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PETITIONER:

SMT. A.N.KAPOOR

Vs.

RESPONDENT:

SMT. PUSHPA TALWAR

DATE OF JUDGMENT31/01/1992

BENCH:

THOMMEN, T.K. (J)

BENCH:

THOMMEN, T.K. (J)

MOHAN, S. (J)

CITATION:

1992 AIR 799 1992 SCR (1) 472

1992 SCC (2) 80 JT 1992 (1) 348

1992 SCALE (1)204

ACT:

Delhi Rent Control Act, 1958:

Section 14 (1) (e) Explanation-Right of landlord to

seek eviction of tenant-`premises let for residential

purposes'-Interpretation of-Includes Premises let for

residential purpose but incidentally used for commercial

purpose without consent of landlord.

Premises let for residential purpose-Landlord aware

that foreign students were staying with the tenant as paying

guests-Held premises used as boarding house and not private

residence-Landlord not entitled to evict tenant.

HEADNOTE:

The respondent was the daughter of the original

landlord who had let out the premises to the appellant on

October 1, 1961. She purchased the property from her father

on June 27, 1964 and thus stepped into his shoes as the

`landlord' as defined under section 2 (e) of the Delhi Rent

Control Act, 1958.

The respondent sought eviction of the appellant from

the demised premises on the ground of personal bonafide

requirement. The appellant resisted the eviction petition

on the grounds that the premises were not let out for

residential purpose only but for commercial purpose also

i.e. for keeping foreign students as paying guests, and that

the respondent does not have a bonafide need or requirement

as such.

Relying upon the Rent Note and the appellant's letters

dated October 7, 1961 and August 18, 1962 addressed to the

respondent's father, and the earlier proceedings between

them for eviction of the appellant on the ground of sub-

letting the premises for commercial purpose, both the

statutory authorities-the Additional Rent Controller and the

Rent Control Tribunal found that the premises which had

also been used incidentally for commercial purposes so as to

exclude the application of section 14(1) (e) read with the

explanation thereto, and dismissed the respondent's

application for eviction.

473

This finding was reversed by the High Court in the

respondent's second appeal under Section 29 of the Act. The

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High Court found that there was no evidence for the

statutory authorities to come to the conclusion, which they

did, as regards the premises having been used for commercial

purpose. The High Court accepted the appeal and set aside

the judgment and order of the Rent Controller and the Rent

Control Tribunal, and allowed the eviction application.

The tenant appealed to this Court by Special appeal.

On behalf of the respondent-landlord it was submitted that

even if the High Court was wrong in coming to the conclusion

that there was no evidence about foreign students being

lodged by the tenant, the mere fact that foreign students

stayed as paying guests in the premises did not imply either

that they lodged with the consent of the landlord or that

such lodging amounted to a commercial use of the building,

and that the High Court was right in saying that the ground

contained in clause (e) of sub-section (1) of section 14 was

attracted.

Allowing the appeal, and setting aside the judgment of

the High Court, and restoring the orders of the Additional

Rent Controller and the Rent Control Tribunal, this Court,

HELD: 1. The finding of the High Court is

unsustainable. The High Court was not justified in saying

that there was no evidence to hold that the premises were

used for boarding and lodging foreign students. The

specific plea of the landlord in the earlier proceedings was

that the tenant had sub-let the premises for commercial

purposes. The tenant contended that she had never parted

with her exclusive possession of any part of the premises

and the foreign students who were lodging with her were her

paying guests and were not her tenants. The plea of sub-

tenancy raised by the landlord was thus rejected on the

ground that those who lodged with her were not sub-tenants

but only paying guests. [476 G-H]

2. The letters dated October 7, 1961 and August 18,

1962 clearly disclosed the fact that foreign students were

lodged in the premises as the guests of the appellant. The

evidence let in by the appellant and not contradicted by the

respondent clearly showed that apart from the appellant all

the other inmates of the premises were foreign students

staying with her as her paying guests. The appellant

testified that she earned her livelihood from the income she

received as lodging fee from students who lodged with her,

and

474

that is was out of that income that all her personal

expenses including the rent payable by her for the premises

had been met. These are the findings of the two fact-

finding authorities, and those findings are based on oral

and documentary evidence. To have reversed those findings

by the High Court in Second Appeal on the ground that they

were perverse was totally uncalled for. [477 A-C]

