Flowmore Pvt. Ltd. vs Keshav Kumar Swarup
1988 Latest Caselaw 101 Del

JUDGMENT

P.K. Bahri, J.

1. This civil revision has been brought under section 25B(8) of the Delhi Rent Control Act, 1958, challenging the eviction order dated July 16, 1987, passed by Shri J. M. Malik, Additional Rent Controller, Delhi, on the ground of eviction covered by clause (e) of sub-section (1) of section 14 of the Delhi Rent Control Act.

2. Learned counsel for the petitioner has challenged the eviction order on three grounds : firstly, that the finding of the Controller that the premises have been let out for residential purposes only is perverse and is based on a misreading of the document of lease containing a term with regard to the letting purposes; secondly, that the finding of the Controller that the respondent landlord bona fide requires the premises for occupation for himself and his family members dependent upon him is also based on a misunderstanding of the evidence led on the record and, thirdly, that the landlord is also wrongly held to be not in possession of suitable alternate accommodation.

3. The facts in brief are : that the premises bearing No. D-12, Kalindi Colony, New Delhi, came to be let out to the petitioner which is a private limited company with effect from August 1, 1974. In paragraph 14 of the petition where the landlord was required to disclose whether any agreement of lease had been executed or not, the landlord remained silent. The landlord, of course, pleaded that the premises have been let out for residential purposes only. In the written statement, it was specifically pleaded by the tenant/petitioner that the premises were let out on the basis of a rent agreement executed between the parties and the said agreement contained a specific term that the premises could be used for residential-cum-commercial purposes. Thus, the ground of bona fide requirement is not available to the landlord. In evidence, the landlord ultimately had to admit that a lease deed of which the duplicate is exhibit R-1 was executed between the parties. Clause 5 of this lease deed reads as follows :

"5. That the lessee shall use the premises for the residence and personal use of directors and/or their relatives and for the purpose of the company."

4. It has been argued by learned counsel for the petitioner that in case the premises have been let out only for residential purposes, then clause 6 would not have gone on to refer to "personal use of directors and/or their relatives and for the purpose of the company." He has urged that the "purpose of the company" is obviously business and so he has argued that construing clause 5 in its natural meaning, it should be held that the premises have not been let out for residential purposes only. He has cited a few cases to which I will presently make reference. However, learned counsel for the landlord, on the other hand, has argued that the residential purpose mentioned in the first part of the clause is the main purpose for which the premises have been let out and the other part pertaining to the "personal use of directors and/or their relatives and for the purpose of the company" should be construed as incidental to the main purpose for which the premises have been let out, i.e., for residence. He argued that this court should apply the principle of ejusdem generis in giving the true meaning to this particular clause. He also made a reference to documents marked exhibit AX and exhibit AY in order to show as to what was the real intention of the parties regarding the letting purpose incorporated in the said lease deed. He did not dispute the legal proposition that the term regarding the letting purpose could be read in evidence although the lease deed was not a registered document. Exhibit AX is dated February 10, 1975, presumably given by the tenant to enable the landlord to have his property tax assessed at a lower rate because if the property is used turn commercial purposes as well, then possibly the rate of property taxes might be higher. In this particular letter, the managing director of the tenant confirmed that the premises have been taken on rent for the residence of the managing director. However, it was not mentioned in this letter that the premises are not meant to be used for purposes other than residence. Exhibit AY is another certificate issued by the managing director of the petitioner referring to payment of Rs. 2,000 p.m. as rent and the tenant not paying anything extra for 13 electric fans and 7 geysers provided by the landlord. This certificate has nothing to do with the letting purpose of the premises in question. Counsel for the landlord also referred to exhibit AW 3/1 which is a copy of the entry from the house tax record showing that the premises are residential.

