VORA RAHIMBHAI HAJI HASANBHAI POPATversusVORA SUNDERLAL MANILAL & ANR.

                                                                  717

                VORA RAHIMBllAI !WI llASANBllAI POPAT                    A
                                  v.
                   VORA SUllDl!RLAL !Will.AL & ANB.,

                            NOVEMBER 4, 1985

              [E.S, VENKATARAMIAH AND R.B, MISRA, JJ,]                   B
      Bombay Rents, Hotel and Lodging House Rstes (Control) Act,
1947 Section 13(l)(k).

      Tenant - Not using permises for 11Xlre than six 11Xlnths -
Liable for eviction - Stipulation in 'rent note' regarding pay-          c
~ent of rent for non use - Whether absolves liability for
eviction.

       The appellant-plaintiff purchased a plot of land. The
reapondent-defewlant acceptad the plaintiff as 011Der on a rent of
1111. 1325 per -   for  a period of five years. under a regiatered       D
rent note, It was further stipulated therein that the tenant was
to pay the mnicipal tax in respect of the rented land to the
plaintiff, that on the 11Xpiry of the period of five years the
tenant shall remove the constructicmil thereon at hi• own expenae,
and hand over the premises in the condition it was let out and
that the premises shall not be let out to anyone else.                   E
      The plaintiff called upon the defendant to r8lllOV8 the
conetruction erected on the land, and to vacete the preaiaes ·and
hand over po81ession. As the defendant failad, a suit for
eviction 111111 filed, on a D11111ber of ground• one of which was that
the premises had 119t been used by the defendant for a period of
more than six months prior to the elate of the suit without              F
reasonable caused and, therefore the defendant 111111 liable to
eviction under Section 13(l)(k) of the Bombay Rent•, Hotel and
Lodging Bouse Rates (Control) Act, 1947.

      The trial. court di8lliased the suit holding that tha notice
of termiaation wu not valid and that the plaintiff had failed to         G
proye boDa fide requirement, and that u defendant No.2 vu
a t tted as a sub-tenant many years before the execution of the
rent note by the plaintiff, the plaintiff was not entitled to
recover poasesaion on the ground of illegal aub-letting.

        The plaintiff took up the matter in appeal and the
  AHietant Judge allowed the appeal partly, holding that the             H
. notice of termination wu a valid one, that the plaintiff did not
    718             SUPREME COURT REPORTS       [1985] SUPP. 3 s.c.R.     t
A   require the suit premises reasonably and bona fide for occupation
    for himself and that the suit premises bad not been used by the
    defendant continuously for a period of six mnths iumediately
    preceding the date of suit without any reasonable cause.

          The respondent-tenant took up the matter in revision before
B   the High Court, which reversed the finding of the Ist appellate
    court on the question of user by the defendant, holding that the
    construction of the super-structure on the land itself was a user
    and, therefore, the courts below had comnitted a manifest error
    in holding that the land in question had not been used for mre
    than six moths prior to the institution of the suit.

c          In the appeal to this Court, it was contended on behalf of
    the appellant-landlord that the tenant was liable to be evicted
    under s.13(l)(k) of the Act inasmich as the premises have not
    been used for the purpose for which they were let out for a
    continUQus period of six moths immediately preceding the date of
    suit without reasonable cause, and that the tenant would be
    liable for eviction even if he did not use the premises and kept
D   it locked.

          On behalf of the respondent-tenant it was contended, that
    the purpose of letting cannot be assllllled, and that it has got to
    be alleged and proved. The landlord-plaintiff could seek eviction
    under s. 13(i)(k) of the Act only when he proves the purpose for
E   which the premises have been let out and that the same has not
    been used for the purpose for which it was let out. It was
    further contended that if the landlord had specifically taken the
    plea of non-user of the premises for the purpose for which it was
    let out, he would have been able to prove the reasonable cause
    for not doing so but in the absence of such a plea the
F   defendant-tenant had been seriously prejudiced, and that sec. 12
    and 13 of the Act are the only two sections which give protection
    to the tenant and unless the conditions in the two sections are
    satisfied the tenant cannot be evicted•

