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PETITIONER: SMT. A.N.KAPOOR

       Vs.

RESPONDENT: SMT. PUSHPA TALWAR

DATE OF JUDGMENT31/01/1992

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) MOHAN, S. (J)

CITATION:  1992 AIR  799            1992 SCR  (1) 472  1992 SCC  (2)  80        JT 1992 (1)   348  1992 SCALE  (1)204

ACT:      Delhi Rent Control Act, 1958:      Section  14  (1) (e) Explanation-Right of  landlord  to seek  eviction  of  tenant-‘premises  let  for   residential purposes’-Interpretation   of-Includes  Premises   let   for residential  purpose  but incidentally used  for  commercial purpose without consent of landlord.      Premises  let  for residential  purpose-Landlord  aware that foreign students were staying with the tenant as paying guests-Held premises used as boarding house and not  private residence-Landlord not entitled to evict tenant.

HEADNOTE:      The  respondent  was  the  daughter  of  the   original landlord  who had let out the premises to the  appellant  on October 1, 1961.  She purchased the property from her father on  June  27, 1964 and thus stepped into his  shoes  as  the ‘landlord’ as defined under section 2 (e) of the Delhi  Rent Control Act, 1958.      The  respondent sought eviction of the  appellant  from the  demised  premises on the ground  of  personal  bonafide requirement.   The appellant resisted the eviction  petition on  the  grounds  that the premises were  not  let  out  for residential  purpose  only but for commercial  purpose  also i.e. for keeping foreign students as paying guests, and that the respondent does not have a bonafide need or  requirement as such.      Relying upon the Rent Note and the appellant’s  letters dated  October 7, 1961 and August 18, 1962 addressed to  the respondent’s  father,  and the earlier  proceedings  between them  for  eviction of the appellant on the ground  of  sub- letting  the  premises  for  commercial  purpose,  both  the statutory authorities-the Additional Rent Controller and the Rent  Control  Tribunal found that the  premises  which  had also been used incidentally for commercial purposes so as to exclude  the application of section 14(1) (e) read with  the explanation   thereto,   and  dismissed   the   respondent’s application for eviction.                                                        473      This  finding  was reversed by the High  Court  in  the respondent’s second appeal under Section 29 of the Act.  The

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High  Court  found  that  there  was  no  evidence  for  the statutory authorities to come to the conclusion, which  they did, as regards the premises having been used for commercial purpose.   The High Court accepted the appeal and set  aside the  judgment and order of the Rent Controller and the  Rent Control Tribunal, and allowed the eviction application.      The  tenant appealed to this Court by  Special  appeal. On  behalf of the respondent-landlord it was submitted  that even if the High Court was wrong in coming to the conclusion that  there  was no evidence about  foreign  students  being lodged  by the tenant, the mere fact that  foreign  students stayed as paying guests in the premises did not imply either that  they lodged with the consent of the landlord  or  that such  lodging amounted to a commercial use of the  building, and that the High Court was right in saying that the  ground contained in clause (e) of sub-section (1) of section 14 was attracted.      Allowing the appeal, and setting aside the judgment  of the  High Court, and restoring the orders of the  Additional Rent Controller and the Rent Control Tribunal, this Court,      HELD:   1.   The   finding  of  the   High   Court   is unsustainable.   The High Court was not justified in  saying that  there was no evidence to hold that the  premises  were used  for  boarding  and  lodging  foreign  students.    The specific plea of the landlord in the earlier proceedings was that  the  tenant had sub-let the  premises  for  commercial purposes.   The tenant contended that she had  never  parted with  her exclusive possession of any part of  the  premises and the foreign students who were lodging with her were  her paying  guests and were not her tenants.  The plea  of  sub- tenancy  raised  by the landlord was thus  rejected  on  the ground  that those who lodged with her were not  sub-tenants but only paying guests. [476 G-H]      2.  The  letters dated October 7, 1961 and  August  18, 1962  clearly disclosed the fact that foreign students  were lodged in the premises as the guests of the appellant.   The evidence let in by the appellant and not contradicted by the respondent clearly showed that apart from the appellant  all the  other  inmates of the premises  were  foreign  students staying  with  her  as her  paying  guests.   The  appellant testified that she earned her livelihood from the income she received  as lodging fee from students who lodged with  her, and                                                        474 that  is  was  out  of that income  that  all  her  personal expenses including the rent payable by her for the  premises had  been  met.   These are the findings of  the  two  fact- finding  authorities, and those findings are based  on  oral and  documentary evidence.  To have reversed those  findings by  the High Court in Second Appeal on the ground that  they were perverse was totally uncalled for. [477 A-C]      3. In the absence of any question of law, much less any substantial  question  of  law,  the  High  Court  was   not justified  in  reversing  the  concurrent  findings  of  the statutory authorities. [480 B]      4. Clause (e) of section 14(1) of the Act is applicable only if the landlord is in a position to establish that  the premises let for residential purposes are required bona fide by him for occupations as residence.  Assuming that the bona fide requirement of the landlord is established the landlord must  still  prove  that  the  premises  had  been  let  for residential purposes. The Explanation of clause (e) makes it clear that the words ‘premises let for residential purposes’ included any premises let for residential purposes but  used incidentally,  without  the  consent of  the  landlord,  for

