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Mansuri Ismail Gulamnabi and anr. Vs. Heirs of Decd. Vithalbhai Laljibhai ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR833
AppellantMansuri Ismail Gulamnabi and anr.
RespondentHeirs of Decd. Vithalbhai Laljibhai ors.
Cases ReferredMahalinga v. Venkatesh
Excerpt:
- - 3. the trial court held that the premises were governed by the provisions of the rent act, that the plaintiffs failed to prove that they were requiring the suit premises bonafide and reasonably for their personal use and that the respondents-tenants were not in arrears of rent. however, both the lower courts have found that the respondents have failed in proving this fact. the result, therefore, is that this appeal should fail......of the suit filed by the appellants against the respondents for obtaining the possession of the suit premises which are occupied by the respondents as tenants. the premises in question consist of a shop admeasuring 3 to 4 ft. in width and 7 to 8 ft. in length situated at dholka.the suit was filed in the court of civil judge, j.d. at dholka, where it was registered as civil suit no. 56/63. the appellants claimed the eviction on the ground of arrears of rent and bonafide personal occupation for the purpose of conducting his business of selling aerated water in the suit premises. one contention which was raised by the plaintiff was that the premises were not covered by the provisions of bombay rents, hotel and lodging house rates control act, 1947 (hereinafter referred to as 'the rent.....
Judgment:

T.U. Mehta, J.

1. This appeal arises out of the suit filed by the appellants against the respondents for obtaining the possession of the suit premises which are occupied by the respondents as tenants. The premises in question consist of a shop admeasuring 3 to 4 ft. in width and 7 to 8 ft. in length situated at Dholka.The suit was filed in the court of Civil Judge, J.D. at Dholka, where it was registered as Civil Suit No. 56/63. The appellants claimed the eviction on the ground of arrears of rent and bonafide personal occupation for the purpose of conducting his business of selling aerated water in the suit premises. One contention which was raised by the plaintiff was that the premises were not covered by the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act').

2. The suit premises were admittedly first let to the respondent's father before the year 1950. The respondents and respondents's father are conducting a barber shop in the suit premises. The respondents have resisted the suit on the ground that they are the tenants protected under the Rent Act, and the premises in question are not bonafide and reasonably required by the plaintiffs-appellants for their personal use and occupation. They also contended that they were not in arrears of rent.

3. The trial court held that the premises were governed by the provisions of the Rent Act, that the plaintiffs failed to prove that they were requiring the suit premises bonafide and reasonably for their personal use and that the respondents-tenants were not in arrears of rent. Against this decision of the trial court, the plaintiffs preferred Appeal No. 95/64 which was heard and disposed of by the court of Extra Assistant Judge, Ahmedabad (Rural) at Narol. The learned Judge of the lower appellate court confirmed the findings of the trial court and hencfi this second appeal.

4. So far as the question of bonafide personal requirement of the appellants is concerned, there is a concurrent finding of facts recorded by both the lower courts and I see no reason to disturb them. Therefore, presuming that the matter is governed by the Rent Act, the appellants are not entitled to get a decree for eviction on the ground of their personal requirement of the suit premises.

5. So far as the question of arrears of rent is concerned, evidence reveals that the rent which had fallen into arrears was sent to the appellants by money order before the institution of the suit but the appellants refused to accept the money order. Under the circumstances, both the lower courts have rightly held that the respondents-tenants are not proved to be in arrears of rent.

6. The only question which survives is whether the suit premises are governed by the provisions of the Rent Act. Now so far as this question is concerned, it is an admitted position that the provisions of Part II of the Rent Act were made applicable to the premises at Dholka which were let for 'business' ever since the year 1950 A.D. Since these premises have been admittedly let before the year 1950, it should follow that if they are found to have been let for 'business' they would be covered by the protection contemplated by the Rent Act. But the contention of the appellants-landlords is that since in the suit premises the respondents' father has conducted a barber's shop they cannot be said to have been let for 'business'. To meet this argument, the respondents are found to have led some evidence to show that they were also doing in the suit premises the business of selling instruments of shaving. However, both the lower courts have found that the respondents have failed in proving this fact. This being the finding of fact, the same is not liable to be disturbed. But an alternate contention which is raised by the respondents is that the profession of a barber, which is conducted by them in the suit premises is 'business' within the meaning of Section 6 of the Rent Act and, therefore, it should be held that they are protected by the provisions of the Rent Act.

7. Before discussing the question whether the profession of a barber is covered by the expression 'business' as found used in Section 6 of the Rent Act, it should be noted that till 2nd January, 1964 the premises at Dholka, which were let for 'trade' were not protected by the provisions contained in Part II of the Rent Act. It is found that the Government of Gujarat by its notification No. B.R.A. 1861/112579-A dt. 24th December, 1963 in exercise of the powers conferred by Sub-section (2) of Section 5 of the Rent Act, has specified that in the area of Dholka Talaka all the provisions of Part II of the Rent Act shall, with effect on and from the date of the publication of the notification in the Official Gazette, apply to premises let for 'trade'. The notification was published in the Official Gazette Part IV-B of 2nd January, 1964. Therefore, the premises which were let for 'trade' got the protection contemplated by Part II of the Rent Act only as from?nd January, 1964. The learned appellate Judge has been of the view that the profession of a barber is a 'trade' and, therefore, the suit premises were covered by Part II of the Rent Act only on 2nd January, 1964. The learned Judge of the lower appellate court has further found that since on 2nd January, 1964 the present suit was pending in the trial court, the provisions of the Rent Act, Part II could apply even to the suit premises in view of Section 50 of the Rent Act and that being so, the respondents were protected under the provisions of that Act. Thus, though the learned Judge of the lower appellate court found that the profession of a barber was not a 'business' he held that the provisions of Part II of the Rent Act applied because the premises let for 'trade' were governed by Part II of the Rent Act, on the day on which the suit was pending before the trial court.

