1. This is a revision application under Rule 6 of the Delhi Rent Control, (Procedure) Rules, 1847 seeking to revise the order of the Senior Subordinate Judge posted in Delhi directing that the applicant be evicted from the premises.
2. The suit was originally brought by Mr. Bal Raj Arora landlord against the applicant who was his tenant alleging that he had not been paying his rent and that he Had been using the premises for purposes other than for which the premises had been let and also in contravention of the terms of the lease between the Government and the plaintiff. After the plaint had been admitted notice was issued to the defendant to appear and put in his defence. The first date of hearing was 4-9-1951. On that day the plaintiff appeared but the defendant was absent and 'ex parte' proceedings were ordered and the case was adjourned, to the next day. Towards the close of the court's sitting on 4-9-1951 the defendant appeared and put in an application asking that the order regarding 'ex parte' proceedings to be taken against him be set aside as he had been prevented by misrepresentation having been made to him by the plaintiff that he would withdraw the suit and that was the reason for his not coming and attending the Court. The defendant also alleged that he had brought the arrears of rent with him. The Court ordered this application to be heard the next day. This application has been shown as an application under Order 13, Rule 7, but it is really an application under Order 9, Rule 7. Under Order 9, Rule 6, where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, the Court may proceed 'ex parte' if it is proved that the summons was duly served. Under the provisions of Rule 7 of this Order where the Court has adjourned the hearing of the suit 'ex parte', & the deft, at or before such hearing, appears & assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
On the 5th of September the Court heard the application of the defendant for setting aside the 'ex parte' proceedings against him. The Court set aside its order of the previous day on payment of Rs. 15/- as costs. The result of this order, according to the provisions of Rule 7, is that the Court permitted the defendant to appear 'as if he had appeared on the day fixed for his appearance'. If the defendant had appeared on the day fixed for his appearance which was the 4th of September and had put in the arrears of rent, then so far as the provision of law concerning the deposit of the money on the first day of hearing is concerned it was satisfied when the money had actually been brought on the 4th though it was ordered to be deposited by the Court on the 5th.
In my opinion therefore issues 2 and 3 that were framed in this case should not have been framed by operation of Rule 7. The Court having set aside the 'ex parte' proceedings, the result 08 which being that the defendant was put in the same position as if he had appeared on the first day of hearing, these issues did not arise. The trial Judge held that the deposit must be deemed to have been made on the first day of hearing. Regarding the other issues that arose in the case, the trial Judge came to the conclusion that the premises that were let out to the defendant had no doubt been premises which were business premises but a small portion of the premises being used for residence was not excluded from such use by the defendant. The trial Judge, therefore, held that the arrears having been paid there was no grievance of the landlord proved against the defendant and therefore dismissed the landlord's suit. The landlord appealed.
On appeal the Senior Subordinate Judge held that the deposit had not been properly made on the first day of hearing, the Judge regarding that as an important point in the case. Regarding the other matter the Judge held that the premises were meant to be used exclusively for business and that as it was admitted that a small portion was being used for residence, that Judge held that there had been user for a purpose contrary to what they had been let for and contrary to what the Government had let them for to the original landlord. The case having thus been made out for the tenant's eviction, the Senior Subordinate Judge accepted the appeal on both these grounds and ordered the applicant's eviction. It is from that order that this revision application has been taken to this Court.
3. I have heard learned counsel for the parties at great length. As I have said before, so far as the payment of the arrears of rent on the first day of hearing was concerned, the matter Is concluded by the provisions of Rule 7 of Order 9. If the Court sets aside the 'ex parte' proceedings, it means that the Court accepts the defendant's excuse for not being able to be present at the hearing. The result of the Court's acceptance is that the defendant is put in the same position as if he had actually appeared on the first day of hearing & on the first day of hearing he did bring the money. But even if he did not, If his excuse is accepted that he was misled by the plaintiff and therefore was not able to come, his tender of money to the Court immediately is a proper tender on the first day of hearing. As I have said before, the issues regarding this matter did not arise on the Court deciding this point in the defendant's favour and setting aside the 'ex parte' proceedings.
4. Coming to the next point in the case counsel submitted that the thing to observe was that these premises were given out by Government to the predecessor-in-title of the present landlord Messrs. Bhagwan Das Jawahar Mal on 20-3-1933 at a certain yearly rent on certain conditions in perpetuity. Clause (6) of the conditions of the lease was as follows:
'The lessee will not carry on or permit to be carried on, on the said premises any business, trade or manufactures which, in the opinion of the Chief Commissioner of Delhi, is noisy, noxious or offensive, or permit the said premises to be used for any purpose otherwise than as business premises or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance or disturbance to the Secretary of State or his tenants in the New Capital of Delhi.'