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commercial or other purposes.  The Explanation is  attracted when  :  (1)  the premises have  been  let  for  residential purposes, (ii) the premises have been used incidentally  for commercial or other purposes,and (iii) the landlord has  not given his consent for such incidental use for commercial  or other purpose. [478 D-F]      5.  If the premises have never been used for  any  non- residential   purpose,  the  aid  of  the   explanation   is unnecessary  to  attract  clause (e).   The  Explanation  is called  in  aid  only where  premises  let  for  residential purpose have been used incidentally for commercial or  other non-residential  purpose,  but without the  consent  of  the landlord. [478 G]      6.  If the landlord is in a position to establish  that the premises have been let for residential purposes and that he  has never consented to the user of the premises for  any other  purpose, the mere fact that such premises  have  been incidentally used for commercial or other purposes would not change or affect the residential character of the  premises. [479 A]      7.  If the premises have been regularly and openly used for  non-residential purposes, the knowledge and consent  of the landlord, unless proved to the contrary, are  ordinarily presumed and in                                                        475 that event the explanation would be of no avail to save  the ground under clause (e). [479 B]      8.  In  the instant case, it is not disputed  that  the premises  had been let for residential purposes, but  it  is also beyond doubt that to the knowledge of the landlord  the premises have been regularly used by the tenant not only for her  own  residence but also for her  foreign  guests.   The landlord  has as all material times known or is presumed  to have known that foreign students have been staying with  the appellant  as her paying  guests and that she has been  ever since 1961 running a boarding house in the premises.  At  no time  did   the landlord object to the user of the  premises by the appellant for such purpose. [479 C-D]      9.  The continued user of the building ever since  1961 for  the  purpose of lodging paying guests  shows  that  the respondent-landlord and her father have not only been  aware of  such  user  of the building,  but  have  also  impliedly consented  to such user.  This presumption  is  irresistible from  the evidence on record.  Such user takes the  premises in   question  out  of  the  ambit  of  ‘premises  let   for residential  purpose’ so as to exclude the ground  contained in clause (e). [479 E]      Dr.  Gopal  Dass  Verma v. Dr. S.K.  Bhardwaj  &  Anr., [1962]  2 SCR 678; Kartar Singh v. Chaman Lal &  Ors.,  (SC) (1969)  IV  All India Rent Control Journal  349;  Hobson  v. Tulloch,  [1898]  1 Chancery Division 424; Thorn &  Ors.  v. Madden,  [1925] All E.R.321 and Tandler v. Sproula [1947]  1 All E.R. 193, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1993  of 1982.      From the Judgment and Order dated 9.2.1982 of the Delhi High Court in S.A.O No. 59 of 1979.      M.K.Ramamurthi,    Mrs.    Chandan    Ramamurthi    and M.A.Krishnamoorthi for the Appellants.      Harish N. Salve and A.K.Sanghi for the Respondents.      The Judgment of the Court was delivered by

