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Kansara Mohanlal Kanji Vs. Chhipa Darji Nathubhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR398
AppellantKansara Mohanlal Kanji
RespondentChhipa Darji Nathubhai
Excerpt:
- - after he started manufacturing brass materials in his own premises, the suit premises were used by him for the purpose of writing books of accounts as well as for the purpose of handling correspondence in respect of the above business this shows that the suit premises were used by him as his office. 13(1)(k). notwithstanding anything contained in this act but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises i the court is satisfied. provided that the state government may, by notification in the official gazette, direct that in any of the said areas, this part shall cease to apply to premises, let for any of the said purposes provided further that the state government may by like notification direct that in any of the said..........of 1969 in the court of the civil judge, junior division, jamnagar to recover possession of the suit premises situate within the limits of the city of jamnagar, on the ground of non-payment of rent and also on the ground that, the premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit. the learned joint civil judge, junior division, jamnagar held that, the plaintiff was not entitled to recover possession of the suit premises on the ground of non-payment of rent. he, however, took the view that the defendant had not used the suit premises without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date.....
Judgment:

C.V. Rane, J.

1. The respondent-plaintiff, hereinafter referred to as the plaintiff, had filed a suit being civil suit No. 208 of 1969 in the court of the Civil Judge, Junior Division, Jamnagar to recover possession of the suit premises situate within the limits of the city of Jamnagar, on the ground of non-payment of rent and also on the ground that, the premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit. The learned Joint Civil Judge, Junior Division, Jamnagar held that, the plaintiff was not entitled to recover possession of the suit premises on the ground of non-payment of rent. He, however, took the view that the defendant had not used the suit premises without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit, and passed a decree for eviction. The appeal preferred by the defendant from the judgment of the learned Civil Judge was dismissed by the learned Assistant Judge, Jamnagar on 3rd February 1971. Being aggrieved by the judgment of the learned Assistant Judge, the defendant had come in revision to this Court. The revision application preferred by the defendant was heard by J.M. Sheth, J. who, by his judgment dated 17th January 1974 allowed the civil revision application and remanded the matter to the District Court for re-hearing regular civil appeal No. 161 of 1970. After the matter was remanded, the appeal in question was heard by the learned Assistant Judge, Jamnagar and he dismissed it on 29th June 1974. Being aggrieved by his judgment, the defendant has come in revision to this Court. The revision application (civil revision application No. 855 of 1974) came up for hearing before B.K. Mehta, J. In view of the importance of the question and two decisions of the court which according to him were conflicting, he referred the matter to a larger bench and this is how, this matter has come up for hearing before us.

2. After the matter was remanded to the District Court, the learned Assistant Judge who happened to hear the appeal raised the following point for his determination:

Whether the plaintiff proves that the suit premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of 6 month immediately preceding the date of the suit.

His finding on the point is in the affirmative. The learned Assistant Judge has held that, the suit premises were taken on lease by the defendant for the purpose of carrying on business in nut crackers about 27 years ago and that he continued to sell nut crackers in the suit premises till the year 1947-48 or 1948-49. He also held on the basis of the evidence on record that, the defendant constructed his own building in Digvijay plot area in Jamnagar in the year 1944-45 and manufactured nut-crackers in his own building till the year 1947-48 or 1943-49. His discontinued his above business either in the year 1948 or 1949 ani started manufacturing plastic buttons in the premises belonging to him. He used to sell plastic buttons in the suit premises after he discontinued his business of dealing in nutcrackers. While he was carrying on the business of manufacturing and selling plastic buttons, the books of account in respect of the above business were written in the suit premises. Correspondence in respect of his above business was also carried on in those premises. He carried on the above business in the suit premises for about 13 to 14 years and thereafter he switched over to the business of manufacture and sale of brass materials. After he started manufacturing brass materials in his own premises, the suit premises were used by him for the purpose of writing books of accounts as well as for the purpose of handling correspondence in respect of the above business This shows that the suit premises were used by him as his office.

3. According to the plaintiff, the suit premises were let to the defend ant only for the purpose of carrying on business, and in view of the provisions of Section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as, the Act', he was not justified in using the suit premises for the purpose of writing books of account or handling correspondence] even in respect of his business.

4. Section 13(1)(k) of the Act reads as under:

13(1)(k). Notwithstanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises i the court is satisfied.

xx xx xx xx

xx xx xx xx(k) that the primness hive not been used without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit.

5. The learned Assistant Judge has held that, the suit premises were et out to the defendent for the purpose of carrying on business and that as the defendant had been using the above premises only for the purpose of writing books of account and handling correspondence for a continuous period of six month immediately preceding the date of the suit, he was liable to be evicted form the suit premises in view of the provisions of Section 13 (1) (k) of the Act. It is argued by the learned Advocate for the petitioner that the above finding of the learned Assistant Judge cannot be justified in view of the above provisions of the Act. Now, according to Section 6 of the Act.

