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PETITIONER: KARTAR SINGH

       Vs.

RESPONDENT: CHAMAN LAL & OTHERS

DATE OF JUDGMENT: 14/03/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C.

CITATION:  1969 AIR 1288            1969 SCC  (1) 760  CITATOR INFO :  E&F        1978 SC  22  (13)  RF         1979 SC 460  (13)  R          1992 SC 799  (11)

ACT: Delhi  & Ajmer Rent Control Act, 1958 s. 14(1)  (h)-Premises let  for  residence-cum-business to  tenant  predecessor-in- interest   Tenant  acquiring   residential   premises-Tenant establishes same business whether liable to be evicted. Landlord and Tenant-Premises let for  residence-cum-business to   predecessor-in-interest   of   tenant-Tenant   acquires residential  premises-Establishes business after a  break-If liable to be evicted.

HEADNOTE: The  predecessor-in-interest  of the respondents who  was  a practising  advocate,  took  on rent  certain  premises  for residence.   He  could  with  the  written  consent  of  the appellant-landlord  set  up  his  professional  office  also there.  After the death of their predecessor-in-interest the respondents lived in the premises and sometimes later two of the respondents qualified a.% lawyers and started having  an office in the premises.  The appellant filed a suit for  the respondents’ eviction on the ground that the respondents had acquired   a  "suitable  residence"  by  building  a   large residential house and were liable to- be ejected under s. 13 (1) (h) of the Delhi & Ajmer Rent Control Act, 1952.  During the  pendency of the suit the Delhi Rent Control  Act,  1958 came into force and under s. 14(1) (h) of the Act, the  word "suitable" was omitted.  The trial Court dismissed the  suit holding  that since the premises had been let out  to  their predecessor-in-interest  not for residential  purpose  alone but also for business purposes, no eviction could be ordered under  the provisions of s. 13 (1) (h) of the old Act or  s. 14(1)  (h) of the new Act.  The first appellate  Court,  and the  High Court in revision affirmed the order of the  trial Court.  Dismissing the appeal this Court, HELD:Assuming,  that  s.  14(1)(h)  of  the  new   Act, applied, having regard to its language, the original  tenant in  the  present  case  was one who  was  in  occupation  of premises  which were used for a composite  purpose,  namely, residence  and  profession.  There could, therefore,  be  no

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eviction  merely  by acquisition of vacant possession  of  a residence  by  such a tenant and the position would  be  the same with regard to his heirs and legal representatives, the present respondents.  Section 14(1) (h) can apply only where a  tenant  is  in  occupation of  premises  which  are  only residential;  then alone he would have to go if he  acquires or has residential accommodation of his own. [14 F] The decision of this Court in Dr. Gopal Das Verma v. Dr.  S. K. Bhardwaj [1962] 2 S.C.R. 678 applied apprositely to  this case.  The test of dominant intention with regard to the use of  the  premises was not applied in Dr. Gopal  Das  Vermals case. [13 F-G; 15A] In view of the finding of the courts below that the premises had   been  let  to  the  predecessor-in-interest   of   the respondents  for  residence-cum profession,  the  submission that  the  permission was personal  to  the  predecessor-in- interest  of  the respondent, which came to an  end  on  his death could not be entertained. [15 E] L 12Sup.CI/69-2 10

