Civil Appeal No 56 of 1971
From the Judgment and Order dated 8121969 of the Gujarat High Court in CRA No 654 of 1967
Harish Salve DN Misra and Ms AK Verma for the Appellant
SH Sheth and Ms Kailash Mehta for Respondent No 1
MV Goswami and Ms Vandana Sharma for Respondent No2
The Judgment of the Court was delivered by MISRA J
The present appeal by special leave is directed against the Judgment of the High Court of Gujarat dated 10th February 1970
The dispute between the parties concerns a plot of land admeasuring 100 ft
x 164 ft
ie approximately 1822 sq yards out of survey No 18 in the city of Nadiad
This plot was owned by Deviprasad Motilal Jaiswal and Vora Sunderlal Manilal was occupying it as a tenant
He had also made certain constructions on the disputed plot
The appellant purchased the said plot under a registered sale deed dated 18th April 1955
The defendant accepted the plaintiff as owner on a rent of Rs 1325 721 per annum with effect from 18th April 1955 under a registered rent note dated 9th June 1955 for a period of five years
The rent note provided 1 that the defendant shall pay to the plaintiff the amount of municipal tax at the rate of Rs 40 per annum in respect of the rented premises 2 that the said premises shall not be let out to anyone else and 3 that on the expiry of the period of five years the defendant shall remove the constructions at his own expense and hand over to the plaintiff the premises in the condition in which it was let out
It appears that the defendant No 1 sublet a portion of the said premises to defendant No 2 Pa Babubhai Gordhanbhai contrary to the terms of the rent note
The period of lease contemplated in the rent note expired on 17th April 1960 and the defendant continued as a statutory tenant on a monthly rent under the Rent Control Act
The two sons of the plaintiff Suleman and Ganibhai are dealing in empty tins on a large scale and a spacious premises was required for the said business
The plaintiff called upon the defendant to remove the construction erected on the land in dispute and to vacate the premises and handover the possession
Although the plaintiff filed the suit for eviction on a number of grounds we are concerned in the present appeal only with the plea that the premises in question had not been used by the defendant for a period of more than six months prior to the date of the suit without reasonable cause I and therefore the defendant was liable to eviction under s131k of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act
The trial court dismissed the suit holding that the notice of termination was not valid and that the plaintiff had failed to prove the bona fide requirement and that the defendant No2 was admitted as a sub tenant many years before the execution of the rent note by the plaintiff and therefore the plaintiff was not entitled to recover possession on the ground of illegal sub letting
The plaintiff feeling aggrieved by the judgment took up the matter in appeal and the Assistant Judge allowed the appeal partly holding that the notice of termination was a valid one that the plaintiff did not require the suit premises reasonably and bonafide for occupation for himself and that the suit premises had not been used by the defendant continuously for a period of six months immediately preceding the date of suit with out any reasonable cause
The defendant took up the matter in revision before the High Court and the High Court reversed the finding of the 1st appellate court on the question of user by the defendant
It took the view that the construction of the super 722 structure on the land itself was a user and therefore the courts below and committed a manifest error in holding that the land in question had not been used for more than six months prior to the institution of the suit
The plaintiff has now come to this Court by a special leave
Mr Harish N Salve counsel for the appellant strenuously urged that the tenant was liable to be evicted under s131k of the Act inasmuch as the premises have not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause
He also contended that the defendant would be liable to eviction even if he did not use the premises and kept it locked
Mr SH Sheth for the defendant respondent in reply has contended that the purpose of letting cannot be assumed
It has got to be alleged and proved
The plaintiff could seek eviction under s131k of the Act only when he proves the purpose for which the premises have been let out and that the same has not been used for the purpose for which it was let out
In the instant case neither the purpose of letting is indicated in the rent note nor has it been proved by evidence
Therefore the liability of the defendant under s131k does not arise
The material portion of the rent note Exbt61 is as follows 
The property of the said measurement and situate within the said four boundaries is rented by us from you and you have rented it to us
The rent accrues from the date 1841955
It is agreed that the rent fixed is Rs 1325 Rupees thirteen hundred and twenty five per year
We shall pay the said rent to you every year in full
If default is made in paying the rent you may get the said property vacated by us and our objection of any kind shall not be tenable in respect of the same
The period fixed is for five years
It expires on the date 1741960
We shall handover possession of the said property to you on the said date
We shall not Rub let the said property to any one else
The construction work which is made on the said 723 property belongs absolutely to us the tenant
And when we shall vacate the said property we shall remove the said construction work at the cost of us the tenant
We agree to handover the possession of the property to the owner in the same condition in which the property is rented
Even if we use or do not use or keep the said property closed we the tenant are bound to pay the rent as stated above till the period fixed
But if we the tenant want to vacate the said property within the period fixed we can vacate the same by giving you notice before two months or if we want the said property on rent even after the expiry of the period fixed you are bound to give the same on rent and the rent is to be fixed according to the circumstances at that time and we shall pass and give a new rent note to you
We the tenant are to pay Rs 40 Rupees forty every year to you the owner for municipal tax in respect of the said property in addition to the amount of rent
If the municipal tax comes to more than forty rupees you the owner are to pay the excess amount of tax
A perusal of the rent note indicates that there is no specific mention of the purpose for which the premises was rented out to the defendant
