Petitioner Counsel :- Pramod Kumar Jain,M.K.Gupta,W.H. Khan Respondent Counsel :- K.R.Sirohi,A.P.Yadav,M.P.Yadav,S.C.Madhyan Hon'ble Prakash Krishna, J This is defendant's revision under section 25 of the Provincial Small Causes Court Act.
Original S.C.C. suit no.5/1983 was instituted against the present applicant and other defendants for recovery of arrears of rent, mesne profits, pendente lite, future damages and for eviction from accommodation no.446 Mohalla Kalyan Singh, Mawana, District Meerut on the allegations that the said accommodation is shop cum residential accommodation where in on the ground floor there are shops and godowns whereas on the first floor there are rooms for residential purposes. Karan Singh, Uncle of the plaintiff No.1, Samerpal, had let out the premises to Nawab Singh, the father of the defendants. Plaintiff No.1, Samerpal, became the owner and landlord of the property in dispute by virtue of a Will dated 23.5.1973 in his favour. The defendants after death of Nawab Singh inherited the tenancy and have paid rent upto August 1981 @ Rs. 440/- p.m. The tenancy was determined by means of notice dated 16.8.1982 for non payment of rent for the subsequent months.
The suit was contested by Shri Chitranjan Singh alone. He disputed the rate of rent and pleaded that it was Rs.200/- per month. Plea with regard to default in payment of rent was denied. It was further pleaded that the suit is not maintainable as the notice determining the tenancy under section 106 of the Transfer of Property Act has not been served on him. Benefit as envisaged under section 20(4) of U.P Act No. 13 of 1972 was claimed on the ground that he has deposited the requisite amount as required under the said provision on the first 'date of hearing'.
The following issues were struck by the trial Judge:
1. Whether defendants are in arrears of rent from 1.9.1981 and have committed default?
2. Whether rate of rent is Rs.440/- per month as alleged by the plaintiff or is Rs.200 per month as alleged by the defendant?
3. Whether the plaintiff has served a valid notice upon the defendants under section 106 of transfer of property Act?
4. Whether defendant is entitled to the benefits of the provisions of section 20(4) of the Act?
5. To what relief, if any, is the plaintiff entitled?
At the very outset, it may be stated that the applicant has not disputed the findings recorded by the Trial Court on issues no. 1, 2 & 3. The findings therefore, on these issues have attained finality. These issues were decided in favour of the plaintiffs holding that the defendants is in arrears of rent as pleaded by the plaintiffs, monthly rent was Rs.440/- and the notice determining the tenancy, is valid. Under issue no.4, it was held that the tenant is not entitled to invoke the benefit as provided for on the findings (1) that the amount was not deposited on the date of first hearing and (2) that tenanted building is a residential one, stands excluded as per the proviso attached to it.
The only point urged in support of the revision is that the Court below committed illegality in holding that the defendant is not entitled to the benefits of the provisions of Section 20(4) of the Act, under issue no. 4.
Shri M.K.Gupta, learned counsel appearing in support of the revision urged that the Court below was not justified in determining the 'date of first hearing'. Elaborating the arguments it was submitted that the service of notice by publication is the weakest mode of service. The order to proceed ex parte was recalled and time was granted to the applicant/tenant to file the written statement, the necessary deposit as required under section 20(4) of the Act was made anterior to the date fixed for filing of the written statement. Date of first hearing, the learned counsel submits, will not in any case be anterior to the date of filing of the written statement provided the written statement is filed within the time granted by the Court. The other aspect of the case is that the accommodation in dispute is non residential accommodation and is "shop cum residential accommodation" as per paragraph 1 of the plaint, the proviso to section 20(4) would not be attracted on the facts of the present case.
The submission is that the said proviso will be applicable only to tenanted residential accommodation and not to any other kind of accommodation. It was further argued that in any case, proper opportunity of hearing was not provided by the trial Court before denying the benefit of Section 20 of sub clause(4) of the Act. The Trial Court has proceeded on the footing that the defendant-tenant has acquired residential accommodation in the same municipal area. Acquisition of another residential accommodation by the tenant is not in dispute but, the learned counsel submits that only such acquisition of residential accommodation which were acquired after the commencement of U.P Act No. 13 of 1972 would be relevant. To put it differently if the tenant has acquired any residential accommodation, before the commencement of U.P Act No. 13 of 1972 and takes an accommodation on rent, the proviso to Section 20(4) in respect of such acquisition would not be applicable, submits the learned counsel for the petitioner.
