Supreme Court of India
SMT. A. N. KAPOORversusSMT. PUSHPA TALWAR
- Citation
- 1992 INSC 34
- Decided
- 31 January 1992
- Disposal
- Appeal(s) allowed
- Bench
- T K THOMMEN
Holding
The Supreme Court held that the premises, being used regularly as a boarding house with the landlord’s implied consent, are not "premises let for residential purposes" under clause (e) and thus the eviction ground under section 14(1)(e) does not apply.
Summary
The respondent, who succeeded her father as landlord of a flat let to the appellant on October 1, 1961, sought eviction under clause (e) of section 14(1) of the Delhi Rent Control Act, 1958, claiming a bona‑fide personal requirement. The appellant contended that the flat, although let for residential purposes, was also used as a boarding house for foreign students who paid rent, which constituted an incidental commercial use without the landlord’s consent. The Additional Rent Controller and the Rent Control Tribunal held that such incidental commercial use removed the premises from the ambit of "premises let for residential purposes" and dismissed the eviction petition. The Delhi High Court reversed those findings, holding there was no evidence of commercial use and allowed eviction. The Supreme Court restored the lower authorities' orders, holding that the landlord had impliedly consented to the boarding house arrangement, which took the premises out of the definition of residential premises for the purpose of clause (e), and therefore the eviction ground did not apply.
Issues considered
- Whether clause (e) of section 14(1) of the Delhi Rent Control Act, 1958 applies when premises let for residential purposes are used incidentally for commercial purposes such as a boarding house.
- Whether the landlord’s implied consent to the tenant’s boarding house arrangement negates the applicability of the Explanation to clause (e).
- Whether the premises in question retain the character of "premises let for residential purposes" for the purpose of eviction under section 14(1)(e).
Legislation cited
- Delhi Rent Control Act, 1958s. 14(1)(e), s. 2(e)
Subjects
Delhi Rent Control Actevictionbona fide requirementresidential premisesincidental commercial useboarding houseimplied consentlandlord‑tenant
Judgment
A SMT. A.N.KAPOOR
v.
SMT. PUSHPA TALWAR
)'- -
JANUARY 31, 1992 -=
B [DR. T.K.THOMMEN ANDS. MOHAN, JJ.]
Delhi Rent Control Act, 1958:
Section 14 (I) (e) Explanation-Right of landlord to seek eviction of
tenant-'premises letfor residential purposes '--Interpretation q(--lnclt1des
c premises let for residential purpose hut incidentally used for commercial
purpose without consent of landlord. 'Y
·Premises let for 1·esidential purpose-Landlord aware that foreign
students were staying with the tenant as paying guests-Held premises
used as a boarding house and not private residence-Landlord not enti-
D tied to evict tenant.
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.
E
The respondent sought eviction of the appellant from the demised
premises on the ground of personal bonafide requirement. The ap-
pellant resisted the eviction petition on the grounds that the premises
were not let out for residential purpose only but for commercial
purposes also i.e. for keeping foreign students as paying guests, and
F that the respondent docs not have a bon~(zde need or requirement as
such.
Relying upon the Rent Note and the appellant's letters dated ,.i..
T
October 7, 1961 and August 18, 1962 addressed to the respondent's
father, and the earlier proceedings between them fvr eviction of the
G appellant on the ground of sub-letting the premises for commercial
purposes, both the statutory authorities--the Additional Rent Con-
!roller and the Rent Control Tribunal 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,
H and dismissed the respondent's application for eviction.
472 -~
SMT. KAPOOR v. SMT. TALWAR 473
~ ~ This finding was reversed by the High Court in the respond- A
ent's second appeal under Section 29 of the Act. The 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 purposes. The. High Court ac-
cepted the appeal and set aside the. ju~gment and order of the Rent
Controller and the Rent Control Tribunal, and allowed the eviction B
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 C
mere fact that foreign students stayed as paying guests in the premises
did not imply either that they lodged with the consent of the land-
lord 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 (c) of sub-section (I) or' section 14 was attracted.