3. In the absence of any question of law, much less any

substantial question of law, the High Court was not

justified in reversing the concurrent findings of the

statutory authorities. [480 B]

4. Clause (e) of section 14(1) of the Act is applicable

only if the landlord is in a position to establish that the

premises let for residential purposes are required bona fide

by him for occupations as residence. Assuming that the bona

fide requirement of the landlord is established the landlord

must still prove that the premises had been let for

residential purposes. The Explanation of clause (e) makes it

clear that the words `premises let for residential purposes'

included any premises let for residential purposes but used

incidentally, without the consent of the landlord, for

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commercial or other purposes. The Explanation is attracted

when : (1) the premises have been let for residential

purposes, (ii) the premises have been used incidentally for

commercial or other purposes,and (iii) the landlord has not

given his consent for such incidental use for commercial or

other purpose. [478 D-F]

5. If the premises have never been used for any non-

residential purpose, the aid of the explanation is

unnecessary to attract clause (e). The Explanation is

called in aid only where premises let for residential

purpose have been used incidentally for commercial or other

non-residential purpose, but without the consent of the

landlord. [478 G]

6. If the landlord is in a position to establish that

the premises have been let for residential purposes and that

he has never consented to the user of the premises for any

other purpose, the mere fact that such premises have been

incidentally used for commercial or other purposes would not

change or affect the residential character of the premises.

[479 A]

7. If the premises have been regularly and openly used

for non-residential purposes, the knowledge and consent of

the landlord, unless proved to the contrary, are ordinarily

presumed and in

475

that event the explanation would be of no avail to save the

ground under clause (e). [479 B]

8. In the instant case, it is not disputed that the

premises had been let for residential purposes, but it is

also beyond doubt that to the knowledge of the landlord the

premises have been regularly used by the tenant not only for

her own residence but also for her foreign guests. The

landlord has as all material times known or is presumed to

have known that foreign students have been staying with the

appellant as her paying guests and that she has been ever

since 1961 running a boarding house in the premises. At no

time did the landlord object to the user of the premises

by the appellant for such purpose. [479 C-D]

9. The continued user of the building ever since 1961

for the purpose of lodging paying guests shows that the

respondent-landlord and her father have not only been aware

of such user of the building, but have also impliedly

consented to such user. This presumption is irresistible

from the evidence on record. Such user takes the premises

in question out of the ambit of `premises let for

residential purpose' so as to exclude the ground contained

in clause (e). [479 E]

Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj & Anr.,

[1962] 2 SCR 678; Kartar Singh v. Chaman Lal & Ors., (SC)

(1969) IV All India Rent Control Journal 349; Hobson v.

Tulloch, [1898] 1 Chancery Division 424; Thorn & Ors. v.

Madden, [1925] All E.R.321 and Tandler v. Sproula [1947] 1

All E.R. 193, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1993 of

1982.

From the Judgment and Order dated 9.2.1982 of the Delhi

High Court in S.A.O No. 59 of 1979.

M.K.Ramamurthi, Mrs. Chandan Ramamurthi and

M.A.Krishnamoorthi for the Appellants.

Harish N. Salve and A.K.Sanghi for the Respondents.

The Judgment of the Court was delivered by

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T.K.THOMMEN, J. This appeal arises from the judgment

of the

476

Delhi High Court in S.A.O.No. 59 of 1979 whereby the High

Court, reversing the concurrent findings of the Additional

Rent Controller and the Rent Control Tribunal, allowed the

respondent-landlord's application for eviction of the

appellant-tenant under section 14(1)(e) of the Delhi Rent

Control Act, 1958 (the `Act'). The respondent is the

daughter of the original landlord who had let out the

premises to the appellant on 1.10.1961. The present

respondent purchased the property from her father on 27th

June, 1964 and thus stepped into his shoes as the `landlord'

as defined under section 2(e) of the Act.