In reply, Shri O.P Singh, learned senior counsel for the plaintiff-opposite parties submits that summons of the suit was served on the defendants by publication fixing 7.3.1984 for appearance. None appeared on behalf of defendant on that date, the service was held to be sufficient and the Court ordered that the case shall proceed ex parte against defendant nos.1 to 5 fixing 28.4.1984. Thereafter 23.5.1984 was the next date fixed. On that date, the case was adjourned to 27.7.1984 for recording exparte evidence. Admittedly, the applicant appeared on 25.5.1984 and prayed that the order to proceed ex parte be recalled. He had full knowledge about the proceedings of the case and as such it cannot be said that the date fixed in the original summon for filing the written statement is not the date of first hearing. He further submits that the proviso to section 20(4) is fully attracted to the facts of the present case. There is no equity in favour of the applicant as he has admittedly got four other properties residential and non residential at Mawana District Meerut.
Considered the respective submissions of the learned counsel for the parties and perused the record.
The following points in the light of the arguments of the learned counsel for the parties fall for determination.
i) What is the date of "first hearing" in the present case within the meaning of Section 20(4) of the Act.
ii) Whether the proviso to Section 20(4) of the Act is attracted or not- as the accommodation in question is shop cum residential.
Taking the first point first, it may be noted that the summons of the suit was issued to the defendants fixing 30.3.1983 for filing written statement. The said notice was not served and time was given for taking steps. Steps were taken but the notice was not served. Then on 14.7.1983 an application was filed by the plaintiffs to serve the notice through publication which was allowed on 25.7.1983 and the said order was modified subsequently on 2.8.1983. Steps for publication were taken on 3.8.1983 and it was ordered that in the publication notice dated 19.10.1983 be fixed for filing the written statement. The copy of the newspaper was not placed on record and time was granted to take appropriate steps in this regard. Ultimately, on 30.1.1984, the Court ordered that notice be published fixing 7.3.1984 for filing the written statement. The order sheet dated 7.3.1984 would show that by that time the notice was published in the newspaper but no written statement was filed and it was ordered that the case be put up on 28.4.1984 for ex parte order. On 28.4.1984 it was adjourned to 23.5.1984 for fixing date for ex parte evidence, thereafter 27.7.1984 was the next date fixed. Before 27.7.1984, the applicant on 25.5.1984 filed an application praying, for the reason disclosed in accompanying affidavit, the order dated 7.3.1984 ordering that the suit may proceed ex parte be recalled and time may be granted to him to file written statement as also a copy of the plaint be supplied to him. Along with the application, a tender for a sum of Rs.20,000/- was enclosed with the request that the same may be passed.
In the accompanying affidavit, it was stated that the applicant came to know about the suit when he was threatened by the father of the plaintiff no. 1 for forcible eviction from the accommodation in question. He never refused to accept any summon or any such summon was ever offered to him. It was further stated that he did not read the newspaper namely ''Amar Ujala' dated 9.2.1984 and had no knowledge about the suit. He came to know about the pendency of the suit when he got inspected the file of the case through a lawyer.
It is useful to reproduced the order passed on the said application.
"Heard.
Issuing of notice will entail further loss of time. Ex parte order so far as it relates to defendant no. 1, shall stand recalled on payment of Rs. 200/- as cost. Cost shall precede the filing of the written statement failing which the application shall stand rejected. Written statement to be filed as ordered on or before 27.7.1984."
Along with the application dated 25.5.1984 a tender for Rs.20,000/- was also enclosed which was passed by the Court on 26.5.1984 and the money was deposited on 28.5.1984.
The written statement was required to be filed by 27.7.1984 but the time was extended and it was filed on 27.8.1984 within the extended period of time.