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1966.      Appeal  by  special leave from the judgment  and  order dated  December  8, 1964 of the Punjab High  Court,  Circuit Bench at Delhi in Civil Revision No. 92-D of 1962. S.C.  Manchanda,  S.  K. Mehta, and K.  L.  Mehta,  for  the appellant. Bishan  Narain,  I. S. Sawhney and M. R.  Chhabra,  for  the respondents. The Judgment of the Court was delivered by Grover,  J.  This  is  an appeal by  special  leave  from  a judgment  of  the Punjab High Court (Circuit  Bench  at  New Delhi)  dismissing a petition for revision directed  against the concurrent judgments of the courts below dismissing  the action  for  eviction  filed by the  appellant  against  the respondents from a premises on Ajmal Khan Road, Karol  Bagh, New Delhi. The facts may be succinctly stated.  By means of a rent deed dated  February 13, 1950 the appellant, who is the owner  of the suit premises inducted as a tenant Labha Mal Arora,  now deceased,  who was a practising Advocate.  Clauses  (2)  and (6) of the rent deed were in the following terms               "2. That the tenant agrees to use the property               for his residence.               6.That  the  tenant shall  not  assign  or               sublet  the  above said property or  any  part               thereof  without  the written consent  of  the               landlord,  or  utilise the  Property  for               any purpose other than that mentioned above."               On the same date a letter Ex.  D-2 was written               by  the appellant to the late Labha Mal  Arora               saying:               "As  per our oral talk regarding your  tenancy               for  my  house No. 6/64, I have  no  objection               your    having   your   professional    office               "alongwith residence" there provided it is not               inconsistent with the provisions of Delhi  Im-               provement Trust Act." It  appears and it has been so found, that Labha  Mal  Arora who had his office at a different place shifted the same  to the suit premises where he was residing with his family.  He died  in the year 1952.  Till 1952 the premises  were  being used  only  for residence by his sons and widow.  in  August

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1957 Chamanlal respondent no. 1, who qualified himself as  a legal practioner, started having an office in the  premises. It would appear that the  other 11 son respondent No. 3 also started practising as a lawyer  in the  same  premises  some time  later.   On  21-11-1957  the appellant  served  a  notice on the sons and  widow  of  the deceased  Labha Mal Arora that it has been learnt that  they had constructed a double storeyed building in Naiwala  Karol Bagh  and  that since the suit premises were  required  bona fide for the personal residence of the appellant they should shift  to their house and vacate the rented premises.   This was followed by a second notice to the same effect. As  the  possession of the premises was  not  delivered  the appellant  instituted  a  suit  for  ejectment  against  the respondents  under the Delhi & Ajmer Rent Control Act,  1952 (hereinafter  called the old Act).  Two grounds  were  taken for  seeking  eviction.  One was that  the  respondents  had built  -a  large  residential house and were  liable  to  be ejected  under S. 13(1)(h) of the old Act.  The  second  was that the premises were required bona fide for personal  use. It may be mentioned that the second ground was abandoned  in the trial court.  The suit was contested by the  respondents on  the ground that the late Labha Mal Arora had  taken  the premises on rent for residence as well as for an office  for professional  purposes  and the premises had  been  used  as residence-cum-office.  For this reason it was asserted  that the  construction of a residential house by the  respondents did not furnish a ground for eviction. During the pendency of the suit the Delhi Rent Control  Act, 1958  (hereafter  called  the  new  Act)  came  into  force. Section 14(1)(h) which was equivalent to S. 13(1)(h) of  the old  Act contained the word ’suitable’ which was omitted  as it appeared before the word "residence" in S. 13(1)(h);  the relevance and significance of that omission will be  noticed presently.  The trial court relied inter alia on the  letter Ext.   D-2  and  the  statement  of  Chaman  Lal  respondent according to whom two rooms were used by the late Labha  Mal Arora  as his office and another one room was being used  by his  clerk  and  held that the premises  had  been  let  for "residence-cum-business  purposes".  The argument  that  the late Labha Mal Arora had only been granted a licence to  use the premises for professional purposes and that the  licence came  to  an end on his death, was repelled.  It  was  found that  the  respondents had built a  residential  house,  and since  the  premises  in  suit had been  let  out  to  their predecessor-in-interest  not for residential  purpose  alone but also for business purposes no eviciton could be  ordered under  the  provisions of S. 13(1)(h) of the old Act  or  s. 14(1)  (h) of the new Act.  The Additional Senior  Sub-Judge dismissed the appeal preferred by the appellant in agreement with the decision of the trial court.  The following portion from his judgment relating to the finding with regard to the purpose for 12 which  the premises had been let out to the late  Labha  Mal Arora may be reproduced:               "It  is in evidence that prior to  taking  the               premises  in suit on rent from the  appellant,               Labha    Mal   deceased,   was   having    his               professional  office as an advocate  in  Sadar               Bazar,  Delhi, and on taking the  premises  in               suit on rent he had shifted his office in  the               suit  premises.  This fact is fully  supported               by   the   statement  of  Shri   Chaman   Lal,

