Narottam Narain v. Jagdish Saran Agarwal — 1979 DIGILAW 309 (ALL)

JUDGMENT Deoki Nandan, J. - The above second appeal arises from Suit No. 557 of 1964 of the court of Munsif, Moradabad, for ejectment, arrears of rent and damages in respect of the western portion of a house situate at Moradabad of which the first defendant Dr. Jagdish Saran Agarwal was said to have been the tenant on payment of Rs. 90/- P.M. as rent. 2. The suit was dismissed by the trial court in so far as it related to the defendants ejectment but was decreed for recovery of rent from the first defendant for the period of 13th Aug., 1964 to 12th Nov., 1964 at the rate of Rs. 90/-per month. The appeal therefrom, being Civil Appeal No. 455 of 1973 was dismissed by the court of the Additional District Judge Moradabad. Hence this second appeal by the plaintiff landlord, Narottam Narain Agarwal, since deceased, now represented by his legal representatives. 3. There is another Second Appeal No. 2617 of 1972 which is also by Narottam Narain Agarwal, since deceased, now representated by his legal representatives. He was the defendant in the suit giving rise to that second appeal. That suit was filed by Dr. Jagdish Saran Agarwal, being Suit No. 135 of 1964 in the court of Munsif, Moradabad, for an injunction restraining Narottam Narain Agarwal from opening any passage to connect the eastern portion of the house with its western portion so as to use the western portion as his way and directing him to maintain the status quo and not to change the present position by damaging the house. This suit was decreed in toto by the trial court. The first appeal therefrom, being Civil Appeal No. 302 of 1971, was dismissed by the court of the Second Civil & Sessions Judge, Moradabad, and the decree of the trial Court was confirmed, but in a modified form, specified in the operative portion of its judgment. That is the judgment giving rise to the Second Appeal No. 2617 of 1972. 4. When these appeals were taken up for hearing, the learned counsel for the parties agreed that the second appeal No. 2170 of 1974 though later in point of time may be heard and decided before the Second Appeal No. 2617 of 1972. 5. The essential facts of Suit No. 557 of 1964 giving rise to Second Appeal No. 2170 of 1974 are these. 6. 5. The essential facts of Suit No. 557 of 1964 giving rise to Second Appeal No. 2170 of 1974 are these. 6. According to the plaint, the whole of the house, divided as it is into two portions, the eastern and the western, was allotted jointly to the plaintiff and the first defendant on the 3rd Jan, 1949 by an order passed under Section 7 of U. P. Act No. Ill of 1947. the plaintiff occupied the eastern portion while the first defendant occupied the western portion and both of them were living as tenants therein, but the plaintiff became owner of the whole house by purchase on 31st Jan., 1964. It was then alleged that the first defendant is a physician; that he had a sufficiently big shop at Amroha Gate in Moradabad, for the practice of his profession since before 1949, that the house was allotted only for residential purposes and he was living there with his wife and children, but in the year 1962 he shifted his residence to his own Kothi on the Station Road, and started using the accommodation in suit for his professional purposes by establishing a dispensary, a clinic and a nursing home therein, which was against the purpose for which it had been let out to him. It was then alleged that the first defendant had also created a great nuisance by using some of the rooms for lodging patients suffering from all kinds of dangerous and infectious diseases and had thus spoiled the atmosphere of the house and diminished its value, and that he had even made material alterations in the accommodation in suit by constructing kitchens and latrines on the ground floor as well as on the first floor and converting the living rooms into kitchens and latrines. A further allegation of sub-letting without the landlords permission of a bit portion on the first floor of the accommodation in suit, by the first defendant to the defendants Nos. 2 to 4, was also made. It was alleged that the defendant Nos. 2 to 4 were living there permanently with their families Thus, it was said, the first defendant was liable to ejectment from the accommodation in suit, without any permission from the District Magistrate. A quit notice dated 21st Sept. 1964, it was alleged, was served on the first defendant on 27th Sept. It was alleged that the defendant Nos. 2 to 4 were living there permanently with their families Thus, it was said, the first defendant was liable to ejectment from the accommodation in suit, without any permission from the District Magistrate. A quit notice dated 21st Sept. 1964, it was alleged, was served on the first defendant on 27th Sept. 1964, but he did not comply with it. On these facts the reliefs for ejectment from the accommodation in suit and recovery of Rs. 210 as arrears of rent for the period 13th Aug. 1964 to 22nd Oct. 1964 and as also damages amounting to Rs. 135/- for the period 23rd Oct., 1964 to 7th Dec., 1964 up to the date of suit and pendente lite and future at the rate of Rs. 90/- per month, were claimed in the suit. 7. The first defendant contested the suit by pleading that he was practising as a physician at Moradabad since, 1938 and was living in his ancestral house in Mohalla Kucha Shital Das and that when the accommodation in suit was allotted to him, he set up his dispensary and clinic therein and continued to live in his ancestral house, and as the dispensary