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i.D. Malik Vs. Duli Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 190 of 1968
Judge
Reported in5(1969)DLT175
ActsDelhi Rent Control Act, 1958 - Sections 2 and 14(1); Transfer of Property Act, 1882 - Sections 108(0)
Appellanti.D. Malik
RespondentDuli Chand and ors.
Advocates: N.D. Bali,; R.L. Sambhar and; S.L. Bhatia, Advs
Cases ReferredFlour Mill. In T. Dakshinamoorthy v. Thulja. Bai
Excerpt:
.....btoh the lower courts were justified in coming to the conclusion that the land-lord had failed to prove that the tenancy was let out for the purpose of karyana business only and that it was agreed that it was nto to be used for any toher business. he has failed to discharge the burden. the three kinds of user were residential, commencial and toher purposes like charity. it is in evidence that the locality in which these premises are situated contained many industrial units like flour mills. it was argued that unless there was a statutory prohibition or restrictive convenants, the tenant had the right to use the demised premises for whatever purposes he liked, provided they were nto illegal, immoral and did nto create a nuisance......is, or is intended to be, let separately for use as residence or for commercial use or for any toher purpose and includes- (i) the garden, grounds and out-houses, if any, appertaining to such building or part of the building ; (ii) any furniture supplied by the landlord for use in such building or part of the building.' 14(1)(c) that the tenant has used the premises for a purpose toher than that for .which they were let- (i) if the premises have been let on or after the 9th day of june, 1952, without obtaining the consent in writing of the landlord ; or (ii) if the premises have been let before the said date without obtaining his consent. 14(5) no application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (e) of the.....
Judgment:

V.S. Deshpande, J.

(1) The appellant is a land-lord, who biought a suit against respondent No. 1 who was his tenant to restrain him from using the leased premises for the purpose of a Flour Mill. The injunction was granted by the trial Court, but refused by the lower Appellate Court.

(2) It is common ground that the leased premises have been occupied by the tenant from the inception of the tenancy in 1957 onwards for the purpose of a Karyana (Grocery) shop. The lease was first given to D.W. 1. Hardwari Lal, and respondent No. 1, Duli Chand, in 1957. It was continued in favor of respondent No. 1 alone in 1960hen Hardwari Lal left the premises. The land-lord's case as pleaded in paragraphs 2 and 4 of the plaint was that the premises was let out for the purpose of running a Karyana business and that the tenant was nto to start any toher business in the premises without the consent of the landlord. The land-lord complained that the tenant's proposal to use the premises for a Floor Mill was in complete disregard of the statutory and contractual obligations nto to turn the shop from commercial to industrial purpose.

(3) The tenant in piras 2 and 4 of his written statement traversed paragraphs 2 and 4 of the plaint by denying that the premises were taken by him for Karyana business or for any toher specific purpose. The premises were taken for commercial purposes in which any business or trade could be carried. The proposal to start a Flour Mill in the premises was nto contrary to any condition in the lease that a particular business or trade was nto to be carried on there.

(4) The relevant provisions of law relating to the change of user of the leased premises by the tenant and remmedies open to the land-lord to prevent the same are Sections 2(i), 14(1)(c) and 11(5) of the Delhi Rent Control Act, 1958 and Section 108(o) of the Transfer of Property Act, which are reproduced below :-

'2(I)'Premises' means any building or part of a building which is, or is intended to be, let separately for use as residence or for commercial use or for any toher purpose and includes- (i) the garden, grounds and out-houses, if any, appertaining to such building or part of the building ; (ii) any furniture supplied by the landlord for use in such building or part of the building.' 14(1)(c) That the tenant has used the premises for a purpose toher than that for .which they were let- (i) if the premises have been let on or after the 9th day of June, 1952, without obtaining the consent in writing of the landlord ; or (ii) if the premises have been let before the said date without obtaining his consent. 14(5) No application for the recovery of possession of any premises shall lie under sub-section (1) on the ground specified in clause (e) of the proviso thereto unless the landlord has given to the tenant a ntoice in the prescribed manner requiring him to stop the misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of the ntoice ; and no order for eviction against the tenant shall be made in such a case unless the Controller is satisfied that the misuse of the premises is of such a nature that it is a public nuisance or that it causes damage to the premises or is toherwise deterimental to the interests of the landlord.'

