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2017 DIGILAW 439 (HP)

Kanta Bhagat v. Ashok Sharma

2017-05-01

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Since common questions of law and facts arise for consideration, therefore, these petitions are taken-up together for consideration and are being disposed of by a common judgment. 2. Both these petitions are directed against the order passed by the learned Rent Controller, whereby the applications filed by both the parties for amendment have been dismissed. As regards the landlord, who is petitioner in C.R. No.184/2016, the amendment sought for by her was limited to the extent that in place of the words “business”, she had sought incorporation and substitution of the words “practice”. As regards the tenant, who is petitioner in CMPMO No.441/2016, he had sought amendment to the effect that he may be permitted to question the maintainability of the eviction petition, as the same had been filed by the landlord within a period of five years from the date of acquiring ownership of the demised premises and, therefore, such eviction petition was not maintainable in view of the provisions of Section 14(6) of the H.P. Urban Rent Control Act, 1987 (for short the ‘Act’). Learned Rent Controller dismissed the application vide separate order dated 01.10.2016 by invoking proviso to Order 6 Rule 17 and both the applications were held to be not maintainable as having been filed after the commencement of the trial that too after one of the witness of the landlord having already been examined. 3. I have heard learned counsel for the parties and have gone through the record of the case. C.R. No. 184/2016 4. As observed earlier, the only amendment sought for by the landlord was with regard to the substitution of the words “business” with the words “practice”. 5. The petitioner had filed the eviction petition against the tenant from Shop No.2, Boileauganj Bazar, Shimla-5 (for short ‘demised premises’), on the ground that the same was bonafidely required by her son Rajesh Bhagat, who intended to start Software Computer business, as he had done Graduation Diploma in Computer Applications and Post Graduate Diploma in Business Management. 5. The petitioner had filed the eviction petition against the tenant from Shop No.2, Boileauganj Bazar, Shimla-5 (for short ‘demised premises’), on the ground that the same was bonafidely required by her son Rajesh Bhagat, who intended to start Software Computer business, as he had done Graduation Diploma in Computer Applications and Post Graduate Diploma in Business Management. It was averred by the landlord that she had noticed while going through the provisions of Section 14(3)(d) of the Act that the premises can be got vacated by the landlord from his tenant for his or her son for doing business as a Lawyer, an Architect, a Dentist, an Engineer, a Veterinary Surgeon or a Medical Practitioner including a Unani or Homoeopathic system of medicines. But, while drafting the petition “practice was omitted to be incorporated before the words “business” and, as such, it may now be allowed to be corrected as “practice i.e. business”. 6. Was the amendment really necessary and could the application for amendment be dismissed only on the ground that the trial has commenced? To me, it appears that the amendment was not at all necessary, as the words “business” is an expression of wide import and means any activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning the profit. 7. The words “business” as used in Section 10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was the subject matter for consideration before the Hon’ble Supreme Court in S. Mohan Lal Vs. R. Kondiah (1979) 2 SCC 616 and it was held that the expression “business” used in the aforesaid section is used in wide sense so as to include the practice of the profession of an Advocate. It was further held that words “business” must be interpreted in the context of the statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned. 8. It was further held that words “business” must be interpreted in the context of the statute in which it occurs and not in the context of other statutes or in a manner alien to the context of the statute concerned. 8. The expression “business” thereafter came up for consideration before Hon’ble Three Judges of the Hon’ble Supreme Court in Barendra Prasad Ray and others vs. The Income Tax Officer AIR 1981 SC 1047 and it was held that the expression “business” does not necessarily mean trade or manufacture only and would include within its scope professions, vocations and callings from a fairly long time. It is apt to reproduce relevant observations which reads thus: “15. The expression 'business' does not necessarily mean trade or manufacture only. It is being used as including within its scope professions, vocations and callings from a fairly long time. The Shorter Oxford English Dictionary defines 'business' as 'stated occupation, profession or trade' and 'a man of business' is defined as meaning 'an attorney' also. In view of the above dictionary meaning of the word 'business' it cannot be said that the definition of business given in Section 45 of the Partnership Act, 1890 (53 & 54 Vict. c. 39) was an extended definition intended for the purpose of that Act only. Section 45 of that Act says: "The expression "business” includes every trade, occupation, or profession". 16-A. The observation of Rowlatt, J. in Christopher Barker & Sons v. Commissioner of Inland Revenue. (1919) 2 KB 222 at p.228. "All professions are businesses, but all businesses are not professions,.. " also supports the view that professions are generally regarded as businesses. The same learned Judge in another case Commissioner of Inland Revenue v. Marine Steam Turbine Company Limited (1920) 1 KB 193, held: “The word 'business' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carried on and it is in this sense the word is used in the Act with which we are here concerned." 17. The word business is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The word business is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. We are of the view that in the context in which the expression ‘business connection’ is used in Section 9 (1) of the Act, there is no warrant for giving a restricted meaning to it excluding ‘professional connections’ from its scope. 9. The expression "business" as used in the Kerala Buildings (Lease and Rent Control) Act, 1965, was subject matter of consideration before the Hon’ble Supreme Court in Dr. Jess Raphael Vs. K.L. Regina Joseph 1995 Supp (3) SCC 190, wherein after placing the reliance upon the judgment rendered in S. Mohan Lal (supra), it is held as under: 7. Then, the only question is whether the running of a Nursing Home with seven members of the staff could amount to business. In Black's Law Dictionary, Sixth Edition at page 198, the term "business" is defined as under: “Business:- Employment, occupation, profession, or commercial activity engaged in for gain or livelihood. Activity or enterprise for gain, benefit, advantage or livelihood. Union League Club v. Johson, 18 Cal. 2d 275, 108 P. 2d 487, 490. Enterprise in which person engaged shows willingness to invest time and capital on future out come. Doggett v. Burnt, 62 App. D.C. 103, 65 F. 2d 191. 