Dr. Gopal Dass Verma vs Dr. S. K. Bhardwaj And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 278 of 1959

Decision Date: 2 May 1961

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In the matter titled Dr. Gopal Dass Verma versus Dr. S. K. Bhardwaj and another, the Supreme Court of India delivered its judgment on 2 May 1961. The judgment was authored by Justice P. B. Gajendragadkar, who was joined by Justices K. N. Wanchoo, K. C. Das Gupta, and K. N. Gupta. The petitioner was Dr. Gopal Dass Verma and the respondents were Dr. S. K. Bhardwaj together with a second respondent. The case was cited as 1963 AIR 337 and 1962 SCR (2) 678, and it appeared in later citators such as R 1968 SC 438, D 1978 SC 22, RF 1979 SC 460, D 1987 SC 2179, and R 1992 SC 799. The statutory provision at issue was the Delhi and Ajmer Rent Control Act, 1952 (Act XXXVIII of 1952), specifically sections 2(g), 13(1)(e) and 13(1)(h). The factual background recorded that the respondent, Dr. Bhardwaj, occupied a portion of the appellant’s premises for his personal residence while using the remaining major portion for his professional practice as an ear, nose and throat specialist. The appellant instituted an ejectment suit on two grounds: first, that he required the premises for his own residence, invoking section 13(1)(e) of the Act; and second, that the respondent had constructed a suitable residence elsewhere, invoking section 13(1)(h). The trial court ruled in favour of the appellant, but both the appellate court and the Punjab High Court reversed that decision, finding that from the outset the respondent had used a substantial part of the premises for his professional work with the appellant’s consent. The Supreme Court held that when premises let for residential purposes are also used, with the landlord’s consent, for commercial, professional or other purposes, they no longer constitute premises let solely for residential use; consequently, the landlord could not rely on section 13(1)(e) to eject the tenant. Moreover, the Court ruled that a tenancy created or used for both residence and profession could not be terminated merely because the tenant acquired an alternative suitable residence, thereby precluding reliance on section 13(1)(h). The Court further clarified that premises let for both residential and commercial purposes remain covered by section 2(g) and its final clause. The matter was an appeal under civil appellate jurisdiction, identified as Civil Appeal No. 278 of 1959, filed by special leave against the Punjab High Court’s order dated 2 April 1957 in Civil Revision No. 239 of 1956. The appellant was represented by counsel for the Solicitor‑General of India and other advocates, while the respondents were represented by their counsel. The judgment concluded that the appellant’s claims for ejectment were not sustainable under the provisions of the Delhi and Ajmer Rent Control Act, 1952.

The appellant owned a double‑storeyed building located at 28, Barakhamba Road, New Delhi. The ground floor comprised a block of offices, while the first floor contained four separate flats. The appellant occupied three of those flats, and the fourth flat had been let to the first respondent, Dr. Bhardwaj, who practiced ear, nose and throat medicine. Dr. Bhardwaj and his wife, the second respondent, lived in one of the four rooms of that flat, and the remaining three rooms were used by Dr. Bhardwaj for the purpose of his medical profession. The first respondent appeared to have taken the flat on lease as early as 1934, although a formal tenancy agreement was executed on 8 November 1935. That agreement recorded that the appellant would let the flat to the first respondent for a rent of Rs 90 per month payable in advance, with the tenancy to commence on 1 October 1935 and to continue until 30 September 1936. The parties also agreed that the tenancy could be renewed on terms to be settled later. In practice the tenancy was renewed year after year and the flat remained in the possession of the first respondent. In October 1953 the appellant instituted suit against both respondents seeking ejectment on two grounds. He asserted that he required the said premises for his own residence and for the members of his family, and that the first respondent had recently constructed a suitable house for himself in the Golf Link area of New Delhi. The appellant relied first on section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952, and second on section 13(1)(h) of the same Act, contending that both statutory requirements were satisfied and that he was therefore entitled to a decree of ejectment. Both respondents denied the appellant’s claim. The second respondent pleaded that she was not a tenant of the appellant and that it was she, not the first respondent, who had built the house in the Golf Link area. The first respondent admitted that he was a tenant of the appellant but argued that the appellant did not genuinely require the premises for personal use. He maintained that he was using the premises to carry on his medical profession, and therefore the appellant could not lawfully eject him. He also supported his wife’s claim that the Golf Link house belonged to her. On the basis of these pleadings, the trial judge framed the appropriate issues, found that the first respondent alone was the tenant of the appellant, and concluded that the premises had been let to the first respondent for residential purposes. The trial judge further held that the flat had been constructed for residential purposes and that it was let exclusively for that purpose.