was open all the 24 hours his compounder was living in a portion of the accommodation in suit with his family. It was then alleged that the allotment of the accommodation in suit was not made to him for residential purposes; after some time he left his ancestral house and came to live in a portion of the accommodation in suit; that the compounder continued living therein, and that even when he shifted his residence to the Kothi Hari Villa at Station Road, in the year 1961, he did not entirely give up his residence in the accommodation in suit but continued to use it for residential purposes by having his drawing room, dining room, bed room, library and bath room there. The allegation of sub-letting was denied and it was pleaded that defendant Nos. 2 and 4 were his compounders and were living as such without payment of any rent; and that the defendant No. 3 never lived in the accommodation in suit. The allegation of sub-letting was denied and it was pleaded that defendant Nos. 2 and 4 were his compounders and were living as such without payment of any rent; and that the defendant No. 3 never lived in the accommodation in suit. The allegation of setting up a nursing home or of keeping patients on payment of the rent was denied, although it was stated that sometimes patients coming from outside used to stay over there, but that was without any charge being made for the same. The charges of nuisance, or of having committed any act whereby the value of the accommodation in suit was diminished, were also denied. The first defendant even offered to purchase the house in question on payment of a very substantial sum over and above that paid by the plaintiff. The allegation about his having made any material alterations in the accommodation in suit was denied. With regard to the payment of rent, the first defendant alleged that he had tendered the same by money orders, but on the landlords refusal to accept, the rent for the period 30th Aug., 1964 to 12th Nov., 1964 was deposited under Section 7-C of the U. P. Act No. III of 1947. The pleas of limitation and estoppel were also raised. 8. By an additional written statement, the first defendant pleaded that after the notice dated 21st Sept., 1964 purporting to terminate the tenancy, the plaintiff had by a registered notice dated 14th Nov., 1972 enhanced the rent by 25% and demanded the same, which amounted to a waiver of the quit notice dated 21 st Sept., 1964. The plaintiff pleaded in reply that he had only demanded an increase in the rate of damages for use and occupation of the accommodation in suit, and the demand did not amount to a waiver of the quit notice. 9. The trial court found that it was not proved that the accommodation in suit had been let out to the first defendant for residential purpose only, and that he was not using it for any purpose inconsistent with that for which it may have been let out to him. It held that the first defendant had not sub-let the accommodation in suit or any part thereof either to the defendants Nos. It held that the first defendant had not sub-let the accommodation in suit or any part thereof either to the defendants Nos. 2 to 4 or to his patients; that he had not caused any nuisance nor had he done anything to diminish its value. The plaintiff's claim for ejectment of the first defendant on the ground of the alleged use of the accommodation in suit for a purpose inconsistent with the purpose of the tenancy, was also found to be barred by estoppel. The demand for 25% enhancement in rent, on the coming into force of the U. P. Act No. 13 of 1972, was found not to amount to a waiver of the quit notice. In the result the trial court found the suit for ejectment to be barred by Section 3 of U. P. Act No. 3 of 1947 arid dismissed the claim for ejectment and damages. 10. In the first appeal before the District Court, the first point raised by the plaintiff appellant was that the defence should have been struck off under O. 15, R. 5, of the Civil P. C., inasmuch as the first defendant had failed to deposit the entire amount of rent and compensation for use and occupation admitted by him, on or before the first day of the hearing of the suit after the commencement of the U. P. Civil Laws (Amendment) Act, 1972. The lower appellate court held that the case was not a suitable one for striking off the defence. 11. The next point raised was about use of the accommodation in suit for a purpose inconsistent with that for which it had been originally let out. On this point, the lower appellate court found that the accommodation was not meant for residential purpose only; that it was never taken for that purpose by the first defendant who had been using it as his clinic since the very inception of the tenancy; and that in this view of the matter, it could not be said that he was using it for any purpose other than that for which it had been let out to him. 12. The third point raised before the lower appellate court was about the alleged nuisance. This was also found against the plaintiff. 13. 12. The third point raised before the lower appellate court was about the alleged nuisance. This was also found against the plaintiff. 