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PETITIONER: S. SANYAL

       Vs.

RESPONDENT: GIAN CHAND

DATE OF JUDGMENT: 14/09/1967

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. SHELAT, J.M.

CITATION:  1968 AIR  438            1968 SCR  (1) 536  CITATOR INFO :  RF         1977 SC2077  (5)  RF         1989 SC1420  (6)

ACT: Delhi and Ajmer Rent Control Act (38 of 1952), s.  13(1)(e)- House  let  out  both for  residential  and  non-residential purposes--Landlord asking for eviction, of tenant on  ground that he wants it for his own residence-Jurisdiction of court to pass decree.

HEADNOTE: Under  s. 13(1)(e) of the Delhi and Ajmer Rent Control  Act, 1952,  the jurisdiction of the court to evict a tenant,  may be exercised in favour of a landlord who wants the  premises bona fide for his own residence, only when the premises  are let out for residential purposes, and not, when the premises being   let  out  for  composite  purposes,  are  used   for residential and non-residential purposes. The  owner  of a house let it out to the appellant  for  her residence   and  for  running  a  school.   The   respondent purchased  the  house and filed a suit for eviction  of  the appellant.   The suit was dismissed, but the High Court,  in revision,  held that a decree in ejectment limited  to  that portion of the house which was used for residential purposes by  the tenant could be granted, and remanded the  case  for demarcating that portion and passing a decree. In appeal to this Court, HELD:The  order of the High Court was  without  jurisdiction and should be set aside. [540A] The  contract  of  tenancy  was  a  single  and  indivisible contract, and, in the absence of any statutory provision  to that effect, it was not open to the Court to divide it  into two  contracts-one of letting out for  residential  purposes and  the  other for non-residential  purposes-and  to  grant relief  under the section in respect of that portion of  the property  which  was being used  for  residential  purposes. [538E] Dr. Gopal Das Verma v. S. K. Bhardwaj & Anr. [1962] 2 S.C.R. 678, followed. Kunwar Behari v. Smt.  Vindhya Devi, A.I.R. 1966 Punj.  481. approved.

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Motilal  and Anr. v. Nanak Chand & Anr.. (1964) Punj.   L.R. 179, overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 853 of 1966 Appeal  by special leave from the order dated  November  16, 1964  of  the Punjab High Court, Circuit Bench at  Delhi  in Civil Revision No. 531-D of 1961. M.  C.  Misra and M. V. Goswami. for  the  appellant.Harbans Singh,  for  the respondent The Judgment of  the  Court  was delivered by Shah,  J.  The appellant Miss Sanyal has since 1942  been  a tenant of a house in Western Extension Area, Karol Bagh, New Delhi,  a part of which is used for a Girls’ School and  the rest 537 for   residential  purposes.   The  respondent  Gian   Chand purchased  the  house from the owner by a  sale  deed  dated September 19, 1956, and commenced an action in the Court  of the   Subordinate  Judge  1st  Class,  Delhi,  against   the appellant for a decree in ejectment in respect of the house. Numerous grounds were set up in the plaint in support of the claim  for  a decree in ejectment, but the ground  that  the respondent  required the house bona fide for his own  resi-- dence  alone need be considered in this appeal.   The  Trial Court  dismissed the suit and the Senior Subordinate  Judge, Delhi  dismissed an appeal from that order holding that  the house  being  let for purposes non-residential  as  well  as residential,  a  decree in ejectment could  not  be  granted under  s. 13(1)(e) of the Delhi and Ajmer Rent Control  Act, 1952.  The High Court of Punjab (Delhi Bench) in a  revision petition  filed by the respondent held that on  the  finding recorded by the First Appellate Court a decree in  ejectment limited  to  that portion of the house which  was  used  for residential’  purposes by the tenant could be  granted,  and remanded  the case to the Rent Controller  "for  demarcating those  portions which were being used for residence" and  to pass a decree in ejectment from those specified portions  of the  house.  Against that order the tenant has  appealed  to this Court. It  is necessary in the first instance to read the  material pro-visions  of  the Delhi & Ajmer Rent Control  Act,  1952. The  expression "premises" is defined in s. 2(g) of the  Act as  "any  building  or part of a building which  is,  or  is intended to be let separately for use as a residence or  for commercial    use   or   for   any   other   purpose,    and includes.  .  .  ."  Section 13  of  the  Act  which  grants protection  to tenants against eviction provides insofar  as it is material :               "(1).    Notwithstanding  anything-   to   the               contrary  contained  in any other law  or  any               contract, no decree or order for the  recovery               of possession of any premises shall be  passed               by any Court in favour of the landlord against               any  tenant (including a tenant whose  tenancy               is terminated):               Provided  that  nothing  in  this  sub-section               shall  apply to, any suit or other  proceeding               for  such recovery of possession if the  Court               is satisfied-               (e)that  the  premises  let  for   residential               purposes  are,  required  bona  fide  by   the               landlord  who is the owner- of  such  premises

