JUDGMENT Bhasme, J.
1. This is an application by the defendant-tenant, whose eviction from the premises is ordered by the Courts below in a suit filed by the respondent-plaintiffs under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947). A few facts leading to this ejectment proceeding may be stated:
The shop premises consisting of 3 khans and 4 ghadis on the southern side ground floor of House No. 172 (old) in Ravivar Peth, Poona, and now known as No. 879 (new) in Budhwar Peth, Poona are occupied by the petitioner as a monthly tenant at a rental of Rs. 28.42 per month. The plaintiffs have purchased the building of which the suit premises form part on December 12, 1963 from the former owner. They terminated the petitioner's tenancy by a notice dated November 12, 1964 and filed a suit claiming possession of the premises on several grounds. It will be sufficient if I refer only to one ground on which the decree passed by the Courts below is based. It was stated in the plaint that the petitioner had taken the suit premises for the purpose of a shop and lie has commenced using the same for residence as he is now residing therein with his family. The plaintiffs averred that the petitioner is using the premises for a purpose other than the one for which he initially had taken them on rent.
2. The petitioner by filing a written statement at exh. 16 resisted the claim of the plaintiffs. In para. 3 of the written statement, the petitioner submitted that he had not taken the premises on rent only for the purpose of the shop. In fact he had taken the premises for his business as well as for his residence. In other words, it Was the case of the petitioner that the premises Were rented by him for the composite purpose of business and residence.
3. The learned trial Judge framed Issue No. 2 as under:
Do plaintiffs prove that the defendant has taken the suit premises only for the purpose of shop and that the defendant is now using these premises for residence as well and is residing there with his family?
4. Issue No. 3 reads thus:
If so, do they prove that the defendant, is using the premises for the purpose other than the purpose for which the premises were let?
The learned trial Judge, after consideration of the oral and documentary evidence adduced by the parties, recorded findings in the affirmative on these two issues. In view of these findings, he came to the conclusion that the defendant was using the premises for a purpose other than the purpose for which the premises were let. He held that the plaintiffs had proved, their case for possession under Section 13(1)(k) of the Rent Act. Aggrieved by the abovementioned decree the defendant preferred an appeal and the learned Second Extra Assistant Judge, Poona, confirmed the decree of the trial Court and dismissed the appeal. The petitioner is now challenging this decree in these proceedings under Article 227 of the Constitution of India.
5. Mr. Mistry for the petitioner submitted that the lower Courts were not justified in recording a finding that the defendant has failed to prove that the premises were originally let for the composite purpose of business and residence. As there is no written contract of tenancy the lower Courts had to consider only the circumstantial evidence while recording findings about the terms of the tenancy. Both parties had relied upon oral and documentary evidence. The learned trial Judge has discussed all that evidence and has referred to certain documents including the pleadings in the earlier litigation between the defendant and the former landlord Siddappa. Reliance was also placed on a receipt exh. 91 dated July 3, 1952 passed by Siddappa, the former landlord. The receipt contains recitals which indicate that the premises were used for shop purpose and the rent charged was for the shop premises. Both the Courts have, after assessment of the entire evidence, concluded that the premises were not let for the composite purpose of business and residence. The tenancy was for the specific purpose of conducting a shop or business in the suit premises. I cannot accept the contention of Mr. Mistry that the finding is not based on any admissible evidence. It is a finding of fact and it cannot be assailed in proceedings under Article 227 of the Constitution.
6. Then Mr. Mistry pointed out that a decree cannot be passed under Section 13(1)(k) of the Rent Act unless it is found as a fact that the premises have not been used without reasonable cause for the purpose for which they were let. According to Mr. Mistry the evidence shows that the defendant was operated and his two toes were amputated. The defendant in his evidence has stated that he had, therefore, to shift his residence to the suit premises as he found some difficulty in covering the long distance by walking. But Mr. Advani for the respondent submitted that the defendant had not raised any plea in his written statement and it is for this reason that no specific issue was framed by the learned trial Judge. Mr. Advani argued that the burden lay on the defendant to establish that he had not used the premises for the purpose for which they were let as he had a reasonable cause for not so doing.