Having noticed the factual aspects of the case, the question which falls for consideration is what would be the date of "first hearing" for the purposes of Section 20(4) of the Act. The learned counsel for the applicant submits that the said date in any case cannot be anterior to the date of filing of the written statement if the written statement is filed within the time prescribed by the Court. Refuting the above, the learned counsel for the plaintiff-opposite parties submits that the date which was fixed in the publication notice i.e 7.3.1984 would be the date of 'first hearing'. The trial Judge also says so, though in not so many words, in the order under revision.
Explanation to Section 20(4) defines the expression 'first hearing'. One of the requisites to avail the benefit of Section 20(4) is that the amount should be deposited by the tenant unconditionally ''at the first hearing of the suit'. The expression 'first hearing' has been defined in the Explanation attached to Section 20(4). It reads as follows:
"20(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acaquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.
Explanation- For the purposes of this sub section-
(a) the expression "first hearing" means the first date for any step or proceeding mentioned in the summons served on the defendant;
(b) the expression " cost of the suit" includes one-half of the amount of counsel's fee taxable for a contested suit. "
The aforesaid expression ''first hearing' has been subject matter of interpretation by the Apex Court in the case of Siraj Ahmad Siddiqui versus Prem Nath Kapoor (1993) 4 SCC 406 and Advaita Nand versus Judge, Small Cause Court, Meerut and others (1995) 3 SCC 407. In the case of Advaita Nand (Supra), the Apex Court has reproduced one paragraph from its earlier judgement from the case of Siraj Ahmad Siddiqui. The said paragraph reads as follows:
"The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the aprteis to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression 'first hearing ' for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a 'hearing' that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision. Furhter, it is not possible to constue the expression 'first date for any step or proceedings' to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points incontroversy between the parties to the suit and to frame issues, if necessary." (Emphasis supplied) In that case, on 24.2.1984, the trial Court passed order on the application of the tenant for time to file written statement and permission to deposit the full amount of arrears by fixing 24.3.1984 to file the written statement and fixed 12.4.1984 for final hearing. The full amount of arrears was deposited on 5.3.1984. It was held that there was compliance by the tenant with the provisions of section 20(4) of the Act as he deposited the amount prior to the earlier dates fixed by the Court to take the first step in the suit.
In the case of Advaita Nand (Supra) also, it was laid down that the 'first date of hearing' of the suit is the date fixed for final hearing. Reiterating the above proposition of law, the Apex Court in the case of Mam Chand Pal versus Smt.Shanti Agarwal, JT 2002(2) SC 141 has held that the emphasis in the relevant provision is on the word 'hearing' where the dates were fixed for filing of the written statement and later for hearing of the case after furnishing of a copy of the plaint. It was held that the Court was to apply its mind to the facts of the case on the date fixed for hearing and not earlier on the date fixed for filing of the written statement. The relevant observation is reproduced below:
"........ the dates were fixed for filing of the written statement and later for hearing of the case after furhnishing of a copy of the plaint, it was held that the Court was to apply its mind to the facts of the case on the date fixed for hearing and not earlier on the date fixed for filing of the written statement. "
In Ashok Kumar & others versus Rishi Ram & others JT 2002(5) SC 99, the Apex Court after noticing its earlier judgments has held that the 'first date of hearing' means the first date when the Court proposes to apply its mind to identify the controversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement.
The ratio of the decisions referred to above is that the expression 'first hearing' as contained in the Explanation to 20(4) is the date when after filing of the written statement of the defendant, the court proposes to apply its mind to identify the controversy in the suit. In other words, when a written statement has been filed within the prescribed time, the 'first hearing' will not be earlier, at any rate before the filing of the written statement. It would be the first date fixed for hearing.
Now adverting to the facts of the case on hand, it would show that the order to proceed ex parte, order was recalled on the application filed by the applicant by granting time to file the written statement. Along with the application, indisputably, the applicant had enclosed a tender for sum of Rs.20,000/- which was passed by the Court on the next date and the amount was deposited within three days thereafter i.e 28.5.1984. It will relate back to the date of filing of the application i.e 25.5.1984 when the applicant appeared before the Court for the first time and prayed for and was granted time to file the written statement.
Here is a case, when the requisite amount was deposited even prior to the filing of the written statement.
