Chandrakant vs Shafiq Ahmed And Ors.
1986 Latest Caselaw 157 Del

JUDGMENT

B.N. Kirpal, J.

(1) The appellant-here in is the owner of property Nos. 3580 and 3)82, Main Bazar, Lal K.uan, Delhi. The respondents are admittedly bids tenants.

(2) The appellant filed an application for eviction of the respondents. The application was filed claiming eviction under sections 14(l)(a) and 14(l)(c) of the Delhi Rent Control Act. According to the appellant the tenants bad not paid arrears of rent with effect from 10th March, 1959. It was also alleged that the premises were let out for use as a shop and a godown but the tenants had wrongfully and illegally converted the rooms on the first as well as ground floors into regular factory without the written consent of the appellant.

(3) The respondents denied the allegations contained in the petition. According to the respondents they were not liable to be evicted either under section 14(l)(a) or 14(l)(c) of the Act.

(4) In the petition it bad been stated that notices of demand had been issued by the appellant on 3rd June, 1964. The petition for eviction was filed on 18th July, 1964. It is clear that the petition was filed less than two months after the issuance of the notice of demand.

(5) During the pendency of the petition, an application was filed on 26th August, 1964 under section 15(2) of the Act. An order dated 7th August, 1965 was passed thereon whereby the respondents were directed to pay the arrears of rent and also the future rent.

(6) With regard to section 14(l)(c), the case of the appellant was that machinery had been installed on the ground and the first floors of the premises and this user had been changed after the premises had been let out.

(7) While the case was pending before the Rent Controller, an application under section 15(7) of the Act was filed on 6th June, 1968. It was alleged therein that order under section 15(4) passed on 7th August, 1965, on an application having been filed under section 15(2), had not been complied with.

(8) The Rent Controller decided the eviction petition by his order dated 6th June, 1969. He did not specifically refer to the application which was filed under section 15(7) of the Act but he did mention that arrears of rent had been deposited by the respondent, as per the order of the court. With regard to the application under section 14(l)(c), the Rent Controller came to the conclusion that the ground floor was being used as a workshop right from the beginning. As far as first floor was concerned, the same was being used for commercial purposes but in the year 1960 or 1961 machinery was installed therein and this was detrimental to the interest of the landlord. The Rent Controller did not grant any eviction under section 14(l)(a) but he did pass an order of ejectment of the respondents from the first floor of the premises under section 14(l)(c) read with section 14(5) of the Delhi Rent Control Act.

(9) Both the parties filed appeals to the Rent Control Tribunal. In his order dated 19th December, 1973 the Rent Control Tribunal noticed that the application for eviction had been filed within 2 months of the notice of demand. According to the Tribunal the application was not maintainable under section 14(l)(a) as no cause of action, so far as ground of non-payment of arrears of rent, had arisen. With regard to the application under section 14(l)(c), the Tribunal followed a decision of this Court in the case of 7 D. Malik v. Duli Chand, 1969 Rcj 187 wherein it had been held that the tenancy bad been divided into three classes, namely, residential, commercial and any other purpose. It had been further held that the word 'commercial' was used in a larger sense to denote every profit-mailing use of the premises which would include commerce and industry and, therefore, where a shop, in that case, was converted into a flour mill it would not amount to a change of user. It was held that no order of ejectment could be passed. Following the said decision, Tribunal came to the conclusion that an the premises in question were continued to be used for commercial purposes, therefore the application under section 14(l)(c) could not be allowed. The Tribunal also held that no notice terminating the tenancy had been issued under section 106 of the Transfer of Property Act and, therefore, the eviction petition itself was not maintainable.

(10) In the present appeal filed against the said order, the aforesaid conclusions are challenged.

(11) It has now been held by the Supreme Court in the case of V. Dhanpal Chettiar v. Yasodai Ammal. 1979(2) Rcr 352 that before filing an application for eviction under section 14, it is not necessary to serve a notice terminating the tenancy. This being so, the Rent Control Tribunal was in error in dismissing the eviction petition on the ground of non-issuance of notice under section 106 of the Transfer of Property Act.