13. With regard to the question about sub-letting which was the last but not the least point raised before the lower appellate court it found that the upper storey was not being used by the defendants Nos. 2 to 4 exclusively and there was no evidence to show that the first defendant ever charged anything from his compounders or servants by way of rent, and that the evidence on the record showed that they had been allowed to use the accommodation for their residence without affecting their remuneration, which did not amount to sub-letting. As to the point about the setting up of a nursing home also, the lower appellate court found against the plaintiff and held that the first defendant could not be said to have been running a regular nursing home in the accommodation in question and even if some patients stayed over in the accommodation for treatment, it did not amount to sub-letting. 14. With these findings the lower appellate court dismissed the plaintiffs appeal and confirmed the decree dismissing the suit for ejectment and recovery of damages. Learned counsel for the plaintiff appellant urged as the first ground in support of the appeal, that the lower appellate court was in error in not striking off the defence for non-compliance of the provisions of Rule 5 of Order 15 of the Code of Civil Procedure, inserted by the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972), R. 5 was added to O. 15 of the C.P.C., by Section 7 of the said Act on 20th Sept. 1972 the date on which that Act came into force. It reads as under: - "7. Insertion of new rule in Order XV Sch. I of Act V of 1908 - In first schedule to the said Code, in O. XV, after R.4 the following rule shall be inserted namely. "5. Striking off defence on non-deposit of admitted rent etc. 1972 the date on which that Act came into force. It reads as under: - "7. Insertion of new rule in Order XV Sch. I of Act V of 1908 - In first schedule to the said Code, in O. XV, after R.4 the following rule shall be inserted namely. "5. Striking off defence on non-deposit of admitted rent etc. - In any suit by a lessor for the eviction of a lessee from any immoveable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit (or in the case of a suit instituted before the commencement-of the said Act, the first hearing after such commencement), deposit the entire amount of rent, or compensation for use and occupation, admitted by him, to be due, and thereafter throughout the continuance of the suit deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may, unless after considering any representation made by him in that behalf, it allows him further time on security being furnished for the amount refuse to entertain any defence or, as the case may be, strike off his defence. (2). The provisions of this rule are in addition to and not in derogation of anything contained in R. 10 of O. XXXIX." 15. The suit giving rise to the present appeal had been filed in the year 1964 and before the enforcement of the said provision the examination of the whole of the plaintiffs evidence and the witnesses of the defendant had already been completed by the 19th August, 1972, on which date, after the conclusion of the examination of D. W. 5 the 23rd Oct., 1972 was fixed for further evidence. On 14th Sep., 1972 an application was moved on behalf of the plaintiff for fixing an earlier date for hearing. The application was allowed and 29th Sep., 1972 was fixed for further evidence. On 14th Sep., 1972 an application was moved on behalf of the plaintiff for fixing an earlier date for hearing. The application was allowed and 29th Sep., 1972 was fixed for further evidence. On 27th Sep., 1972 an application was moved on behalf of the defendant for changing the date fixed for hearing on the ground of his counsels illness. 26th October, 1972 was thereupon fixed for further evidence. Accordingly the suit was taken up for hearing on 26th Oct., 1972 for the first time after the enforcement of the said rule which was the first hearing after the commencement of the said U. P. Act No. 37 of 1972. On this date the defendant did not deposit the rent and compensation for use and/or occupation admitted by him to be due and did not thereafter continue to deposit the same regularly every month throughout the continuance of the suit at the rate admitted by him. Instead, he made an application on 26th of Oct., 1972 for permission to file an additional written statement which was opposed but allowed after hearing counsel on 1st Nov., 1972 on payment of Rs. 10/-as costs. A replication was filed by the plaintiff on 4th Nov., 1972. Some further documents were filed by the defendants and after some adjournments the hearing was ultimately resumed on the 30th January, 1973, on which date the defendant made an application for permission to deposit the rent due. The trial Court granted seven days time to the plaintiff to file objections, continued the examination of D. W. 6, the defendant J. S. Agarwal, which could not be concluded, and fixed 9th Feb., 1973, for further evidence. The Presiding Officer happened to be on leave on 9th Feb., 1973 and 6th of March 1973 was fixed instead. The further hearing of the suit continued on 6th and 7th March, 1973 and arguments were heard thereafter on 27th and 28th March, 1973. The judgment was pronounced about five months thereafter on 30th August, 1973, and by an order bearing the same date the trial court allowed the defendants application for permission to deposit the rent which he was required to deposit under O. 15, 31. 5, within 12 months of that date. This order is unsupported by the provisions of R. 5 of O. 15 of the Civil P. C., and appears prima facie to be improper. 