(1) In areas specified in Schedule I, this Part shall apply to premises let for residence, education, business, trade or storage and also open land let for building purposes;

Provided that the State Government may, by notification in the Official Gazette, direct that in any of the said areas, this part shall cease to apply to premises, let for any of the said purposes

Provided further that the State Government may by like notification direct that in any of the said areas this part shall re-apply to premises let for such of the aforesaid purposes as may be specified in the notification.

1(A) The State Government may by notification in the Official Gazette, direct that in any of the said areas this part shall apply to premises let for any other purpose.

(2) In areas to which this Part is extended under Sub-section (3) of Section 2, it shall apply to premises let for such of the purposes referred to in Sub-section (1) or notified under Sub-section (1-A) or let for such standard rent as the State Government may, by notification in the Official Gazette, specify.

6. It appears from Section 6 of the Act that the premises to which the Act applies are classified on the basis of the purposes for which they are let and those purposes are - residence, education, trade and storage. In the case of open land, the Act applies if it is let out for building purposes It is not disputed by the defendant that the suit premises were let for the purpose of business and we have already pointed out that, according to the learned Assistant Judge, the suit premises were let out to the defendant for the purpose of carrying on business in nut crackers. As pointed out by the learned Assistant Judge, after the year 1948, the defendant started selling plastic buttons in the suit premises While he was carrying on the above business, books of accounts were written in the suit premises and the correspondence relating to his business was also handled there. He carried on the above business for a period of 13 to 14 years. It appears that, the plaintiff never objected to the suit premises being used for the above purpose. It is pertinent to note that, after the defendant discontinued his business of manufacturing plastic buttons and switched over to the business of manufacturing brass materials and started using the suit premises only for the purpose of writing books of account and handling correspondence in respect of the above business, the plaintiff filed the above suit alleging that, the suit premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit. Under these circumstances, the questions that arise for our decision are whether by using the suit premises for the purpose, of writing books of account and handling correspondence relating to his business, the defendant has changed the user of the suit premises and whether he has done so without reasonable cause.

7. According to the allegations made in the plaint, the suit premises were let for the purpose of actually carrying on business in the suit pre mises. We have already pointed out that, the plaintiff had not raised any objection when, the defendant switched over to the business of manufac ture and sale of plastic buttons. It cannot be disputed that, to manufacture and deal in brass-wares is a business as contemplated by Section 6 of the Act. This shows that even at present, the defendant is carrying on business. It is, however, argued by the learned Advocate for the plaintiff that, the defendant manufactures and sells brass materials in his own premises situate in Digvijay plot and that merely because, the defendant writes books of account and handles correspondence relating to that business in the suit premises, it cannot be said that, the suit premises are used for the purpose of business within the meaning of that term used in Section 6 of the Act. We are unable to accept the above submission in support of which no authority is cited by the learned Advocate for the plaintiff. According to Chambers's Twentieth Century Dictionary 'business' means employment: trade, profession, or occupation: a task or errand incumbent or undertaken matter: requiring attention: dealings, commercial activity: a commercial or industrial concern'. The above meaning or concept of the term 'business' clearly shows that, the term does not connote any single or a fixed number of acts or steps. It is easy to understand that, for the purpose of carrying on business several steps or acts are required to be taken or performed and different types of works are required to be done simultaneously or otherwise and in that case, every type of step, act or work taken or done in furtherance of one's business would be an integral part of such business. Under these circumstances, for the purpose of finding out whether, a particular type of act or work forms part of one's business it is necessary to -determine the purpose in connection with which it is performed or done and it cannot be considered in isolation. If such an act or work is performed or done in connection with one's business, it should be treated as a part or component of the business or business activity.

8. In the present case, it is not disputed that, books of account which are being written in the suit premises and the correspondence which is han dled there relate to the business that is being carried on by the defendant and in that case, it should be held that the part of the business is being carried on by the defendant in the suit premises. It is hardly necessary to mention that, it is difficult to conceive of any business which does not involve correspondence or maintenance of books of account. In order to prove that, the suit premises are used for the purpose of business, it is not necessary to show that, all types of acts or works concerning one's business are done in the premises and it would be enough for the above purpose to show that, one or some of such acts or works which of course must be genuinely connected with one's business are done there. In this connection, we may hasten to add that, the question whether a particular act, work or activity is genuine part of one's business depends on the facts of each case and no hard and fast test can be laid down to decide such a question. In the present case, it cannot be disputed that the work of writing books of account and handling correspondence that is being carried on in the suit premises genuinely relates to the business carried on by the defendant and in that case for the reasons already mentioned, it should be held that, the suit premises are used for the purpose namely business for which they were let. We may also add that, according to the plaintiff, the dominant purpose for which the suit premises were let was 'business' and once it is held that the above type of work is genuinely related to the business carried on by the defendant, there is no scope for saying that, the suit premises were not used for the purpose of business.

