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Kunj Behari Vs. Acharya Hari and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 287 of 1972
Judge
Reported inAIR1975Raj138; 1975()WLN41
ActsTransfer of Property Act, 1882 - Sections 106; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(6)
AppellantKunj Behari
RespondentAcharya Hari and anr.
Appellant Advocate Hastimal Parakh, Adv.
Respondent Advocate C.L. Agarwal, Adv.
DispositionAppeal dismissed
Cases ReferredIn Harihar Banerji v. Ramshashi
Excerpt:
.....rent & eviction) act 1950 was struck out. - - the plaintiffs' case is that they required the premises leased out to the defendant for their own residence as well as for the purpose of providing a hostel for the scholars of the jaipur college and vidhya mandir college so as to run both the institutions efficiently and ultimately get them recognised by the government. they prayed for a decree for ejectment as well as a money decree for rs. his case was that the premises had been taken on rent for the purpose of running 'diamond printing press' as well as for preparing cards and card-board boxes and consequently the lease was for manufacturing purposes terminable by six months notice expiring with the end of the year of tenancy. 3. learned counsel for the appellant has argued the..........after they had purchased the whole house. the plaintiffs' case is that they required the premises leased out to the defendant for their own residence as well as for the purpose of providing a hostel for the scholars of the jaipur college and vidhya mandir college so as to run both the institutions efficiently and ultimately get them recognised by the government. they alleged that it was with the aforesaid object that they had purchased the haweli. notice dated 22 april, 1963 was served by the plaintiffs on the defendant by registered post terminating (he latlcr's tenancy and thereafter the present suit was filed by them in the court of munsiff (east), jaipur on 24 july, 1963. besides personal necessity, the plaintiffs also relied on ground of default having been committed by.....
Judgment:

C.M. Lodha, J.

1. This is a defendant-tenant's second appeal arising out of a suit for arrears of rent and ejectment in respect of a portion of house situated in Chokri Vish-wesarji in the city of Jaipur. The house is popularly known as Nanaji ki Haweli and originally belonged to Thakur Devraj Singh fromwhom the plaintiffs purchased it by a registered sale deed dated the 25th July, 1960. The plaintiffs had already been running a private college named Jaipur College in a part of this Haweli before they purchased it and the defendant was occupying a portion of the 'Haweli' as Thakur Devraj Singh's tenant on a monthly rent of Rs. 80/-. He attorned in favour of the plaintiffs after they had purchased the whole house. The plaintiffs' case is that they required the premises leased out to the defendant for their own residence as well as for the purpose of providing a hostel for the scholars of the Jaipur College and Vidhya Mandir College so as to run both the institutions efficiently and ultimately get them recognised by the Government. They alleged that it was with the aforesaid object that they had purchased the Haweli. Notice dated 22 April, 1963 was served by the plaintiffs on the defendant by registered post terminating (he latlcr's tenancy and thereafter the present suit was filed by them in the court of Munsiff (East), Jaipur on 24 July, 1963. Besides personal necessity, the plaintiffs also relied on ground of default having been committed by the defendant by not paying rent for more than six months. They prayed for a decree for ejectment as well as a money decree for Rs. 2720/- on account of arrears of rent and damages for use and occupation after the alleged termination of tenancy. The defendant resisted the plaintiffs' suit. He denied the plaintiffs' necessity for the premises in question and pleaded that the suit for ejectment was not maintainable as the notice for termination of tenancy being not in accordance with the provisions of Section 106 of the Transfer of Property Act was not valid. His case was that the premises had been taken on rent for the purpose of running 'Diamond Printing Press' as well as for preparing cards and card-board boxes and consequently the lease was for manufacturing purposes terminable by six months notice expiring with the end of the year of tenancy.

2. After recording the evidence produced by the parties, the trial court decreed the plaintiffs' suit. Dissatisfied with the judgment and decree by the trial court the defendant filed appeal and the learned Additional District Judge No. 1, Jaipur City, Jaipur, by his judgment and decree dated 2 May, 1972, affirmed the judgment and decree by the trial court. Hence this appeal by the defendant.

