# DR. GOPAL DASS VERMA v. DR. S. K. BHARDWAJ AND ANOTHER

- **Citation:** [1962] 2 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 278 of 1959
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-gopal-dass-verma-v-dr-s-k-bhardwaj-and-another-2283
- **Pages:** 9

## Headnote

Tenancy-Created or used both for residential and professional
purposes-Termination of-Delhi and Ajmer Rent Control Act,
r952 (Act X KXV III of r952), ss. 2(g), IJ(r)(e), r3(r)(h).
The respondent as a tenant of the appellant was occupying
a portion of the premises in question for residence and the other
major portion for his professional work as an ear, nose, throat
specialist. The appellant sued for the ejectment of the respondent on the grounds that (i) he required the premises for his
own residence and that (ii) the respondent had built a suitable
residence for himself in another locality. The first plea was
based on the ground mentioned in s. 13(1)(e) and the second
plea on s. r3(r)(h) of the Delhi and Ajmer Rent Control Act,
1952. The trial court decreed the suit but the appellate court
and the High Court dismissed it on the finding that from the
beginning of the tenancy a substantial part of the premises was
used by the respondent for bis professional work obviously with
the consent of the appellant.
Held, that premises let for residential purposes but used by
2 S.C.R. SUPREME COURT REPORTS
679
the te~ant with the consent of the landlord incidentally for comz96z
mercial, professional or other purp~ses cease to be premises let
for a residential purpose alone and as such the landlord would
Dr. Gopal Dass
not be entitled to eject the tenant under s. r3(r)(e) of the Act.
Verma
Nor can such a tenant be ejected independently under s. r3(r)(h)
v.
because a tenancy created or used both for residence and proDr. S. K.
fession cannot be terminated merely by showing that the tenant
Bhardwaj
had acquired a suitable residence.
Premises let both for residence and commercial purposes do
not cease to be premises under s. 2(g) and continue to be so
under the last clause of s. 2(g).

## Text

678
SUPREME COURT REPORTS
(1962]
'96'
committee cannot enforce any of the provisions of the
Gulam -;;;;;.ammad Act or the rules or the bye-laws framed by it and
v.
cannot issue licences till the market is properly estabState of Bombay lished in law.
We therefore allow the petition partly and direct
Wanchoo .f.
the respondents not to enforce any of the provisions
. of the Act, the rules and the bye-laws against the
petitioners with respect to the market till a market is
properly established in law for this area under s. 5AA
and not to levy any fees under s. 11 till the maximum
is prescribed under the Rules. In the circumstances
we order parties to bear their own costs.
May 2.
Petition allowed in part.
DR. GOPAL DASS VERMA
v.
DR. S. K. BHARDWAJ AND ANOTHER
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
Tenancy-Created or used both for residential and professional
purposes-Termination of-Delhi and Ajmer Rent Control Act,
r952 (Act X KXV III of r952), ss. 2(g), IJ(r)(e), r3(r)(h).
The respondent as a tenant of the appellant was occupying
a portion of the premises in question for residence and the other
major portion for his professional work as an ear, nose, throat
specialist. The appellant sued for the ejectment of the respondent on the grounds that (i) he required the premises for his
own residence and that (ii) the respondent had built a suitable
residence for himself in another locality. The first plea was
based on the ground mentioned in s. 13(1)(e) and the second
plea on s. r3(r)(h) of the Delhi and Ajmer Rent Control Act,
1952. The trial court decreed the suit but the appellate court
and the High Court dismissed it on the finding that from the
beginning of the tenancy a substantial part of the premises was
used by the respondent for bis professional work obviously with
the consent of the appellant.
Held, that premises let for residential purposes but used by
2 S.C.R. SUPREME COURT REPORTS
679
the te~ant with the consent of the landlord incidentally for comz96z
mercial, professional or other purp~ses cease to be premises let
for a residential purpose alone and as such the landlord would
Dr. Gopal Dass
not be entitled to eject the tenant under s. r3(r)(e) of the Act.
Verma
Nor can such a tenant be ejected independently under s. r3(r)(h)
v.
because a tenancy created or used both for residence and proDr. S. K.
fession cannot be terminated merely by showing that the tenant
Bhardwaj
had acquired a suitable residence.
Premises let both for residence and commercial purposes do
not cease to be premises under s. 2(g) and continue to be so
under the last clause of s. 2(g).
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
278 of 1959.
Appeal by special leave from the judgment and
order dated April 2, 1957, of the Punjab High Court,
in Civil Revision No. 239 of 1956.
C. K. Daphtary, Solicitor-General of India, S. N.
Andley, Rameshwar Nath and P. L. Vohra, for the
appellant.