9. Even if it is assumed that to use the suit premises for the above type of work is a change of user, it is difficult to say that, the defendant had no reasonable cause for not using the suit premises for the purpose for which they were let for a continuous period of six month imme diately preceding the date of the suit. In this connection, we have already pointed out that, according to the plaint, the suit premises were let for the purpose of carrying- on business about 27 years ago and that after carrying on the business of manufacturing nut crackers in the suit premises till the year 1947-48, the defendant switched over to the business of manufacture and sale of plastic buttons and that the plaintiff had not objected to the suit premises being used for the above purpose after the year 1947-48. After sometime, the defendant found it necessary to switch over to the manufacture of brass materials. Looking to the nature and extent of his business, it is for the defendant to decide as to at which particular place, the actual transaction of sale of the commodities manufactured by him should be carried on. In the present case, it appears that, the defendant found it more convenient to carry on the above work in the premises where the brass materials are manufac turned and in that case, he was quite justified in using the suit premises only for the purpose of writing books of account and handling correspon dence relating to the above business. In this connection, it is pertinent to note that, even at the time when, he was dealing in plastic buttons, he used to write books of account and handle correspondence relating to that business in the suit premises. Considering all these circumstances, it is difficult to say that, he had no reasonable cause for using the suit premises only for the purpose of writing books of account and handling correspondence relating to his business.

10. The learned Judges of the lower courts have not considered all the above aspects while deciding the question whether the defendant was liable to be evicted from the suit premises in view of the provisions of Section 13(1)(k) of the Rent Act.

11. At this stage, we may refer to the decisions of the learned Single Judges of this Court referred to by B.K. Mehta, J. in his judgment. In Civil Revision Application No. 1181 of 1968 decided by T.U. Mehta, J. on 12th February 1973, one of the grounds on which possession of the suit premises was sought was the change of user. In the above case, the premises consisting of a shop along with flour mill machinery installed in the shop where given on lease to the defendant. After some time, the tenant stopped running the flour mill and removed the machinery from the shop and after making suitable changes in the premises started dealing in cloth in that shop and later on entered into a partnership with one Jamnadas for the purpose of carrying on business in cloth in the above shop. While considering the question whether the plaintiff's case for eviction fell under Section 13(1)(k) of the Act, T.U. Mehta, J. observed--

Therefore, all these facts, if taken together, would clearly indicate that what the parties had intended at the time when the contract of lease of suit premises was entered into, that these premises should be used by the opponent-tenant only for the purpose of running a flour mill. In my opinion, therefore the learned Judges of the lower courts were clearly in error in refusing to look at the rent note Ex. 25 and to give proper appreciation to the contents of that document for the purpose of ascertaining the intention of the parties with a view to determine what was the purpose for which the suit premises were let Since I find that the premises in question were originally let only for running the flour mill which was installed there, and since it is an admitted position that there has been a change of user of these premises inasmuch as the flour mill machinery has been removed from these premises and they are now used, ever since the month of October 1963 for running a cloth business, I am of the opinion that the matter is completely covered by Clause (k) of Section 13(1) of the Rent Act. If that be so, the petitioner-landlord would be entitled to a decree for eviction.

While taking the above view, the learned Single Judge has taken into consideration the peculiar facts of the above case which according to him were:

The very fact that the flour mill which was given on hire was admittedly fixed to the ground and the possession thereof was contemplated to be handed over to the landlord after the fixed period of 12 month, suggests that the possession of that machinery could not have been given without giving over the possession of the premises. Again the fact that the ownership of the machinery was of the landlord further suggests that the opponent-tenant could not have continued the possession of the shop without removing the machinery from there. Under the circumstances the lease-hold rights created with reference to the suit premises could not have been viewed independently from the lease-hold rights created with reference to the flour mill machinery.

12. We find that, the learned Judge has taken the view that, the tenant's case was covered by Clause (k) of Section 13(1) of the Act in view of the peculiar facts the case and terms of tenancy. Thus, according to us, the above decision is not quite relevant for the purpose of deciding this 'case before us. Moreover, while deciding the above question, the learned judge has not considered whether the premises had not been used without reasonable cause for the purpose for which they were let. Under these circumstances, the above decision cannot be considered as an authority on the point.

13. The next case on the point is the decision of A.A. Dave, J. in Civil Revision Application No. 1255 of 1971 decided on 23rd March 1973. The facts of the above case are, however, different from those of the present one before us and hence, it is not quite necessary to consider the above decision in this case. We may, however, point out that, the view taken by A.A. Dave, J. in the above case does not in any way conflict with the view that we have taken in this case.

14. For the reasons already mentioned, we are of the view that the plaintiff has failed to prove that the suit premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of six month immediately preceding the date of the suit. The courts below have committed an error while construing the Clause (k) of Sub-section (1) of Section 13 of the Act, and hence, their findings on the point cannot be sustained.

15. In the result, the Civil Revision Application is allowed. The decrees of the lower courts in so far as they relate to the; possession of the suit premises are set aside and the plaintiff's suit for eviction is dismissed. Rule made absolute. As regards costs, however in view of the peculiar circumstances of the case, the proper order would be that, the parties should bear their own costs throughout.


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