          Allowing the Appeal,
G
          llEIJ) : 1. The judgment of the High Court is set aside and
    the plaintiff's suit stands decreed. The High Court has gone
    wrong in holding that the construction of super-structure on the
    land in dispute was itself a user. The super-structures had
    already been built before the defendant took the land from the
H   plaintiff under rent note, Ex. 61. As regards sub-tenancy, it has
                 VORA RAHIMBHAI v.VQRA SUNDARLAL              719


been found by the Courts below to have been crested long before      A
the Bombay Rents, Hotel a11d Lodging House Rates (Control) Act,
1947 came into force. There was therefore no question of the
eviction of the sub-tenant as the sub-tenancy was not illegal.
[726 B; 725 G-726 A]

      2. The scheme of the Bombay Rents, Hotel and Lodging House     B
Rates (Control) Act, 1947 as it appears from the preamble is to
consolidate the law relating to the control of rents and repairs
of certain premises, of rates of hotels and lodging houses and of
evictions. The control had to be brought in because of the
scarcity of accommodation in the cities. If this was the preamble
of the Act U: cailnot be accepted that a tenant may take a           c
premises on rent and keep it locked for years together without
using it in the absence of a reasonable cause. The intendment of
the legislature could. be carried out only when the premises is
used and not kept vacant for years together. [724 H-725 BJ

      3. Neither the purpose of letting is indicated l.n the rent    D
note (Ex.61) nor has it been proved by evidence. A perusal of the
rent note indicates that, there is no specific mention of the
purpose for which the premises was rented out to the defendant.
T"ne defendant had taken the premises from the predecessor in
interes~ of the plaintiff and had made certain super-structures
on the land in question. There is, however, material on the          E
record to show >hat the premises had been let out to the
defendant for the purpose of business. Indeed, the premises had
been taken in the name of a firm carrying on tobacco business.
The defendant admitted in his deposition that he had shifted his
business to Baroda. He had not used any portion of the land for
any purpose for the last three or four years and the plaintiff
has produced necessary registers from the Municipality and the       F
Central Excise Department to show the smoo. In the reply given by
the counsel for the defendant to the notice, of termination given
by the plaintiff, it is admitted that the property was taken on
rent by the tenant in his capacity as a manager and owner of the
registered firm Vora Manilal Chaganlal & Co., carrying in
business in Nadiad. In this situation it cannot be argued that       G
the plaintiff has not been able to establish the purpose for
which the premises had been let out to the defendant. [723 E-H]

      4. The stipulation in the rent deed to the effect that;
'even if we use or do not use or keep the said property closed we
the tenants are bound to pay the rent as stated above 1 only talks
of the liability of the defendant to pay.the rent even if he does    H
not use the property and keeps it closed. This, however, does not
    720            SUPREME COURT REPORTS       [1985) SUPP; 3 s.c.R.


A   mean that the defendant can keep the premises closed without
    using it for years together before the suit. This could never
    have been the intention of the law makers especislly in these
    days of scsrcity of accommodation in towns. If the stipulation
    made in the rent note is construed to mean that the defendant
    tenant could keep the premises closed without using it for years
B   together without incurring the lisbility of eviction, as it
    sought to be contended for the respondent, it would amount to
    allowing the parties contracting out of law. [724 I>-E]

          In the instant case, on the own-showing of the
    defendant-respondent, the premises had been taken for the purpose
    of tobacco business and that business had been stopped for a
c   period of 4 to 5 years before the institution of the suit as the
    business had expanded and the defendant had shifted to Baroda.
    Therefore, it can be safely presumed that the land is not being
    used for the purpose for which it has been proved to have been
    let out. [725 F)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 56 of 1971.
D
          From the Judgment and Order dated 8.12.1969 of the Gujarat
    High Court in C.R.A. No. 654 of 1967.

         Harish Salve, D.N. Misra and Ms. A.K. Verma for the
    Appellant.
E
          S.H. Sheth and Ms. Kailash Mehta for Respondent No.l.

