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Moolchand Vs. Sheodutt Paliwal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 205 of 1972
Judge
Reported inAIR1973MP301; 1972MPLJ142
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(1)
AppellantMoolchand
RespondentSheodutt Paliwal and anr.
Appellant AdvocateB.L. Patel, Adv.
Respondent AdvocateB.C. Verma, Adv.
DispositionAppeal allowed
Cases ReferredKrishnan Nair v. Valliammal
Excerpt:
- - ' on a parity of reasoning, a tailor, like the defendant in the insant case, who uses front varandah of a big house for his tailoring business and the rest of the house for his residence cannot be said to be using the house for non-residential purposes, and the primary use of the house in such a case will be residential......used for both residential and non-residential purposes, the court has to decide as to what is the primary purpose for which the accommodation is let or used. if the primary purpose is residential, the accommodation will be classified as residential even if it is also used for some non-residential purpose, and vice versa. the primary purpose of letting when the lease is silent as to purpose has to be determined by drawing inferences from other facts and circumstances. the conclusion as to the quality of purpose, in such cases, is a conclusion of law and, in my opinion, it is open in second appeal to see whether the court below has drawn correct conclusion on that point from the proved facts. this i say on the same reasoning on which it has been held that the question of landlord's bona.....
Judgment:

G.P. Singh, J.

1. This is a tenant's appeal against whom a suit for eviction has been decreed on the ground mentioned in Section 12 (1) (f) of the Madhya Pradesh Accommodation Control Act, 1961, on the finding that the house in possession of the tenant is needed by the plaintiff-landlord for using it as a lawyer's office. The plaintiff is an Advocate of two or three years standing and, according to the plaint allegations, he has no other suitable accommodation for his office.

2. The main dispute between the parties is, whether the house was let to the defendant for residential purposes or whether it was let for non-residential purposes. If it is held that the house was let for residential purposes, the plaintiff cannot succeed, as for getting a decree under Section 12 (1) (f) he has to establish that the accommodation was let for non-residential purposes. The trial Court committed the mistake of not framing a direct issue on this point, but I find that the parties were alive to the point in issue and they led evidence in support of their respective pleas. Omission to frame a specific issue on the point, therefore, has not prejudiced the parties.

3. The question whether an accommodation is let for residential purposes or for non-residential purposes is a simple one when the contract of tenancy specifies the purpose of the tenancy. But the question becomes a vexed one when the lease, whether oral or written, is silent on that point. The expression 'the accommodation let for residential purposes' as used in Clause (e) of Section 12 (1) and the expression 'the accommodation let for non-residential purposes' as used in Clause (f) of the same section prima facie refer to the purpose mentioned in the lease.

But when a lease is created without any restriction as to purpose, the tenant is free to use it for any purpose and strictly speaking in such a case it is difficult to say that the letting is for any particular purpose. But if this view is taken, Clauses (e) and (f) will be inapplicable to a case where tenancy is created without any express or implied limitation as to purpose and the landlord will not be able to claim possession of the accommodation even if he needs it for his own use. Such a result does not seem to have been intended by the legislature. Therefore, even if the lease docs not specify any purpose, its purpose has to be inferred by recourse to surrounding circumstances, such as the structural design of the accommodation, its location, the use to which it is put by the tenant etc. Another difficulty arises because of the fact that the Act creates only two categories of purpose viz. residential and non-residential. Therefore, if an accommodation is let or used for both residential and non-residential purposes, the Court has to decide as to what is the primary purpose for which the accommodation is let or used. If the primary purpose is residential, the accommodation will be classified as residential even if it is also used for some non-residential purpose, and vice versa. The primary purpose of letting when the lease is silent as to purpose has to be determined by drawing inferences from other facts and circumstances. The conclusion as to the quality of purpose, in such cases, is a conclusion of law and, in my opinion, it is open in second appeal to see whether the Court below has drawn correct conclusion on that point from the proved facts. This I say on the same reasoning on which it has been held that the question of landlord's bona fide need is a mixed question of law and fact; (see Madan Lal Puri v. Sain Dass Berry, 1971 Ren CJ 749 = (AIR 1973 SC 585)).

4. Now coming to the facts, the house was let to the defendant, who is a tailor, about forty years back by the father of the plaintiff. The evidence of the plaintiff, that the accommodation was let for non-residential purposes to the defendant is not of any consequence, because the plaintiff, who is twenty-five years of age, was then not even born. The plaintiff does not even state as to how he came to know that the house was let to the defendant for non-residential purposes. In Ex. P-8, which is a copy of entries in the tax register maintained by the Municipal Committee, Narsimhapur, the house is shown in possession of the defendant for purposes of residence. The defendant in his evidence stated that he took the house for residing as also for keeping his shop of tailoring. The house is a double storeyed house. The ground-floor consists of a front verandah, two rooms, a bath-room, kitchen etc. The first floor consists of two rooms and open terrace on both the sides of the rooms. This entire house is in possession of the defendant. Thefront verandah of the ground-floor is the only portion which is used by the defendant for his shop. The rest of the house is used for his residence. The house is situated on the main road where shops have sprung up, but it is not known as to what was the position forty years back when the house was let to the defendant. Previous to occupying the house, he was residing in some other locality and according to his statement he took the house in suit on rent for the convenience of residence as also for his business

Prior to the institution of the suit, a notice was issued by the plaintiff claiming the house for residence as also for office. In that notice the plaintiff stated that the house was used for residential purposes, and that there was also a shop in the front verandah. In reply to this notice, the counsel for the defendant wrote that the house was essentially non-residential. It is plain enough that the lawyer who sent the reply on behalf of the defendant stated that the accommodation was non-residential, because the plaintiff had claimed the accommodation in his notice also for residential purposes. In my opinion, much weight cannot be attached to the statement in the reply notice, as the primary facts are now known and it is from these facts that the conclusion is to be drawn whether the accommodation was let to the defendant for residential purposes or for non-residential purposes.

5. This is a case where it has not been proved that there was any stipulation in the tenancy agreement that the defendant was to use the house for any particular purpose. Forty or fifty years before, when there were no Accommodation Control Acts, no one usually bothered about these matters. But the purpose of the defendant in taking the house on rent is plain enough. As deposed by him, he took the house for residing therein and also for keeping his tailoring shop. Now, the question is whether the purpose should be treated as primarily residential or primarily non-residential. I have already stated that the house is sufficiently big and except the front verandah the rest of the house is used by the defendant for residential purposes. The house is also constructed in such a fashion that it is mainly suitable for residence, as is admitted by the plaintiff himself in his cross-examination. In the circumstances, my conclusion is that the house was primarily let for residential purposes. In reaching this conclusion I place reliance on Krishnan Nair v. Valliammal, AIR 1949 Mad 785 where Panchapakesa Ayyar, J., observed;

'I consider :hat, 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 aroom will never make the house itself one used for 'non-residential purposes.'

On a parity of reasoning, a tailor, like the defendant in the insant case, who uses front varandah of a big house for his tailoring business and the rest of the house for his residence cannot be said to be using the house for non-residential purposes, and the primary use of the house in such a case will be residential.

6. The appeal is allowed. The judgments and decrees passed by the Courts below are set aside and the suit is dismissed with costs throughout.


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