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             respondent  No. 1, and the notices, Ex.   D.W.               9/1,  and  D.W. 9/2 issued by Shri  Labha  Mal               from  the suit premises.  Shri Chaman Lal  has               stated that out of the five rooms of the  suit               premises, two rooms were’ used by his deceased               father as office.  From the above also ’it  is               proved that the suit premises were let by  the               appellant  to  Shri  Labha  Mal  deceased  for               residence-cum-business purposes." On  the question of the ambit and scope of S.  13(1)(4)  _of the old Act the learned Judge expressed the opinion that  it would be unreasonable to hold that a tenancy which had  been created  both  for purposes of residence and carrying  on  a profession  could  be  successfully  terminated  merely   by showing that the tenants had acquired a suitable residence. The  appellant approached the High Court on  the  revisional side.  J. S. Bedi, J. considered the rent deed Ext.  P-3 and the letter Ex.  D-2 as also the other evidence  and came  to the  same conclusion at which the courts below had  arrived. Reliance  was  placed on the additional fact that  when  the suit  was instituted the premises were being used by  Chamal Lal both for purposes of residence and office. Before dealing with the contentions raised on behalf of  the appellant it is necessary to refer to S. 13(1)(h) of the old Act and S. 14 (1) (h) and S. 57 of the new Act.  Section  13 (1)  (h)  of the old Act contained a provision that  if  the Court  was satisfied inter alia that the tenant had  whether before or after the commencement of the Act built,  acquired vacant  possession of or been allotted a suitable  residence it could order ejectment.  In S. 14(1)(h) of the new Act the only  change  that  was made was that  the  word  "suitable" before  the word "residence" was omitted.  Under section  57 of the new Act notwithstanding the repeal of the old Act all suits  and other proceedings pending under that Act were  to be  continued and disposed of in accordance with  provisions of  the  old  Act.   According  to  the  first  proviso   to subsection  (2)  the court or other  authority  "shall  have regard to the provisions of this Act.,, In Karam Singh Sobhi & Anr. v. Shri Pratap Chand 13 & Anr. (1) this Court had to consider the effect of what was contained  in  S. 57 of the new Act.  It was held  that  the effect  of  the first proviso to S. 57(2) was  that  pending proceedings  would  continue  under the old  Act  with  this addition  that  where the new Act had slightly  modified  or clarified  the previous provisions, those modifications  and clarifications  would  govern the case.  Similarly  in  Brij Kishore  & Others v. Vishww Mitter Kapur & Others(1) it  was laid down that the first proviso to S. 57(2) of the new  Act must be read harmoniously with the substantive provisions of subs.  (2)  and the only way of harmonising the two  was  to read the expression "shall have regard to the provisions  of this’  Act" as merely meaning that where 1 the new  Act  had slightly modified or clarified the previous provisions those modifications  and clarifications should be applied.   These words  did not take way what was provided by sub-s. (2)  and ordinarily the old Act would apply to pending proceedings. It has been contended by Mr. S. C. Manchanda for the  appel- lant that the new section would be applicable as no  radical departure  has been made in S. 14(1) (h) by omission  d  the word "suitable" and that there was only slight  modification or clarification of the previous provision, namely, S. 13(1) (h).  In our opinion whether S. 1 3 (1 ) (h) of the old  Act or S. 14 ( 1 ) (h) of the new Act is applied the result,  as will  be  presently seen, will be the same  in  the  instant