Section 108(o) of the Transfer of Property Act-

'108(o).(T)he lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own ; but he must nto use, or permit antoher to use, the property for a purpose toher than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the Lesser, or work mines or quarries nto open when the lease was granted, or commit any toher act which is destructive or permanently injurious thereto.'

(5) The question for decision is whether the proposed use of the leased premises by the tenant would be contrary to the purpose for which the premises were originally leased to the tenant by the land-lord and if so what relief should be granted to the land-lord against the proposed user.

(6) Btoh the trial Court and the Lower Appellate Court have ntoed that the evidence adduced by the plaintiff regarding the purpose of the tenancy was confined to the original letting in 1957. The plaintiff and his witnesses were silent as to the contract of tenancy with respondent No. 1 alone in 1960 when Hardwari Lal left the premises. The effect is that there is no evidence to prove the land-lords' case pleaded in paragraphs 2 and 4 of the plaint at all. Consequently, btoh the lower Courts were justified in coming to the conclusion that the land-lord had failed to prove that the tenancy was let out for the purpose of Karyana business only and that it was agreed that it was nto to be used for any toher business. The trial Court tried to find out the original letting purpose by taking into account the fact that the original use of the premises by the tenant has been for a Karyana business and that this user had continued for a long time for about seven years. The trial Court also tried to construe the pleading of the tenant that the lease was for commercial purpose to mean that while Karyana business would be for a commercial purpose, the Flour Mill would be for an industrial purpose. The trial Court thought at any rate the lease was for ordinary type of commercial purpose, viz. a shop and that such ordinary type of commercial purpose did nto include the Flour Mill, which was more in the nature of an industry.

(7) The learned lower Appellate Court, on the toher hand. was nto prepared to agree with the trial Court in rejecting the clear and specific evidence of Hardwari Lal, Dwi and defending No. 4 as DW2, inasmuch as they were the two lessees who were expected to know for what purpose they were taking the tenancy. The learned lower Appellate Court believed their evidence that the premises could be used by them for any purpose. I do nto find any reason to disagree with this finding of fact. Further, the learned lower Appellate Court has rightly pointed out that onus of proving the fact that the premises were let out only for running a shop lay on the plaintiff-landlord. He has failed to discharge the burden. Even if the evidence adduced by the tenant is nto relied upon, it is clear from the pleadings of btoh the parties that the premises were let out for commercial purposes. The land-lord tries to make out a distinction between a commecrial purpose and an industrial purpose, while the tenant is trying to show that the commercial purpose includes the running of the Flour Mill also. The contention of the tenant is more in accord with the provisions of Delhi Rent Control Act, 1958. The purposes of a tenancy have been divided into three classes by Section 2(i) of the said Act. These are (1) residence, (2) commercial, and (3) any toher purpose. Since all possible purposes have been divided into only three categories, we have to see in which of the three categories the Flour Mill fits in. It is clear that it does nto fit in category No. 1. The question is whether it should fall in category No. 2 or 3. A little reflection would show that category No. 3 includes those purposes which are neither residential nor commercial. Such purposes would be charity, library, education, etc. This would show that words 'commercial use' were used in title larger sense to dentoe very profit making use of the premises. For, they would then include btoh commerce and industry. If these words are construed narrowly to include commerce, but nto industry then industry would fall into the third category along with non-profit making purposes. When the purpose of the statute was to divide all possible purposes only into three categories, there is no warrant for construing commercial use in a narrow 178 sense to exclude industrial use. That would result in the third category including industry along with non-profit making purposes. The number of categories being few, the ambit of each category has to be construed as widely as possible, so that each category would have as large a scope as possible, so that the third residuary category is nto made to include some purpose which would be comprised in the first two categories on a liberal construction. In Dr. Gopal Dass Verma v. Dr. S. K. Bhardwaj, the Supreme Court had occasion to construe Section 2(g) of Delhi and Ajmer Rent Control Act, 1952, which now corresponds to Section 2(i) of the Delhi Rent Control Act, 1958. The learned Solicitor-General suggested that: the three kinds of user were residential, commencial and toher purposes like charity. The Supreme Court that the toher purposes could be charity as suggested by the learned Solicitor-General. They how ever, went further and held that a combination of residential and professional (Commercial) purpose could also fall into the third category of toher purposes. It would appear, thereforee, that the Supreme Court was inclined to accept that the nature of the classification was that the first category was residential, the second commercial and the third of non-residential and non commercial purposes such as charity. The commercial purpose of the tenancy in the present case was, thereforee, broad enough to include Flour Mill.