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             for  occupation as a residence for himeslf  or               his  family and that he has no other  suitable               accommodation;               Explanation For the purposes of this  clause,               ’residential  premises’ include  any  premises               which  having been let for use as a  residence               are, without the consent of the landlord  used                             incidentally for commercial or other p urposes." 538 it  is clear that s. .13(1) imposes a ban upon the  exercise of the power of the Court to decree ejectment from  premises occupied by a tenant The ban is removed in certain  specific cases, and, one such case is where the premises having  been let  for  residential  purposes the  landlord  requires  the premises bona fide for occupation as a residence for himself or  the members of his family and he has no  other  suitable accommodation.  It is plain that if the premises are not let for residential purposes, cl. (e) has no application, nor on the express terms of the statute does the clause apply where the letting is for purposes residential and nonresidential. In the present case the First Appellate Court held that  the house was "let out for running a school and for  residence". The High Court held that where there is a composite letting, it  is  open to the Court to disintegrate  the  contract  of tenancy,  and if, the landlord proves his case of bona  fide requirement  for  his  own occupation to pass  a  decree  in enjectment limited to that part which "is being used" by the tenant  for  residential purposes.  In so  holding,  in  our judgment.  the High Court erred.  The jurisdiction  ’of  the Court  may  be exercised under s. 13(1)(e) of the  Act  only when the, premises are let for residential purposes and  not when the premises being let for composite purposes, are used in  specific  portions  for purposes  residential  and  non- residential.   The  contract  of tenancy  is  a  single  and indivisible  contract, and in the absence of  any  statutory provision  to  that effect it is not open to  the  Court  to divide it into two contracts-one of letting for  residential purposes, and the other for non-residential purposes, and to grant  relief  under s. 13(1)(e) of the Act limited  to  the portion  of the demised property which "is being  used"  for residential purposes. The  learned Judge purported to follow the decision  of  his (Court in Motilal and another v. Nanak Chand and  others(1). It was held in that case that in cases governed by the Delhi & Ajmer Rent Control Act. 1952 "if the premises are in well- defined  parts  and have been let out  for  residential  and commercial  purposes  together,  the  rule  as  to  eviction regarding the portion that has been used for residence  will govern the residential portion of the same and similarly the rules  of  eviction regarding the commercial  premises  will govern  the commercial portion of the same as laid  down  in the  Act".   In  the view of the Court even if  there  be  a single letting for purposes residential and non-residential, if  defined  portions  of  the premises  let  are  used  for residential  and commercial purposes "it must be  held  that the  letting out was of the commercial part of the  building separately  for commercial purposes and of  the  residential part of the building for residential purposes".  We find  no warrant  for  that  view either in the Delhi  &  Ajmer  Rent Control Act or in the general law of landlord and (1) (1964) Punj.  L.R. 179. 539 tenant  Attention  of, the learned Judge in  that  case  was invited to a judgment of this Court in Dr.  Gopal Das  Verma

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v.   S.   K.  Bhardwaj  and  another(1),   but   the   Court distinguished that judgment on the ground that "the facts of that  case disclosed that they had no applicability  to  the facts of the case" in hand.  Now in Dr. Gopal Das Verma’s(1) case  the  premises  in  dispute  were  originally  let  for residential  purposes,  but later with the  consent  of  the landlord  a  portion  of  the premises  was  used  for  non- residential purposes.  It was held by this Court that "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 is not 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  pur- poses alone".  It was, therefore, clearly ruled that if  the premises  originally  let for residential  purposes  ceased, because of the con,sent of the landlord, to be premises  let for   residential   purposes  alone,  the   Court   had   no jurisdiction to decree ejectment on the grounds specified in s. 13(1)(e) of the Act.  The rule evolved by the Punjab High Court in Motilal’s case(1) is inconsistent with the judgment of this Court in Dr. Gopal Das Verma’s(1) case. If  in  respect of premises originally let  for  residential purposes  a  decree  in ejectment cannot be  passed  on  the grounds  mentioned  in  s. 13(1)(e), if  subsequent  to  the letting,  with the consent of the landlord the premises  are used  both for residential and nonresidential purposes,  the bar  against  the jurisdiction of the Court  would  be  more effective  when the original letting was  for  purposes-non- residential as well as residential.  It may be recalled that the condition of the applicability of s. 13(1)(e) of the Act is letting of the premises for residential purposes. In  this case the letting not being solely  for  residential purposes, in our judgment, the Court had no jurisdiction  to pass  the order appealed from.  We may note that a  Division Bench  of  the Punjab High Court in Kunwar  Behari  v.  Smt. Vindhya  Devi(1) has held in construing s. 14(i)(3)  of  the Delhi Rent Control Act 59 of 1958, material part whereof  is substantially in the same terms as s. 13(1)(e) of the  Delhi &  Ajmer Rent Control Act, that "where the building let  for residence is the entire premises it is not open to the Court to  further sub-divide the premises and order eviction  with respect  to a part thereof".  In our view that  judgment  of the  Punjab High Court was right on the  fundamental  ground that in the absence of a specific provision incorporated  in the statute the Court has no power to break up the unity ’of the   contract  of  letting  and  attribute  incidents   and obligations to a part of the subject-matter of the  contract which are not applicable to the rest. (1) [1962] 2 S.C.R. 678. (3) A.I.R. 1966 Punjab 481, (2) (1964) Punj.  L.R. 179. 540 In  our  view the order passed by the High Court  of  Punjab remanding  the  case for determination; of  the  residential portion  of  the  house occupied by the  appellant  and  for passing  a  decree in ejectment in respect of that  part  is without jurisdiction and must be set aside. The  appeal is allowed and the decree passed by  the  Senior Subordinate Judge is restored.  The appellant in this appeal did  not appear before the High Court to assist  the  Court. In  the circumstances there will be no order as to costs  of this appeal. V.P.S.

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                                 Appeal allowed- 541