5, within 12 months of that date. This order is unsupported by the provisions of R. 5 of O. 15 of the Civil P. C., and appears prima facie to be improper. The learned Munsif has observed therein that the newly added rule provides that unless the rent is deposited at the first hearing of the suit after the commencement of the U. P. Civil Laws Amendment Act, 1972, and unless the defendant continues to deposit the further rent regularly during the continuance of the suit, the court may refuse to entertain the defence or to strike it off, but the court has been given power to extend the time for depositing the rent and in the instant case as the first defendant had deposited the rent under Section 7-C of U. P. Act III of 1947 which the Plaintiff had refused, time should be allowed to the defendant to deposit the rent. The language of the rule does not, in my opinion, give any such discretion to the court. All that it says is that in the event of any default in this regard, the court may unless after considering any representation made by the defendant in that behalf, it allows him further time on security being furnished for the amount, refuse to entertain any defence, or as the case maybe, strike off his defence.- 16. The rule confers on the court the jurisdiction to refuse to entertain any' defence, or to strike off the defence, in case the defendant fails to deposit the rent admitted by him to he due, in the manner prescribed by it. The court has, however, been given a discretion not to do so if after considering any representation made by the defendant it allows him further time, on security being furnished for the amount. However, for grant of further time by the court, in the exercise of its discretion to do so, two conditions are necessary; (i) a representation which must disclose some good cause on the consideration of which the court may be persuaded to exercise its discretion of granting further time for depositing the amount of rent and or compensation for use and occupation and (ii) furnishing of security for the amount required to be deposited. Unless security for the amount is furnished for that is a condition precedent, the court has no power to grant further time, It does not appear from the facts ,of the present case that any security was furnished, or even required to be furnished by the court, for the amount of the rent and/or compensation for use and occupation admitted to be due. The lower appellate court has observed that there was no question of taking any security as the defendant No. 1 never prayed for time to deposit the rent rather he attached a tender along with his application for the full amount and was ready to deposit the same as soon as the tender was passed. That may be so, and it may be that the fault was of the court in not passing the tender then and there and thus not allowing the defendant to deposit the amount but that would not confer jurisdiction on the court to grant time for making the deposit without furnishing security. However, it is not possible to imagine that the learned Munsif would have granted the time of one month and a half for making the deposit by his order dated 30th August, 1973, unless it had been asked for, may be orally on behalf of the defendant by his learned counsel in the course of arguments. The amount was large being Rs. 8,910/- but the fact of making of the deposit under Section 7-C of U. P. Act III of 1947 of the rent, could have no rational connection with the grant of time for depositing the rent and/or damages admitted 1o be due, for the rent already deposited under Section 7-C could certainly be adjusted by the defendant in arriving at the figure of the rent admitted by him to be due. It does not appear to have been the defendants case that he was not in a position to deposit the rent and/or damages. It does not appear to have been the defendants case that he was not in a position to deposit the rent and/or damages. The first application for permission to deposit rent was made on 30th January 1973, which was three months and four days after the due date for doing so, and even assuming that this delay was fit to be condoned, on the ground of ignorance of the newly added provision in the Civil P. C. or some such cause, the further delay in making the deposit appears to have been occasioned by the mistake of the court in not taking up the application and deciding it on 30th Jan., 1973 forthwith, in accordance with law, before proceeding with the hearing of the suit, and in even granting 1 months' time after delivery of the judgment disposing of the suit, for making the deposit. The mistake was that of the court, and there is no material before me to hold that it was brought about by any fraudulent act of the defendant. The defendant, as such cannot be penalised for it, at this stage. Two facts may, however, be mentioned in support of the procedure adopted by the trial could. The first was the fact that the plaintiff never applied for an order refusing to entertain the defence, and secondly almost the entire evidence had already been recorded and all that remained was to hear arguments in the case. It is a moot point whether a court may refuse to entertain the defence in the arguments addressed before it or refuse to look into the defence evidence already recorded in a case like the present one where the default in depositing the admitted rent occurs almost at the fag-end of the hearing of the suit. Further, it cannot be said that an order refusing to entertain the defence, or as the case may be, to strike off the defence, must be passed as a matter of course in every case where the defendant fails to comply with the requirements of R. 5 of O. 15 of the Civil P. C. The court has been given a discretion in the matter. The discretion is a judicial one and must be exercised on sound principles of law and justice. The discretion is a judicial one and must be exercised