Firm Delux Guest House vs Prem Kumar and Others

Vineet Kothari, J—The present second appeal has been filed by the appellant/defendant/tenant, Firm Delux Guest House, Bikaner aggrieved by the judgment and eviction decree dated 28.11.2008 passed by learned Additional District Judge No. 4, Bikaner, dismissing defendant''s Appeal No. 17/1998-Firm Delux Rest House Vs. Prem Kumar & Anr., and upholding the eviction decree granted by the learned Civil Judge (Jr. Division) and Judicial Magistrate, First Class, Bikaner, vide judgment dated 09.02.1998 under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for brevity, hereinafter referred to as ''Act of 1950'') decreeing plaintiff''s Suit No. 136/1988-Prem Kumar Vs. Firm Delux Rest House & Anr., which was filed with respect to suit premises, which was let out to the defendant/tenant owner of Delux Rest House for residential purpose under oral tenancy created in the year 1988, however, the defendant in turn has sublet the same to the second respondent, Mr. Suresh Kumar Sharma, an Advocate, who established his office in the suit premises.

The relevant findings of the first appellate court in the order dated 28.11.2008 are quoted herein below for ready reference:-

The learned trial court had decreed the suit of the plaintiff/respondent and granted the eviction decree vide the judgment and decree dated 09.02.1998. The operative and relevant portion of the judgment and decree dated 09.02.1998 of the trial court is quoted herein below:-

The present second appeal was admitted by this Court on 06.08.2012 and the following substantial questions of law were framed for consideration:

Whether eviction decree could be passed by the courts below on the ground of subletting in favour of defendant No. 2 Suresh Kumar Sharma, Advocate, one of the rooms in the premises comprising of 38 rooms which was given to the appellant tenant firm M/s. Delux Rest House, Station Road, Bikaner, and the very business of appellant firm was to give on rent the rooms in the said guest house and whether the period of occupation of defendant No. 2 in one of the rooms of these premises in consonance with the nature of business of the appellant can still furnish to the landlord a ground of subletting for eviction of the appellant-tenant from that very room of the Guest House?

Whether there was any second default on the part of the appellant-tenant in payment of rent to the plaintiff and whether the eviction decree was liable to be passed on that ground?

Mr. Varun Gupta, learned counsel for the appellant/defendant submitted that the premises in question was let out by the landlord to the defendant firm (Delux Rest House) for extension of its rest house business and since the "hotel" does not fall within the definition of "premises" as defined under the provision of Act of 1950, therefore, the eviction suit was not even maintainable and the room in question was given to respondent No. 2, Suresh Kumar Sharma, Advocate on daily licence basis and the same cannot be said to be a sub-letting on the part of the defendant/tenant, but it would be the part of business activity of the defendant firm. He thus argued that the learned courts below have erred in granting the eviction decree on the ground of subletting and, therefore, the first substantial question of law deserves to be answered in favour of tenant/appellant. In support of his contentions, learned counsel for the appellant relied upon the decision of this Court in the case of Bhup Singh Vs. Rent Tribunal & Ors. reported in 2013 (2) DNJ Raj. 902.

As far as second default on the part of the appellant/tenant in payment of rent is concerned, learned counsel for the appellant/defendant argued that there was no finding of the courts below about the second default in payment of rent and, therefore, the eviction decree on that ground cannot be sustained.

On the other hand, Mr. Hemant Balani and Mr. V.D. Vaishnav, learned counsel appearing on behalf of respondent No. 1/plaintiff/landlord supported the impugned judgment and decree of eviction and relied upon the judgment of Hon''ble the Supreme Court in the case of H.V. Mathai Vs. The Subordinate Judge, Kottayam and Others, AIR 1970 SC 337 : (1969) 2 SCC 194 : (1970) 1 SCR 345 and in the case of Associated Hotels of India Ltd. Vs. R.N. Kapoor, AIR 1959 SC 1262 : (1960) 1 SCR 368 . Learned counsel for the respondent No. 1/plaintiff submitted that the premises in question was let out to the defendant, M/s. Delux Rest House, for residential purpose of the owner under an oral tenancy and not for business purposes, which was a separate building and his own premises. The present eviction suit was filed seeking eviction on the ground that the defendant/tenant has sublet the said suit premises (room) to the defendant No. 2, namely, Suresh Kumar Sharma, Advocate and so also default in payment of rent. Learned counsel for the respondent No. 1/plaintiff further submitted that the learned courts below have rightly granted the eviction decree on the ground of sub-letting, which do not raise any substantial question of law and, therefore, the substantial questions of law framed above, deserve to be answered in favour of plaintiff/landlord and the present appeal of the defendant deserves to be dismissed.

