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Kolapur Traders by Partner Gandhibai Vs. Subramania Mudaliar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)2MLJ43
AppellantKolapur Traders by Partner Gandhibai
RespondentSubramania Mudaliar
Cases ReferredSethuraman v. Meenakshi A.I.R.
Excerpt:
- .....and govindan nair, j., in sethuraman v. meenakshi a.i.r. 1968 ker. 88 have taken a somewhat different view but that decision is hardly of any assistance because the language of section 11(3) of the kerala buildings (lease and rent control) act, 1965, was different. the expression used in the act was 'trade or business'. now, the association of the wider word 'business' with the word 'trade' of a narrower significance brings into play a different rule of construction.with great respect to the learned judge, i am unable to understand how a mere association of a wider word with a word of narrower significance would bring into play a different rule of construction altogether. it is nobody's contention that an advocate's profession will be covered by the word 'trade'. there is certainly a.....
Judgment:
ORDER

G. Maheswaran, J.

1. The revision petitioners are tenants in respect of premises No. 48, Bogipattarai Street, Vellore and they are carrying on business in jaggery. They were let into possession by the father of the respondent. The property fell to the share of respondent. The respondent who is an Advocate practising at Vellore requires the premises for the purpose of locating his chambers. The revision petitioners are keeping the premises locked and also require a pagadi of Rs. 5000 and therefore the respondent filed a petition for eviction of the revision petitioners before the Rent Controller, Vellore.

2. The application was resisted by the revision petitioners, who inter alia contended that the building is not suited for running the office of an Advocate and that the notice terminating the tenancy is not valid. The Rent Controller ordered eviction as, in his view, the requirement of the landlord of the premises was for the bona fide purpose of setting up his practice. In appeal, the Appellate Authority confirmed the finding and dismissed the appeal. The revision petitioner is aggrieved and has filed this revision.

3. It is contended before me for the revision petitioners that the profession of an Advocate is not a 'business' within the meaning of the Rent Control Act and therefore the order of eviction is Wrong. The petition is one filed under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. Section 10(3)(a)(iii) runs thus :

A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building....

* * * * *(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.

The averments in the petition show that the petitioner is a practising Advocate at Vellore and is not occupying for purposes of his profession any other non-residential building in, the town, which is his own. These facts are not disputed. I may also here point out that the contention that the building in question cannot be used as a chamber of an advocate is not pressed before me. It is contended for the petitioner by his counsel that the profession of an advocate is a 'learned profession' and the essential idea of a 'learned profession' is pursuit of an avocation or occupation substantially involving the intellect and the same is characterised by equipment of learning, skill or judgment acquired through intellectual means, the employment of capital for this purpose being largely subsidiary or incidental in character. This contention requires examination.

4. In Fraser & Ross v. F. Sambasiva Iyer, : (1968)ILLJ682Mad a Bench of this Court extracted observations of the Supreme Court in National Union of Commercial Employees v. Mehar (Industrial Tribunal Bombay) and Ors. : (1962)ILLJ241SC . The observations of their Lordships of the Supreme Court in the said ruling are:

A person following a liberal profession does not carry on his profession in any intelligible sense with the active co-operation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is Why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think he deemed to be outside the definition of 'industry' under Section 2(j) of the Industrial Disputes Act.

5. Scrutton L.J. observed in Commissioner of Inland Revenue v. Mase (1919) 1 K. B. 647 that the essential idea of 'learned profession' which cannot, in the modern context, be merely limited to the original categories of Church, Medicine and Law, is that it is the pursuit of an avocation or occupation, substantially involving the intellect. In Fraser and Ross v. Sambasiva Iyer : (1968)1MLJ361 , the learned Judges referred to a passage in N.E. Merchant v. Bombay Municipal Corporation (1967) Bom. L.R. 758 and extracted what in their opinion is, 'Perhaps the best account of the profession and its setting. This account which is extracted by the learned Judges runs thus:

We further think that in considering whether an activity is a profession or not, We may perhaps be guided by the fact that the Church, the Medicine and the Law have been for centuries regarded as learned professions. In each of these three, the individual activity is characterised by personal skill and intelligence and is dependent on personal study, character and integrity. These qualities displayed by the practitioners of these learned professions inspire confidence in persons approaching them for advice or guidance. The first is approached for spiritual comfort and guidance, the doctor for physical or mental ailment and the lawyer for legal advice. But in each case the person who approaches them chooses them according to his own conception of the skill, intelligence and integrity of the person approached, and since he approaches in entire confidence, the priest, the doctor and the lawyer have a corresponding obligation not to betray the confidence and advise his client as best as he can. The same element of trust and confidence must be a test in more or less degree in modern professions.