7. In my opinion, on a plain reading of the said clause, it is no doubt for the landlord to allege and establish that the premises have not been used for the purpose for which they were let. But once the landlord successfully discharges that burden, then it is for the defendant-tenant to plead and establish reasonable cause which prevented him from using the premises for the purpose for which they were let. As Mr. Advani rightly pointed out, even apart from the pleadings, the petitioner had not raised this point in one form or the other in the Courts below. The petitioner cannot be allowed to raise a new point which will involve fresh investigation of facts.
8. The next contention raised by Mr. Mistry is again based on the peculiar wording of Section 13(1)(k). It is found as a fact by both the Courts below that the suit premises were used for conducting a shop till 1961-62. It is only in that year that the petitioner shifted his residence and started using the suit premises for the additional purpose of residence. It is true that the defendant continued to use, as is found by the Courts below, the premises for conducting his shop. The petitioner is conducting a hardware store under the name and style of "India Hardware Stores". Both the Courts below have concluded from these facts that the petitioner had failed to use the premises for the purpose for which they were let within the meaning of Section 13(1)(k) of the Rent Act. Mr. Mistry submits that the Courts below have not applied their mind to the facts of the case while passing a decree in ejectment against the petitioner on this ground. As the petitioner was using the premises both for shop and residence it was necessary for the Courts to record a finding as to the dominant or primary user. In the absence of any such finding, it is not possible to say whether the premises were being used for business or they were being used for residence.
9. The learned trial Judge in para. 6 of the judgment has stated that the premises Were used for the purpose of residence and that purpose cannot be said to be ancillary to the purpose for which the premises Were let. Turning to the judgment of the appellate Court, I find that there was no discussion on this part of the case. The learned Judge confirmed the finding recorded by the learned trial Judge about the purpose of letting. While recording that finding he considered whether the premises were, according to the original contract of tenancy, let for business purpose only or for business and residence purposes as alleged, by the tenant.
10. Both the counsel for the petitioner and the respondent have made submissions on this aspect of the case. According to Mr. Mistry, in all such cases, the dominant use will have to be considered by the Courts. Mr. Advani, on the other hand, appearing for the landlords, submitted that it was for the defendant to plead and establish whether or not he had continued to use the premises primarily for the purpose for which they were let. Admittedly, in the pleading all that the defendant stated was that according to the contract of tenancy he was to use the premises both for purposes of business and residence. Mr. Advani maintained that in such a case once the defendant fails to prove this contract, then the Court must pass a decree in ejectment on the ground that the defendant has not used the premises for the purpose for which they were originally let.
11. After consideration of these submissions, I am of the opinion that the correct legal position is that the Court has to find out whether or not the plaintiff had succeeded in establishing his case that there has been a change of use of the premises. If the plaintiff shows that the premises have been wholly used for a different purpose, and once that fact is established, nothing further need be considered by the Courts. If, on the other hand, the plaintiff proves that the defendant-tenant has started, using the premises for some other additional purpose, while continuing to use it for the purpose for which they were let, then certainly the Court will have to decide whether the additional purpose constitutes the primary or dominant use. As this arises on the allegation of the plaintiff himself, even in the absence of a specific plea raised in the written statement the Court will have to consider the evidence on record, and record a finding one way or the other.
12. Counsel on either side, in support of their respective contentions, referred to certain decisions. Their arguments turn on the Question of the exact connotation of the Words "primary or dominant use". In the relevant sub-section of Section 13(1) there is no indication about these considerations. But certain judicial decisions provide guidelines which help the Courts while arriving at a finding about the change of use of the premises.
13. Mr. Mistry drew my attention to a decision of this Court reported in Lakshman v. Balkrishna [1925] A.I.R. Bom. 398 : S.C. 27 Bom. L.R. 937. In that case the plaintiff sued the defendant-tenant and sought his ejectment from the premises on the ground that his tenancy was terminated. The question was whether the premises were protected by the Bombay Rent (War Restriction) Act (2 of 1918). It was alleged by the plaintiff that the tenant was using the premises for business purposes and, therefore, he could not avail of the statutory protection which extended only to residential premises. Chief Justice Macleod has made the following observations (p. 399):
On that question of law, if premises are used for the purposes of residence, then the protection continues with regard to such premises, and does not cease merely because the protection in respect of other premises under the Rent Act ceased on August 31, even though a portion of such premises may be used for business purposes. The fact that a man carries on business or works in the same premises, which he uses for dwelling in, cannot thereby prevent those premises corning within the category of premises used as a dwelling house.