3. Learned counsel for the appellant has argued the following points in support of the appeal :

(1) That the lease was for manufacturing purposes and as such, it shall be deemed to be a lease from year to year terminable by six months notice expiring with the end of the year of tenancy and since in the present case the plaintiffs gave notice Exhibit 2 dated 22 April, 1963 terminating the lease from 24 June, 1963, the notice was bad;

(2) That in case the lease is held to be not for manufacturing purposes, even then the notice is bad because it terminates the lease one day before the expiry of the month of tenancy;

(3) That the notice is bad also because it only calls upon the defendant to vacate the premises but there is no mention of termination of the tenancy;

(4) That the plea regarding personal necessity cannot be accepted as there is variance between the notice and the plaint on this point;

(5) That the defendant had tendered the rent to the plaintiffs by money orders prior to the filing of the suit but the plaintiffs refused the same and consequently the defendant was not a defaulter and the case does not fall under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and

(6) That the rent for the shop in question was being paid by a partnership firm and not by the defendant alone and, therefore, the partnership firm should have been sued and the suit is not maintainable against the defendant.

4. I propose to deal with these points in the same order in which they have been slated above.

5. The first important point for decision in this case is whether the lease was for manufacturing purposes. There has been a considerable argument from both the sides as to what is a 'manufacturing purpose' and a few cases to which I shall presently refer have also been cited by learned counsel. But before I come to case law, it would be necessary to find out the purpose for which the premises were leased out to the defendant. The learned Additional District Judge has held 'that besides manufacturing purposes, the suit premises were also used by the defendant for residential purposes on some occasions' and 'that it is also not proved that the defendant took the premises on rent for manufacturing purposes only.' The finding undoubtedly involves a mixed question of fact and law and, therefore, it has become necessary for me to examine it in second appeal. At this stage, I wish to point out that no specific issue has been framed on the point whether the premises in question were leased out for manufacturing purposes but the parties seem to have proceeded to trial on this matter under issue No. 6 which is about the validity of notice. However, both the par-tics have led evidence on the point and. it is not the grievance of either that for want of a specific issue on the point it has been prejudiced.

6. In the original written statement filed on 20 December, 1963, the defendant pleaded that the notice Ex. 2 dated 22 April, 1963 had not been received and no valid notice of termination of tenancy had everbeen given. In the amended written statement filed on 29 April, 1967, i.e. after about more than 3 years, the defendant pleaded that the lease should have been terminated by six months notice under Section 106 of the Transfer of Property Act, as the lease was for 'Diamond Printing Press' in which cards and card-board boxes were manufactured. Thus, it would be clear that this plea of manufacturing purpose was taken at a considerably belated stage.

7. Coming to the evidence, D. W. 1 Kunj Behari (defendant) has stated that the lease was taken for running a printing press. He has further stated that card-board boxes, invitation cards, files, registers, envelopes are also prepared in the press. He goes on to state that the telephone-directories of the States of Uttar Pradesh, Bihar, Madhya Pradesh and Rajasthan are also printed and so also the proceedings of the Parliament. In the course of cross-examination, when confronted with his statement dated 25 October, 1962 recorded in Civil Suit No. 310 of 1951, (Raj) -- Acharya Hari v. Smt. Bhuri --wherein he had stated that he was residing in the house in question, the witness replied that he may have given such a statement. D. W. 2 Durgalal has stated that the defendant had taken the premises in question on rent for running a press. In the course of cross-examination he deposed that the defendant was living in a house near the house in question but when he was asked as to where the defendant used to live before that, he pleaded ignorance. DW/3 Kapoor has stated that registers, files and pads are prepared as well as printed in the press. DW/4 Bhanwarlal has also stated that the premises in question were leased out to the defendant for running a press and not for his residence. The statement of DW/6 Jagdish Prasad is that the defendant also resides in the suit premises on occasions of marriage. One of the plaintiffs' witnesses viz. PW/6 Badri Narayan has stated that the defendant lives in a part of the premises in question. The witness has got his shop in front of the Haweli. In the course of cross-examination he has stated that he had seen the defendant living in the premises in question 10 to 12 years ago but for the last year or so the defendant is not living there. The original landlord Thakur Devraj Singh who had leased out the premises in question has not been produced by either party. At this stage it may be noted that the best evidence in the matter would have been the rent-note but the same has not been produced. The plaintiff's case is that it was not handed over to them by the vendor Thakur Devraj Singh. However, DW/1 Kunj Behari has admitted that the premises in question had been taken on lease by him 22 to 23 years ago. His statement was recorded on 19 July, 1969. Thus according to this version the period of commencement of the lease comes somewhere in 1946-47 A. D. The witness denies whether any rent-note was executed byhim at the time of taking the premises in question on lease. He has also stated that printing press is a partnership business and the partnership came into existence in June 1960. He has also produced the original partnership deed though it has not been exhibited. In para No. 2 of this partnership deed it is mentioned that Kunj Beharilal (defendant No. 1) was carrying on the business of printing Press and sale of books as a proprietor since 1955. This partnership deed admittedly bears the signatures of Kunj Beharilal. It is clear from this partnership deed that the printing press had been started by the defendant in 1955 whereas according to the defendant himself the premises in question were taken on rent sometime in 1946-47 A. D. This would show that the printing press was started by the defendant about 9 years after he had taken the lease of the said premises. This takes the wind out of the sail of the defendant's case and the defendant's case stands falsified by his own admission contained in his statement and the partnership deed. I am, therefore, not prepared to accept the defendant's version that the suit premises were leased out for running a printing press. Besides that it appears to me that the defendant also resided in the premises in question after taking the same on rent. Even his witness D. W. 6 Jagdish Prasad has admitted that the premises were used for residence on occasions like marriage etc. In this view of the matter, the learned District Judge was not wrong in drawing inference that at any rate the premises were taken on rent for multi-purposes, i. e, for running printing press as well as for residence. Such a multi-purpose cannot be considered a manufacturing purpose and if an authority is needed, reference may be made to Sati Prasanna Mukherjee v. Md. Fazel, AIR 1952 Cal 320 wherein it was held that a lease for mixed or multi-purposes like dwelling purposes, for setting up a printing press and for ordinary business purposes is not a lease for 'manufacturing purpose' within the meaning of Section 106 but is within the meaning of the words for 'any other purpose' used later in that section.

