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1988 DIGILAW 87 (DEL)

FLOWMORE PRIVATE LIMITED v. KESHAV KUMAR SWARUP

1988-04-25

P.K.BAHRI

body1988
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 16th July, 1987 passed by Shri J. M. Malik, Additional Rent Controller, Delhi on the ground of eviction covered by clause (e) of subsection (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 mis-reading of the document of lease containing the term with regard to the letting purposes; Secondly that the finding of the Controller that the respondent landlord bonafide requires the premises for occupation for himself and his family members dependant upon him is also based on misunderstanding of the evidence led on the record and; thirdly that the landlord is also wrongly held to be not in possession of reasonably alternate suitable 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 1st August, 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-cumcommercial purposes. Thus, the ground of bonafide requirement is not available to the landlord. In evidence, the landlord ultimately had to admit that lease deed of which duplicate is Ext. R-1 was executed between the parties. Clause 5 of this lease deed reads as follows : ( ) 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. In evidence, the landlord ultimately had to admit that lease deed of which duplicate is Ext. R-1 was executed between the parties. Clause 5 of this lease deed reads as follows : ( ) 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. " It has been argued by the learned counsel for the petitioner that in case the premises have been let out only for residential purpose then clause 5 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 the clause 5 in its natural meaning it should be held that the premises have not been let out for residential purpose only. He has cited a few cases to which I will presently make reference. However, the 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 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 true meaning to this particular clause. He also made reference to documents marked Ext. Ax and Ext. 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 letting purpose could be read in evidence although the lease deed was not a registered document. Ext. AX is dated 10th February, 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 for commercial purpose 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. 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 the residence. Ext. AY is another certificate issued by the Managing Director of the petitioner referring to payment of Rs. 2,000. 00 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 to Ext. AW 3/1 which is a copy of the entry from the house tax record showing that the premises are residential. ( 4 ) 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 letting purpose is incorporated in the lease deed. In Wolfe v. Hogan (1949-1 All. E. R. 570) 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. I. in a separate judgment in this very case observed that in determing 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 and another v. Robinson and another (1951--I All E. R. 209) 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 and another ( AIR 1952 Mad. 413 ) a Full Bench of that High Court following these principles laid down in the aforesatd 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 was 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 pre-requisite of ground of bonafide requirement for residence that the londlord 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 subsection (1) of Section 14 of the Delhi Rent Control Act. ( 5 ) THE Supreme Court in Delhi Development Authority v. Durga Chand Kaushik ( AIR 1973 SC 2609 ) 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 : "the meaning of the document or of a particular part of it is therefore to be sought for in the document itself. "the document has to be read as awhole and not in a piecemeal. It was emphasis that a Literal Rule of Construction of interpreting the document must prevail unless its application produces absurd results. "the document has to be read as awhole and not in a piecemeal. It was emphasis that a Literal Rule of Construction of interpreting the document must prevail unless its application produces absurd results. Then the observations made in Monypenny v. Monypenny (1851-9 HLC 114) to the following effect were quoted with approval : " 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. "it was made clear in this judgment that the court must have regard not to presume the intention of the parties but the meaning of the words they have used. Judgment of the Supreme Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim ( AIR 1959 SC 24 ) was also quoted with approval which laid down the following principle : "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. " ( 6 ) NOW a perusal of 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 would have incorporated the further words in the same clause that the premises also can be used for personal use of Director and/or their relatives and also for the purpose of the company. It is not disputed before me that the 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 be used for the business of the company. It is not disputed before me that the 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 be used for the business of the company. If the interpretation is being put to this particular clause by the learned counsel for the landlord is accepted, it would have the effect of making the words; appearing in this clause with regard to the personal use by the Director and their relatives and for the purpose of the company, as 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 purpose they could have used a specific expression or words in that respect 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. ( 7 ) THE principle of ejusdem generis is not applicable to the interpretation of this particular clause. Ejusdem generis rule as defined in paragraph 1525 of Vol. 