Mr. Advani for the landlord rightly distinguished the ratio of this decision on the ground that this Court was required to consider in that case a somewhat different problem under a different Rent Control Act.
14. Then Mr. Mistry sought some support from a decision of a Single Judge of the Madras High Court reported in Krishnan Nair v. Valliammal [1949] A.I.R. Mad. 785. It was a case under Section 12 of the Madras Buildings (Lease and Rent Control) Act (XV of 1946). While answering a question whether the premises were let out for residential or non-residential purpose, the learned Judge Panchapakesa Ayyar says (p. 786):
I am therefore of opinion that the premises were only taken and used for 'residential purposes' though a portion of the premises was undoubtedly used for making appalams when people were not sleeping there, and were used for sleeping purposes when appalams were not made. I consider that, in such cases, the primary purpose for which the building is let out or used. should be the determining factor. A lawyer may use a room of his house for giving legal advice to his clients; an astrologer may use a room of his house for giving predictions; a barber may use a room of his house for shaving his clients: but such use of a room will never make the house itself one used for 'non-residential purposes'.
15. Mr. Advani then cited a decision of the Punjab High Court which is reported in All India Rent Control Journal at page 659. It is not necessary to refer to that decision as the observations made by the learned Judge in that case were with reference to the special provisions contained in Section 2(d) and in Section 12(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. According to the definition contained in Section 2(d) of the Act, a non-residential building was one which was used solely for the purpose of business or trade. As the use of the expression "solely" makes all the difference, that decision may not be of any assistance while considering the relevant sub-sections of Section 13 of the Bombay Rent Act.
16. Then Mr. Advani desired that I should follow the ratio of an unreported decision of this Court in Mrs. Desideria Sequeria v. H.H. Sardar, Syedna D.A. Thaher Saiffudinsaheb (1958) Civil Revision Application No. 431 of 1958. Chief Justice Chagla was considering a case of ejectment of the tenant under Section 13(1)(a) of the Rent Act. Section 13(1)(a) enables a landlord to recover possession of the premises if the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. The relevant words of Section 108(o), inter alia, provide that the lessee must not use or permit another to use the property for a purpose other than that for which it was leased. While comparing the purpose for which the premises were let and the objectionable use made by the tenant, Chief Justice Chagla referred to the above-mentioned Madras decision and stressed the principal or dominant use as the guiding factor:
So really a small incidental activity was carried on in these premises and, therefore, the Court said 'What we have go1 to look at is the primary purpose for which the premises are used'. Applying that test here, what is the primary purpose for which the tenant is using this building.
Mr. Advani says that even according to the ratio of this decision the Court can only condone minor or trivial lapses on the part of the tenant while recording a finding about the primary purpose for which the premises are used.
17. Counsel on either side had tried to elucidate the point by reading passages from the two well-known commentaries on the Rent Control Act. Reference was made to pages 291 and 292 of the Bombay Rent Control Act 1947 by D.H. Choudhari and A.D. Choudhari, 1970 Edition. Passages were also read out from pages 157, 375 and 376 of the Bombay Rent Act by Dalai, 4th edition. The learned authors have based their commentaries on certain English decisions while considering the purpose of letting of premises. It is stated that the primary purpose is to be ascertained and that should be the main, substantial and dominant purpose.
18. In my opinion, while construing the provisions of Rent Control Laws in India one cannot rely too much on the English decisons given under the English Rent Act. I would in this connection quote with approval the apposite remarks of Patel J. in Jerbanoo F. Tata v. Dinshaw Dossabhoy Mistry (1960) Civil Revision Application No. 548 of 1960. The learned Judge was deciding a case under the Bombay Rent Act. When reliance was placed on English decisions as an aid for construing contracts of tenancy in India, the learned Judge observed as follows:
In England life is more formal while here even in the City of Bombay in almost every third house, which is intended for the purpose of residence, some or other activities are carried on by the tenant while he lives there. Privy Council has very often pointed out the inadvisability of interpreting documents of Indians in the light of interpretation of the documents in England on the ground that habits and modes of life of the two people are so different. Such covenants must be interpreted with due regard to the surrounding circumstances including the conditions prevailing here. In a case like the present, where the dominant user of the premises continues to be residence, can it be said that the user is changed from that of residence to any other purpose whatsoever? I do not think it is possible to regard what is done by the petitioner's daughter as a change of user for non-residential purpose or a business purpose. It is still being used for residential purpose only. Merely because some incidental use is made for another purpose, it cannot come within the negative covenant not to use it for any other purpose whatsoever.