In view of the judicial pronouncements referred to above, it is but obvious that first hearing will not be any date prior to 25.5.1984, as wrongly held by the Trial Court. When the order to proceed ex parte was recalled, its effect is that the clock has been put back. The order sheet does not show that any date was fixed by the Court prior to 25.5.1984 for hearing of the suit. The recording of the evidence even ex parte had not commenced. The trial Court has proceed to held otherwise in the light of the full Bench decision of this Court in the case of Sia Ram versus District Judge Kheri (1984) 1 ARC 410 = to 1984 ALJ 1106.
A bare perusal of the judgment of the Apex Court in the case of Advaita Nand (supra) would show that it noticed the decision of this Court in the case of Sia Ram (Supra) in paragraph 6 of its judgment. It preferred to follow its earlier judgment in the case of Siraj Ahmad Siddiqui. It is true that dictum laid in the case of Sia Ram(Supra) has not been expressly disapproved but the fact remains that in view of the subsequent authoritative pronouncements by the Apex Court, it is the ratio of the Apex Court which is binding on all Courts. The ratio of the Apex Court has already been noticed above. It does not approve the view that first hearing means the date as mentioned in the summons. Obviously, the trial Judge had not the advantage of the ratio of the Apex Court referred to above.
Viewed as above, the finding of the trial Court on the question of 'first hearing' cannot be approved.
On the facts of the present case, this would be in any case not before 25.5.1984, the day on which the applicant submitted the tender for making the requisite deposit which was passed on the next date and the requisite money was deposited within two days thereafter i.e 28.5.1984.
The submission of the learned counsel for the applicant with regard to the question of 'first hearing' is thus well founded. The learned counsel for the opposite parties is not right in his submission that the date of appearance as fixed in the publication notice i.e the 7th of march 1984 will be the date of 'first hearing'. Even otherwise also, the copy of the plaint was supplied after the order dated 25.5.1984.
To this extent, the finding of the trial Judge is set aside and it stands modified accordingly.
Now I take up the second point. The trial Court has also held that the defendant -applicant is not entitled to avail the benefit of Section 20(4) of the Act in view of the proviso attached to it for the reason that he along with his brother Raj Kumar has got four properties in Mawana. They are properties nos.621, 42, 43 & 72. Property no.621 is a shop, property no. 42 is also a shop, property no. 43 consistes of two rooms, one hall on the ground floor and one room with a SEHAN on the first floor, similarly property no. 72 consist of five rooms.
The proviso attached to section 20(4) of the Act reads as follows:
Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."
The trial Court on interpretation of the said proviso has held that the defendant-applicant has acquired residential and non residential buildings, would not be entitled to get the benefit of Section 20(4) of the Act by treating the accommodation in dispute as 'residential building'.
According to the trial court, the tenanted accommodation is a residential accommodation and the tenant-applicant has acquired other residential accommodation, as well.
Challenging the said finding, the learned counsel for the applicant submits that on a plain reading of the proviso, it is applicable to a tenant of residential builiding. The submission is that the tenanted accommodation is not a residential building meaning thereby even if the tenant-applicant has got other residential buildings in vacant state would not disentitle him to avail the benefit of Section 20(4) of the Act. The position thus boils down to this as to whether the tenanted building is residential one or not.
Laying emphasis on the pleadings of the plaintiffs and the evidence led by them, the learned counsel for the applicant submits that the proviso to Section 20(4) would not be attracted here. He submits that the said proviso shall apply in relation to a tenant who or any member of his family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition , any residential building in the same municipality.
Reference was made to Sunil Kumar Mukherji versus Kabiraj Bindu Madho Bhattacharaya and others (1978) ARC 74, (paragraph 4).
It has been held therein that the proviso applies only to a residential building. Had the intention was to make the provision applicable to every building, the word 'residential' would not have been used before the word 'building'. The purpose of the proviso is clear and it is that in case the tenant has an alternative accommodation which he can use for the purpose for which he is occupying the building under his tenancy, he should not be given the benefit of sub section (4). The aforesaid decision has been followed in Sheo Nath Prasad versus IIIrd Additional District Judge and others 1981 ARC 207.