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case. Coming to the question whether the suit premises were  taken by  the  late  Labha Mal Arora for  residence  only  or  for residence  as well as for use as office for carrying on  his professional  work  of  a  legal  practitioner,  it  may  be observed  that the concurrent finding of the court below  is that  the  premises  had  been  taken  for  residential-cum- business  or professional purposes.  That finding being  one of the fact must be accepted as final.  It would, therefore, seem that the decision of this Court in Dr, Gopal Das Verma v.   Dr.    S.   K.   Bhardwaj   and   Another(")   can   be appositely applied. In   that case it was held that a tenant could not be ejected under S. 13(1)(h)  because the  tenancy of premises let out or used for residence and carrying on of profession  could not be terminated merely by  showing  that the  tenant  had acquired a suitable residence.   There  the premises  had been let out to a doctor who was an ear,  nose and  throat specialist.  It was found that the premises  had been  used  by  the  tenant  for  professional  as  well  as residential purposes with the consent of the landlord.   The case, therefore fell outside s. 13 (1) (e) but even under S. 1  3 ( 1 ) (h) eviction could not be ordered.  This is  what was said in that connection. (1)  [1964] 4 S. C. R. 647.          (2) A. I. R. (52)  1965 S. C. 1574. (3) [1962] 2 S. C. R. 678 at p. 685. 14               "If  the  premises  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 the 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." In  the above case this Court further held that S.  2(g)  of the  old Act which defined the word "Premises"  referred  to three kinds of user to which the premises can be put to i.e. residence, commerce and any other purpose.  This necessarily included  residence  and commerce combined.   Since  it  was shown that the premises had been let both for residence  and for commercial purposes it did not follow that the  premises ceased  to be premises under S. 2(g); they continued  to  be premises  under  the last clause’ of  that  provision.   The definition  of ’premises’ in the new Act is contained in  S. 2(1)  and it is the same as in S. 2(g) of the old Act.   The word  ’tenant’  is defined by S. 2 (1 ) of the, new  Act  to mean "any person by whom or on whose account -or behalf  the rent of any premises is or but for a’ special contract would be, payable ............Having regard to S. 14(1)(h) of  the new  Act the original tenantin the present case was one  who was  in  occupation  of  premises  which  were  used  for  a composite purpose, namely, residence and profession.   There could,  therefore, be no eviction merely by  acquisition  of vacant  possession of a residence by such a tenant  and  the position  would  be the same with regard to  his  heirs  and legal representatives, the present respondents.  It is quite clear  that S. 14(1)(h) can apply only where a tenant is  in

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occupation  of a premises which are only  residential;  then alone he would have to go if he acquires or has  residential accommodation of his own. Mr.  Manchanda has next contended that the decision of  this Court  in Dr. Gopal Das Verma’s case(1)  is  distinguishable because  it  appeared from various facts that  the  dominant intention  was  to use the premises as a nursing  home.   He submits that in the present case the dominant intention  was to  use  the premises as residence and the  late  Labha  Mal Arora was -merely given permission or licence which was of a personal nature to have his (1)  [1962] 2 S.C.R.678 at p.685. 15 office  as well there.  We are unable to find that any  test of dominant intention was applied ’in Dr. Gopal Das  Verma’s case(1). The position in England is different where premises are  let partly  for  business purposes and  partly  for  residence.- There  the  statutory  provisions  lay  down  that  where  a dwelling is let partly for business purposes and partly  for residence,  the Rent Act applies to the whole(1).   Moreover where  there is no covenant as to user and the  question  is what  user was contemplated, the Court will infer  what  use was contemplated by the tenancy agreement; the test was "the main purpose" or "predominant intention" or "the  prevailing contemplation"  or "a preponderating contemplation" for  the letting.  (2 ) (ibid, p. 69).  We are unable to  derive  any assistance from the English cases on the point.  ’ Lastly  Mr.  Manchanda sought to raise the question  of  the permission contained in the letter Ext.  D-2 being a licence which was personal to late Labha Mal Arora and which  should be  deemed  to  have come to an end on  his  death.   It  is further  pointed out that after his death for a  number  of, years   the  respondents  used  the  premises   purely   for residence. In view  of the finding of the courts below  that the  premises had been let to the predecessorin-interest  of the  respondents for residence-cum-business  or  profession, this submission cannot be entertained. For  all  the  above reasons this appeal  fails  and  it  is dismissed with costs., Y.P.                           Appeal dismissed, (1)  [1962] 2 S. C. R. 678 at p. 685. (2)  (See the Rent Acts by R. E. Megarry Q. C. Tenth Edition pp. 87-88.)   16