          M.v. Goswami and Ms. Vandans Sharma for Respondent No.2.
          The Judgment of the Court was delivered by
F
          MISRA , J, The present appeal by special leave is directed
    against the judgment of the High Court of Gujarat dated 10th
    February 1970.
          The dispute between the parties concerns a plot of land
G   admeaauring 100 ft. x 164 ft. (i.e., approximately 1822 sq.
    yards) out of survey No. 18 in the city of Nadiad. This plot was
    owned by Deviprasad Motilal Jaiswal and Vora Sunderlal Manilal
    was occupying it as a tenant. He hrul also made certain construc-
    tions on the disputed plot. The appellant purchased the said plot
    under a registered sale deed dated 18th April, 1955. The
H   defendant accepted the plaintiff as owner on ·a rent of Rs. 1325
            VORA RAHIMllHAI v.VOAA SUNDARLAL [MISRA, J.]       721


per annum with effect from 18th April, 1955 under a registered        A
rent note dated 9th June, 1955 for a period of five years. The
rent note provided (1) that the defendant shall pay to the
plaintiff the aioount of municipal tax at the rate of Rs, 40 per
annum in respect of the rented premises, (2) that the said
premises shall not be let out to anyone else, and (3) that on the
expiry of the period of five years the defendant sha'l.l remove the   B
constructions at his own expense and hand over to the plaintiff
the premises in the condition in which it was let out.

      It appears that the defendant No. 1 sublet a portion of the
said premises to defendant No. 2, Pa Babubhai Gordhanbhai
contrary to the terms of the rent note. The perio.d of lease          c
contemplated in the rent note expired on 17th April, 1960 and the
defendant continued as a statutory tenant on a monthly rent under
the l\ent Control Act. The two sons of the plaintiff Suleman and
Ganibhai are· dealing in empty tins on a large scale and a
spacious premises was required for the said business. The
plaintiff called upon the 1efendant to remove the construction        D
erected on the land in dispute and to vacate the premises and
handover the possession. Although the plaintiff filed the suit
for eviction on a number of grounds, we are concerned in the
present appeal only with the plea that the premises in question
had not been used by the defendant for a period of more than six
months prior to the date of the suit without reasonable cause         E
and,   therefore,   the defendant was   liable to eviction under
s.13(l)(k) of the llombay Rents, Hotel and Lodging House Rates
(Control) Act, 194 7, hereinafter referred to as the Act. The
trial court dismissed the suit holding that the notice of termi-
nation was not valid and. that the plaintiff had failed to prove
the bona fide re4uirement, and that the defendant No. 2 was
admitted as a sub-tenant many ¥ears before the execution of the           F
rent note by the plaintiff and, therefore, the plaintiff was not
entitled to recover possession on the ground of illegal sub-
letting. The plaintiff feeling aggrieved by the judgment took up
the matter in appeal and the Assistant Judge allowed the appeal
partly holding that the notice of termination was a valid one,
that the plaintiff did not require the suit premises reasonably           G
and bonafide for occupation for himself, and that the suit
premises had not been used by the defendant continuously for a
period of six months immediately preceding the date of suit with-
out any reasonable ·cause. The defendant took up the matter in
revision before the High Court and the High Court reversed the
finding of the 1st appellate court on the question of user Qy the
deferidant. It took the view that the construction of the super-          H
     722             SIJPBEME COURT REPORTS     [1985] SUPP; 3 s.c.R.


A    structure on the land itself was a user and, therefore, too
     courts below and coomitted a manifest error in holding that the
     land in question had not been used for more than six months prior
     to the institution of the suit. The plaintiff has now come to
     this Court by a special leave.

II         Mr. Barish, N. Salve counsel for the appellant strenuously
     urged that the tenant was liable to be evicted under s.13(l)(k)
     of the Act inasmuch as the premises have not been used for the
     purpose for which they were let out for a continuous period of
     six months illlnediately preceding the date of suit without
     reasonable cause. He also contended that the defendant would be
     liable to eviction even if he did not use the premises and kept
C    it locked.

           Mr. S.H. Sheth for the defendant-respondent in reply has
     contended that the purpo3e of letting cannot be assumed. It has
     got to be alleged and proved. The plaintiff could seek eviction
     under s.13(l)(k) of the Act only when he proves the purpose for
     which the premise.. have been let out and that the same has not
D    been used for the purpose for which it was let out. In the
     instant case neither the purpose of letting is indicated in the
     rent note nor has it been proved by evidence. Therefore, the
     liability of the defendant under s.13(l)(k) does not arise.