At this stage, it is apt to notice the evidence led by the parties with regard to the question as to whether the building is residential or non residential one.
Samar Pal Rana, PW/2 in his deposition has stated only this much that the building when it was let out to Nawab Singh, business was being carried on in the ground floor and the business operation is still being carried out there in the ground floor even today. Krishna Pal Singh Rana, the father of plaintiff no.1, has examined himself as PW/4. In para 10 of his deposition he states that the disputed accommodation is being used by the defendant/tenant for business purposes. It is an admission. The said statement was recorded on 8th of March, 1989. It appears that the said witness was recalled for further statement (after amendment of written statement) on 15.11.1989. The witness (after recall in his examination in chief) stated that there are three rooms on the first floor wherein the defendant is residing and the first floor is not being used for business purposes. The ground floor of the disputed premises consists of three godowns and one room which are being used for business purposes and also there is one godown and one room which is used for residential purposes. In cross examination he was confronted with his earlier statement (recorded before the recalling of the witness) wherein it was stated that the disputed accommodation is being used for business purposes. He could not give any reply about the same. Only this much was stated by him that he did not make the statement as recorded. The disputed accommodation is being used for business purposes and residential one both. On further cross examination he could not depose the dimensions of the constructions and stated that the defendant is carrying on fertilizer business from the disputed accommodation which is being used as godown for storage purposes. There is no construction over the two godowns. He has denied the suggestion that there is only one big room and one small room and one verandah on the first floor. He further states that one room on the ground floor is being used for residential purposes wherein one of the relatives of the defendant is residing and guests used to stay in it. It is quite possible that traders might be staying in the said room on the ground floor. The property in dispute is situate in Gur Mandi and the other properties surrounding the disputed properties are being used for business purposes wherein business is being carried on for the last more than fifty years. In front the disputed shop presently there is a Kharanja. Earlier, there used to be a private railway track coming up to a factory. This is all so far the evidence led by the plaintiffs are concerned.
Chitranjan Singh, defendant no.1, examined himself as DW/1 whose statement was also recorded before and after the amendment in the written statement. He states that he is sitting in the disputed shop from the life time of his father and carrying on the business of fertilizer. He is having dealership of number of companies. He states further that he is carrying on the business exclusively from the disputed shop. No partition in between himself and his brother Raj Kumar has taken place. After the amendment of the written statement, the witness was recalled. The witness states that the disputed shop was taken for business purposes. Since the very beginning the business is being carried out from the ground floor of the disputed accommodation and the room on the first floor was used for staying purposes of village tradesmen. His father expired in 1979. Thereafter, he shifted to the first floor along with his family and the mother. He denies and states that the ground floor was never used for residential purposes. There is a small room and a Kothari in front of godown. There is no construction over all the three godowns as the roof top of the godowns is of tin and sloppy. No construction is possible. The room on the ground floor is used for the purposes of keeping the samples and there is a iron safe also. There is no sofa and T.V. in any room on the ground floor and the room on the ground floor is used for multi-purposes. Sometimes, for keeping the fertilizer and sometimes for other miscellaneous purposes. There are only two Kotharis, one room and one Verandah on the first floor. The constructed first floor portion is only that of 20 per cent of the total construction on the ground floor. In the cross examination he has given the dimensions of the lone room as 8'x12' and of two Kotharis each 7'x7' and explained that these Kotharis are used for storing household goods and one for kitchen. He has denied the suggestion that the ground floor is ever used by him for residential purposes.
The other witness examined by the defendant is one Rakesh Kumar DW/2, a trader and a neighbour who in his cross examination states that he has also got a shop in the same market wherein the disputed accommodation is situate. There are about 16-17 shops in the market. He is also carrying on the business in a shop under his tenancy.
The question now boils down to this as to whether the disputed accommodation is residential one or it is other than residential, within the meaning of section 20(4) of the Act.
