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Mangubhai Ranchhodji Desai Vs. Alibhai Nourmohamad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR102
AppellantMangubhai Ranchhodji Desai
RespondentAlibhai Nourmohamad and ors.
Cases Referred(Karnani Properties Ltd v. Miss Augustine and Ors.). The
Excerpt:
- - the lease was a lease of immoveable property for manufacturing purposes and the landlord-plaintiff having failed to give six months notice as mentioned in that section the plaintiffs suit should have been dismissed on that ground alone. (6) the party hereto of the second part shall not sub-let the said factory or its furniture and effects as well as the machinery or any part thereof and shall not also remove the same anywhere. we fail to see how it can be said that the machinery of the factory was affixed to the building for the more beneficial enjoyment of the building. the contention is not well founded......by 54r. kapadia it will be convenient to set out here the provisions of section 5(8) which defines premises:premises means(a) any land not being used for agricultural purposes(b) any building or part of a building let separately (other than a farm building) including.(i) the garden grounds; garages and out-houses if any appurtenant to such building or part of a building.(ii) any furniture supplied by the landlord for use in such building or part of a building.(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.but dose not include a room or other accommodation in a hotel or lodging house;.3. section 6 rules that part ii which relates to residential and other premises shall apply in areas specified in schedule i. it is not in dispute.....
Judgment:

S.T. Desai, C.J.

1. This revision application has been referred to a Division Bench as it raises a question of some importance under the Rent Act. The petitioner is the original defendent No. 1 and respondent No. 1 is the original plaintiff to the suit out of which arises this application. The plaintiff filed a suit for recovery of Rs. 1900/- as arrears of rent of the property in suit which is a weaving factory. He also sought possession of the same and mesne profits. His case was that the property together with machinery which formed part of the factory had been leased to the defendants for the purpose of a weaving factory at the monthly rent of Rs. 300/-. The defendents in their written statement raised numerous contentions. They claimed that standard rent of the premises should be fixed and that they were entitled to the protection of the rent law. The learned Civil Judge framed two preliminary issues and has decided both of them against the petitioner tenant. The first issue related to the validity of the notice to quit which the plaintiff had served on the tenant. The second issue related to the contention of the plaintiff that the factory which was situate in a house belonging to the plaintiff was not 'premises' within the ambit and operation of the Rent Act, 1947.

2. A preliminary objection has been raised by Mr. Karlekar, learned Advocate for opponent 1, and the objection is that the petitioner has come to this Court at an interlocutory stage. Now it is true that this Court does not encourage revision applications being brought before it from interlocutory orders. In the case before us there was a preliminary issue relating to jurisdiction raised before the learned Judge and we have decided to hear the petition on its merits.

It has been argued before us strenuously and with abundant heal by Mr. B.S. Kapadia that the learned Judge below was in error in deciding the issue of jurisdiction against the petitioner. The argument of Mr. Kapadia is that a factory is premises within the purview of the Rent Act. In order to appreciate the argument pressed for our acceptance by 54r. Kapadia it will be convenient to set out here the provisions of Section 5(8) which defines premises:

Premises means

(a) any land not being used for agricultural purposes

(b) any building or part of a building let separately (other than a farm building) including.

(i) the garden grounds; garages and out-houses if any appurtenant to such building or part of a building.

(ii) any furniture supplied by the landlord for use in such building or part of a building.

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.

but dose not include a room or other accommodation in a hotel or lodging house;.

3. Section 6 rules that Part II which relates to residential and other premises shall apply in areas specified in Schedule I. It is not in dispute and not disputable that before a tenant can claim the protection of the Rent Act. the property let out to him must be premises as laid down in the Act. Therefore the connotation and the precise ambit of the expression premises as laid down in the Act becomes an important point for consideration. In view of the importance of that expression we should have expected a substantive provision relating to the same but as some times happens we find that we have to ascertain the ambit of the expression from an interpretation Clause

4. I had occasion to say it before and may permit myself to say it once again that chaotic uncertainty rather than scientific accuracy is an indispensable feature of the Act which in parts is patch-work legislation. However it is a matter of some satisfaction that as regards the question which we are called upon to determine the language used does not create any particular difficulty.