on sound principles of law and justice. The decision of the Supreme Court in Manorama v. Dhan Laxmi, AIR 1967 SC 1078 , is inapposite, and the rule enunciated therein that the word 'may in Section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, must be read as 'shall, cannot be applied for interpreting the import of the word 'may in R. 5 of O. 15 of the Civil P. C. In that case the provision conferred a right on the landlord to a decree for eviction where the tenant was in arrears of rent for a period of six months or more and neglected to pay the same even within one month of the service of the notice demanding the same. Rule 5 of O. 15 of the Civil P. C. does not, on the other hand, give the plaintiff an immediate right to a decree for rejectment. It confers a jurisdiction on the court to refuse to entertain the defence or to strike it off, unless it allows further time for depositing the rent. The courts discretion being judicial it may, in a proper case, entertain the defence or may not strike it off, even if the amount of admitted rent and/or compensation is not deposited within the time prescribed by law, or regularly thereafter but is deposited later on. Time is not of the essence. The object of the provision is to secure the admitted rent to the landlord. The entire amount of rent admitted to be due having been deposited, before the question was raised on behalf of the plaintiff before the lower appellate court, it would have been unjust for the lower appellate court to have refused to entertain the defence in the arguments before it, and that being so it cannot be said that the lower appellate court committed any error of law or of procedure in overruling the plaintiffs contention on this point. 17. 17. The next point raised by the learned counsel for the plaintiff-appellant was that the dominant purpose of the initial letting out of the accommodation was that of residence and the change of that dominant purpose of residence to that of carrying on medical profession, whether by establishing a clinic or a nursing home, or allowing the patients to stay on the premises off and on, and the compounders to stay regularly with their families on the premises, amounted to the doing of an act which is inconsistent with the purpose for which the defendant was admitted to the tenancy of the accommodation, within the meaning of cl. (d) of sub-section (1) of Section 3 of U. P. Act III of 1947, rendering the defendant liable to ejectment in the present suit filed without the permission of the District Magistrate. 18. From the material on the record and the findings of the court below it is apparent that to begin with the accommodation was used for purposes of dispensary, and then partly for residential purposes and partly for the purposes of clinic until 1962, and that at the time when the suit was filed and accommodation was being used dominantly for the purposes of the defendants profession of a medical practitioner. The question which arises is whether the accommodation was initially let out to the defendant for the purposes of his profession as alleged by him, or for the purposes of residence as urged by the plaintiff and if so, whether the use of the accommodation for the purposes of the defendants profession amounts to the doing of an act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation or which is likely to affect adversely and substantially the plaintiffs interest therein. 19. Now, the plaintiff was not the landlord when the accommodation in suit was let out to the defendant. It is undisputed that the accommodation in suit which forms the western portion of the house was allotted jointly to the defendant along with the plaintiff. There is no direct evidence of the contract of the initial letting, to show the purpose for which the defendant was admitted to the tenancy of that accommodation, or even to show the purpose for which he had applied for allotment of that accommodation in suit to him. There is no direct evidence of the contract of the initial letting, to show the purpose for which the defendant was admitted to the tenancy of that accommodation, or even to show the purpose for which he had applied for allotment of that accommodation in suit to him. The finding of the court below is that the accommodation in dispute was being used, to begin with for the purpose of dispensary, but it has been the defendants case that shortly thereafter he started residing therein and continued living there and having his dispensary in a portion up to 1962, when he shifted his residence to his Station Road Kothi. 20. The first case relied upon by the learned counsel for the appellant was that of Bramwell v. Lacy, (1878-79) 10 Ch D691. In that case the lessee covenanted with the lessor not to carry on upon the demised premises "any trade business, or dealing whatsoever, or anything of the nature thereof, or suffer any act or thing which may be or to the annoyance, damage, injury, prejudice, or inconvenience, of the neighbouring premises." It was found on the facts of that case that the defendant had converted the house which was the subject-matter of the lease and was situated in a residential neighbourhood into a hospital, and was frequented by a considerable number of patients, who were treated and supplied with drugs by the medical officer in attendance, and that about one half of the patients paid for their medical treatment, the payment being a very moderate one, and varied according to the means of the patients. The hospital was not carried on for pecuniary gain. However, the neighbours complained that the establishment of the hospital in the residential neighbourhood was a nuisance and was a source of danger to the health of the neighbourhood. The plaintiff contended that the use of the house as a hospital amounted to a breach of the said covenant. Jessel, M. R. held that the activity amounted to the carrying on of a business and also constituted a breach of the covenant. The plaintiffs were held entitled to an injunction to restrain the defendants from using the house as a hospital. 