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    T.K.THOMMEN,  J.  This appeal arises from the  judgment of the                                                        476 Delhi  High Court in S.A.O.No. 59 of 1979 whereby  the  High Court,  reversing the concurrent findings of the  Additional Rent  Controller and the Rent Control Tribunal, allowed  the respondent-landlord’s   application  for  eviction  of   the appellant-tenant  under section 14(1)(e) of the  Delhi  Rent Control  Act,  1958  (the ‘Act’).   The  respondent  is  the daughter  of  the  original landlord who  had  let  out  the premises  to  the  appellant  on  1.10.1961.   The   present respondent  purchased the property from her father  on  27th June, 1964 and thus stepped into his shoes as the ‘landlord’ as defined under section 2(e) of the Act.      Relying upon the Rent Note and the appellant’s  letters dated 7.10.1961 and 18.8.1962 addressed to the  respondent’s father and the earlier proceedings between them for eviction of  the appellant on the ground of sub-letting the  premises for  commercial  purposes, both  the  statutory  authorities found  that  the  premises  which  had  been  let  out   for residential  purposes  to the appellant had also  been  used incidentally  for commercial purposes so as to  exclude  the application of section 14 (1) (e) read with the  Explanation thereto.  This finding was reversed by the High Court by the impugned judgment.  This High Court found that there was  no evidence  for  the  statutory authorities  to  come  to  the conclusion,  which they did, as regards the premises  having been  used  for commercial purpose.  This is what  the  High Court says:-          "........No  documentary evidence has been  brought          on record to hold that the premises were ever  used          for boarding and lodging foreign  students.....Thus          there  is  no evidence on record to hold  that  the          premises were used for boarding and lodging of  the          foreign  students or that the premises were let  to          the respondent for commercial purposes.  Thus, I am          of  the  view  that the premises were  let  to  the          respondent for use as residence and the findings to          contrary  by  the controller and the  Tribunal  are          without any evidence on record and are perverse".      This  finding  of  the  High Court  is,  in  our  view, unsustainable.  The High Court was not justified  in  saying that  there was no evidence to hold  that the premises  were used  for  boarding  and  lodging  foreign  students.    The specific plea of the landlord in the earlier proceedings was that  the  tenant had sub-let the  premises  for  commercial purposes.   The tenant contended that she had  never  parted with  her exclusive possession of any part of  the  premises and  the foreign students who were lodging were  her  paying guests  and were not her tenants.  The plea  of  sub-tenancy raised by the landlord was thus rejected on the ground  that those  who  logged with her were not  sub-tenants  but  only paying guests.  Letters dated 7.10.1961                                                        477 and  18.8.1962  addressed  by the  appellant-tenant  to  the respondent-landlord   were considered by the authorities  in coming  to  the conclusion, which they did.   These  letters clearly disclosed the fact that foreign students were lodged in the evidence let in by the appellant and not contradicted by  the  respondent  clearly  showed  that  apart  from  the appellant,  all  the  other inmates  of  the  premises  were foreign students staying with her as her paying guests.  The appellant  testified  to  the effect  that  she  earned  her livelihood from the income she received as lodging fee  from students  who  lodged with her.  It was out of  that  income

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that all her personal expenses including the rent payable by her  for the premises had been met.  These are the  findings of  the two fact-finding authorities and those findings  are based  on oral and documentary evidence.  To  have  reversed those  findings  by the High Court in Second Appeal  on  the ground that they were perverse was totally uncalled for.      Mr  Harish Salve appearing for the  respondent-landlord submits  that even if the High Court was wrong in coming  to the  conclusion  that there was no  evidence  about  foreign students  stayed  as paying guests in the premises  did  not imply  either  that  they lodged with  the  consent  of  the landlord  or that such lodging amounted to a commercial  use of  the building.  Counsel submits that the High  Court  was right  on the facts of this case in saying that  the  ground contained  in  clause (e) of section (1) of section  14  was attracted.      There  is  no  substance in  the  contention  that  the landlord  was  unaware that the premises had been  used  for lodging foreign students.  The two letters relied on by  the statutory  authorities  leave no doubt that  this  fact  was well-known  to the landlord at all material times.   To  the knowledge  of the landlord the premises have been  regularly used by the tenant ever since 1961 for the residence of  not only  herself  but  also of the foreign  students  who  were lodged  by her for gain as paying guests.  The  evidence  is that  she  had  no income other than what  she  received  as lodging  fee  from foreign students.  The question  then  is whether  the  facts found excluded the  application  of  the ground contained in clause (e) of the section 14 (1).      Section 14, insofar as it is material, reads:          "S.14. Protection of tenant against eviction:-  (1)          Notwithstanding anything to the contrary  contained          in  any other law or contract, no order  or  decree          for  the  recovery of possession  of  any  premises          shall be made by any court or Controller in  favour          of the landlord against a tenant:                                                        478           Provided   that   the  Controller   may,   on   an          application  made to him in the prescribed  manner,          make an order for the recovery of possession of the          premises  on one or more of the  following  grounds          only, namely-          (e)  that the premises let for residential  purpose          are   required  bona  fide  by  the  landlord   for          occupation  as a residence for himself or  for  any          member of his family dependent on him, if he is the          owner thereof, or for any person for whose  benefit          the premises are held and that the landlord or such          person has no other reasonably suitable residential          accommodation;           Explanation-For  the  purposes  of  this   clause,          "premises let for residential purposes" 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          purposes".      The  only ground which is relied on by the landlord  is that   which  is  contained  in  clause(e)  read  with   the Explanation.  Clause (e) on the facts alleged is  applicable only if the landlord is in a position to establish that  the premises let for residential purposes are required bona fide by him for occupation as a residence. Assuming that the bona fide  requirement  of  the  landlord  is  established,   the landlord  must still prove that the premises  had  been  let for  residential  purposes.  The Explanation to  clause  (e)