D
Allowing the appeal, and setting aside the judgment of the
High Court, and restoring the orders of the Additional Rent Con-
troller and the Rent Control Tribunal, this Court,
HELD: I. The finding of the High Court is unsustainable . The
High Court was not justified in saying that there was no evidence to E
hold that the premises were used for boarding and lodging foreign
st.udents. The specific plea of the landlord in the earlier proceedings
was that the tenant had sub-let the premises for commercial pur-
poses. 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 F
were not her tenants. The plea of sub-tenancy raised by the land-
lord 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 G
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 · H
474 SUPREME COURT REPORTS [1992] I S.C.R.
A that it was out of that income that all her personal expenses includ-
ing the rent payable by her for the premises had hecn met. These
arc the findings of the two fact-finding authorities, and those find-
ings arc 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-CJ
B
3. In the ahsence of any question of law, much less any sub-
..
stantial question of law, the High Court was not justified in revers-
ing the concurrent findings of the statutory authorities. (480 BJ
4. Clause (e) of section 14(1) of the Act is applicable only if
C the landlord is in a position to establish that the premises let for
residental purposes are required bona ji<le by him for occupations
as residence. Assuming that the bona jide requirement of the land-
lord 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 pur-
D poses' 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 has not given his consent for such incidental use for com-
E mercial or other purpose. [478 D-F]
5. If the premises have never been used for any non-residental
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
F other non-residential purposes, but without the consent of the land-
lord. (47.8 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 con-
sented to the user of the premises for any other purpose, the mere
G fact that such premises have been incidentally used for commercial
or other purposes would not change or affect the residential charac- ·
ter 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 land-
H lord, unless proved to the contrary, are ordinarily presumed and in
SMT. KAPOOR 1•. SMT. TALWAR ITHOMMEN, J.J 475
that event the explanation would be of no avail to save the ground A
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 heyond 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 B
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 ohject to the user of the premises by the appellant
for such purpose. [479 C-D] C
9. The continued user of the building ever since 1961 for the
purpose of lodging paying guests shows that the respondent-land-
lord and her father have not only been aware of such user of the
building, but have also impliedly consented to such user. This pre-
sumption is irresistible from the evidence on record. Such user takes D
the premises in question out of the ambit of 'premises let for resi-
dential purposes' so as to exclude the ground contained in clause
J... (e). [479 E]
Dr. Gopal Dass Verma v. Dr. S.K Bhardwaj & Anr., [1962] 2
SCR 678; Kar/ar Singh v. Chaman Lal & Ors,. (SC) (1969) IV All E
India Rent Control Journal 349; Hohson v. Tu//oc/1, [1898) I .Chan-
cery Division 424; Thorn & Ors. N. Madden, [1925]' All E.R.321 and
Tend/er v. Sprau/a [1947] I All E.R. 193, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1993 of
1982. F
From the Judgment .and Order dated 9.2. 1982 of the Delhi High
Court in S.A.0. No. 59 of 1979.
M.K.Ramaiirnrthi, Mrs. Chandai1 Ramamurthi and M.A.Krishnainoorthi
for the. Appellants. G
Harisl1 N.Salve ai1d A.K.Sai1ghifor the ·Respondents.
The Judgment of the Court was delivered by
T. K.THOMMEN, J. This appeal arises from the judginent of the H
476 SUPREME COURT REPORTS ll 992] 1 S.C.R.
A Delhi High Court in S.A.0.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(l)(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 I. I0.1961.
B 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 pro-
C ceedings between them for eviction of the appellant on the ground of sub-
letting the premises for commercial purposes, both the statutory authori-
ties found that the premises which had been let out for residential pur-
poses to the appellant had also been used incidentally for commercial
purposes so as to exclude the application of section 14 (I) (e) read with
the Explanatibn thereto. This finding was reversed by the High Court by
D the impugned judgment. The 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 purposes. This is
what the High Court says:-
" .......... No documentary evidence has been brought on record
E 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 resi-
F deuce 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.
G The specific plea of the landlord in the earlier proceedings was that the
tenant had sub-let the premises for commercial purposes. The tenant con-
tended 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. TI1e plea of sub-tenancy raised by
the landlord was thus rejected on the ground that those who lodged with
H her were not sub-tenants but only paying guests. Letters dated 7.10.1961
SMT. KAPOOR v. SMT. TALWAR [THOMMEN, J.J 477
and 18.8.1962 addressed by the appellant-tenant to the respondent-land- A
lord were considered by the authorities in coming to the, conclu~ion, 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 B
Ii velihood from the income she received as lodging fee from students who
lodged with her. It 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 per- C
verse 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 being lodged by the tenant, the
mere fact that foreign students stayed as paying guests in the premises D
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 (I) of section 14 was
attracted.