21. Jessel, M. R. held that the activity amounted to the carrying on of a business and also constituted a breach of the covenant. The plaintiffs were held entitled to an injunction to restrain the defendants from using the house as a hospital. 21. The next case cited by the learned counsel was that of Hobson v. Tulloch, (1898) 1 Ch 424, in which it was held that a covenant not to use a house "for any trade or manufacture, or for any other purpose than a private residence, is broken by using it as a boarding house for scholars attending a school in the neighbourhood kept by the owner of the house in question, inasmuch as such use amounted to the carrying on of the business of a boarding house instead of using the house as a private residence only".. 22. Learned counsel for the appellant next cited the decision of a learned single Judge of the Madras High Court in Jugraj Jain v. T. R. Ambikapathi Pillai, (1959) 2 Mad LJ 240. This was also a case of change of user of a residential house from residential purposes to business purposes by establishing and carrying on the business of a pawn broker therein. It was found that such change of user did amount to the doing of an act which rendered the defendant liable to ejectment but in view of the conduct of the landlord in having accepted an increase in the rent the defendant was allowed an opportunity to shift the pawn brokerage business instead of being ejected from the house. 23. The next case cited by the learned counsel for the appellant was that of Mool Chand v. Shiv Dutt, AIR 1973 Madh Pra 301. In this case a learned single Judge of the M. P. High Court held that if the lease is silent on the point about the purpose of letting, the same has to be gathered by recourse to circumstances, namely, structural design of the accommodation, its location and the . use, and where the accommodation is let or used for both residential and non-residential purposes, it has to be determined by reference to the primary purpose and if the primary purpose is residential it is classified as residential although it may be used in part for some non-residential purpose and vice versa. 24. use, and where the accommodation is let or used for both residential and non-residential purposes, it has to be determined by reference to the primary purpose and if the primary purpose is residential it is classified as residential although it may be used in part for some non-residential purpose and vice versa. 24. None of these cases is directly applicable to the facts and circumstances of the present case. The language of cl. (d) of sub-section (2) of Section 3 of U. P. Act III of 1947 requires, in order to enable a landlord to maintain a suit for the tenants eviction without the permission of the District Magistrate, that the tenant has created a nuisance, or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlords interest therein. Although the clause specifies three distinct grounds, the first of nuisance, the second of the doing of an act inconsistent with the purpose for which the tenant was admitted to the tenancy of the accommodation, and the third, the doing of an act which is likely to affect adversely and substantially the landlords interest therein, it is not the mere use of an accommodation for a purpose different from that for which the accommodation in question was initially let out, that entitles the landlord to evict the tenant; the act must be such as is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation. Normally, a person engaged in a profession like that of a doctor or a lawyer does do some business in his residential quarters; that does not however, mean that he may shift his residence elsewhere and have his chambers or clinic in the erstwhile residence and still say that the purpose for which he has been using the accommodation has not been materially changed by such an act. On the finding recorded by the lower appellate court and the defendants case on the point and taking into account all the surrounding facts and circumstances of the case, it appears to me that to begin with the defendant was using the accommodation in suit for his residential purposes and was as such using only a part of the accommodation for purpose of his clinic, in the course of carrying on his profession; and that when he shifted his residence elsewhere and converted the entire accommodation in suit, into a clinic or a nursing home with his compounders staying on the premises, there was such a change of user as to have amounted to a change of the purpose for which he was initially let into the accommodation in suit. The question which, however, remains is to find out whether the act was such as to be inconsistent with the purpose for which he was admitted to the tenancy. The use of (he accommodation for the purposes of his business was, in my opinion such as was not consistent with the residential purpose for which the accommodation was originally let out to him. It has been found by the lower appellate court that the first defendant did allow his patients to stay even for eight or ten days at a stretch in one