5. It is settled law that where a lease deed is executed which contains a covenant regarding the letting purpose, then no other evidence can be led to prove that the said particular term regarding the letting purpose was not binding on the parties. No other document or evidence is to be seen regarding the intention of the parties with regard to the letting purpose if the term regarding the letting purpose is incorporated in the lease deed. In Wolfe v. Hogan [1949] 1 All ER 570 (CA), Evershed L.J. observed that where the premises have been let out, then it must be shown that the two parties to the contract have let, on the one hand, and taken, on the other hand, the premises in question as a separate dwelling and that may be shown either by the terms of the bargain or, where one party has altered the user with the full knowledge of the other, by that other party accepting the changed position. Denning L.J. in a separate judgment in this very case, observed that in determining whether a house or part of a house is "let as a dwelling" within the meaning of the Rent Acts, it is necessary to look at the purpose of the letting and if the lease contains an express provision as to the purpose of the letting, it is not necessary to look further, but, if there is no express provision, it is open to the court to look at the Circumstances of the letting. This judgment was followed in Court v. Robinson [1951] 1 All ER 209 (CA). It was observed that the user prescribed in the lease and not the actual user was the essential factor to be considered in order to determine the letting purpose. In T. Dakshinamoorthy v. Thulja Bai, , a Full Bench of that High Court, following these principles laid down in the aforesaid two English rulings, also reiterated the law that in case the letting purpose is incorporated in the lease deed, then no other evidence is to be allowed to be led to prove the letting purpose. It is not the case of the landlord that the letting purpose, at any time, came to be changed by the consent of the parties. So, we have to decide from the interpretation of the said clause appearing in the lease deed as to whether the letting purpose of the premises in question could be held to be for residential purpose only because it is the prerequisite of the ground of bona fide requirement for residence that the landlord must prove that the premises have been let out for residential purpose only. If it is shown that the premises have been let out for any purpose other than residential also, then the case of the landlord would not fall within the four corners of the ingredients comprising the ground of eviction covered by clause (e) of sub-section (1) of section 14 of the Delhi Rent Control Act.

6. The Supreme Court in Delhi Development Authority v. Durga Chand Kaushish, , has approved certain principles which must be kept in view while interpreting a particular deed. The Supreme Court had quoted from Odgers' Construction of Deeds and Statutes, 5th edition, 1967, to the following effect in paragraph 19 (at page 2614) :

"The meaning of the document or of a particular part of it is, therefore, to be sought for in the document itself."

7. The document has to be read as a whole and not piecemeal. It was emphasised that a literal rule of construction in interpreting the document must prevail unless its application produces absurd results. Then the observations made in Monypenny v. Monypenny [1861] 9 HL Case 114 to the following effect were quoted with approval (at page 146) :

"the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed : a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions."

8. It was made clear in this judgment that the court must have regard not to the presumed intention of the parties but to the meaning of the words that were used. A judgment of the Supreme Court in Radha Sundar Dutta v. Mohd. Jahadur Rahim, , was also quoted with approval which laid down the following principle (at page 29) :

"Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim 'ut res magis valeat quam pereat'."

9. Now, a perusal of the above clause 5 shows that in the first part of the clause, it is mentioned that the premises are to be used for residence but these words are not qualified by any word like "only" or "exclusively". There is no clause in the whole of the deed prohibiting the user of the premises for a purpose other than residential. In case the premises were, meant to be used only for residence, I fail to understand why the parties incorporated the further words in the same clause that the premises also can be used for the personal use of director and/or their relatives and also for the purpose of the company. It is not disputed before me that "purpose of the petitioner-company" is business. When the clause says that the premises can be used for the purpose of the company, the literal meaning of these words is that the premises can he used for the business of the company. If the interpretation put on this particular clause by learned counsel for the landlord is accepted, it would have the effect of making the words appearing in this clause with regard to personal use by the director and their relatives and the purpose of the company nugatory. There is no difficulty in giving full effect to the literal meaning appearing from the words used in this particular clause of the lease deed. Learned counsel for the landlord has vehemently argued that in case the parties intended that the premises could also be used for non-residential purposes, they could have used a specific expression or words to that effect in the lease deed. Learned counsel for the landlord forgets that the parties have used specific words in this particular clause that the premises can be used for the purpose of the company which leave no room for doubt that the premises can be used for the business of the company because the purpose or object of the company is to carry on business.