19. At this stage the counsel on either side addressed me on the wording of the two relevant sub-clauses of Section 13(1). Section 13(1)(a) provides a ground for eviction when the tenant commits an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. Clause (o) of Section 108 of the Transfer of Property Act in so far as is relevant requires the lessee not to use or permit another to use the property for a purpose other than that for which it was leased. Turning to Section 13(1) of the Rent Act, it is evident that the tenant can be evicted when the premises have not been used for the purpose for which they were let. It is true that to a certain extent the two clauses over-lap each other. Both speak of change of use. Section 13(1) has a wider connotation and covers not only positive but also negative aspect. When it is a case of mere failure to use or change of use then the tenant cannot be evicted, if he pleads and, establishes that he had a reasonable cause for the failure to use or change of use. There may be cases where even under Section 13(1) the premises are used wholly for a purpose for which they were not let. In such a case the Court will not find any difficulty in passing a decree in ejectment. But in the present case the premises are put to an additional or a different use and they are still used for the purpose for which they were let. In other words, it is a case of composite use. Whether the case falls within the ambit of Section 13(1)(a) or under Section 13(1) the Court will have to consider the dominant or primary use to find out whether there is a change of use so as to attract the provisions of either of the two sub-clauses.
20. As stated above, the wording of the two clauses of the sub-section provide no guidelines. But the object of the Rent Act is to protect tenants against indiscriminate eviction by landlords. Whenever the landlord complains that the tenant has changed the use of the premises, then the Courts must find out in the first instance the original purpose for which the premises are let. If the tenant is found to use the premises for an additional purpose or a purpose different from the purpose for which the premises were let, then it must be found as a fact in every case as to what is the dominant or primary use of the premises vis-a-vis the purpose of letting. It will be a question of fact to be decided in each particular case having regard to all the circumstances. It is not possible to give a list of all the relevant factors but Courts must bear in mind that the Rent Act is enacted primarily for protecting tenants against indiscriminate eviction. The tenants have no such protection under the general law which applies to all leases. It may be that a landlord has rushed to the Court on flimsy or superficial grounds. Or it may be that a tenant in a given case is trying to exploit the situation. In all such oases the Courts have to record a finding about the dominant or primary use of the promises vis-a-vis the purpose of letting. Some times the extent or mode of use may be a relevant factor. But it is difficult to lay down any definite objective test in this behalf.
21. As stated by me above, the Courts below have not recorded a finding about the dominant use in the present case. The trial Court has touched the problem without applying its mind to the facts on record. The judgment of the appellate Court is silent on this point. The decree in ejectment is passed expressly by the Courts below on the ground which is to be found in Section 13(1) of the Rent Act. The plaintiffs have not given any particulars in the plaint which Would attract either Section 13(1)(a) or 13(1)(k) of the Rent Act to the exclusion of the other. Counsel on either side tried to argue the case as if it is either under the one or the other sub-section of the Act. In the absence of a finding, I am required to remit an issue to the trial Court. As desired by the counsel, I keep the question open. Plaintiffs may establish their case either under Section 13(1)(a) or 13(1) of the Act. I propose to remit the following issues to the trial Court for trial after giving opportunity to both the parties to amend their pleadings or adduce additional evidence:
1. Whether tile plaintiffs prove that the defendant has changed the use of the premises in such a manner that the dominant or primary use is residence and not business.
If the above finding is given in favour of the plaintiffs, the trial Court shall record a finding on:
2."Whether the plaintiffs further prove that they are entitled to eject the defendant either under Section 13(1)(a) or Section 13(1) of the Act.
22. The learned trial Judge is directed to consider the above two issues and record his findings thereon. The findings recorded by him shall be certified to this Court through, the District Court at Poona. As far as possible, the learned trial Judge will proceed to record his findings within a period of two months from the date on which the record is received in his Court. Points decided by me will not be reopened in one form or another.