In this case, the trial judge observed that the fact a part of the premises had been used by respondent 1 for his profession or business did not convert the tenancy into a non‑residential tenancy. Accordingly, the judge rejected the argument advanced by respondent 1 relying on the explanation to section 13(1)(e) of the Act. The trial judge further held that respondent 1 himself had constructed a house in the Golf Link area and, because that house was suitable for his residence, the requirements of section 13(1)(h) were fulfilled. Regarding the appellant’s claim that the premises were required for personal residence under section 13(1)(e), the trial court made a finding against the appellant. Nevertheless, based on the conclusion that section 13(1)(h) was satisfied, the trial judge issued a decree for ejectment in favour of the appellant. Both respondents contested that decree by filing an appeal before the Senior Sub Judge at Delhi. The appellate court examined the evidence and held that, on the facts proved, it could not be inferred that the premises in dispute had been built solely for residential purposes, nor did the evidence show that the premises had been let to respondent 1 exclusively for residence. The appellate judge scrutinised the conduct of the parties and concluded, beyond any doubt, that respondent 1 had been using the premises for both his residence and his professional work since the tenancy began, without any objection from the appellant. In the appellate judge’s view, therefore, the premises could not be said to have been let solely for residence. The judge also found that, under the proviso to section 13(1)(e), the premises could not be regarded as used incidentally for a profession without the appellant’s consent; consequently, section 13(1)(e) was inapplicable to the present case. Because the appellant failed to demonstrate that the premises fell within the meaning of residential premises under sections 13(1)(e) and 13(1)(h), the appellate court held that respondent 1 could not be evicted. As a result, the appellate court allowed the respondents’ appeal and set aside the trial court’s decree for ejectment. Subsequently, the appellant approached the High Court of Punjab by filing a revisional application. The High Court, in substance, concurred with the appellate court’s view, affirmed its principal findings, and dismissed the revisional application. The High Court observed that, in its opinion, the appellate judge was fully justified in holding that the premises had been let to the tenant for both residence and the practice of his medical profession. The High Court also made an alternative finding that, even if it were assumed that the premises had been let to respondent 1 solely for residence, the appellant had not proved a bona‑fide requirement and the argument based on section 13(1)(h) was unavailable to the appellant because

In this case the Court observed that the Golf Link building which respondent 1 had acquired could not be regarded as suitable for the conduct of business where the neighbourhood or locality in which it was situated was not suitable for that purpose. Consequently the High Court dismissed the appellant’s revisional application. The appellant then approached this Court by way of special leave against that decision. Before addressing the points raised on behalf of the appellant by the learned Solicitor‑General, the Court found it necessary to refer to the relevant provisions of the Act. The Act, as defined in section 2(g), applies to premises meaning, among other things, any building or part of a building that is, or is intended to be, let separately for use as a residence, for commercial use or for any other purpose. Section 13(1) provides that, notwithstanding any contrary provision in any other law or contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant, even where the tenancy has been terminated. This provision, however, is subject to the exceptions enumerated in the several clauses of the proviso, of which the Court is concerned with two. Section 13(1)(c) permits a decree for ejectment if the Court is satisfied that premises let for residential purposes are required bona‑fide by the landlord, who is the owner, for occupation as a residence for himself or his family and that the landlord has no other suitable accommodation. The explanation to this clause clarifies that, for its purpose, residential premises include any premises that, having been let for residential use, are used incidentally for commercial or other purposes without the landlord’s consent. Section 13(1)(h) provides for ejectment where the Court is satisfied that the tenant, either before or after the commencement of the Act, has built, acquired vacant possession of, or has been allotted a suitable residence. The appeal thus involves the application of these three provisions. The Court noted that once it is found that the premises in question have been used by respondent 1 incidentally for professional purposes and that such use was with the landlord’s consent, the matter falls outside the scope of section 13(1)(e) altogether. In the present case both the appellate Court and the High Court found that, from the commencement of the tenancy, a substantial part of the premises was used by respondent 1 for his professional activities, and that this use was evidently with the landlord’s consent. The Court considered it unnecessary to revisit the evidence on which that finding was based. Even the trial Court appeared inclined to adopt the same view concerning the evidence, but it did not

In the present case the Court observed that a full appreciation of the explanatory note would immediately reveal that the professional use of a substantial portion of the premises, undertaken with the consent of the appellant, removes the tenancy from the scope of section 13(1)(e) of the Act. In other words, when premises that were originally let for residential purposes are shown to be used by the tenant incidentally for commercial, professional or any other purpose, and such ancillary use is permitted by the landlord, the landlord does not acquire the right to eject the tenant even if the landlord demonstrates a bona‑fide need for the premises for personal use. This is because the character of the premises, by reason of the tenant’s use, ceases to be purely residential. The Court stressed that this principle is not open to serious dispute. Confronted with this position, the learned Solicitor‑General advanced an argument that the very finding of the lower courts regarding the nature of the tenancy would place the premises outside the ambit of section 2(g) of the Act. He contended that once the premises are no longer let solely as a residence or solely for commercial purposes, they would no longer qualify as “premises” under the Act, and that the “any other use” mentioned in section 2(g) cannot be interpreted to include a mixture of residential and commercial or professional uses. He suggested that the alternative use contemplated by the provision might refer to charitable or similar purposes, which are distinct from residential or commercial use. The Court rejected this line of reasoning, holding that it is not well‑founded. The definition in section 2(g) embraces three categories of user: residence, commerce and any other purpose, which necessarily includes situations where residence and commerce are combined, and may also cover other purposes as the Solicitor‑General proposed. Consequently, once it is established that the premises have been let for both residential and commercial purposes, they do not cease to fall within the definition of “premises” under the last clause of section 2(g). This interpretation is fully consistent with the classification of premises by user set out in paragraphs 3, 4 and 5 of Part A of the Second Schedule to the Act. Accordingly, the Court concluded that the Solicitor‑General’s construction of section 2(g) could not be sustained.