5. The contention about the notice may immediately be disposed of. The argument here is that on a plain reading of the argument between the parties it is clear that the property let out was a factory. The lease was a lease of immoveable property for manufacturing purposes and the landlord-plaintiff having failed to give six months notice as mentioned in that section the plaintiffs suit should have been dismissed on that ground alone. We agree that the lease can be regarded as of immoveable property for manufacturing purposes. Obviously a weaving factory must be regarded as carrying on the process of manufacturing. But the short answer to this contention about insufficient notice is that in the agreement between the parties there is a Clause which relates to this question of notice. We shall have to refer to the agreement between the parties when we examine the other contentions and it will be convenient therefore if we set out the relevant and material part of the agreement at this stage:

Rent Note for a period of one year at the rate of Rs. 300/of the factory a going concern: belonging to the property bearing Ward No 3 Registration No. 2526: situate at Salabatpura Main Road.

This deed dated the 22nd September 1956..

WHEREAS the party hereto of the First Pan solely owns and possesses a weaving factory on the property bearing Ward No. 3 Registration No. 2520A situate at Salabatpura Main Road Sural in which the following Articles of furniture and machinery etc. are in working condition.

1 One Motor 7 Horse Power Make E.C.B.C. No. F. 36.

2 Ten Power-Looms without bracket & beem of Butterworth make.

3 Two Power-looms with bracket & beem of Hecking make.

4 One Bobbin Machine of Bardohle Make Track 10

5 One Khol machine of Tin winding 20

The party hereto of the Second Part has taken from the First Part the aforesaid Factory with its effects together with the above mentioned motor and looms on lease and as tenants has taken the possession of the same on the following terms and conditions:

(1) The party hereto of the Second Part shall pay to the Party hereto of the First Part the agreed rent at the rate of Rs. 300/per English Calendar month for the property comprising of the factory portion with its aforesaid machinery and furniture and effects and obtain due receipt thereof.

(2) The Party hereto of the Second Part has given a sum of Rs. 300/to the hereto of the First Part by way of deposit for rent which amount the Party hereto of the First Part shall set off against rent when the Party hereto of the Second Part shall hand over the vacant possession of the said factory together with its machines furniture and effects.

(This Clause struck off) sig. Mangubhai Ranchhodji.

(6) The Party hereto of the Second Part shall not sub-let the said factory or its furniture and effects as well as the machinery or any part thereof and shall not also remove the same anywhere. The party hereto of the Second Part shall use the said machinery as tenant only and the party hereto of the Second Part shall have no right of ownership over the same.

(9) If the party hereto of the Second part intends to vacate the said property he shall give one months written notice. The Party hereto of the Second Part shall hand over the said property and the above mentioned machinery in working condition and shall pay up the full amount due by way of rem and obtain receipt of the same.

(10) If there is any breach of the conditions herein provided or if the party hereto of the First part desires to take the possession of the said factory and the machinery then he shall be entitled to take possession of the aforesaid whenever he shall so desire and even before the expiry of the period and in that respect any obstruction raised by the party hereto of the Second Part shall be null and void.

(11) The rent hereby fixed for the aforesaid property and machinery is fixed after taking into consideration the market rate of the property and the machinery. The rent having hereby fixed is standard and proper and any objection in that behalf in future raised by the party hereto of the Second Part shall not be maintainable.

Reading Clause (9) and (10) together it is abundantly clear that if the tenant wanted to vacate the property he had to give one months written notice and if the landlord wanted the property he could without giving any notice take possession of the same whenever he desired before or after the expiry of the period of one year for which the lease was executed. There is in our opinion therefore little scope for the argument that Clause (10) cannot be read as contract to the contrary which takes the agreement outside the operation of Section 105. The Transfer of Property Act). It follows that no notice of six months was necessary before the landlord could ask the tenant to quit the property. The present Contention of Mr. Kapadia must therefore be negatived.