8. Learned counsel for the respondents has, however, argued that even if it is held that the premises were taken on lease for a printing press only, then, too, it does not amount to a 'manufacturing purpose.' In this connection he has argued that the defendant's version that telephone-directories are manufactured in the press is an improvement in the pleadings and cannot be accepted as even in the amended written statement defendants' plea was that only card board boxes and cards were prepared in the press. It appears to me that the defendant has been changing his case from stage to stage. In his original written statement he did not take the plea of 'manufacturing purpose' at all. After more than three years he amended the written statement and introduced the plea of'manufacturing purpose' by alleging that the lease was taken for printing press in which cards and card-board boxes were also manu-mactured. In the course of evidence he went a step further and stated that not only cardboard boxes and cards but registers, telepone-directories, files etc. were also manufactured and printed in the press. Much reliance, therefore, cannot be placed upon his version In AIR 1952 Cal 320 the learned Judge also held that printing simpliciter is not necessarily a manufacture.

9. In Allenbury Engineers Pvt. Ltd. v. Shri Ram Krishna Dalmia, AIR 1973 SC 425 their Lordships were pleased to observe that :

'The expression 'manufacturing purposes' in Section 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having supplied any dictionary of its own for that expression. The burden of proving that the lease was for manufacturing purposes, must for the purpose of Section 106 of the Transfer of Property Act, lie on the party who claims it to be so, in the present case the appellant-company. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose (See C. Mackertich v. Steuart and Co. Ltd., AIR 1970 SC 839).

The word 'manufacture', according to its dictionary meaning, is the making of articles or material (now on a large scale) by physical labour or mechancial power. (Shorter Oxford English Dictionary Vol. 1, 1203). According to the Permanent Edition of Words and Phrases Vol. 26 'manufacture' implies change but every change is not manufacture and. yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation, a new and different article must emerge having distinctive name, character or use.'

10. After having exhaustively dealt with the implications of the term 'manufacture' as explained in various treatises and decided cases, their Lordships held that manufacture of spare parts by the appellant was only incidental to the main purpose of disposal of vehicles as without repairing or reconditioning them such disposal could hardly have been possible. So also in the present case, manufacturing of cards and cardboard boxes by the defendant even if this plea is accepted, for argument's sake, was merely incidental to the main business of printing and in this view of the matter the appellant cannot be said to be carrying on operations in the premises in question which could properly be called manufacturing operations.

11. Learned counsel for the appellant relied on Umraomal v. Heeralal, 1973 Raj LW 396 = (AIR 1973 Raj 337); Balwantsingh v. Murarilal, AIR 1965 All 187; AbdulGhafoor v. Mushir Ali Khan, 1970 Ren CR 247 (All); Rupeswari Debi v. Lokenath Hosiery Mills, AIR 1962 Cal 608; Kali Kumar Sen v. Haridas Roy, AIR 1969 Assam 134 and Joyanti Hosiery Mills v. Upendra Chandra Das. AIR 1946 Cal 317. I have looked into these rulings and am of opinion that they are distinguishable on facts.