E
There is no substance in the contention that .the landlord was una-
ware 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 knowl-
edge 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 F
...,: foreign students who were lodged by her for gain as paying guests. The
--1 evidence is that she had no income other than what she received as lodg-
ing fee from the foreign students. The question then is whether the facts
found excluded the application of the ground contained in clause (e) of
section 14 (I).
Section 14, insofar as it is material, reads: G
"S.14. Protection of tenant against eviction:- (I) Notwithstand-
ing 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 fa-
vour of the landlord against a tenant: H
478 SUPREME COURT REPORTS [1992) I SC.R.
A Provided that the Controller may, on an application made to
him in the prescribed mannner, make an order for the recov-
ery of possession of the premises on one or more of the
following grounds only, namely -
(e) that the premises let for residential purposes are required
B bona fide by the landlord for occupat4'Jn 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;
c 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 land-
lord, 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
D
alleged is applicable only if the landlord is in a position to establish that
th.e premises let for residential purposes are required hona fide by him for
occupation as a residence. Assuming that the hona 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) makes it
clear that the words 'premises let for residential purposes' include any
E
premises let for residential purposes, but used incidentally, without the
consent of the landlord, for commercial 0r other purposes. The Explana-
tion is attracted when (i) the premises· have been let for residential pur-
poses, (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 purposes. If the three ingredients
F
contained. in the Explanation are attracted, the premises do not cease to be
"Premises let for residential purposes" falling under clause (e). Jn respect
of such premises, the hnna .fide requirement of the landlord referred to in
clause (el is a ground for eviction.
If the preinises have never been used for any non-residential pur-
G
pose, the aid of the Explanation is unnecessary to attract clause (e). The
Explanation is called in aid only where premises let for residential pur-
poses have been used incidentally for commercial or other non-residential
purposes, but without the consent of the landlord. The fundan1ental quesc
tion in respect of residential premises is whether the landlord had con-
sented to the user of the premises for any other purpose, albeit inciden-
H
tally.
SMT. KAPOOR v SMT. TALWAR [THOMMEN, J.] 479
If the landlord is in a position to establish that the premises have A
been let for residential purposes and that h.e has never consented to the
user of the premises for any other purpose, the mere fact that such premises
have been i11cidentally used for commercial or other purposes would. not
change or affect the residential character oft.he premises. In respect of
such premises, it is open to the landlord to prove his bona fide require-
ments and thus· establish the ground mentioned. under clause (e). On the B
other hand, if the premises have been regularly and openly used for non-
residential purposes, the knowledge and constent of the landlord, unless·
proved to the contrary, are ordinarily presumed and in that event the
Expia11ation 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 C
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 evei since 1961 mnning a boardi1\g house in the D
premises. At no time did the landlord object to the user of the premises by
the appellant for such purpose .
.l.
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 . E
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 F
Court in JJl'.Gopa/ !Jass Ver111a v. Dr. S.K llhardwaj & Anr., [1962] 2
SCR 678 and Kartar Singh v. Cha111an Lal & Ors.,SC (1969) IV All India
Rent Control Journal 349.
The position would have been probably different, and the Explana-
tion would have been still available, had foreign guests been lodged only G
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
acco1"n1nodation of paying guests consistently with the character of the
·pre1nises as a private residence?
The evidence on record leaves no doubt that the premises have been H
regularly used by the appellant as a boarding house and not as a private
480 SUPREME COURT REPORTS [1992] I S.C.R.
;... .
A residence in the ordinary acceptation of the tenn. She has in fact been
carrying on, in the words of Romer, J.,"a species of business''. See Hobson
v. Tulloch [ 1898] I Chancery Division 424. See also Thorn & Ors. v.
Madden [ 1925] All E.R.321 and Tend/er v. Sproule [1947] I All E.R.193.
In the absence of any question of law, much less any substantial
B question of law, the High Court was not justified in reversing the concur-
rent 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
C allowed in the above tenns with the costs of the appellant throughout.
N.V.K. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Delhi Rent Control Act"Sign in to search