6. To turn to the more important aspect of the matter which as we have already mentioned relates to the ambit and operation of the interpretation clause in Section 5(8). It is firstly argued by Mr. Kapadia that Clause (b) state that premises means any building or part of a building let separately and the expression separately must be read along with the word building and not merely along with the words part of a building and if the expression separately be so read factory let out by the plaintiff to the defendants could fall within the definition of premises. Expression separately in our judgment can only be read with the expression part of a building. Separately cannot have any bearing on the initial word building in Clause (b). Therefore the present argument must be negatived. It is next urged that Sub-clause (iii) in Clause (b) speaks of fittings affixed to a building or a part of a building for the more beneficial enjoyment of the same and the machinery in the case before us was nothing distinguishable from fittings affixed to the building. Mr. Kapadia has invited our attention to the meaning attributed to the expression fixtures in the law of landlord and tenant in England and argued that the machinery which was part of the factory was only fixtures affixed to the building and the factory should be regarded as a building to which certain fixtures were annexed, It is extremely difficult for us to see how we can draw upon any rule of English law relating to landlord and tenant when we are called upon to ascertain the meaning and operation of the expression premises in the Rent Act. We can only concern ourselves with the question whether the machinery which was part of the factory can be regarded as fitting affixed to the building when we examine the present argument of Mr. Kapadia. I he argument seems to us to be ill-founded. It wholly ignores the important part of the Sub-clause which rules that the fittings must be affixed to the building for the more beneficial enjoyment of the building. We fail to see how it can be said that the machinery of the factory was affixed to the building for the more beneficial enjoyment of the building.

7. There is another aspect of the same argument of Mr. Kapadia which requires to be examined. It is said that the building of the factory along with the machinery therein was let out for the purpose of carrying on a business or trade and the machinery was affixed to the building for the beneficial enjoyment of the business or trade. This argument also appears to us to be untenable. Clause (iii) in terms express and explicit rules that the fittings affixed to the building must be for the beneficial enjoyment of the building or part of the building. We are unable to read in this clause anything about beneficial enjoyment of any trade of business.

8. Another argument of Mr. Kapadia is that the interpretation clause gives a definition which is not exhaustive but only enumerates some items which may go along with a building. Here also we are unable to sec how the definition of premises in Section 5(8) can be read in the manner suggested by Mr. Kapadia. Reading Sub-section (8) of Section 5 as a whole and the word means in the initial part of that Sub-section it seems to us that the definition indubitably is an exhaustive definition of premises. Clause (a) relates to land which is not used for agricultural purpose and Clause (b) relates to any building or part of any building let separately as a tenement but the building or part of the building may have been let along with garden grounds garages out-houses or any other appurtenance to the building or pan of the building. In order to leave no scope for any doubt or disputation the Legislature in sub Clause (i) of Clause (b) has laid down that the building which is let out can for the purpose of the Act include a garden grounds garage etc. and would be regarded as premises within the purview of the Act. Clause (ii) relates to furniture which the landlord may supply to the tenant where property which is furnished is let out or any part of the building which is furnished is let out. That also would be within the purview of the Act. Clause (iii) provides for fittings affixed to such building or part of the building. Here it is to be noticed that the fittings affixed should before the beneficial enjoyment of the property otherwise the position would be different. Mr. Kapadia has sought to lean heavily on the word including in Clause (b) and has urged before us that the meaning of the expression building is in any event not a complete statement of the definition but only an inclusive definition.