12. 1973 Raj LW 396 = (AIR 1973 Raj 337) was a case of grinding of grain or corn into flour and it was held that from the point of view of trade and commerce, flour is different from grain and, therefore, when on account of mechanical process the grain is ground into flour, it is 'manufacture' within the meaning of Section 106 of the Transfer of Property Act.

13. In AIR 1965 All 187 it was found that the defendant ran a Dal Mill in the .shop and it was taken, for granted that running a Dal Mill was a manufacturing purpose.

14. In 1970 Ren CR 247 (All) it was held that lease for saw-mill was a manufacturing purpose.

15. AIR 1962 Cal 608 was a case of hosiery manufacturing, so also AIR 1946 Cal 317 was a case of knitting and cutting machines where the sheets were worked up into articles of hosiery and made ready for market. It was held that knitting and cutting was a manufacturing purpose. AIR 1969 Assam 134 was a case of manufacturing trunks out of steel sheets, and for sale of those trunks.

16. To sum up, my conclusion on this point is that the defendant-appellant has failed to establish that the dominant purpose of the lease was a 'manufacturing purpose'. In that view, the appellant could not have challenged the legality of the notice on the ground that the lease should have been terminated by six months notice expiring with the end of the year of tenancy.

17. Learned counsel for the appellant also urged that since the respondents' case is that the terms of the lease had been reduced to writing, no oral evidence can be looked into to find out the terms of the lease which were the contents of a written, document. In support of his argument he relied on Ram Swamp Jain v. Sri Janki Devi Bhagat Trust, AIR 1974 All 424; Ram Kumar Das v. Jagdish Chandra Deo Dhabal Deb, AIR 1952 SC 23; Krishna Das Nandy v. Bidhan Chandra Roy, AIR 1959 Cal 181; AIR 1965 All 187 and 1970 Ren CR 247 (All). It was argued that Section 106 and Section 107 of the Transfer of Property Act are independent of each, other and even in absence of a registered, lease deed as required by para 1 of Section 107, a yearly lease can come into existence under Section 106, if the lease is for manufacturing purpose. Thus he has argued that Section 107 does not control Section 106. In this connection it was also contested that merely settlement and payment of rent on monthly basis is not sufficient torebut the presumption of yearly tenancy which flows from Section 106 of the Transfer of Property Act on account of the lease being for manufacturing purpose. On the other hand, it has been vehemently argued on behalf of the respondent-plaintiffs that no yearly tenancy can come into being without a registered lease and that even if it is held that the lease was for a manufacturing purpose and was a yearly lease, there was a condition to the contrary and the lease must be held to be a month to month lease on account of settlement and payment of monthly rent. However, it is (not?) necessary to decide all these points in view of my finding stated above that the defendant has failed to prove the lease for manufacturing purpose.

18. Coming to the second point, neither the plaintiffs nor the defendant has disclosed the date of commencement of the tenancy. But it is clear from the money order coupons Exhibits D/5, D/6, D/8, D/9, D/10 and D/11 that the defendant was treating the month of tenancy as commencing from 25 of the calendar month upto 24th of the succeeding month. In the notice Exhibit 2 the plaintiffs have stated that as is evidenced from the rent-receipts, the commencement of the month of tenancy is 25th and so the month of tenancy expires on the night of 24 June when the defendant may hand over vacant possession of the premises to the plaintiffs. The defendant made no reply to this notice, even though the receipt of the notice is admitted. In the written statement no such ground has been taken that the tenancy did not expire on 24th of the month. The only ground mentioned in the written statement in support of the plea of invalidity of notice is that the tenancy should have been terminated by six months notice. Such a ground has not been taken even in the memo of appeal in this Court. In these circumstances, it is not open to the appellant to rely on this ground. He has referred to Section 110 of the Transfer of Property Act in support of his argument that the day on which the tenancy commences should be excluded. In the facts and circumstances of the case, I am not prepared to accede to the appellant's submission.