S. T. Desai and Naunit Lal, for the respondents.
1961. May 2.
The Judgment of the Court was
delivered by
GAJENDRAGADKAR, J.-The appellant Dr. Gopal Gajendragaikar ].
Das Varma owns a double-storeyed house known as
28, Barakhamba Road, New Delhi. 'rhe ground floor
of this house consists of a block of offices and the first
floor consists of four flats; th rno of these are in the
occupation of the appellant while the fourth has been
let out to respondent 1, Dr. Bhardwaj. Dr. Bhardwaj
is an ear, nose, throat specialist, and in one of the
four rooms of the flat he and his wife, respondent 2,
reside, while the three other rooms are used by him
for the purpose of his profession.
Respondent 1 appears to have taken the premises on lease as early as
1934 although he executed an agreement of tenancy
in fa\'our of the appellant on November 8, 1935. This
agreement shows that the appellant agreed to let out
his flat to respondent 1 on a rent of Rs. 90 per month
payable in advance. The tenancy was to commence
from October 1, 1935, and was intended t.o continue up
to September 30, 1936. Parties agreed that the said
680
SUPREME COUH,T REPORTS
[1.962]
r96r
tenancy could be renewed on terms to be settled
D
G --; D
later. In fact the tenancy has been renewed from
'· ·;;;ma ass year to year and the flat is still in possession of resv.
pondent 1.
Dr. s. K.
In October 1953 the appellant sued the two responBhardwaj
dents for ejectment on two grounds. He alleged that
G . d --
he required the premises in question for occupation as
"1'" .agadkar J. residence for himself and for the members of his
family and that respondent 1 had recently built a,
suitable residence for himself in Golf Link Area, New
Delhi. The first plea was made under s. 13(l)(e) of
the Delhi and Ajmer Rent Control Act, 1952 (Act
XXXVIII of 1952) (hereafter called the Act), while
the second was raised by reforence to s. 13(l)(h) of the
Act.
According to the appellant, since both the
requirements of the Act were satisfied he was entitled
to obtain a decree for ejectment against the respondents. The claim thus made by the appellant was
denied by the respondents. Respondent 2 pleaded
that she was not the tenant of the appellant and she
alleged that it was she and not respondent 1 who had
built the house in Golf Link Area. Respondent 1
admitted that he was a tenant nuder the appellant.
He, however, contended that the appellant did not
require the premises bona fide for his personal use,
and he urged that he was using the premises for carrying on his medical profession and as such the appellant was not entitled to eject him. He supported his
.,
wife in her plea that the house built in Golf Link
Area belonged to her and not to him.
On these pleadings the learned trial judge framed
appropriate issues. He found that respondent 1 alone
was the tenant of the appellant and that the premises
in question had been let to respondent 1 for residential
purpose. According to the trial judge the premises
in suit had been constructed for residential purposes
and the flat in question was let out to respondent
exclusively for that very purpose. The trial judge
further held that the fact that a portion of the premises was used by respondent 1 for his profession or
business would not make the tenancy one for nonresidential purposes. In that view he rejected the
2 S.C.R. SUPREME COURT REPORTS
681
argument raised by respondent I on the explanation
r96z
to s. 13(l)(e) of tho Act. The trial judge also held Dr. Gopal Dass
that it was respondent I who had built a house in
v .. ma
Golf Link Area and since the said house was suitable
v,
for his residence the requirements of s. 13(l)(h) were
Dr. s. K.
satisfied. On the question about the bona fide requireBhardwaj
mednts of p
3
er
1
son)al' resi?e
1
nce plcadedd byfithde. appell.a.nt Gajendmg~dkar ].
un er s. I' ( )( e tiw tna court ma e a n mg agamst
him. Even so, as a result of his conclusion under
s. 13(l)(h) the trial judge passed a decree for ejectment in favour of the appellant.
Both the respondents challenged this decree by preferring an appeal before the Senior Sub Judge at
Ddhi. The appellate Court held that on the facts
proved in the coise it cannot be inferred that the premises in suit were built for residential purposes alone,
and that evidence did not show that the premises in
question had been let to respondent I for residence
alone.
The appellate judge examined the conduct of
the parties and held that it was proved beyond any
shadow of doubt that respondent 1 was using the premises both for his residence and his professional work
since the inception of the tenancy without any objection on behalf of the appellant, and so in his opinion
the premises could not be said to have been let for
residence alone. He also found that under the proviso
to s. 13(l)(e) it cannot be said that the premises were
used incidentally for profession without the consent
of the appellant; in that views. l3(l)(e) did not apply
to the case.
Since the appellant had failed to prove
that the premises were residential premises within the
meaning of s. l3(l)(e) and (h) the appellate Court
held that respondent I could not be ejected. In the
result the appeal preferred by the respondents was
allowed and the decree for cjectment passed by the
trial Court against them was set aside.