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makes it clear that the words ‘premises let for  residential purposes’ include any premises let for residential purposes, but used incidentally, without the consent of the  landlord, for  commercial  or  other  purposes.   The  Explanation  is attracted   when  (i)  the  premises  have  been   let   for residential  purposes,  (ii)  the premises  have  been  used incidentally for commercial or other purposes, and (iii) the landlord  had not given his consent for such incidental  use for commercial or other purposes.  If the three  ingredients contained in the Explanation are attracted, the premises  do not  cease  to be "Premises let  for  residential  purposes" falling under clause (e).  In respect of such premises,  the bona fide requirement of the landlord referred to in  clause (e) is a ground for eviction.      If  the  premises  have never been used  for  any  non- residential   purpose,  the  aid  of  the   Explanation   is unnecessary  to  attract  clause (e).   The  Explanation  is called  in  aid  only where  premises  let  for  residential purposes have been used incidentally for commercial or other non-residential  purposes,  but without the consent  of  the landlord.    The   fundamental  question   in   respect   of residential  premises is whether the landlord had  consented to  the user of the premises for any other  purpose,  albeit incidentally.                                                        479      If the landlord is in a position to establish that  the premises have been let for residential purposes and that  he has  never  consented to the user of the  premises  for  any other  purpose, the mere fact that such premises  have  been incidentally used for commercial or other purposes would not change or affect the residential character of the  premises. In  respect of such premises, it is open to the landlord  to prove  his  bona fide requirements and  thus  establish  the ground  mentioned under clause (e).  On the other  hand,  if the  premises have been regularly and openly used  for  non- residential  purposes,  the knowledge and  constant  of  the landlord,  unless  proved to the  contrary,  are  ordinarily presumed  and in that event the Explanation would be  of  no avail to save the ground under clause (e).      In  the  present  case, it is  not  disputed  that  the premises  had been let for residential purposes, but  it  is also beyond doubt that to the knowledge of the landlord  the premises have been regularly used by the tenant not only for her  own  residence  but also for her  foreign  guests.  The landlord  has at all material times known or is presumed  to have known that foreign students have been staying with  the appellant  as her paying guests and that she has  been  ever since 1961 running a boarding house in the premises.  At  no time did the landlord object to the user of the premises  by the appellant for such purpose.      The continued user of the building ever since 1961  for the  purpose  of  lodging  paying  guests  shows  that   the respondent-landlord and her father have not only been  aware of  such  user  of the building,  but  have  also  impliedly consented  to such user.  This presumption  is  irresistible from  the evidence on record.  Such user takes the  premises in   question  out  of  the  ambit  of  ‘premises  let   for residential purposes’ so as to exclude the ground  contained in clause (e).      We  are  fortified  in  our  conclusion  by  the  views expressed by this Court in Dr. Gopal Dass Verma v. Dr.  S.K. Bhardwaj & Anr., [1962] 2 SCR 678 and Kartar Singh v. Chaman Lal & Ors., SC (1969) IV All India Rent Control Journal 349.      The  position would have been probably  different,  and the Explanation would have been still available, had foreign

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guests been lodged only occasionally and for short  periods, even  if  it be on the basis of payment to  cover  expenses. All  this is a question of intention.  Was it an  occasional accommodation   of  paying  guests  consistently  with   the character of the premises as a private residence?      The  evidence  on  record  leaves  no  doubt  that  the premises  have  been regularly used by the  appellant  as  a boarding house and not as a private                                                        480 residence in the ordinary acceptation of the term.  She  has in  fact  been carrying on, in the words of  Romer,  J.,  "a species  of  business".  See  Hobson  v.  Tulloch  [1898]  1 Chancery  Division  424.  See also Thorn &  Ors.  v.  Madden [1925] All E.R. 321 and Tendler v. Sproule [1947] 1 All E.R. 193.      In  the absence of any question of law, much  less  any substantial  question  of  law,  the  High  Court  was   not justified  in  reversing  the  concurrent  findings  of  the statutory authorities.      In  the  circumstances,  we  set  aside  the   impugned judgment  of  the High Court and restore the orders  of  the Additional Rent Controller dated 29.9.1976 and Rent  Control Tribunal  dated  18.11.1978.  The appeal is allowed  in  the above terms with the costs of the appellant throughout. N.V.K.                                       Appeal allowed.                                                        481