The U.P. Act No.13 of 1972 has been enacted in the interest of general public for regulation of letting, rent and eviction of tenant from certain classes of buildings situate in urban areas and the matters connected thereof. Its section 3 is definition clause and clause (i) defines the 'building' which means a residential or non residential roofed structure. The Act does not contain any definition either of residential or of non residential building. Although its various provisions provide different treatments to residential or non residential buildings. For example section 12(2) dealing with the provision relating to deemed vacancy of building in certain cases provides different provision in case of non residential building. Similarly, under section 21(1) (a) third proviso (ii) relating to release of building under occupation of tenant bars filing of release application on the ground of bonafide need in the case of any residential building, for occupation for business purposes.
In Trust Asha Mai Dharmshala Vs. Additional District Judge (Third), Dehradoon, 1991 ALL. L.J. 866 a case under section 12(3) of the Act, the Court in connection with the question as to what is the nature of the building has observed that mere user of building cannot be determinative of its nature. If the building is residential building its user for non residential purpose would not make the building non residential one. In this case, a reference of Supreme Court case in the case of Bushing Schmits' case AIR 1977, 1569 has been made. The relevant paragraph from the said decision of the Apex Court produced therein is reproduced below:-
"In my opinion the present purpose of use to which the building is being put out not to be the sole or conclusive test, for otherwise it would be so easy both for the tenant as well as for the landlord. Completely to frustrate the object and purpose of the Act by putting the building for a length of time to a non-residential purpose, thereby taking it wholly out of the grip or reach of the Rent Control Authorities, who are charged with the duty of meeting the acute crisis prevailing in Urban areas in regard to residential accommodation. In my judgment, the power of the Rent Control Authorities to let and release residential accommodation cannot be taken away or thwarted by such subterfuges or fortuitous circumstances as the use to which a building may have been put at any given moment or event for some length of time, however, short though it may."
It follows that mere user will not be determinative of the nature of the accommodation. The nature of the accommodation will depend on the nature of construction of the building, the situation of the building, purpose for which the building was constructed. These are the guiding factors to be taken into consideration to address the issue.
In Rama Shanker Dixit Vs. S.C. Tiwari, 1994 (1) ARC 403, it has been held that where a tenant has taken accommodation for residential purposes and he acquires another accommodation for residential purposes cannot take a stand that the tenanted accommodation is being used by him for non residential purposes at the time of declaration of vacancy.
Coming to the facts of the case, it is not even the case of the plaintiff opposite parties that the building in question is purely residential one. On the contrary, they have pleaded in para 1 of the plaint that the building in question is "shop-cum-residential accommodation". Oral evidence led by the parties have already been noticed above. Whether a building is residential accommodation or non residential in absence of any definition of residential or non residential building in the Act has to be determined in the facts situation of each case. It is admitted to the plaintiffs themselves in their deposition that the building in dispute is in the market namely Gur Mandi surrounded by such buildings wherein businesses are being carried on for the last more than fifty years. The fact that the building in dispute is in the market and the fact that admittedly the business is being carried on in the ground floor at a large scale by the defendant are suggestive of the fact that the building is non residential.
The expression residential is not technical expression and not a term of art, so it is to be understood in its popular sense i.e. as is commonly understood. The expression shop-cum-residential used by plaintiffs gives a fair indication that the building is not residential, at least.