of the rooms in question when the condition of the patient was serious or he was required to be detained for carrying out medical tests, but according to the lower appellate court, since the defendant was not running any regular pathological laboratory or X-ray clinic, it cannot be said that he was running a nursing home therein, because, again according to it, a nursing home cannot be run without those amenities being available. According to the lower appellate court the patients were allowed to stay in the premises only when they came from outside so that a proper diagnosis may be made and proper medicines prescribed after the requisite tests were carried out by other doctors at Moradabad. According to the lower appellate court the patients were allowed to stay in the premises only when they came from outside so that a proper diagnosis may be made and proper medicines prescribed after the requisite tests were carried out by other doctors at Moradabad. It was further observed by the lower appellate court in this connection that the defendant appears to be a busy physician and he is having his clinic in three places in the city of Moradabad and, therefore, it did not appear probable that he could run a regular nursing home anywhere, and further that the keeping of patients in the premises in question is not a regular feature, the patients only stay on some occasions overnight and on some occasion for a few days at a stretch or when the patients themselves insist to be allowed to stay on. The lower appellate court has then observed that it could not be said definitely that the first defendant charged anything for the rooms used by the patients or for their stay but even if he did charge something that did not amount to sub-letting. It may be that such professional activities carried on by the first defendant on the accommodation in suit do not amount to sub-letting the same to his patients but then it does amount to carrying on his business therein. It may be that to begin with the first defendant resided in the accommodation and also carried on his profession in a part thereof. But now, when the suit was filed, it does appear that the first defendant was no longer residing in the accommodation but was using it exclusively for the purposes of his profession. I am of the opinion that such a change of user does on the facts and in the circumstances of the case amount to the doing of an act inconsistent with that for which the first defendant initially took the accommodation in suit on rent. I am of the opinion that such a change of user does on the facts and in the circumstances of the case amount to the doing of an act inconsistent with that for which the first defendant initially took the accommodation in suit on rent. The very fact that persons said to be his compounders have been living with their familities in the accommodation, that the patients do stay over-night in other parts of the accommodation, coupled with the fact that the first defendant is re-i siding in his own house elsewhere, are in my opinion such as to lead to the only inference that the present user of the accommodation is inconsistent with the residential use of the accommodation by the first defendant which was the primary purpose for which it was initially let and occupied. There was no in-, consistency in the residential and the professional purposes so long as the accommodation in suit was being used for, both the purposes. But now the professional purpose is the only purpose and its demands were probably so pressing as to have impelled the first defendant to shift his residence elsewhere, or it may be that having shifted his residence elsewhere the first defendant chose to use the accommodation in suit for the purposes of his profession only. Such use may not amount to sub-letting. It may not be a nuisance' either, but that is not the only requirement of Cl. (d) of sub-sec. (1) of Section 3 of U. P. Act No. III of 1947. The other alternative requirement is the act of using the accommodation for a different purpose, such as to be inconsistent with the purpose for which the tenant was admitted to the accommodation. Since the two purposes, the residential purpose and the professional purpose do not co-exist any longer and the primary purpose of residence has been supplanted by the professional purpose entirely, there is no escape from the conclusion that the first defendant is using the accommodation in suit for a purpose inconsistent with that for which he was admitted therein as a tenant. 25. In view of the above finding the other questions about sub-letting and nuisance etc., do not survive for determination. The first defendant did render himself liable to ejectment by suit instituted without the permission of the District Magistrate. 26. 25. In view of the above finding the other questions about sub-letting and nuisance etc., do not survive for determination. The first defendant did render himself liable to ejectment by suit instituted without the permission of the District Magistrate. 26. in the result the appeal must succeed and is allowed with costs. The judgments and decree of the two courts below are set aside. The suit for ejectment of the defendants from the accommodation in suit, arrears of rent and damages up to the date of suit as also pendente lite and future, together with interest at the rate of 6 per cent per annum pendente lite and future, shall stand decreed with costs throughout. The amount of rent/compensation or damages already deposited in court shall be paid over to the plaintiff and adjusted against the decree.