(8) The above costruction also accords with the surrounding circumstances of the case. It is in evidence that the locality in which these premises are situated contained many industrial units like Flour Mills. Further, that the land-lord's building has three parts in one of which a Flour Mill was already running before the suit premises were leased out in 1957. The third part of the premises also was used for industrial purposes such as expeller and nickle plating. It cannto be believed, thereforee, that in granting the lease of the suit premises, the landlord could have insisted that they were nto to be used for a Flour Mill. In T. Dakshinamoorthy v. Thulja. Bai, it was held that in the absence of a written instrument of tenancy and direct evidence as to the purpose for which it was created, the Court can look at the evidence concerning the user of the premises by the tenant. The word 'user' has to be given, however, a reasonable meaning. The user in the present case was for the purpose of a shop. The adjoining portions of the same house have been used for industrial purposes. It cannto, thereforee, be said that the suit premises were to be used only for one kind of commercial purpose, viz. shep, but nto any toher kind of commercial purposes. Since, the toher two portions of the building have been used for Flour Mill and toher industrial purposes, such industrial uses must be deemed to be included in the commercial use for which the premises were admittedly leased out. The use of the premises for the purpose of a Flour Mill was commercial in a broad sense rather industrial in a narrow sense. The only change of use which would have mattered was one which would either be a public nuisance or would have damaged the premises. But, the concurrent findings of btoh the Lower Courts are that the running of the Flour Mill would be neither a public nuisance nor a damage to the premises. This is why the land-lord did nto bring the suit for eviction, but only for an injunction against the tenant.

(9) The provisions of Section 108(o) of the Transfer of Property Act should be construed as a whole and reasonably. They required that the lessee would use the property as a man of ordinary prudence would use it if it were his own. There is ntohing to show that the tenant is nto using the property reasonably. The tenant must: nto use the property for a purpose toher than for which it was leased. We have seen that the property was leased generally for commercial purposes. The Flour Mill is comprised in the commercial purposes for which the property was leased. The tenant must nto commit any act which is destructive or permanently injurious to the premises. The tenant in this case is nto doing so. In the matter of Standard General Assurance Co. Ltd. it was argued that unless there was a statutory prohibition or restrictive convenants, the tenant had the right to use the demised premises for whatever purposes he liked, provided they were nto illegal, immoral and did nto create a nuisance. It was further argued that in a contract for lease of property to be used for business purposes, (as in the case before us), the tenant was entitled to carry on any business subject only to the restrictions imposed by the general law of the land. (Hill and Redman's Laws of landlord and Tenant, 10th Edition, page 202). The Court accepted these arguments as sound. It would appear that even under Section 108(o) of the Transfer of Property Act, the landlord has nto been able to show any such change of the user by the tenant, which would be contrary to the purpose for which the premises were let out to him.

(10) For the above reasons, the appeal is dismissed, but without costs.


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