Relying upon the Rent Note and the appellant's letters

dated 7.10.1961 and 18.8.1962 addressed to the respondent's

father and the earlier proceedings between them for eviction

of the appellant on the ground of sub-letting the premises

for commercial purposes, both the statutory authorities

found that the premises which had been let out for

residential purposes to the appellant had also been used

incidentally for commercial purposes so as to exclude the

application of section 14 (1) (e) read with the Explanation

thereto. This finding was reversed by the High Court by the

impugned judgment. This High Court found that there was no

evidence for the statutory authorities to come to the

conclusion, which they did, as regards the premises having

been used for commercial purpose. This is what the High

Court says:-

"........No documentary evidence has been brought

on record to hold that the premises were ever used

for boarding and lodging foreign students.....Thus

there is no evidence on record to hold that the

premises were used for boarding and lodging of the

foreign students or that the premises were let to

the respondent for commercial purposes. Thus, I am

of the view that the premises were let to the

respondent for use as residence and the findings to

contrary by the controller and the Tribunal are

without any evidence on record and are perverse".

This finding of the High Court is, in our view,

unsustainable. The High Court was not justified in saying

that there was no evidence to hold that the premises were

used for boarding and lodging foreign students. The

specific plea of the landlord in the earlier proceedings was

that the tenant had sub-let the premises for commercial

purposes. The tenant contended that she had never parted

with her exclusive possession of any part of the premises

and the foreign students who were lodging were her paying

guests and were not her tenants. The plea of sub-tenancy

raised by the landlord was thus rejected on the ground that

those who logged with her were not sub-tenants but only

paying guests. Letters dated 7.10.1961

477

and 18.8.1962 addressed by the appellant-tenant to the

respondent-landlord were considered by the authorities in

coming to the conclusion, which they did. These letters

clearly disclosed the fact that foreign students were lodged

in the evidence let in by the appellant and not contradicted

by the respondent clearly showed that apart from the

appellant, all the other inmates of the premises were

foreign students staying with her as her paying guests. The

appellant testified to the effect that she earned her

livelihood from the income she received as lodging fee from

students who lodged with her. It was out of that income

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that all her personal expenses including the rent payable by

her for the premises had been met. These are the findings

of the two fact-finding authorities and those findings are

based on oral and documentary evidence. To have reversed

those findings by the High Court in Second Appeal on the

ground that they were perverse was totally uncalled for.

Mr Harish Salve appearing for the respondent-landlord

submits that even if the High Court was wrong in coming to

the conclusion that there was no evidence about foreign

students stayed as paying guests in the premises did not

imply either that they lodged with the consent of the

landlord or that such lodging amounted to a commercial use

of the building. Counsel submits that the High Court was

right on the facts of this case in saying that the ground

contained in clause (e) of section (1) of section 14 was

attracted.

There is no substance in the contention that the

landlord was unaware that the premises had been used for

lodging foreign students. The two letters relied on by the

statutory authorities leave no doubt that this fact was

well-known to the landlord at all material times. To the

knowledge of the landlord the premises have been regularly

used by the tenant ever since 1961 for the residence of not

only herself but also of the foreign students who were

lodged by her for gain as paying guests. The evidence is

that she had no income other than what she received as

lodging fee from foreign students. The question then is

whether the facts found excluded the application of the

ground contained in clause (e) of the section 14 (1).

Section 14, insofar as it is material, reads:

"S.14. Protection of tenant against eviction:- (1)

Notwithstanding anything to the contrary contained

in any other law or contract, no order or decree

for the recovery of possession of any premises

shall be made by any court or Controller in favour

of the landlord against a tenant:

478

Provided that the Controller may, on an

application made to him in the prescribed manner,

make an order for the recovery of possession of the

premises on one or more of the following grounds

only, namely-

(e) that the premises let for residential purpose

are required bona fide by the landlord for

occupation as a residence for himself or for any

member of his family dependent on him, if he is the

owner thereof, or for any person for whose benefit

the premises are held and that the landlord or such

person has no other reasonably suitable residential

accommodation;

Explanation-For the purposes of this clause,

"premises let for residential purposes" include any

premises which having been let for use as a

residence are, without the consent of the landlord,

used incidentally for commercial or other

purposes".