9. We are unable to accede to this argument. As we have already observed we have to read Section 5(8) as a whole. We agree that a definition in an interpretation clause may be an exhaustive definition or may only be one which is not exhaustive but only illustrative and inclusive. In such a case there would always be scope for the argument that the definition is not exhaustive and can embrace matters or things not expressly enumerated. Such however is not the coverage of the definition before us. Another aspect of the same argument pressed for our acceptance by Mr. Kapadia is that by operation of Section 6 the definition would include building let out for residence education business trade or storage. We agree that such is the legal position. The argument has proceeded that in the present case the building was let out for business or trade and therefore the building in which machinery had been set up was premises within the ambit of the Act. The contention is not well founded. When ascertaining the meaning of the expression premises as defined in the Act we are really not concerned with the use to which the building let out may be put. True doubt or dispute may be raised and it may be suggested that the Act applied only to dwelling houses or residential houses. It is to resolve any such doubt or uncertainty that in Section 6 the Legislature has made it clear that the Act applies not only to residential premises but also to premises let out for education business trade storage etc. The learned Judge below was impressed with the argument urged on behalf of the tenant viz. that if any building was let out for business or trade it would be regarded as premises for the purposes of the Act. The learned Judge having acceded to that position went on to consider whether the factory in suit had been let out for a business or trade. On these premises the conclusion he reached was against the tenant. But we are unable to agree with the learned Judge that it was necessary to consider whether the premises had been let out for business or trade in ascertaining the ambit and operation of the interpreting clause

10. Mr. Kapadia has drawn our attention to certain decision relating to cinema theatres. We do not think those decisions can help us in determining whether a factory can be premises within the purview of the definition and it is not necessary to burden this judgment with a reference to those decisions. In a cinema theatre what is let out is obviously the theatre and the mere fact that a projecting machine is part of the agreement would not convert a letting out of a theatre into a letting out of something which is not premises. Machinery which is some times let out with a cinema theatre is incidental to the transaction.

11. The question whether a factory of the nature before us is or is not premises within the ambit of the Act must obviously lie in a narrow compass and does not permit of any detailed discussion. We have here an elaborate definition which as we read it is intended to be exhaustive of the meaning of the expression premises. The Legislature has been at pains to make it abundantly clear that where a building or a part of the building is let out along with a garden or grounds or garage or an out-house or any other appurtenance or with furniture or any fittings affixed to the building or any part of the building that would be included in the expression building. It does not and cannot follow that other things for instance machinery forming part of a factory would be included in the expression building. If it was the intention of the Legislature that the meaning of the word building should be of the widest there was nothing to prevent it from stating that a building would include a factory if any factory was run in a building or a part of a building. In our opinion the Legislature did not intend to bring a factory within the scope of the Act. We are dealing with an Act relating to a subject the provisions affecting which should be interpreted in a practical manner and as far as possible in a manner which is consonant with the object of the Act. It is true that the definition of premises is wide in its application but that does not mean that anything and everything which is installed in a building would become premises or part of the premises. Mr. Kapadia has placed reliance on certain observations in a decision of their Lordships of the Supreme Court reported in : [1957]1SCR20 (Karnani Properties Ltd v. Miss Augustine and Ors.). The observations of Sinha J. (as he then was) do not in our opinion lend support to the case of the tenant before us. We may point out that His Lordship while expressing the view in considering a similar provision) that the Court has to give the provision widest application went on to point out that this must be dole within the terms of the statute and it is within the terms of the statute that we have to ascertain the precise meaning and connotation of true expression premises.

12. For reasons which we have already discussed we are of the opinion that the factory let out by the plaintiff to the defendants was not premises within the operation of the Act and the learned Judge below was right in the conclusion reached by him in deciding the preliminary issue relating to the same in favour of the landlord. Our attention has been drawn to a decision of Mr. Justice Bavdekar sitting alone on the Appellate side of the High Court of Bombay in Civil Revision Application No. 917 of 1950. Bavdekar J. held that a factory of Jai Works was not premises within the meaning of that Section 5(8). We find ourselves in respectful agreement with the conclusion reached by the learned Judge.

13. Our attention was been drawn to another judgment of the Bombay High Court in a Criminal Reference. In the judgment of Vyas J. in that case it is mentioned that the Court was in agreement with the view which Bavdekar J. had expressed in the Civil Revision Application of which have made mention. It is possible to say that the observations in the judgment of the Division Bench were obiter. Any way we find ourselves fortified by the view expressed by Mr. Justice Bavdekar.

In the result the petition fails and will be dismissed. The rule will be discharged with costs.


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