw any  such inference as is suggested, the two letters of 5.8.77 and  15.1.78 place  the matter  beyond all doubt. The landlord categorically  asserted in  these letters  that  he does not  recognize Balkunj  as  his  tenant  and  that  the respondent alone was his tenant. There was no reply to these letters from  the respondent.  In these  circumstances there can be  no doubt  at all  that the premises had been let out only to  the respondent  by the  petitioner and that Balkunj cannot be  considered to  be a tenant of the premises or any portion thereof.      8. The  finding of  the Rent  Controller that there was only a  single tenancy  was essentially  a finding  of  fact based on  the material  and circumstances  to which  we have adverted and  we are  also inclined to accept the conclusion of the  Rent Controller  as the  correct one.  We also agree with the landlord that this is a finding with which the High Court should  not  have  interfered.  Though  under  Section 25(B)(8) of  the Delhi  Rent Control  Act the  powers of the High  Court  are  somewhat  wider  than  similar  powers  of revision under  section 115  of the Civil Procedure Code, it is well  established by  a series of decisions of this Court that the  power of revision under the Rent Control Acts does not entitle  the High  Court to enter into the merits of the factual con 1065 troversies between  the parties  and to  reverse findings of fact in  this regard.  It is sufficient, in this context, to refer to the decision of this Court in Helper Girdharbhai v. Saiyed Mohmad,  [1987] 3  SCC 538 which was reviewed earlier decisions. The  decision in  Sushila Devi v. Avinash Chandra Jain,  [1987]   2  S.C.C.  219  to  which  counsel  for  the respondent referred, lays down no different principle.      9. So  far as  the second  point is  concerned, learned counsel for the respondent relied upon two decisions of this Court in  Mohanlal v.  Kondi, [1979]  3  S.C.R.  12  and  in Subramania Mudaliar v. Kolapur Traders, [1981] 4 SCC 511. In the former,  it was  held that the profession of a lawyer is "business" within  the meaning  of S.  10(3)(a)(iii) of  the Andhra Pradesh  Building (Lease,  Rent &  Eviction)  Control Act, 1960.  The latter is a decision to a like effect. These decisions are not of much help in the context of the present case and  of the  provisions of clause (e) of the proviso to s. 14(1) of the Delhi Rent Control Act. Here the landlord is seeking to  recover possession  of a  residential  premises. There is,  as we  have already  held, a  single  tenancy  in favour of  the respondent  for a residential purpose. Though learned counsel  for the  respondent invited us to say that, so far  as the  hall was  concerned, the premises were being used by a trust and, hence for a non-residential purpose, we cannot permit  him to  raise this  plea. Such a plea was not taken before  the High  Court. Against the order of the High Court,  the  respondent  had  also  filed  a  special  leave petition to  this Court  which has  been  dismissed.  It  is

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therefore not  open to  the respondent  to urge  this  point before us.  The only  point taken  before the High Court was that the  petitioner could not get relief because the use of the hall  by a  lawyer as  his office  and library could not amount to  a residential  requirement. We  shall, therefore, confine ourselves to this question.      10. In  our opinion,  the contention  of the respondent cannot be  accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated  are solely  needed by him for use as his office and  library,   his  requirement   may   not   satisfy   the requirements of  clause (e)  of the proviso to s. 14(1). But this is  quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being  a lawyer  desires to  use  a  part  of  such residence as a study, office or library, such use would be a non-residential use.  Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes  and the  premises do  not  cease  to  be  his residence because 1066 of that.  in the present case, the petitioner seeks eviction of  the   suit  premises   for  his  bona  fide  residential requirement and  the use  of the  hall as  an office is only incidental to  such a  requirement. In ascertaining the bona fide need  of residence,  in the  case of a lawyer, the fact that a  room has  to be  used  as  an  office  cannot  be  a consideration extraneous  to the scope and content of clause (e) of the proviso to s. 14(1).      11. To  test  our  conclusion,  we  may  see  what  the position would  be in  the converse case. If, in the present case, the  petitioner had  stated that  he required the hall because he  had no  living room in the premises which he was occupying as  the only  room there  was being, or had to be, used by  him as  an office, the petitioner’s claim could not have been  rejected, for  he would then have needed the hall clearly as part of his residential requirement. The decision in Khanna  v. Batra,  [1966] 2  D.L.T. 306 illustrates this. There, an  advocate, had asked for eviction of a tenant from the first floor as the ground floor premises occupied by him were not  sufficient for his needs for purposes of residence and office.  The Rent  Control Tribunal  held that since the appellant  intended  to  convert  the  existing  residential accommodation in  his possession  into an office and library for the  use of  his clerk  and clients, such a user was not permissible in  law. Reversing  this conclusion,  Grover,  J observed:           "It seems to me that the Rent Control Tribunal was           clearly in  error in  thinking that merely because           the appellant  wanted to  use the accommodation in           his possession for professional purposes, he could           not claim  benefit of  the provision  contained in           clause (e)  of the proviso to s. 14(1) of the Act.           It was  this error  which led to the conclusion at           which the  Rent Control Tribunal arrived upholding           the decision  of  the  Controller  on  the  second           point, namely  the requirement of the appellant on           personal grounds.  I cannot  therefore, accede  to           the submission  of the  learned  counsel  for  the           respondent that the finding of the Rent Controller           Tribunal with  regard  to  the  personal  need  or           requirement was  one of  fact and thus immune from           challenge in the second appeal."      12. Should  the position  is different  in  this  case?

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Merely because  the petitioner  has  come  forward  with  an honest plea  that he  intends to use a part of his residence as an office, should a different result follow, particularly in a case like this where ill-health compels him to have his 1067 office at  home? Should the result depend on the jugglery of pleadings or  the substance  of the  matter?  We  think  the substance should  prevail. In  our opinion, where a landlord applies for  the possession of his residential premises, his bona fide  requirement of  the premises  for his residential purposes will  not stand  vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.      13. We  are, therefore,  of opinion that the High Court should not  have interfered  with the  findings of  the Rent Controller on  this point  as well. This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are  inclined to  agree with  the conclusion  of the Rent Controller.      14. In  the result,  we hold that the High Court was in error in  granting relief  to the petitioner only in respect of the  servants’ quarters  and in  declining to  grant  the petitioner relief  in respect  of the  hall.  We  allow  the appeal, set aside the judgment of the High Court and restore the order  of the  Rent Controller  that the  petitioner  is entitled  to  the  possession  of  the  entire  premises  in question. There will, however, be no order as to costs. R.S.S.                                       Appeal allowed. 1068