KARTAR SINGH & Ors. v. CHAMAN LAL (Grover, J.) son & Anr.

"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, respondent No. 1, and the notices, Ex. D.W. 9/1, and D.W. 912 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 lt is proved that the suit premises were let by the appellant to Shri Labha Mal deceased for residence-cum-business purposes." A B c On the question of the ambit and scope of S. 13(l)(h) of the old D 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 J. S. Bedi, J. considered the rent deed Ext. P-3 and side. 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 Chama! 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 I3(1)(h) of the old Act contained a provision that if the Coun 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 In S. 14(l)(h) of the suitable residence it could order ejectment. new Act the only change that was made was that the word "suit able" 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 continu"d and disposed of in accordance with provisions of the old Act. According to the first proviso to sub-section (2) the court or other authority "shall have regard to the provisions of this Act." In Karam Singh Sobhi & A nr. v. Shri Pratap Chand E F G H - A B c D E F G H KARTAR SINGH v. CHAMAN LAL (Grover, I.) 13 & Anr.(') this Court had to consider the effect of what was It was held that the effect contained in S. 57 of the new Act. 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. Vishwa Mitter Kapur & Others(") 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 sub s. (2) and the only way of harmonising the two was to read the expression "shall have regard to the provisions of !his Act" as merely meaning that. where the new Act had slightly modified or clarified the previous provisions those modifications and clarifica tion~ 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· !ant that the new section would be applicable as no radical depar ture has been made in S. 14(1) (h) by omission of the word "suit able" and that there was only slight modification or clarification of the previous provision, namely, S. 13(1 )(h). In our opinion whether S. 13 (1) (h) of the old Act or S. 14( 1 )(h) of the new Act is applied the result, as will be prese.ntly seen, will be the same in the instant 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 find ing of the court below. is that the premises had been taken for residential-cum-business or profession~! purposes. That finding being one of the fact must be accepted as final. It would, there fore, seem that the decision of this Court in Dr. Gopal Das Verma v. Dr. S. K. Bhardwaj and Another(') can be appositely appliec.. In that case it was held that a tenant could nof'be ejeeted 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 resi dence. There the premises had been let mlt 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 outsides. 13(1)(e) but even underS. 13(l)(h) eviction could not be ordered. This is what was said in that connection. (I) [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 SUPREME COURT REPORTS ,. [1970] 1 S.C.R. "If the premises from which ejecunent is sought are used not only for residence but also for profession how could s. 13(1)(h) come into operation? One of the pur- poses for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of premises which arc suitable for- residence alone, and it is the suitability for residence alone which is postulated by s. 13(l)(h). Therefore, 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 our opinion, Jn the above case this Court further held that S. 2(g) of the old Act whkh defined the. word "premises" referred to three kinds of user to which the premises c~n 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 commrecial 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 pro vision. The dennition 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( I) of the new Act to mean "any perscn 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 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 eviction merely by acquisition of vacant possession of a residence by such a tenant and the position would be_ the same with_ regzrd to his heirs and legal representatives, It is quite clear that S. 14(l)(h) can apply only where a tenant is in occupation of a premises which are oiily residential; then alone he would have to go if he acquires or has residential accommoda tion of his own. the present respondents. Mr. Manchanda h'as next contended that the decision of this Court in Dr. Gopa/ Das Verma's case(') is distinguishable be cause 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 wa5 merely given per- mission or licence which was of a personal nature to have his (I) [1962J 2 S.C.R.678atp.68S. A B c D E F G H • - KARTAR SINGH v. CHAMAN LAL (Grover, /.) 15 A B c D E office as well there. We are unable to find that any test of domi nant intention was applied in Dr. Gopal Das Verma's case('). The position in England is different where premises are let partly for business purposes and partly l'or 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('). Moreover where there is no covenant as to nser and the question is what nser was contemplated, the Court will infer what use was contemplated by the tenancy agreement; the test was "the main purpose" or "predominant inteinion" or "the prevailing contemplation" or "a preponderating contemplation" for the letting.(') (ibid, p. 69). We are unabl.e to derive any assi<:tance 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 deem· ed to have come to an end on his death. It is further pointed out )hat afte~ his death for a i;iumber ofsears the respondents used In view of the finding of the the premises purely for residence. ~ol!rts below that the premises had been let to the predecessor m-mterest of the respondents for residence-cum-business or pro fession, this submission cannot be entertained. . For al( the above reasons this appeal fails and it is dismissed with costs. Y.P. Appeal dismissed. (1) (19621 2 S. C. R. 678 at p. 685. (2) (See the Rent Acts by R. E. Megarry Q. C. Tenth Edition pp. 87-88.)