It has already been noted that the defendant had taken the premises from the predecessor in interest of the present plaintiff and had made certain superstructures on the land in question
There is however material on the record to show that the premises had been let out to the defendant for the purpose of business
Indeed the premises had been taken in the name of a firm carrying on tobacco business
The defendant admitted in his deposition that he had shifted his business to Baroda
He had not used any portion of the land for any purpose for the last three or four years and the plaintiff has produced necessary registers from the Municipality and the Central Excise Department to show the same
In addition in the reply given by the counsel for the defendant to the notice of termination given by the plaintiff he definitely admitted that the property was taken on rent by the tenant in his capacity as a manager and owner of the firm Vora Manilal Chhaganlal  Co and that his client the tenant was a registered firm carrying on business in 
In this situation it cannot be argued with any force that the plaintiff has not been able to establish the purpose for which the premises had been let out to the defendant
724 As s second limb to the argument Shri Sheth contended that if the plaintiff had specifically taken the plea of non user of the premises for the purpose for which it was let out he would have been able to prove the reasonable cause for not doing 80 but in the absence of such a plea the defendant has been seriously prejudiced
This contention of the counsel also cannot easily be accepted when on the own admission of the defendant and defendant s counsel the premises had been used for the purpose of carrying to tobacco business
Therefore the defendant fully knew the purpose for which he had taken the Promises as a tenant
The stand of the defendant all through appears to be that even if he does not use the premises and have been paying rent he does not incur the liability of eviction and for this he banks upon the recital in the rent note that even if we use or do not use or keep the said property closed we the tenants are bound to pay the rent as stated above 
This stipulation in the rent deed only talks of the liability of the defendant to pay the rent even if he does not use the property and keeps it closet
This however does not mean that the defendant can keep the premises closed without using it for years together before the suit
This could never have been the intention of the law makers especially in these days of scarcity of accommodation in towns
Even if the stipulation made in the rent note is construed to mean that the defendant tenant could keep the premises closed without using it for years together without incurring the liability of eviction as is sought to be contended for the respondent it would amount to allowing the parties contracting out of law
This leads us to the second part of the submission made by the counsel for the appellant that on a correct interpretation of s131k of the Act even non user of the premises for any purpose whatsoever for years together would make him liable for eviction
The contention on behalf of the respondent however is that we cannot add words to s131k and the intention of the legislature is clear from the words used therein and all that s131k contemplates is that the premises had not been used for the purpose for which they w re let out for a continuous period of six months immediately preceding the date of suit without reasonable cause
It toes not say that mere non user of the premises will make him liable for eviction
The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs 725 of certain premises of rates of hotels and lodging houses and of evictions
m e control had to be brought in because of the scarcity of accommodation in the cities
If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of any reasonable cause
The intendment of the legislature could be carried out only when the premises is used and not kept vacant for years together
Shri Sheth however sought to support the finding of the High Court that the construction of a superstructure is also a user of the property and the defendant had raised superstructures on the land in question
This argument must be repelled
It appears from the rent note Exbt
61 that the defendant had taken the premises from the present plaintiff when the defendant had already built the superstructures when he had taken the land on rent from the predecessor in interest of the plaintiff appellant
Therefore there was no question of using the land by raising constructions by the defendant after the execution of the rent note Exbt61
Shri Sheth also referred to 8 12 and 8 13 of the Act and contended that these are the only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted
What was let out by the plaintiff to the defendant tenant was the land and not the superstructures and so Shri Sheth argues that the non user of the superstructures does not amount to non user of the land
On the own showing or the defendant respondent he had shifted his business to Baroda and Therefore he is not using the land for any purpose whatsoever
Broadly speaking a premises can be let out either for residential or for business purpose
In the instant case on the own showing of the defendant respondent it had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda
Therefore it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out
The High Court in our opinion has gone wrong in holding that the construction of super structures on the land in dispute was itself a user
As indicated earlier the super structures had already been built before the defendant took the land from the plaintiff under rent note Exbt61
Therefore there is no question of making any construction on the land in question by the defendant after the execution of the rent note
726 As regards the sub tenancy it has been found by the courts below that it had been created long before the Act in question came into force and therefore there was no question of the eviction of the sub tenant as the sub tenancy was not illegal
For the foregoing discussion the appeal must succeed
It is accordingly allowed and the judgment of the High Court is set aside and the plaintiff s suit stands decreed
The parties shall however bear their own costs


Summary:
The appellant plaintiff purchased a plot of land
The respondent defendant accepted the plaintiff as owner on a rent of Rs 1325 per annum for a period of five years under a registered rent note
It was further stipulated therein that the tenant was to pay the municipal tax in respect of the rented land to the plaintiff that on the expiry of the period of five years the tenant shall remove the constructions thereon at his own expense and hand over the premises in the condition it was let out and that the premises shall not be let out to anyone else