The appellant then took the dispute before the
High Court of Punjab by his revisional application.
The High Court has in substance agreed with the
view taken by the appellate Court, confirmed its main
findings and has dismissed the revisional application.
The High Court has observed that in its opinion the
682
SUPREME COURT REPORTS
(1962]
I96r
appellate judge was fully justified in holding that the
Premises were let out to the tenant for the purpose of
Dr. Gopal Dass
Verma
residence and for the purpose of his work as a member
v.
of the medical profession. It has made an alternative
Dr. s. l(,
finding that even if it was assumed that the premises
Bl<a,dwaj
were let out to respondent l for the purpose of resiG . d-dk 1 dence the pleit of bona fide requirement made by the
a;en raga
ar
.
lJ
appe ant was not proved and the argument based
upon s. l3(l)(h) was not available to the appellant
because the Golf Link building which respondent 1
had acquired citnnot be said to be suitable for the conduct ·Jf business if the neighbourhood or the locality
in which it is situated is not suitable for that purpose.
In the result the High Court dismissed the appellant's
revisional application, It is against this decision that
the appellant has come to this Court by spociitl leave.
It is relevant to refer to the material provisions of
the Act before dealing with the points raised for the
appellant by the learned Solicitor-General in the present appeal. The Act applies to premises which are
defined by s. 2(g) as meaning, inter alia, any building
or part of a building which is, or is intended to be, let
separately for use as a residence or for commercial use
or for any other purpose. Section 13(1) provides that
notwithstanding anything to the contrary contained in
any other law or any contract, no decree or order for
the recovery of possession of any premises shall be
passed by any Court in favour of the landlord against
any tenant including a tenant whose tenancy is terminated. This provision is, however, subject to the excq1tions provided under the several clauses of the proviso.
We are concerned with two of these. Section l3(l)(e)
allows a decree for ejcctmcnt to bo passed if t!rn
Court is satisfied that tl:.c promises lot for residential
purposes are required bona fide by the landlord who
is the owner of such premises for occupation as a
residence for himself or his family and that he has no
other suitable accommodation. The explanation to
this clause provides that for the purpose of this clause
'residential premises' include any premises which
having been let for use as a residence are, without the
..
'I
..
'I
2 S.C.R. SUPREME COURT REPORTS
683
consent of the landlord, used incidentally for com1961
mercial or .other purposes; and s. 13{l)(h) provides for Dr. Gopal Dass
ejectment m a case where the Court is satisfied that
Vetma
the tenant has whether before or after the commencev.
ment of this Act built, acquired vacant possession of,
Dr. s. K.
or has been allotted, a suitable residence. It is with
Bhaidwaj
these three provisions that we are concerned in the Gajendragadkar J,
present appeal.
It would be noticed that as soon as it is found that
the premises in question have been used by respondent 1 incidentally for professional purposes and it is
further established that this use is made with the consent of the landlord then the case goes outside the
purview of s. 13(l){e) altogether. In the present case
it has been found by the appellate Court and the
High Court that right from the commencement of the
tenancy a substantial part of the premises is used by
respondent 1 for his professional purpose, and they
have also found that this has been done obviously
with the consent of the landlord. It is unnecessary
to refer to the evidence on which this finding is based.
Even the trial Court was apparently inclined to take
the same view about this evidence but it did not fully
appreciate the effect of the explana~ion; otherwise it
would have realised that the professional use of a
substantial part of the premises with the consent of
the appellant clearly takes the case outsides. 13{l){e).
In other words, where premises are let for residential
purposes and it is shown that they are used by the
tenant incidentally for commercial, professional or
other purposes with the consent of the landlord the
landlord would not be entitled to eject the tenant
even if he proves that he needs the premise~ bona
fide for his personal use because the premises have by
their user ceased to be premises Jet for residential
purposes alone. This position cannot be seriously
disputed.
Faced with this difficulty the learned SolicitorGeneral attempted to argue that the very finding
ma.de by the Courts below about the nature of the tenancy takes the premises outside the purview of s. 2{g)
of the Act. The argument is that the premises cannot
684
SUPREME COURT REPORTS
[1962]
'96'
then be said to have been let for use as a residence or
D,. Gopul Dass for a commercial use and so they ceased to be preVerma
mises under the Act. It is suggested that anv other
v.
use which is specified bys. 2(g) would not include a
Dr. s. I<.
combination of residence with commercial or profesBhardwaj
sional purpose's.
The other use there referred to may
G .
d --dk
1 be use for charity or something of that kind which is
a;en raga
0
' ·different from use as resicknoe or commercial use. In
our opinion this argume11t is not well-founded. The
three kinds of user to which the definition refers are
residence, commerce and any other purpose which
necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Solicitor-General. As soon as it 'is
shown that the premises have been let both for the use
of residence and for commercial purposes it does not
follow that the premises cuase to be premises under
s. 2(g); they coutinue to be premises under the last
clause of s. 2(g).