10. The principle of ejusdem generis is not applicable to the interpretation of this particular clause. The ejusdem generis rule as defined in paragraph 1525 of volume 12 of Halsbury's Laws of England, 4th edition, lays down that where particular things named have some common characteristics which constitute them a genus and the general words can be properly regarded as in the nature of a sweeping clause designed to guard against accidental omissions, then the rule of ejusdem generis will apply, and the general words will be restricted to things of the same nature as those which have been mentioned; but the absence of a common genus between the enumerated words will not necessarily prevent a restricted construction of the general words, if justified by the context. It was further mentioned therein that the ejusdem generis construction will be assisted if the general scope or language of the deed, or of the particular clause, indicates that the general words should receive a limited construction if an unlimited construction will produce some unforeseen loss to the grantor. I do not see how the rule of ejusdem generis can be made applicable in interpreting clause 5 of this lease deed in the manner suggested by learned counsel for the landlord. Counsel for the landlord also made a reference to clause 13 of the lease deed which makes if the duty of the tenant to abide by all the rules and regulations of the Municipal Corporation of Delhi, the D.D.A. and other authorities and makes him liable for any loss or damages suffered by the Lesser on account of the lessee's failure to do so. It was vehemently argued that in accordance with the master plan and the zonal development plan and in accordance with the sanctioned plan of the premises, the premises could be used only for residential purposes and reading this clause along with clause 5 should lead to the interpretation that the parties had agreed to allow the premises to be used only for residential purposes and not for any other purpose. I am afraid that clause 13 does not lay down as the purpose for which the premises are to be used or that they could be used in accordance with the rules and regulations of the M.C.D. and the D.D.A. Clause 5 is not ambiguous. There is no confusion in the words used in this clause. The words "personal use of directors and/or their relatives and for the purpose of the company" were used after mentioning that the premises can be used for residence meaning thereby that other uses were also permissible besides residence and that the user was for the purpose of the company, i.e., for the "business of the company" and the directors and their relatives also could use the premises for their personal affairs. "Personal use" does not mean that directors and their relatives are to use the premises for residence only. Personal use could be of any nature. It could be that directors or their relatives can have their offices in particular rooms for their personal work outside the work of the company. It is the admitted case of the parties before me that soon after letting, some portion of the premises was used for commercial purposes and even the landlord gave a notice to the tenant objecting to the commercial use of the premises. According to the tenant, the daughters of the managing director of the company had used the premises for commercial purposes in respect of their firm which was later on converted into a limited company. However, in order to determine the meaning of clause 5, it is not necessary to see as to for what purpose the premises have been used. In Smt. Harbans Kaur v. Dr. J. C. Chandna (SAO. No. 462 of 1968, decided on August 31, 1973, by the Chief Justice S. N. Andley), the lease deed contained a clause that the premises could be used or residence, personal office and clinic. It was held that this clause cannot be considered to mean that the premises have been let out for residential purposes only. Similarly, in the present case also, clause 5 lays down that the premises are to be used for residence and for personal use of directors and their relatives and for the purpose of the company. It is not possible to hold that this clause only lays down that the premises could be used for residential purposes only. In Jai Narain v. Ram Prashad Sharma [1973] RCJ 221, this court came to the conclusion that even though the premises are not used by the tenant for the letting purpose as agreed upon between the parties, then the letting purpose would remain the same as agreed between the parties, unless by agreement, impliedly or expressly, the letting purpose comes to be changed.

11. Reference was made to V. S. Talwar v. Prem Chandra Sharma, AIR 1984 SC 664. In the cited case, the lease deed incorporated a clause that the premises were let out for residence/personal office. It was also mentioned in the lease deed specifically in a particular clause, that the premises are not to be used for commercial purposes. Keeping in view the whole of the lease deed, it was held by the Supreme Court that the use of the words "personal office", would not mean that the premises have been let out for any purpose other than residential. The clause of the lease deed which came up for consideration before the Supreme Court in this case is totally distinct and different from the terms of the lease deed in the present case. Here, the lease deed not only permits the personal use of directors and their relatives but also permits the user of the premises for the "purpose of the company". The words "for the purpose of the company" are very significant and cannot be given a go by. They do clearly show that the premises can be used for the purpose of company which is obviously the "business of the company". Hence, it has to be held that the premises have been let out not only for residential purposes but also for commercial purposes. The interpretation of the Rent Controller with regard to the particular clause does not appear to be sound. So, I set aside the finding of the Rent Controller in this regard. The landlord has to fail on account of the aforesaid finding. But, as arguments have been addressed on the merits of the bona fide need of the landlord, I would give my finding in that regard also.