The only ground which is relied on by the landlord is

that which is contained in clause(e) read with the

Explanation. Clause (e) on the facts alleged is applicable

only if the landlord is in a position to establish that the

premises let for residential purposes are required bona fide

by him for occupation as a residence. Assuming that the bona

fide requirement of the landlord is established, the

landlord must still prove that the premises had been let

for residential purposes. The Explanation to clause (e)

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makes it clear that the words `premises let for residential

purposes' include any premises let for residential purposes,

but used incidentally, without the consent of the landlord,

for commercial or other purposes. The Explanation is

attracted when (i) the premises have been let for

residential purposes, (ii) the premises have been used

incidentally for commercial or other purposes, and (iii) the

landlord had not given his consent for such incidental use

for commercial or other purposes. If the three ingredients

contained in the Explanation are attracted, the premises do

not cease to be "Premises let for residential purposes"

falling under clause (e). In respect of such premises, the

bona fide requirement of the landlord referred to in clause

(e) is a ground for eviction.

If the premises have never been used for any non-

residential purpose, the aid of the Explanation is

unnecessary to attract clause (e). The Explanation is

called in aid only where premises let for residential

purposes have been used incidentally for commercial or other

non-residential purposes, but without the consent of the

landlord. The fundamental question in respect of

residential premises is whether the landlord had consented

to the user of the premises for any other purpose, albeit

incidentally.

479

If the landlord is in a position to establish that the

premises have been let for residential purposes and that he

has never consented to the user of the premises for any

other purpose, the mere fact that such premises have been

incidentally used for commercial or other purposes would not

change or affect the residential character of the premises.

In respect of such premises, it is open to the landlord to

prove his bona fide requirements and thus establish the

ground mentioned under clause (e). On the other hand, if

the premises have been regularly and openly used for non-

residential purposes, the knowledge and constant of the

landlord, unless proved to the contrary, are ordinarily

presumed and in that event the Explanation would be of no

avail to save the ground under clause (e).

In the present case, it is not disputed that the

premises had been let for residential purposes, but it is

also beyond doubt that to the knowledge of the landlord the

premises have been regularly used by the tenant not only for

her own residence but also for her foreign guests. The

landlord has at all material times known or is presumed to

have known that foreign students have been staying with the

appellant as her paying guests and that she has been ever

since 1961 running a boarding house in the premises. At no

time did the landlord object to the user of the premises by

the appellant for such purpose.

The continued user of the building ever since 1961 for

the purpose of lodging paying guests shows that the

respondent-landlord and her father have not only been aware

of such user of the building, but have also impliedly

consented to such user. This presumption is irresistible

from the evidence on record. Such user takes the premises

in question out of the ambit of `premises let for

residential purposes' so as to exclude the ground contained

in clause (e).

We are fortified in our conclusion by the views

expressed by this Court in Dr. Gopal Dass Verma v. Dr. S.K.

Bhardwaj & Anr., [1962] 2 SCR 678 and Kartar Singh v. Chaman

Lal & Ors., SC (1969) IV All India Rent Control Journal 349.

The position would have been probably different, and

the Explanation would have been still available, had foreign

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guests been lodged only occasionally and for short periods,

even if it be on the basis of payment to cover expenses.

All this is a question of intention. Was it an occasional

accommodation of paying guests consistently with the

character of the premises as a private residence?

The evidence on record leaves no doubt that the

premises have been regularly used by the appellant as a

boarding house and not as a private

480

residence in the ordinary acceptation of the term. She has

in fact been carrying on, in the words of Romer, J., "a

species of business". See Hobson v. Tulloch [1898] 1

Chancery Division 424. See also Thorn & Ors. v. Madden

[1925] All E.R. 321 and Tendler v. Sproule [1947] 1 All E.R.

193.

In the absence of any question of law, much less any

substantial question of law, the High Court was not

justified in reversing the concurrent findings of the

statutory authorities.

In the circumstances, we set aside the impugned

judgment of the High Court and restore the orders of the

Additional Rent Controller dated 29.9.1976 and Rent Control

Tribunal dated 18.11.1978. The appeal is allowed in the

above terms with the costs of the appellant throughout.

N.V.K. Appeal allowed.

481