This position is wholly consistent
with the division of the premises made with reference
to their user in paragraphs 3, 4 and 5 of Part A in the
Second Schedule to the Act. Therefore, in our opinion,
the argument urged by the learned Solicitor-General
on the construction of s. 2(g) cannot. be sustained. It
will be recalled that the present suit has been filed by
the appellant himself praying for the respondent's
ejectment under the provisions of the Act, and so the
argument that the Act does not apply to the premisms
in question can be justly characterised as an argument of desperation.
Then it is contended that even if the appellant may
not be entitled to claim ejectment under s. 13(l)(e) he
would be justified in claiming a decree for ejcctment
against the respondent independently under s. 13(l)(h).
It is urged that as soon as it is shown that respondent
I has acquired a suitable residence be can be ejected
even though s. I3(l)(e) may not apply to his tenancy.
In our opinion, even this argument is fallacious. Section 13(l)(h) applies to tenancies which are created for
essential purposes, and it provides that in the case of
such tenancies even if the landlord may not be able
to prove his case under s. 13(l)(e) he would nevertheless be entitled to eject the tenant once it is shown
' '
2 S.C.R. SUPREME COURT REPORTS
685
that the tenant has acquired another suitable resi1961
dence. The requirement is tha.t the tenant must have
suitable residence.
Both words of the requirement Dr. Gopal Dass
Vetma
are significant.; what he has acquired must be resiv.
dence, that is to say the premises which can be used
D•·. s. re
for residence and the said premises must be suitable
Bhardwaj
for that purpose. If the premises from which eject-
.
-
ment is sought a.re used not only for residence but Ga1endrngadkar J.
also for profession how could s. 13(l)(h) come into
opcmtion? One of the purposes for which the tenancy
is acquired is professional use, and that cannot be
satisfied by the acquisition of premises which are
suitable for residence alone, and it is the suitability
for residence alone which is postulated by s. 13(l)(h).
Therefore, in our opinion, it would be unreasonable to
hvld th>tt tenancy which has been created or used
both for residence and profession can be successfully
terminated merely by showing that .the tenant has
acquired a suitable residence. That is the view taken
by the High Court and we see no reason to differ from
the conclusion of the High Court.
The last argument urged by the learned SolicitorGeneral is that respondent 1 should not be allowed to
approbate and reprobate as he has done in the prrsent
case.
This argum0nt is based on the conduct of the
respondent at the previous stages of the dispute. It
is true that in 1941 and onwards respondent 1 has
successfully urged that the tenancy was for residence,
and in consequence has secured the extension of
tenancy under cl. llA of the New Delhi House Rent
Control Order, 1939, issued under r. 81(2)(bb) of the
Defence of India Rules.
The statements made by
respondent 1 in that behalf indicate that he exercised
his option of obtaining extension of the lease on the
ground that the premises were let out to him for
residence. The argument is that since by the said
representations he had actually obtained an advantage
he cannot be permitted now to contend that the lease
is not only for residence.
On the other hand the conduct of the appellant
himself is also inconsistent with the stand taken by
87
686
SUPREME COURT REPORTS
[1962]
1961
him in the present proceedings. In 1942 when he
demanded an increased rent from respondent 1 he
Dr. Gopol DaJs
v1rm•
made out a case which is inconsistent with his present
v.
story that the premises were let out to respondent 1
Dr. s. «.
only for residence. The case then ma.de out by him
Bhardwaj
appears to be that the tenancy fell under paragraph 4
G . ,-dk 1 of Part A in the Second Schedule to the Act, and that
OJl11u.roga
ar
•
Id
h
h
•
h d
b
1
1
wou
mean t a.t t e premises a. not
een et OIJ y
for residence. Indeed the conduct of both the parties
has been actuated solely by considerations of expediency and self-interest in this case, and so it would
prima facie be idle for the a. ppellant to contend that
respondent 1 should not be allowed to approbate and
reprobate. But, a.pa.rt from this fa.ct, it is obvious
that the appellant cannot be allowed to raise this contention for the first time before this Court. The plea
sought to be raised can be decided only after relevant
evidence is adduced by the parties, and since this plea
has not been raised by the appellant at the proper
stage respondent 1 has had no opportunity to meet the
plea. a.nd that itself precludes the appellant from contending that though the lease may not be one for
residence a.lone respondent 1 should not be permitted
to urge that it is not for residence but for residence
and profession. It is the settled practice of this Court
that new pleas of this kind which need further evidence a.re not allowed to be raised in appeals under
Art. 136 of the Constitution.
The result is the appeal fails, but in the circumstances of this case we direct that the parties bear
their own costs throughout.
Appeal diemissed.