It has also come on record that an application for release of the disputed accommodation on the ground of bonafide need was filed under section 21 of the Act which was registered as PA Case No.59 of 1981. The said release application was dismissed by the Prescribed Authority on 23rd of November, 1982. In the order of the Prescribed Authority he has referred his inspection memo and has mentioned that the defendant is carrying on business of commission agency and of fertilizer in the ground floor at a large scale. The release of the disputed accommodation was sought for by the plaintiffs herein to establish the plaintiff no.1 in business. This is also indicative of the fact that the building in dispute was treated by the plaintiffs not only as a residential building. The Act bars the release of a residential building for non residential purposes vide sub clause (ii) of third proviso to section 21(1) It is useful to note one decision of the Apex Court pointing out the difference between (a) A composite tenancy or a tenancy for a mixed purpose, and (b) An integrated contract of tenancy for dual purposes. In Nilesh Nand Kumar Shah Vs. Sikandar Azeej Patel, (2002) 6 SCC 678, a case under the Bombay Rents, Hotel and Lodging, House and Rates Control Act, 1947. It has been noticed therein that there may be several purposes for which the tenancy premises may be let out. Broadly speaking the premises are let out either for the purpose of residence or for a non-residential or commercial purpose. A legislation may classify the purpose of letting into several categories by adopting some other criterion just as the Bombay Act does (See, sub-Section (1) of Section 6). In case of tenancy of type (a), for a composite or mixed purpose, the premises are let out for defined purposes more than one leaving the option open to the tenant to use the entire tenancy premises as one unit for either or both purposes. The tenancy premises are not divided or demarcated separately into two so as to specify which part of the tenancy premises will be used for what purpose. In other words, in case of tenancy for composite purpose, the two diverse purposes for user of the premises are so blended or mixed up that they cannot be separated by dissecting the tenancy premises into compartments. But, in case of tenancy of type (b), which is a single tenancy for dual purposes, the contract of tenancy is no doubt an integrated one but the premises are demarcated or divided by reference to the purpose for which they will be separately used. The legal implication is that in case of tenancy for composite or mixed purpose i.e. type (a) the need may arise for determining the dominant purpose of letting. However, the theory of dominant purpose of principle of predominant purpose of letting is irrelevant in the case of tenancies of type (b) when it is known, as previously agreed, that a particular portion of the premises shall be used for one purpose while another portion shall be used for another purpose.
The learned counsel for the applicant has referred S. Sanyal Vs. Gianchand (1968) 1 SCR 536 = AIR 1968 SC 438, a case under Delhi and Ajmer Rent Control Act. There the letting was " for running a school and for residence." It was held that the contract of tenancy is a single and individual contract, and in absence of any statutory provision to that effect, it is not open to the Court to divide it into two contracts--One for letting for residential purpose, and the other for non residential purpose.
I could lay my hands on Sabbir Ahmed Vs. Shyam Lal, AIR 2002 SC 1036 where the letting was of shop-cum-residential flat of the first floor. In the context of East Punjab Urban Land Restriction Act, the Apex Court has held that the High Court was not right in treating the premises in question as a residential one. It was laid down that the approach in interpreting the expression shop-cum-flat having regard to the dictionary meaning of word 'flat' is not proper. Invoking the principle relating to interpretation of words it was held that the meanings of the words and phrase in an Act must take their colour from their context in which they appear. It has to be understood in its proper sense, that is, as commonly understood. The correct approach would be to refer to the context in which the expression appears and then construe it.
By applying the above principle to the word 'residential building' as occurred in the proviso to section 20(4) it would mean residential building alone and tenant of such residential building who have acquired any other residential building in a vacant state would not be entitled to avail benefit of section 20(4) of the Act. In other words, tenant of building other than residential building whether it is a composite tenancy or integrated tenancy for dual purposes would not fall within the scope and ambit of the proviso to Section 20(4) of the Act.
Even otherwise also, in addition to the admission of the plaintiffs and the testimony of the defendant and as also noticed by the Prescribed Authority on spot inspection that the defendant tenant is carrying on the business at a large scale on the ground floor and the first floor is 1/5th of the constructed area of the ground floor lead to the one and only one conclusion that the building in question is other than a residential building.
The trial Court held otherwise. It was swayed away by the consideration that the defendant tenant has accepted that that he along with his family members is presently residing on the first floor after the death of his father. There is no consideration by the trial Court either with regard to the depositions of the plaintiffs that the business was and is being carried from the shop on the ground floor which is situate in a market known as Gur Mandi and surrounded by the shops wherein the businesses are being carried on for the last more than 50 years admittedly. The finding of the trial Court is based on non consideration of the relevant evidence on record and is thus vitiated. In the factual scenario of the case mere existence of one or two rooms and one verandah on the first floor is not decisive to hold that the building in question is residential one.
It is usual that sometimes small residential accommodation is constructed on the top of the shops to use it either for staying of the traders or as a rest room by the tenant or for some miscellaneous purposes connected with or related to business, for the purpose of business. In the case on hand the disputed building is situate at Mawana in district Meerut. Admittedly, the defendant tenant is dealing in fertilizers meant for farmers for use in their fields. In such kind of business a judicial notice can be taken of the fact that usually the businessmen with a view to provide facility to their customers/traders give some kind of small accommodation by extending the facility of temporary rest and of stay, as an added attraction. Provision for night shelter or stay for a while to such persons in connection with business would not make the building ipso facto as residential.