           The material portion of the rent note, Exbt.61, is as
E    follows:

                " ••• The property of the said measurement and situate
                within the said four boundaries is rented by us from
                you and you have rented it to us. The rent accrues
                from the date 18.4.1955.
F
                It is agreed th•t the rent fixed is Rs. 1325 (Rupees
                thirteen hundred and l-weuty five) per year. We shall
                pay the said rent to you every year in full. If
                default is made in paying the rent you may get the
                said property vacated by us and our objection of any
G               kind shall not he tenable in respect of the same. The
                period fixed is for five years. It expires on the date
                17 .4.1960. We shall ha.'ldover possession of the said
                property to you on the said date. We shall not sub-let
                the said property to any one else.

H               The construction work which is made on the said
          VORA RAHIMBHAI v. VORA SUNDARLAL [MISRA, J.)       723


          property belongs absolutely "to us, the tenant. And A
          when we shall vacate the said property we shall renJ>Ve
          the said construction work at the cost of us, the
          tenant. We agree to handover the possession of the
          property to the owner in the ·same condition in which
          the property is rented.
                                                                 B
          Even if we use or do not use or keep the said property
          closed we, the tenant, are bound to pay the rent as
          stated above till the period fixed. But if we the
          tenant, wsnt to vacate the said property within the
          period fixed we can vacate the same by giving you
          notice before two months or if we wsnt the said c
          property on rent even after the expiry of the period
          fixed you are bound to give the same on rent and the
          rent is to be fixed according to the circumstances at
          thst time and we shall pass and give a new·rent note
          to you. We, the tenant, are to pay Rs. 40 (Bupees
          forty) every year to you, the owner for onmicipal tax D
          in respect of the said property in addition to the
          aIOOUI1t of rent. If the 1111nicipal tax comes to more
          than forty rupees, you the owner are to pay the excess
          aIOOUnt of tax.-"

     A perusal of the rent note indicates that there is no E
specific mention ·of the purpose for which the premises was
rented out to the defendant. It has already been noted thst the
defendant had taken the premise~ from the predecessor in interest
of the present plaintiff and had made certain superstructures on
the land in question. There is, however, material on the record
to show that the premises had been let out to the defendant for
the purpose of business. Indeed the premises had been taken in F
the name of a firm carrying on tobacco business. The defendant
admitted in his deposition that he had shifted his business to
Baroda. He had not used any portion of the land for any purpose
for the last three or four years and the plaintiff has produced
necessary registers from the Municipality and the Central Excise
Department to show the same. In addition, in the reply given by G
the counsel for the defendant to the notice of termination given
by the plaintiff, he definitely admitted thst the property was
taken on rent by the tenant in his capacity as a manager and
owner of the firm Vora Manilal Chhaganlal & Co. and ·that his
client, the tenant, was a registered firm carrying on business in
Nadiad. In this situstion it cannot be argued with any force thst
the plaintiff hes not been able to establish the purpose for H
which the premises had been let out to the defendant.
    724            S~       COURT REPORTS      (1985] SUPP; 3 s.c.R.

A        As a second limb to the argument Shri Sheth contended that
    if the plaintiff had specifically taken the plea of non-user of
    the premises for the purpose for which it was let out he would
    have been able to prove the reasonable cause for not doing so but
    in the absence of such a plea the defendant has been serioualy
    prejudiced.
B
         This contention of the counsel also cannot easily be
    accepted when on the own admission of the defendant and
    defendant's counsel the pr~ses had been used for the purpose of
    carrying to tobacco business. Therefore, the defendant fully
    knew the purpose for which he had taken the premises as a tenant.
    The stand of the defendant all through appears to be that even if
C   he does not use the premises and have been paying rent he does
    not incur the liability of eviction and for this he banks upon
    the recital in the rent note that "even if we use or do not use
    or keep the said property closed we the tenants are bound to pay
    the rent as stated above", This stipulation in the rent deed only
    talka of the liability of the defendant to pay the rent even if
    he does not use the property and keeps it closed. This, however,
D   does not mean that the defendant can keep the premises closed
    without using it for years together before the suit. This could
    never have been the intention of .the law makers· especially in
    these days of scarcity of accOlllDOdation in towns. Even if the
    stipulation made in the rent note is construed to mean that the
    defendant tenant could keep the premises closed without using it
E   for years together without incurring the liability of eviction,
    as is sought to be contended for the respondent, it would S100unt
    to allowing the parties contracting out of law.

