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
SC Manchanda section K Mehta and K L Mehta for the appellant
Bishan Narain I section 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
6That 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 exhibit 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 664 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 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 section 131h 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 141h which was equivalent to section 131h of the old Act contained the word suitable  which was omitted as it appeared before the word residence in section 131h 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 section 131h of the old Act or section 141 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 respondent No 1 and the notices exhibit DW 91 and DW 92 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 section 1314 _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 section Bedi J considered the rent deed Ext
P 3 and the letter exhibit 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 section 131h of the old Act and section 14 1 h and section 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 section 141h 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
vs Shri Pratap Chand 13  Anr
1 this Court had to consider the effect of what was contained in section 57 of the new Act
It was held that the effect of the first proviso to section 572 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 vs Vishww Mitter Kapur  Others1 it was laid down that the first proviso to section 572 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 section
2 and ordinarily the old Act would apply to pending proceedings
It has been contended by Mr section C Manchanda for the appel lant that the new section would be applicable as no radical departure has been made in section 141 h by omission d the word suitable and that there was only slight modification or clarification of the previous provision namely section 131 h
In our opinion whether section 1 3 1  h of the old Act or section 14  1  h of the new Act is applied the result as will be presently 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 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 vs Dr section K Bhardwaj and Another can be appositely applied
In that case it was held that a tenant could not be ejected under section 131h 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 section 13 1 e but even under section 1 3  1  h eviction could not be ordered
This is what was said in that connection
1 2 A I R 52 3  at p 685
14 If the premises from which ejectment is sought are used not only for residence but also for profession how could section 131h 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 section 131h
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 section 2g of the old Act which defined the word Premises referred to three kinds of user to which the premises can be put to ie 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 section 2g they continued to be premises under the last clause  of that provision
The definition of premises  in the new Act is contained in section 21 and it is the same as in section 2g of the old Act
The word tenant  is defined by section 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 section 141h 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 section 141h can apply only where a tenant is in 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 case1 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 SCR678 at p685
15 office as well there
We are unable to find that any test of dominant intention was applied in Dr Gopal Das Verma s case1
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 whole1
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
 YP Appeal dismissed 1  at p 685


Summary:
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 section 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 section 141 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 section 13 1 h of the old Act or section 141 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 HELDAssuming that section 141h 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 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 141 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 vs Dr section K Bhardwaj  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