The trial Court has proceeded in the matter by ignoring the relevant facts and the material on record and based its judgement on a solitary circumstance. The finding of the trial Court is, thus, perverse and vitiated and is liable to be corrected by this Court in exercise of revisional jurisdiction under section 25 of the Provincial Small Cause Courts Act.
The last point urged by Mr. Gupta that there is no finding as to when the tenant acquired residential and non residential building is not at all attractive and has no force. It may be noted that the said point was not pleaded or urged before the trial Court. Noticeably, the written statement was got amended after the final hearing had taken place in the suit and the matter was reserved for delivery of judgement, by incorporating the plea that the disputed accommodation is not residential one. But even then, no such plea which has been sought to be raised here, was urged. It was not disputed before this Court that the tenant has got four other properties jointly with his brother Raj Kumar. The date of acquisition of these properties is within the special knowledge of the defendant tenant. He has not come out with the case that all these four properties were acquired before the commencement of the U.P. Act No.13 of 1972. These are the property Nos. 621, 42, 43 and 73. The document showing that these properties stand in the name of tenant along with his brother was filed on 15th of March, 1989. The defendant tenant applied for amendment of written statement thereafter and the parties also led evidence , thereon. Witnesses were recalled. But no such plea sought to be put forward here which could have been raised in trial stage, was raised by the defendant tenant. This disentitles him to urge a new plea based on fact which is in his special knowledge for the first time in the revision before this Court in absence of pleading and bereft of evidence.
Having said so as above, the finding of the trial Court, denying the benefit of section 20(4) of the Act to the defendant tenant cannot be sustained. The said benefit was wrongly denied. The proviso as has been held above is not applicable to the facts of the case. But that is not the end of the matter.
Court cannot lose the sight of the fact that the tenant has got number of properties at least four, residential and non residential. He is carrying the business at a large magnitude and is dealing in the fertilizers of reputed companies. He is quite well off, while the plaintiff no.1 who got it under will of his uncle appears to be a man of small means as also been noticed by the Prescribed Authority in his judgement dated 23.11.1982. The release of the disputed accommodation was denied on the ground that the tenant is carrying on the business from the disputed shop on a large scale. It would be travesty of justice if in such circumstances the defendant tenant is permitted to occupy the disputed accommodation on a paltry sum of Rs.440/- as rent per month. Looking to the fact that the disputed accommodation consists of three godowns and two rooms on the ground floor and two or three rooms and Kotharis on the first floor and the property in dispute is situate in the market, it would be appropriate to direct the tenant to pay the rent henceforth beginning from January, 2012 at the rate of Rs.4,000/- per month as a condition for exercise of discretion under section 25 of the Provincial Small Causes Court Act in favour of the defendant tenant. The rate of rent of Rs.440/- was fixed under a compromise date 15.2.1975. Since then the prices of the immoveable properties have sky-rocketed and increased manifolds. It is further provided notwithstanding the increase in the rent by this judgement, the provisions of the U.P. Act No.13 of 1972 shall remain applicable to the building in question for a period of five years.
It is further provided that the parties shall be at liberty to get the rent fixed by the official valuer or by any other agency having expertize in the matter and by recourse to the provisions as contained in the Act for fixation of rent. By way of clarification it is added that this will not be a ground for the applicant tenant not to pay the rent as directed above, till the finalization of proceedings of fixation of rent, if any. The deficiency/excess payment, if any, after the finalization of proceedings shall be adjusted/recoverable thereafter accordingly. The above direction has been passed keeping in view the judgment of Apex Court in Mohd. Ahmad Vs. Atma Ram Chauhan, 2011 (2) ARC 433.
Viewed as above, the revision succeeds and is allowed in part and the decree of eviction of the applicant tenant is set aside subject to the above. The other part of the decree is confirmed. No order as to costs.
(Prakash Krishna, J) Order Date:- 20.12.2011 IB/LBY