These observations very clearly show that the profession of an advocate is a 'learned profession'. Learned Counsel appearing for the respondent pointed out that the word 'business' in Section 10(3)(a)(iii) of the Act is Wide enough to include any profession including the profession of law. In support, he invited my attention to the rulidg in Taimal v. Laxaman Sewak Surey and Ors (1972) R.C.J. 1. Sen, J., of the Madhya Pradesh High Court Was of the view that 'the Word 'business' in Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1960 is used in a wider sense and is not there synonymous with trade or commerce' and it means anything as distinguished from 'pleasure'. In Sethuraman v. Meenakshi : AIR1967Ker88 , Menon CJ. and Govindan Nair, J., were of the view that the expression 'Profession' is confined to the practice of theology, law and medicine, that With the extension of application of science and learning, the expression has come to cover other vocations as Well, but the dividing line between what is a 'profession' and what is a 'trade' or 'business' still subsists. They are of further view that the expression 'trade' or 'business' as it is understood connotes a commercial activity, but the expression 'profession' does not and is virtually at the other end of the scale, that the word 'business' and the expression 'trade' or 'business' occurring in the proviso to Section 11(3) of Kerala Buildings and Rent Control Act (II of 1965),will not include the profession of an advocate. Fraser & Ross v. Sambasiva Iyer : (1968)ILLJ682Mad was a case in the domain of industrial law and the question that arose for consideration was Whether a firm of chartered accountants and auditors which is conducting the profession will be an 'industry' within the scope of Section 2(j) of the Industrial Disputes Act. The term 'industry' is defined as any business, trade, undertaking, manufacture or, calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. The learned Judges held that the chartered accountants and auditors will constitute a learned or liberal profession and it cannot be termed an industry as defined in Section 2(j) of the Industrial Disputes Act, 1947.

6 The learned Counsel appearing for the respondent invited my attention to the meaning of the word 'business' in the Law Lexicon of Ramanatha Aiyar. The word 'business' is defined, as follows: An affair requiring attention and care, that which business occupies one's time, attention and labour as his chief concern; mercantile pursuits; that which one does for a livelihood; occupation; employment as the business of a merchant; the business of agriculture.

7. Lindley, L.J., in Rolls v. Miller 27 Ch. D. 71 observed thus:

When we look into the dictionaries as to the meaning of the word 'business' I do not think they throw much light upon it. The word means almost anything which is an occupation, as distinguished from a pleasure; anything which is an occupation or duty which requires attention is a business we do not think. We cant get much aid from the dictionary.

The reference should look at the object with which the word 'business' is used in Section 10(3)(a)(iii). I am inclined to adopt the view taken by Menon CJ., and Govindan Nair, J., in Sethuraman v. Meenakshi A.I.R. 1968 Ker. 88 that the profession of an advocate is not a business. This decision of the Kerala High Court was sought to be distinguished by Sen, J., in Taramal v. Laxman Sewak Surey and Ors (1972) R.C.J. 1. The learned Judge distinguishes the said ruling in the following terms.

I am aware that Menon G.J., and Govindan Nair, J., in Sethuraman v. Meenakshi A.I.R. 1968 Ker. 88 have taken a somewhat different view but that decision is hardly of any assistance because the language of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, was different. The expression used in the Act was 'trade or business'. Now, the association of the wider word 'business' with the word 'trade' of a narrower significance brings into play a different rule of construction.

With great respect to the learned Judge, I am unable to understand how a mere association of a wider word with a word of narrower significance would bring into play a different rule of construction altogether. It is nobody's contention that an advocate's profession will be covered by the word 'trade'. There is certainly a fundamental difference between profession and trade or business. I am aware that the words 'trade' or business' do not mean the same thing. While all trades may be business, all business is trade. The distinction between 'business' and 'profession' is emphasised in Rule 40 of the Rules made by the Bar Council of India. The rule says that an advocate shall not personally engage in business and he may be a sleeping partner in a firm, if in the opinion of the appropriate State Bar Council the nature of the business is not inconsistent with the dignity of the profession; It is therefore clear that the two terms 'profession' and 'business' are not synonymous. An advocate is approached by his client in regard to his problems with reference to his property, his trade, business, or industry and sometimes with regard to problems relating to his freedom and it is expected that an advocate would be in a position to help him in his difficulties to the best of his ability and not betray the confidence that is reposed in him. This is one of the elciments which should be borne in mind in considering whether a particular person is practising a profession or is merely doing a business. The profession of an advocate involves a high code of ethics and very considerable responsibility. I am therefore of the view that the profession of an advocate constitutes a learned profession which cannot be termed as business within the definition of Section 10(3)(a)(iii) of the Act. Therefore the respondent landlord who is an advocate cannot apply under Section 10(3)(a)(iii) of the Act for the eviction of the revision petitioner from the premises on the ground that the respondent requires the same 'for locating his office'. There is no other contest in this application. The revision has therefore to be allowed and is hereby allowed. The orders of the Courts below are set aside and the Rent Control Original Petition is dismissed. There will be no order as to costs in this revision.


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