8. In view of what is stated above, the first question which arises to be determined is whether the profession of a barber is 'business' within the meaning of Section 6 of the Rent Act. I find that the learned Judge of the lower appellate court was not right in holding that the profession of a barber is not a 'business'. One of the Dictionary meanings of the word 'business' as given by Webster is as under:

employment; occupation; profession; calling; vocation; means of livelihood; that which occupies the time, attention, and labour of men, for the purpose of profit or improvement; as, his business was of a merchant; the business of a banker.

This Dictionary meaning makes it clear that the word 'business' is of a wider import and consequence and would include within its ambit every profession, calling or vocation which is used as a means of livelihood. Surely the profession of a barber is the one which is used as a means of livelihood and, therefore, according to the dictionary meaning, this profession of a barber would be covered by the term 'business'. In Lakshminaraym Ram Gapal and Son Lid. v. Government of Hyderabad : [1954]25ITR449(SC) , the Supreme Court has held that the activities which constitute carrying on business need not necessarily consist of activities by way of trade, commerce or manufacture or activities in the exercise of a profession or vocation. They may even consist of rendering services to others which services may be of a variegated character. In Rolls v. Miller (1884) 27 Ch.D. 71, Lindley LJ. has observed at page 86 as under:

'The word 'business'... means almost anything which is an occupation, as distinguished from a pleasure- anything which is occupation or duty which requires the attention, is a business.

In a Madras case of P.K. Kesavan Nair v. C.K. Babu Naidu : AIR1954Mad892 , the word 'business' is attributed a meaning which is of a very wide import. Ramaswami J., who has decided this case, is found to have made the following observations on this point:

The term 'business' includes every trade, occupation and profession. According to Section 2(4) of the Income-tax Act, 1922, 'business' includes any trade, commerce, or manufacture or any adventure or concern of the nature of trade, commerce or manufacture. The word 'business' has no technical meaning, but is to be read with reference to the object and intent of the Act in which it occurs. The term 'business' means an affair requiring attention and care; that which busies or occupies one's attention and labour as his chief concern; mercantile pursuits; that which one does for a livelihood; occupation; employment.

I find myself in respectful agreement with these observations and hold that the profession of a barber is 'a business' within the meaning of Section 6 of the Rent Act and if that be so, the suit premises are covered by the provisions contained in Part II of the Rent Act ever since the year 1950.

9. Even if it be held that the profession of a barber is a 'trade' and not a 'business', as is held by [the learned Judge of the lower appellate court, the fact remains that the premises were covered by Part II of the Rent Act while this suit was pending in the trial court. Therefore, the question is what is the effect of the application of the provisions of Part II of the Rent Act to the suit premises during the pendency of the suit. Division bench of the Bombay High Court has observed in the year 1956 in case of Mahalinga Bandappa Lakhannavar v. Venkatesh Woman Karnatak (1956) 59 B.L.R. 227 that under Section 50 of the Rent Act, the suits which were pending at the date on which the provisions of Part II of the Act were applied to the suit premises, would be governed by the Act, though at the date upon which the suits were filed, the provisions of Part II were not applied to the suit premises. The ratio of this decision is that even if provision of Part II of the Rent Act have been applied to a particular area pending a suit for eviction, the tenant would be protected by the provisions of the Rent Act. However, Raju, J. has taken a contrary view in Khimchand Hargovandas Shah v. Ghanchi Valibhai Gababhai : (1966)7GLR895 , wherein he has held that Section 50 of the Rent Act does not apply to suits remaining in arrears when Part II of the Rent Act has been extended or applied. It appears that the above referred Division Bench judgment of the Bombay High Court, which was binding on this Court was not brought to the notice of Raju, J. when he decided this case. Be that as it may I find that the point is directly covered by a decision of the Supreme Court in Shah Bhojraj Kunverji Oil Mills Ginning Factory v. Shubhash Chandra Yograj Sinha : [1962]2SCR159 , wherein the Supreme Court has held that the point of time when Sub-section (1) of Section 12 will operate is when the decree for recovery of possession will have to be passed and, therefore, the language of Sub-section (1) of Section 12 applies equally to the suits which are pending when Part II of the Rent Act comes in force, and those which are filed subsequently. In view of this, the Supreme Court rejected the contention that the operation of Sub-section (1) if Section 12 is limited to suits filed after the Rent Act comes into force in a particular area. This decision of the Supreme Court over-rules the view taken by Raju, J. in the above referred case, and, therefore, the view taken by the Division Bench of the Bombay High Court in the above referred case of Mahalinga v. Venkatesh should prevail. Under the circumstances, the view taken by the lower appellate court that the suit premises are governed by the provisions of Part II of the Rent Act, must be confirmed.

The result, therefore, is that this appeal should fail. The same is, therefore, dismissed with costs.


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