194. That which habitually busies or occupies or engages the time, attention, labour, and effort of persons as a principal serious concern or interest or for livelihood or profit. See also Association; Company; Corporation; Doing business; Joint enterprise; Partnership; Place of business, Trade. 10. Similar interpretation can be found in recent judgment of the Hon’ble Three Judges of the Hon’ble Supreme Court in Bhanushali Housing Cooperative Society Limited Vs. Mangilal and Others (2015) 10 SCC 277 , wherein after placing reliance on the judgment referred to above, it is held as under: 24. Suffice it to say that while the expression "business" is of a very wide import and means any activity that is continuous and systematic, perceptions about what would constitute business may vary from public to private sector or from industrial financing to commercial banking sectors. What is certain is that any activity in order to constitute business must be systematic and continuous. What is certain is that any activity in order to constitute business must be systematic and continuous. A single transaction in the circumstances like the one in the case at hand would not constitute business for both the parties to the transaction. At any rate, the legislature having used the expression "business transactions" has left no manner of doubt that it is not just a solitary transaction between a society, on the one hand, and a third party, on the other, which would bring any dispute arising out of any such transaction within the purview of Section 64(1)(c). The dispute must be between parties who have had a series of transactions, each one constituting a business transaction in order that the provisions of Section 64 are attracted and a dispute arising out of any such transaction brought within its purview. 11. Thus, it is clear from the aforesaid exposition of law that words “business” used in the Act is of wide import and would essentially include the expression “practice”, as it is systematic and continuous activity by a person by the application of his labour and skill with a view to earn profit. 12. Once that is the position, then there was no occasion for the learned Rent Controller, and even for the landlord to have amended the petition and in case he had opted to do so, then obviously the learned Rent Controller could not have rejected the same, that too solely on the ground of the trial having already commenced. Having said so, I find merit in the present petition and the same is accordingly allowed. Order passed by the learned Rent Controller is set-aside leaving the parties to bear their costs. A copy of the order be placed in CMPMO No.441/2016. CMPMO 441/2016. 13. As observed earlier, the amendment sought for by the tenant pertains to the maintainability of the eviction petition in view of the Bar contained in Section 14(6) of the Act, which prohibited the landlord from filing the eviction petition within a period of five years from the date of acquiring ownership of the demised premises. 14. CMPMO 441/2016. 13. As observed earlier, the amendment sought for by the tenant pertains to the maintainability of the eviction petition in view of the Bar contained in Section 14(6) of the Act, which prohibited the landlord from filing the eviction petition within a period of five years from the date of acquiring ownership of the demised premises. 14. However, I find that this very question had at an earlier occasion in these proceedings been raised by the tenant by filing application under Order 7 Rule 11 of the Code of Civil Procedure read with section 14(6) of the Act before the learned Rent Controller for rejection of the petition. This application was allowed by the learned Rent Controller but his finding was set-aside by the Appellate Authority and thereafter the matter was carried before this Court by the landlord by filing C.R. No.86/2014 and the same was dismissed vide order dated 09.03.2015 by according following reasons: “The above stress before this Court by the learned counsel for the petitioner would gather weight and succor only in the event of an application as instituted at the instance of the petitioner herein before the learned Rent Controller under Order 7 Rule 11 of the CPC read with Section 14(6) of the H.P. Urban Rent Control Act, for rejection of the petition did also spell out a ground in conformity with the aforesaid submission. However, a reading of application under Order 7 Rule 11 of the CPC, as instituted by the petitioner before the learned Rent Controller omits to divulge therein the factum of the petitioner having sought the rejection of the petition on the score of the respondent herein having omitted to disclose any relevant/apposite grounds as amiss in paragraph 18(a)(1) and (2) of the petition for eviction of the petitioner from the demised premises devolving upon the factum of his not being an ‘engineer’. For the lack of enunciation in the application Under Order 7 Rule 11 of the CPC qua the aforesaid aspect also renders hence the contention addressed by the learned counsel for the petitioner herein to fall apart. For the lack of enunciation in the application Under Order 7 Rule 11 of the CPC qua the aforesaid aspect also renders hence the contention addressed by the learned counsel for the petitioner herein to fall apart. Even if there is no enunciation inconfirmity with the prescription in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act of the respondent herein being an ‘engineer’ nonetheless the factum of his possessing a post graduate diploma in computer application/post graduate diploma in business management which may also render him to be equipped to prove during the course of adduction of evidence the factum of his hence also falling within the statutorily ordained/contemplated category of an ‘engineer’ envisaged in clause (d) of sub Section 3 of Section 14 of the H.P.Urban Rent Control Act. In aftermath, it would be insagacious to thwart her at this stage from adducing evidence qua the aforesaid aspect. As such, there is no merit in the contention of the learned counsel for the petitioner herein. The impugned order of the appellate authority is maintained and affirmed. The petition is dismissed. No costs.” 15. Admittedly, the order dated 09.03.2015 passed by this Court has attained finality and is, therefore, not only binding upon the parties, but is also binding upon this Court. Thus, there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs. A copy of the order be placed in C.R.No.184/2016.