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, than 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 of 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 the particular clause, indicates that the general words should receive a limited construction or 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 the learned counsel for the landlord Counsel for the landlord also made reference to clause 13 of the lease deed which makes the duty of the tenant to abide by all rules and regulations of the Municipal Corporation of Delhi, D. D. A. and other authorities and make him liable for any loss or damages suffered by the lessor on account of 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 only could be used for residential purpose and reading this clause along with clause 5 should lead to the interpretation that the parties had agreed only to allow the premises to be used for residential purpose and not for any other purpose. I am afraid that clause 13 does not lay down as to for what purposes the premises are to be used or could be used in accordance with the rules and regulations of M. C. D. and 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 purposes of the company were used after mentioning that the premises canbe used for residence meaning thereby that the other users were also permissible besides residence and that the user was for the purpose of the comany, i e , for the business of the company and the directors and their relatives also could use the premises for their personal affairs. The personal use does not mean that Directors and their relatives are to use the premises for residence only. The personal use could be of many natue. The personal use does not mean that Directors and their relatives are to use the premises for residence only. The personal use could be of many natue. It coulp be that Directors or their relatives can have their offices in particular room for their personal work beyond the work of the company, it is admited case of the parties before me that soon after the letting some portion of the premises was used for commercial purpose and even the landlord gave notice to the tenant objecting to the commercial user of the premises. According to the tenant the daughters of the Managing Director of the company had used the premises for commercial purpose in respect of their firm which was later on coverted into a limited company. However, in order to determine the meaning of clause 5 it is not necessary to as to for what purpose the premises have been used. In Smt. Harbans Kaur v. Dr. J. C. Chandna (SA. O 462/68 decided on 31st August, 1973 by Chief Justice S. N. Andley) the lease deed contained a clause that the premises could be used fot 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 purpose? only. Similarly, in the present case also clause 5 lays down that the premises are to beused 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 purpose 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. ( 8 ) REFERENCE was made to V. S- Talwar v. Prem Chandra Sharma ( AIR 1984 SC 664 ). In the cited case the lease deed incorporated the clause that the premises let out for residence/personal office. It was also mentioned in the lease specifically in a particular clause that the premises are not to be used for commercial purpose. In the cited case the lease deed incorporated the clause that the premises let out for residence/personal office. It was also mentioned in the lease specifically in a particular clause that the premises are not to be used for commercial purpose. 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 the residential. The contents of the lease deed which came up for consideration before the Supreme Court in this case are totally distinct and different from the term 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 business of the company. Hence it has to be held that the premises have been let out not only for residential purpose but also for commercial purpose. 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 bonafide need of the landlord I would give my finding in that regard also. ( 9 ) IT is admitted fact that the leanlord and his family members including his cousin brothers are having a flourishing business in the shape of M/s 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; other for maunfacturing 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 State Trading Corporation. 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 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 be is Director of the said company and 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 patient of heart discase 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 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 in 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 alternative suitable accommodation for the landlord, rather it would show that the company of the landlord has substantial business to transact in Delhi also and that has required the company to have a rented guest house in New Friends Colony which contains 7/8 rooms. The finding 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 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. It is not disputed that the landlord has 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. Mere fact that the landlord has not led any convincing evidence to show that he is suffering from serious heart ailment as he only examined 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 bonafide 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 malafide 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 even 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 land- lord for his residence. The Controller was right in holding that the said particular house is not alternate suitable accommodation available to the landlord which he can occupy in his own right. Similarly, the house at Maharani Bagh (No. D-15) has been proved to be belonging to the landlord s sister. Mere fact that the landlord could not show as to from where 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 admitted fact that the landlord s father was living in that house and even the landlord used to stay some time in that house on 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 reasonably suitable accommodation available to the landlord for his residence. 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 reasonably suitable accommodation available to the landlord for his residence. I affirm the findings of the Controller on all these points. ( 10 ) 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 bonafide 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.