The Court further noted that the present suit was instituted by the appellant himself, seeking the respondent’s ejectment under the provisions of the Act. In that context, the argument that the Act does not apply to the premises in question was characterised as a desperate plea. The appellant also argued that, even if he were not entitled to relief under section 13(1)(e), he could still obtain a decree of ejectment under section 13(1)(h). It was submitted that once the respondent is shown to have acquired a suitable residence, the appellant could seek ejectment notwithstanding the inapplicability of section 13(1)(e). The Court examined this contention in the light of the statutory framework and the factual findings, and found it to be untenable. Section 13(1)(h) is intended for tenancies created for essential purposes, and it permits ejectment only when the tenant has obtained another suitable residence, the term “suitable residence” requiring that the new premises be capable of being used for residential purposes. Where the original tenancy was also used for professional purposes, the acquisition of a residence suitable solely for living does not satisfy the statutory condition, and therefore section 13(1)(h) cannot be invoked to justify ejectment in the present circumstances.

The Court observed that the contention that section 13(1)(e) might not apply to the tenancy was without merit. It explained that section 13(1)(h) dealt with tenancies created for essential purposes and permitted a landlord to obtain an order of ejectment even when he could not establish his case under section 13(1)(e), provided the tenant had secured another suitable residence. The Court emphasized that the requirement was two‑fold: the new premises had to be a residence and it had to be suitable for that purpose. Both terms were described as significant, meaning the acquired premises must be capable of being used as a dwelling and must meet the standards of suitability for habitation. The Court then examined a situation where the premises in dispute were used not only for residence but also for professional activities. It held that in such a case section 13(1)(h) could not be invoked, because one of the purposes of the tenancy was professional use, which could not be satisfied merely by the tenant obtaining a dwelling that was suitable only for residential purposes. Consequently, the Court found it unreasonable to allow a tenancy that served both residential and professional functions to be terminated solely on the basis that the tenant had found a suitable residence. The Court noted that this reasoning aligned with the decision of the High Court and expressed no intention to depart from that conclusion. Turning to the final argument raised by the learned Solicitor‑General, the Court considered the allegation that respondent 1 should not be permitted to change his position as he had done in the present matter. That argument derived from respondent 1’s conduct in earlier stages of the dispute. The Court recalled that from 1941 onward respondent 1 had successfully claimed that the tenancy was for residence, thereby obtaining an extension of the lease under clause 11A of the New Delhi House Rent Control Order, 1939, issued pursuant to rule 81(2)(bb) of the Defence of India Rules. The statements made by respondent 1 indicated that he had exercised his option to obtain the lease extension on the ground that the premises were let to him for residential purposes. The Court observed that the Solicitor‑General’s contention was that, because respondent 1 had obtained an advantage from those representations, he could not now argue that the lease was not solely for residence. However, the Court also highlighted that the appellant’s own conduct contradicted his present position. In 1942, when the appellant demanded a higher rent from respondent 1, he advanced a case that was inconsistent with the later claim that the premises were let only for residence. At that time, the appellant appeared to argue that the tenancy fell within paragraph 4 of Part A in the Second Schedule to the Act, a classification that implied the premises had not been let exclusively for residential purposes.

The lease in question had not been let exclusively for residential purposes. The Court further observed that the behaviour of both the appellant and the respondent had been driven purely by considerations of convenience and self‑interest. Because of this, it would be premature and unavailing for the appellant to argue that the respondent should be prevented from making any further claims or objections concerning the lease. Moreover, the Court found that the appellant was attempting to raise a new contention for the first time before this Court, a step that was not permissible. The issue that the appellant wished to raise required factual evidence to be properly decided, and such evidence could only be presented after the parties had been given an opportunity to adduce it. Since the appellant had not raised this point at the appropriate stage of the proceedings, the respondent had not been afforded any chance to respond to it. This failure to give the respondent an opportunity to meet the new plea barred the appellant from asserting that, even if the lease was not solely for residence, the respondent could not be allowed to claim that the lease was for both residence and a professional purpose. The Court reiterated that its established practice is that fresh pleas which necessitate additional evidence cannot be introduced in appeals filed under Article 136 of the Constitution. Consequently, the Court concluded that the appellant’s appeal could not succeed. In the circumstances, the Court directed that each party bear its own costs for the entire litigation. The appeal was therefore dismissed.