It is the defendant's case and that has not been controverted that he had taken the premises from L. Bhagwan Das who was the elder brother of the father of the plaintiff in 3935 and had been paying rent to him using the premises for the purpose for which they were taken. Later on there was a partition between the brothers and the shop fell to the share of L. Jawahar Mal, the father of the plaintiff. Thereupon the defendant paid rent to L. Jawahar Mal. After the death of L. Jawahar Mal a partition took place between the plaintiff and his brothers and the premises fell to the share of the plaintiff and the defendant had been paying rent to the plaintiff. He also alleged that the plaintiff's brother, Mr. Prahlad Arora, was residing at the back portion of the premises in suit. This fact is admitted.
The defendant's case is that since 1935 he has been using the premises in the manner for which they had been leased which is the same in which he is using them now and that he has been paying rent first to L. Bhagwan Das. then to the plaintiff's father and then to the plaintiff him self, and no objection has ever been taken to the manner in which he has been using the premises. Mr. Bal Raj Arora the landlord never denied this on oath. He merely pleaded ignorance. It is the tenant's case that under proviso (6) to Section 92, Evidence Act any fact may be proved which shows in what manner the language of a document is related to existing facts, and he says that he had proved that when premises were let out to him for business a small portion of it had continuously been used by him for residence since 1935 for a period of over fifteen years without objection and rent had been received.
It is a matter of common knowledge that some shopkeepers or businessmen actually live on the premises where their business is being conducted just as many lawyers live on the premises where they carry on their profession. That this has been so for a large number of years proves that the premises are not being misused in the sense that they are being used for a purpose other than for what they were intended to be used. There is no written lease between Mr. Bal Raj Arora the landlord and the tenant. What happened was that in 1947 a letter was written by the defendant to Mr. Bal Raj Arora the landlord which has been produced bv the landlord as evidencing the tenancy. The letter is Ex. P-5 and runs thus: 'This is to confirm the arrangement arrived at between you and me verbally last evening :
1. That I am your tenant in regard to your property situate at Baird Road, New Delhi, known as Shop No. 9, in which I am carrying on business under the name and style of Government Provisions Store.
2. That I shall pay to you the rent according to law from month to month.
3. That the tenancy commences from the 1st of every English Calendar month and ends with the end of every month.
4. That I agree to pay the rent in the first week of every month.
5. That I shall pay all the electric bills and water charges and the house tax.
6. That when I vacate the premises I shall hand over possession to you.
I have paid you the rent for May and June '47 by cheque of Rs. 125/9/- on Traders Bank.' This letter is dated 26-7-1947. It is urged by the landlord that in para. 1 of this letter when the tenant says that he is carrying on business under the name and style of Government Provisions Store, he is acknowledging the fact that the premises are to be used for business purpose only and nothing else. Counsel for the tenant urges that this is descriptive of the tenant and not restrictive of how the premises are to be used. He urges that since 1935 the premises have been used in the manner in which they have now been, used, that is to say, used mainly for the purpose of carrying on the shop, but in a small portion of the premises the tenant has also been living. This is borne out by the description of the premises as given by the landlord himself. In the notice given by him before the suit he wrote thus:
'1. That, I am the owner and landlord of the premises situate on plot No. 9, Baird Road, New Delhi.
2. That the front portion of the some consisting of the varandali, godown, store, kitchen, bath. W. C. and small courtyard has been let out to you by me for business purpose which is under your occupation as my tenant * * * .'
The fact that the premises contained a kitchen and a bathroom evidently showed that a small portion of the premises could be used by a tenant for the purpose of actually residing there. Though the premises have been used since 1935 in the manner in which they had been used, uptil now no really serious action has ever been contemplated on the ground that they have been used in a manner not authorized either by the lease from Government to the original perpetual tenants or by the present landlord to the present tenant. It is in the evidence of Mr. Shanti Chand, an Assistant in the Land and Development Office. New Delhi, that no one has so far been evicted on the ground of his residence in his shop. No question of ration cards was ever put to the defendant and I cannot understand the Senior Subordinate Judge introducing this irrelevant matter In his judgment. There has never been any denial of the facts alleged by the defendant.
5. The tenant has in my opinion merely carried out the dominant purpose for which the premises were let whether by Government to the perpetual lessees or by the present landlord, Mr. Bal Raj Arora or his father or his uncle to the present tenant. A tenant by living in a small portion of the premises does not contravene the provisions of Clause (6) of the conditions of Government lease. He does not carry on his business in a noisy, noxious or offensive manner, nor does he cause annoyance or disturbance to Government or to other tenants of Government in New Delhi. A tenant may find that he is better able to manage his business by living on the premises in a small portion for which purpose the landlord had provided him with a kitchen and a bathroom. Surely a businessman's guard residing on the premises will not be and is not objected to. Wily then, should the residence of the businessman himself be considered offensive? His presence on the premises may be as ancillary to the business as that of his guard. It may indeed be more effective.
In my opinion, therefore, the landlord is not Justified in saying that the premises had been used for a purpose other than for what they were let. In my opinion the trial Judge came to a right conclusion and I would, therefore, accept this revision, set aside the order and decree of the Senior Subordinate Judge and restore the order of the trial Judge dismissing the landlord's suit. There will be no order as to costs in the proceedings in this Court.