VORA RAHIMBllAI !WI llASANBllAI POPAT v.

VORA SUllDl!RLAL !Will.AL & ANB.,

NOVEMBER 4, 1985

[E.S, VENKATARAMIAH AND R.B, MISRA, JJ,]

Bombay Rents, Hotel and Lodging House Rstes (Control) Act, 1947 Section 13(l)(k).

Tenant - Not using permises for 11Xlre than six 11Xlnths - Liable for eviction - Stipulation in 'rent note' regarding payent of rent for non use - Whether absolves liability for eviction.

The appellant-plaintiff purchased a plot of land. The reapondent-defewlant acceptad the plaintiff as 011Der on a rent of

1111. 1325 per - for a period of five years. under a regiatered rent note, It was further stipulated therein that the tenant was to pay the mnicipal tax in respect of the rented land to the plaintiff, that on the 11Xpiry of the period of five years the tenant shall remove the constructicmil thereon at hi• own expenae, 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 r8lllOV8 the conetruction erected on the land, and to vacete the preaiaes and hand over po81ession. As the defendant failad, a suit for eviction 111111 filed, on a D11111ber of ground• one of which was that the premises had 119t been used by the defendant for a period of more than six months prior to the elate of the suit without

reasonable caused and, therefore the defendant 111111 liable to eviction under Section 13(l)(k) of the Bombay Rent•, Hotel and Lodging Bouse Rates (Control) Act, 1947.

The trial. court di8lliased the suit holding that tha notice of termiaation wu not valid and that the plaintiff had failed to proye boDa fide requirement, and that u defendant No.2 vu at tted as a sub-tenant many years before the execution of the rent note by the plaintiff, the plaintiff was not entitled to recover poasesaion on the ground of illegal aub-letting.

The plaintiff took up the matter in appeal and the AHietant Judge allowed the appeal partly, holding that the . notice of termination wu a valid one, that the plaintiff did not

require the suit premises reasonably and bona fide for occupation for himself and that the suit premises bad not been used by the defendant continuously for a period of six mnths iumediately 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 comnitted a manifest error in holding that the land in question had not been used for mre than six moths 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 s.13(l)(k) of the Act inasmich as the premises have not been used for the purpose for which they were let out for a continUQus period of six moths 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 assllllled, and that it has got to be alleged and proved. The landlord-plaintiff could seek eviction under s. 13(i)(k) 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. 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 cause for not doing so 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,

llEIJ) : 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, Ex. 61. As regards sub-tenancy, it has

VORA RAHIMBHAI v.VQRA SUNDARLAL 719

been found by the Courts below to have been crested long before the Bombay Rents, Hotel a11d Lodging House Rates (Control) Act, 1947 came into force. There was therefore no question of the eviction of the sub-tenant 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 U: cailnot 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 BJ

3. Neither the purpose of letting is indicated l.n the rent note (Ex.61) 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.

T"ne defendant had taken the premises from the predecessor in

interes~ of the plaintiff and had made certain super-structures on the land in question. There is, however, material on the record to show >hat 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 smoo. 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 1 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

A 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 especislly in these days of scsrcity 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 using it for years B together without incurring the lisbility of eviction, as it sought to be contended for the respondent, it would amount to allowing the parties contracting out of law. [724 I>-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 c 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)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 56 of 1971.

From the Judgment and Order dated 8.12.1969 of the Gujarat High Court in C.R.A. No. 654 of 1967.

Harish Salve, D.N. Misra and Ms. A.K. Verma for the Appellant.

S.H. Sheth and Ms. Kailash Mehta for Respondent No.l.

M.v. Goswami and Ms. Vandans Sharma for Respondent No.2.

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 G admeaauring 100 ft. x 164 ft. (i.e., 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 hrul also made certain constructions on the disputed plot. The appellant purchased the said plot under a registered sale deed dated 18th April, 1955. The H defendant accepted the plaintiff as owner on a rent of Rs. 1325

VORA RAHIMllHAI v.VOAA SUNDARLAL [MISRA, J.] 721

per annum with effect from 18th April, 1955 under a registered A 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 aioount 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 sha'l.l remove the B 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 perio.d of lease c contemplated in the rent note expired on 17th April, 1960 and the defendant continued as a statutory tenant on a monthly rent under the l\ent 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 1efendant to remove the construction D 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 E and, therefore, the defendant was liable to eviction under s.13(l)(k) of the llombay Rents, Hotel and Lodging House Rates (Control) Act, 194 7, 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 re4uirement, and that the defendant No. 2 was admitted as a sub-tenant many ¥ears before the execution of the F rent note by the plaintiff and, therefore, the plaintiff was not entitled to recover possession on the ground of illegal subletting. 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 G 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 without 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 Qy the deferidant. It took the view that the construction of the super- H

SIJPBEME COURT REPORTS [1985] SUPP; 3 s.c.R.