         This leads us to the second part of the submission made by
    the counsel for the appellant that on a correct interpretation of
F   s.13(l)(k) of the Act even non-user of the premises for any
    purpose whatsoever for years together would make him liable for
    eviction. The contention on behalf of the respondent, however, is
    that we cannot add words to s.13(l){k) and the intention of the
    legislature is clear from the words used therein, and all that
    s.13(l)(k) contemplates is that the premises had not been used
G   for the purpose for which they were let out for a continuoua
    period of six ronths immediately preceding the date of suit
    without reasonable cause. It does not say that mere non-user of
    the premises will make him liable for eviction.

        The scheme of the Act as it appears from the preamble is to
H   consolidate the law relating to the control of rents and repairs
           .VORA .RAHIMBHAI v.VORA SDNilABLAL (MISRA, J.]      725


of certain premises, of rates of hotels and lodging houiies and"of·   A
evictions. The control had to be brought in becauae · of the
scarcity of accOlllDOdation in the cities. If this was the preamble
of the Act it cannot be accepted that a tenant may take a
premises on rent and keep it locked for years together without
using it in the absence of any reasonable cause. Tue intendment
of the legislature could be carried out only when the premises is     B
used and not kept vacant for years together. Shri Sheth, however,
sought to support the finding of ·the High Court that the
construction of a superstructure is also a user of the property
and the defendant had raised superstructures on the land in
question. This argument 1111st be repelled. It appears from the
rent note, Exbt. 61, that the defendant had taken the premises        c
from the present plaintiff when the defendant had already built
the superstructures when he had takeil the land on rent from the
predecessor in interest of the plaintiff-appellant. Therefore,
there was no question of using the land by raising constructions
by the defendant after the execution of the rent no_te, Exbt.61.
                                                                      D
     Shri Sheth also referred to s. 12 and s. 13 of the Ai:t and
contended that these are the only two sections ·which give
protection to the tenant and unless the conditions in the two
sections are satisfied the tenant cannot be evicted. What was let
out by the plaintiff to the defendant-tenant was the land and not
the superstructures and so Shri Sheth argues that the non-user of     E
the superstructures does not amount to non-user of the land. On
the own showing of the defendant-respondent he had shifted his
business to Baroda and, therefore, he is not using the land for
any purpose whatsoever, Broadly speaking a premises can be let
out either for residential or for business purpose. In the
instant case on the own showing of the defendant-respondent it
had been taken for the purpose of tobacco business and that           F
business had been stopped for a period of 4 to 5 years before the
institution of the suit as the business had expanded and the
defendant had shifted to Baroda. Therefore, it can be safe;t.y
presumed that the land is not being used for the purpose for
which it has been proved t;o have been let out.
                                                                      G
     Tue High Court in our opinion has gone wrong in holding that
the construction of super-structures on the land in dispute was
itself a u8er. As indicated earlier the super-structures had
already been built before the defendant took the land from the
plaintiff under rent note, Exbt.61. Therefore, there is no
question of making any construction on the land in question by
the defendant after the execution of the rent note.                   H
     726            SUPREME COURT REPORTS       [1985] SUPP. 3 s.c.R.


A          As regards the sub-tenancy it has been found by the courts
     below that it had been created long before the Act in question
     caine into force and, therefore, there was no question of the
     eviction of the sub-tenant as the sub-tenancy was not illegal.
II
          For the foregoing discussion the appeal must succeed. It is
     accordingly allowed and the judgment "of the High Court is set
     aside and the plaintiff's suit stands decreed. The parties shall
C    however, bear their own costs.




     N.V.K.                                           Appeal allowed.