12. It is an admitted fact that the landlord and his family members including his cousin brothers are having a flourishing business in the shape of Swarup Vegetable Products Industries India Ltd. at Muzaffarnagar which is at a distance of about 75 miles from Delhi. That company has three units : one for manufacturing sugar; another for manufacturing vanaspati; and third a distillery of this company, all located outside Delhi. According to the landlord, that company has an office located in Delite Cinema at Asaf Ali Road, New Delhi and the landlord has been visiting Delhi to look after that office which deals with the procurement of certain raw material from the State Trading Corporation. The sales of all products of the company are admittedly done in Uttar Pradesh. The landlord has set up a case that he is a director of the said company and that he is looking after the Delhi office. So, he wants to shift to Delhi and live in Delhi and more particularly there is lack of proper medical facility for treating heart disease at Muzaffarnagar and he being a heart disease patient has decided to live in Delhi where better medical facilities are available. He also pleaded that his son who was at the time of the filing of the petition staying in Chandigarh is to live in Delhi to look after the business at Delhi after completing his studies. Admittedly, the son has completed his studies and has joined the business of his father in that company by becoming vice president of the distillery unit. Counsel for the petitioner has vehemently argued that there is no proper business of the said company at Delhi which could require that the petitioner and his son should live in Delhi. It has come out lit evidence that the said company had taken a guest house in 240-A, New Friends Colony, New Delhi, which was sought to be shown as a suitable alternative accommodation for the landlord, rather it would show that the company of the landlord has substantial business to transact in Delhi also and that that has required the company to have a rented guest house in New Friends Colony which contains 7/8 rooms. The findings of the Controller that the company of the landlord has some business at Delhi is based on evidence and is not open to challenge in this court. It is not disputed that the landlord has a fairly comfortable house at Muzaffarnagar but that house cannot be considered reasonably suitable for the needs of the landlord when the landlord has decided to live in Delhi. The mere fact that the landlord has not led any convincing evidence to show that he is suffering from serious heart ailment as he was examined only by his cousin who is a doctor at Delhi who did not prove any prescription or any other document with regard to the ailment of the landlord does not mean that the landlord has no bona fide need of the demised premises and that he had no intention of shifting to Delhi. There is no evidence that the landlord was actuated by a mala fide intention. After all, it is for the landlord to decide as to where he should live. He cannot be forced to live in Muzaffarnagar for all times even though he might be having a very comfortable house at Muzaffarnagar and his main business is also concentrated in the State of Uttar Pradesh. There is no difficulty in managing the business at Muzaffarnagar while living at Delhi. The New Friends Colony guest house of the company is obviously not a personal property of the landlord which could be considered available to the landlord for his residence. The Controller was right in holding that the said particular house is not a suitable alternate accommodation available to the landlord in his own right. Similarly, the house at Maharani Bagh (No. D-15) has been proved to belong to the landlord's sister. The mere fact that the landlord could not show as to wherefrom the funds came for constructing that house does not mean that the house is standing benami in the name of the landlord's sister and that actually the funds for constructing that house came from the landlord's father. It is an admitted fact that the landlord's father was living in that house and even the landlord used to stay some time in that house during visits to Delhi. As it was not proved that the landlord has any legal right in the said house, the Controller was right in holding that the house at Maharani Bagh, New Delhi, also cannot be considered a reasonably suitable accommodation available to the landlord for his residence. I affirm the findings of the Controller on all these points.

13. In view of the above discussion, I hold that as it was not proved that the premises in question had been let out for residential purpose only, the order of eviction passed by the Controller on bona fide requirement of residence cannot be sustained. I allow the civil revision and set aside the impugned order and dismiss the petition seeking ejectment of the petitioner. But, in view of the peculiar facts, I leave the parties to bear their own costs throughout.