A structure on the land itself was a user and, therefore, too courts below and coomitted 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.

II Mr. Barish, N. Salve counsel for the appellant strenuously urged that the tenant was liable to be evicted under s.13(l)(k) 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 illlnediately 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 C it locked.

Mr. S.H. Sheth for the defendant-respondent in reply has contended that the purpo3e of letting cannot be assumed. It has got to be alleged and proved. The plaintiff could seek eviction under s.13(l)(k) of the Act only when he proves the purpose for which the premise.. have been let out and that the same has not D 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 s.13(l)(k) does not arise.

The material portion of the rent note, Exbt.61, is as E 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 18.4.1955.

It is agreed th•t the rent fixed is Rs. 1325 (Rupees thirteen hundred and l-weuty 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 he tenable in respect of the same. The period fixed is for five years. It expires on the date 17 .4.1960. We shall ha.'ldover possession of the said property to you on the said date. We shall not sub-let the said property to any one else.

The construction work which is made on the said

VORA RAHIMBHAI v. VORA SUNDARLAL [MISRA, J.) 723

property belongs absolutely "to us, the tenant. And A when we shall vacate the said property we shall renJ>Ve

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.

B 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, wsnt to vacate the said property within the period fixed we can vacate the same by giving you notice before two months or if we wsnt the said c 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 thst time and we shall pass and give a newrent note to you. We, the tenant, are to pay Rs. 40 (Bupees forty) every year to you, the owner for onmicipal tax D in respect of the said property in addition to the aIOOUI1t of rent. If the 1111nicipal tax comes to more than forty rupees, you the owner are to pay the excess aIOOUnt of tax.-"

A perusal of the rent note indicates that there is no E specific mention of the purpose for which the premises was rented out to the defendant. It has already been noted thst the defendant had taken the premise~ 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 F 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 G the counsel for the defendant to the notice of termination given by the plaintiff, he definitely admitted thst 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 Nadiad. In this situstion it cannot be argued with any force thst the plaintiff hes not been able to establish the purpose for H which the premises had been let out to the defendant.

724 S~

COURT REPORTS (1985] SUPP; 3 s.c.R.

A As a 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 so but in the absence of such a plea the defendant has been serioualy prejudiced.

This contention of the counsel also cannot easily be accepted when on the own admission of the defendant and defendant's counsel the prses had been used for the purpose of carrying to tobacco business. Therefore, the defendant fully knew the purpose for which he had taken the premises as a tenant.

The stand of the defendant all through appears to be that even if C 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 talka of the liability of the defendant to pay the rent even if he does not use the property and keeps it closed. This, however, D 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 accOlllDOdation 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 E for years together without incurring the liability of eviction, as is sought to be contended for the respondent, it would S100unt

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 F s.13(l)(k) 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 s.13(l){k) and the intention of the legislature is clear from the words used therein, and all that s.13(l)(k) contemplates is that the premises had not been used G for the purpose for which they were let out for a continuoua period of six ronths immediately preceding the date of suit without reasonable cause. It does 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 H consolidate the law relating to the control of rents and repairs

.VORA .RAHIMBHAI v.VORA SDNilABLAL (MISRA, J.] 725

of certain premises, of rates of hotels and lodging houiies and"of evictions. The control had to be brought in becauae of the scarcity of accOlllDOdation 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. Tue 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 1111st 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 takeil 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 no_te, Exbt.61.

Shri Sheth also referred to s. 12 and s. 13 of the Ai:t 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 E the superstructures does not amount to non-user of the land. On the own showing of 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 F 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 safe; t.y presumed that the land is not being used for the purpose for which it has been proved t; o have been let out.

Tue High Court in our opinion has gone wrong in holding that the construction of super-structures on the land in dispute was itself a u8er. As indicated earlier the super-structures had already been built before the defendant took the land from the plaintiff under rent note, Exbt.61. Therefore, there is no question of making any construction on the land in question by the defendant after the execution of the rent note.

A As regards the sub-tenancy it has been found by the courts

below that it had been created long before the Act in question caine 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 C however, bear their own costs.

N.V.K.

Appeal allowed.