The plaintiff called upon the defendant to remove the construction erected on the land and the vacate the premises and hand over possession
As the defendant failed a suit for eviction was filed on a number of grounds one of which was that the premises had not been used by the defendant for a period of more than six months prior to the date of the suit without reasonable caused and therefore the defendant was liable to eviction under section 131 k of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The trial court dismissed the suit holding that the notice of termination was not valid and that the plaintiff had failed to prove bona fide requirement and that as defendant No 2 was admitted as a sub tenant many years before the execution of the rent note by the plaintiff the plaintiff was not entitled to recover possession on the ground of illegal sub letting
The plaintiff took up the matter in appeal and the Assistant Judge allowed the appeal partly holding that the notice of termination was a valid one that the plaintiff did not 718 require the suit premises reasonably and bona fide for occupation for himself and that the suit premises had not been w ed by the defendant continuously for a period of six months immediately preceding the date of suit without any reasonable cause
The respondent tenant took up the matter in revision before the High Court which reversed the finding of the Ist appellate court on the question of user by the defendant holding that the construction of the super structure on the land itself was a user and therefore the courts below had committed a manifest error in holding that the land in question had not been w ed for more than six months prior to the institution of the suit
In the appeal to this Court it was contended on behalf of the appellant landlord that the tenant was liable to be evicted under s131k of the Act inasmuch as the premises have not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause and that the tenant would be liable for eviction even if he did not use the premises and kept it locked
On behalf of the respondent tenant it was contended that the purpose of letting cannot be assumed and that it has got to be alleged and proved
The landlord plaintiff could seek eviction under 8 13k of the Act only when he proves the purpose for which the premises have been let out and that the same has not been w ed for the purpose for which it was let out
It was further contended that if the landlord had specifically taken the plea of non user of the premises for the purpose for which it was let out he would have been able to prove the reasonable caw e for not doing 80 but in the absence of such a plea the defendant tenant had been seriously prejudiced and that sec
12 and 13 of the Act are the only two sections which give protection to the tenant and unless the conditions in the two sections are satisfied the tenant cannot be evicted 
Allowing the Appeal  HELD  1
The judgment of the High Court is set aside and the plaintiff s suit stands decreed
The High Court has gone wrong in holding that the construction of super structure on the land in dispute was itself a user
The super structures had already been built before the defendant took the land from the plaintiff under rent note exhibit 61
As regards sub tenancy it has 719 been found by the Courts below to have been created long before A the Bombay Rents Hotel and Lodging House Rates Control Act 1947 came into force
There was therefore no question of the eviction of the subtenant as the sub tenancy was not illegal
726 B 725 G 726 A 2
The scheme of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain premises of rates of hotels and lodging houses and of evictions
The control had to be brought in because of the scarcity of accommodation in the cities
If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of a reasonable cause
The intendment of the legislature could be carried out only when the premises is used and not kept vacant for years together
724 H 725 B 3
Neither the purpose of letting is indicated in the rent note Ex61 nor has it been proved by evidence
A perusal of the rent note indicates that there is no specific mention of the purpose for which the premises was rented out to the defendant
The defendant had taken the premises from the predecessor in interest of the plaintiff and had made certain super structures on the land in question
There is however material on the record to show that the premises had been let out to the defendant for the purpose of business
Indeed the premises had been taken in the name of a firm carrying on tobacco business
The defendant admitted in his deposition that he had shifted his business to Baroda
He had not used any portion of the land for any purpose for the last three or four years and the plaintiff has produced necessary registers from the Municipality and the Central Excise Department to show the same
In the reply given by the counsel for the defendant to the notice of termination given by the plaintiff it is admitted that the property was taken on rent by the tenant in his capacity as a manager and owner of the registered firm Vora Manilal Chaganlal  Co carrying in business in Nadiad
In this situation it cannot be argued that the plaintiff has not been able to establish the purpose for which the premises had been let out to the defendant
723 E H 4
The stipulation in the rent deed to the effect that even if we use or do not use or keep the said property closed we the tenants are bound to pay the rent as stated above  only talks of the liability of the defendant to pay the rent even if he does not use the property and keeps it closed
This however does not 720 mean that the defendant can keep the premises closed without using lt for years together before the suit
This could never have been the intention of the law makers especially in these days of scarcity of accommodation in towns
If the stipulation made in the rent note is construed to mean that the defendant tenant could keep the premises closed without incurring the liability of eviction as it sought to be contended for the respondent it would amount to allowing the parties contracting out of law
724 D E In the instant case on the own showing of the defendant respondent the premises had been taken for the purpose of tobacco business and that business had been stopped for a period of 4 to 5 years before the institution of the suit as the business had expanded and the defendant had shifted to Baroda
Therefore it can be safely presumed that the land is not being used for the purpose for which it has been proved to have been let out
725 F