19. In Mohanbai v. Kishanlal, 1966 Raj LW 466 it was held that where defendant paid rent upto a certain date and mentioned that now rent would start from that date it was held that the period of tenancy was altered and started from the new specified date. In Motilal v. Pooranchand, AIR 1962 Raj 100 the learned Judge observed :

'I have no doubt that the proper way to read it (notice) would be the one which would uphold it and not that which would invalidate it. It cannot be forgotten that a provision of the type with which we are concerned is of a highly technical character, and to me, it seems quite clear that the dictates of sub-stantial justice, for which purpose, after all, the courts exist, will hardly be served if notices of ejectment are to be read in a hyper-critical spirit so as to find faults in them on every conceivable ground.'

I respectfully agree with the learned Judge.

20. As regards the third point, it may be painted out that no such objection was taken either in the pleadings or in the courts below or in the memo of appeal here. Apart from that, it is a sound principle that the nature and purpose of the notice must be gathered by reading the document as a whole and not from any words read out of context or from any omission to use the formal language of a solicitor. In Ram Swarup v. Brij Nandan Prasad, ATR 1963 All 366 it was observed that where the landlord warns the tenant that if he fails to clear the arrears of rent within a month of the receipt of the notice he will be liable to ejectment and in that event he must treat the notice as a 'legal notice' and vacate the accommodation within a month, it is clear that the demand that the tenant should vacate the accommodation signifies the termination of the tenancy and the words 'legal notice' could only refer to a notice under Section 106 of the Transfer of Property Act. It was further observed that a notice requiring the tenant to vacate the accommodation within a month means that he should not take more than a month to do so and not that he will vacate within less than a month. Tt is not indispensably necessary that it must be mentioned in the notice that the tenancy is being terminated. Tn my opinion calling upon the tenant to vacate the premises is tantamount to terminating the tenancy.

21. In Harihar Banerji v. Ramshashi, AIR 1918 PC 102 their Lordships of the Privy Council were pleased to observe that notice to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law. The test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances. Further notices to quit are to be construed not with a desire to find faults in them which would render them defective but to be construed ut res magis valeat, quam pereat (that an act may avail rather than perish). I do not see any inaccuracies in the notice that may be said to have been deliberately inserted for fraudulent purposes and looking to the terms of the notice as a whole and the facts and circumstances of the case, I do not see any ground to hold the notice to be invalid.

22. Taking up the fourth point regarding personal necessity of the premises in question by the respondents, learned counsel for the appellant being conscious of the position that it involves a finding of fact didnot press it seriously and merely argued that there was discrepancy between the necessity pleaded in para No. 2 of the plaint and that mentioned in the notice. However, after having gone through the contents of the notice as well as para No. 2 of the plaint, I do not see any variance in them. This point is, therefore, without substance.

23. So far as the question of the defendant being a defaulter is concerned, the learned Additional District Judge has held that the defendant did not deposit the arrears of the rent on the first date of hearing nor paid month to month rent thereafter as required under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and consequently his defence was liable to be struck out. At the same time the learned Additional District Judge also found that the defendant had tendered rent to the plaintiffs before filing of the suit and, therefore, the plaintiffs are not entitled to evict him under Section 13 (a) of the Act. The defendant's contention is that his case is governed by Section 13 (5) of the Act and, therefore, sub-section (6) has no application and his defence was not liable to be struck out. In my opinion the question whether the defendant's defence is liable to be struck out .under sub-section (6) is not material in the present case as the defendant has resisted the plaintiffs' case mainly on the ground that the notice of termination of lease was invalid, which is a defence under the Transfer of Property Act which he could take even if his defence under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was struck out. Moreover, the plaintiffs have also succeeded in establishing their personal necessity. In these circumstances even though I do not agree with the learned Additional District Judge that a decree for ejectment can be passed against the defendant on the basis of default in payment of rent, yet the matter is not of any importance, in-j asmuch as the plaintiffs are entitled to get a decree for ejectment on the ground of personal necessity.

24. This brings me to the last point pressed by the learned counsel for the appellant namely that the firm and not the defendant should have been sued. It may be pointed out that though this question was answered against the defendant by the trial court under issue No, 4 (a), the point was not raised be-force the first appellate court and, therefore, the appellant must be deemed to have abandoned it. Besides that, admittedly the defendant took the premises on lease and has always been paying rent for it vide Exhibits D6 and D/7 to D/I1. He has not established any privity of contract between the firm and the plaintiffs and thus the point is without substance.

25. The result is that this appeal is without force and is hereby dismissed with costs. The suit was brought as far back as24th July, 1963 and the litigation has survived for more than a decade. Therefore, looking to all the circumstances of the case, I allow three months time to the appellant to hand over vacant possession of the suit premises to the plaintiffs.


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