(12) With regard to the petition under section 14(l)(c) the Tribunal did not go into the merits of the case. He followed, as already noticed, the decision of a single Bench of this Court in the case of I'D. Malik (supra). This decision has subsequently been overruled in the case of Ram Saroop and others v. M/s Janki Dass Jai Kumar and another, 1976 Rcr 576. The head note of the said case reads as follows : "THERE is a distinction between "commercial purpose" and "industrial purpose". The former involves an element of exchange of buying and selling while the latter involves an element of manufacture. Whether a particular activity is commercial in nature or industrial in nature has to be decided by considering the nature of the particular activity in question in each case. In the case before us, it is common ground between the parties that the business of foodgrains or grocery shop is a commercial purpose. As explained by us earlier, a business of flour mill is partly ''industrial" in nature and partly "commercial" in nature. Therefore, if the premises was originally let out only for the commercial purpose of business in foodgrains the proposal of the tenant to run a business of flour mill would be, at least to some extent, a purpose other than the purpose for which the premises was let within the meaning of the first part of clause (o) of Section 108 of the Transfer of Property Act."

(13) In view of the aforesaid observations of this Court in Ram Saroop's case, the Tribunal ought to have gone into the question as to whether there was a change in user from commercial to industrial. In the absence of any decision by ihe Tribunal on the merits on the ground under section 14(l)(c), it will not be proper for this Court to go into the evidence itself and come to a conclusion. The proper course, to my mind, would, therefore, be to set-aside the order and direct the Tribunal to re-consider this ground in the light of the decision of this Court in Ram Saroop's case (supra).

(14) As regards the applicability of section 14(l)(a), it has been strenuously contended by the learned counsel for the appellant that section 14(l)(a) does not prohibit the filing of an application even prior to the lapse of two months after the issuance of the notice of demand. It is submitted by the learned counsel that unlike some of the other sub-sections of section 14, where it is specifically provided that an application shall not be filed unless a certain period has lapsed, there is no such prohibition under section 14(l)(a). According to the learned counsel the Court gets jurisdiction to order an eviction under section 14(l)(a) ifattbetime when the order is being passed, two months have elapsed from the date of the notice of demand and the rent has not been paid. The argument of the learned counsel is very attractive and merits serious consideration. In this case, however, it is not necessary to go into this aspect because of the view that I am taking. I may, however, note that in various judgments of this Court section 14(l)(a) has been interpreted to mean that the cause of action for filing an application under that provision would arise only after 2 months of the service of a valid notice of demand. Mr. Bhatia, the learned counsel for the appellant, contends that such a question had never arisen before the Court, namely, that if an application is filed within 2 months of the service of the notice of demand then what would happen to such an application if it is taken up for decision after the period of two months has elapsed. As I have already observed, there is considerable force in the contention of the learned counsel especially when the provisions of section 14(l)(a) are read in contradistinction with the provisions of sections 14(l)(d). 14(5) and 14(6). In view, however, of a catena of authorities where the section has been interpreted differently, I would not like to consider this aspect any further.

(15) The Tribunal, however, ought to have gone into the question as to whether the respondents had complied with the order under section 15...... passed on an application filed under section 15(2) of the Act. Neither the Rent Controller nor the Tribunal have considered the appellant's application under section 15(7) of the Act, and this the Tribunal should now do.

(16) For the aforesaid reasons, the appeal is allowed. The case is remanded back to the Rent Control Tribunal who will hear the parties and decide the appeals in the light of the observations made hereinabovc.

(17) As the eviction petition was filed more than 20 years ago, the Tribunal should dispose of the appeals within 6 months from today. Parties to appear before the Rent Control Tribunal on 10th April, 1986. The records of the case be sent back. Parties to bear their own costs.