He also submitted that Hon''ble Apex Court in the case of E.V. Mathal (supra) has held that where the lawyer in the premises had set up his office and had taken a telephone connection in his own name, therefore, it cannot be said that the premises was given on licence on day-to-day basis and, therefore, the ground of subletting was thus established. The relevant para 5 of the said judgment is quoted herein below for ready reference:-

"5. Lastly, Mr. Dapthary argued that on the facts the Courts below should not have come to the conclusion that there was a sub-letting within the mischief of the Act. The buildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room. In our opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence. In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of sub-letting."

Relying upon the judgment in the case Associated Hotels of India Ltd. (supra), learned counsel for the plaintiff/respondent No. 1 submitted that the room in hotel cannot be construed in strict literal sense and a room in the hotel must fulfill two conditions viz. (1) it must be part of a hotel in the physical sense and (2) its user must be connected with the general purpose of the hotel of which it is a part. Learned counsel for the respondent No. 1/plaintiff submitted that in the present case, the premises in question was not the part of rest house, but was in a separate building, situated near the said rest house and was given to the defendant for residential purpose, which was in fact let out by the defendant No. 1 to the defendant No. 2, Suresh Kumar Sharma, Advocate for setting up his office there. The relevant portion of the judgment of the Apex Court in the case of Associated Hotels of India Ltd. (supra) is quoted herein below for ready reference:-

"It would be doing violence to the context if the expression ''room in a hotel'' in S. 2(b) is interpreted in a strictly literal sense. A room in a hotel must fulfill two conditions: (1) it must be part of a hotel in the physical sense and (2) its user must be connected with the general purpose of the hotel of which it is a part. A modern hotel provides many facilities to its residents like billiard rooms, post office and banking facilities by letting out rooms in the hotel for that purpose. A barber''s shop within the hotel premises is no exception. The circumstances that people not resident in the hotel might also be served by their hair dresser does not alter the position; it is still an amenity for the residents in the hotel to have a hair dressing saloon within the hotel itself. Where the spaces in a clock room in the hotel premises are let out for carrying on the business of a hair dresser and such a business was one of the amenities which a modern hotel provides, the rooms in questions are rooms in a hotel within the meaning of S. 2(b) and the tenant is not entitled to ask for fixation of fair, or standard rent for the same."

Having heard the learned counsel for the parties, and upon perusal of the judgments cited at bar, and the reasons assigned by the learned court below, this Court is satisfied that the substantial question of law No. 1, framed above, deserves to be answered in favour of plaintiff/landlord/respondent No. 1 and against the appellant/defendant/tenant. The factum of suit premises in question being not the part of Rest House was well proved by the plaintiff/landlord. There was no written agreement between the parties and the "room" in question was not let out for the purposes of Rest House or Hotel, therefore, it cannot be assumed to the the part of rest house or for the extension of business activities of the Rest House of the defendant firm. The appellant/defendants has miserably failed to prove and establish before the courts below that the suit premises was not sublet to the defendant No. 2, Suresh Kumar Sharma, Advocate and the fare or rent was charged from the defendant No. 2 on day to day basis. On the contrary, the plaintiff/landlord has clearly proved that the suit premises was let out to the defendant No. 2, who had set up an office in that premises.

In view of aforesaid findings of facts that the premises in question was not the part of the rest house/hotel itself, the argument sought to be raised by the learned counsel for the appellant/tenant that the suit premises was taken on rent for business purposes and not for residential purpose, cannot be accepted and the provisions of Act of 1950 will apply to the premises in question. The ground of sub-letting was well proved because letting out of premises to an advocate, was not the part of business activity of the firm. The exclusion of hotel room from the definition of "premises" in the Act of 1950 would not apply in the present case. The said definition is also quoted herein below:-

"Premises" means-

(a) any land not being used for agricultural purposes; and

(b) any building or part of a building (other than a farm building) let or intended to be let for use as a residence or for commercial use or for any other purpose, including-

(i) the gardens, grounds, godowns, garages and out-houses, if any, appurtenant to such building or part,

(ii) any furniture supplied by the landlord for use in such building or part,

(iii) any fittings affixed to, and amenities provided in, such building or part for the more beneficial enjoyment thereof, and

(iv) any land appurtenant to and let with any such building or part, but does not include a room or other accommodation in a hotel, dharamshala, inn, sarai, lodging house, boarding house or hotels;

Explanation: In absence of a contract to the contrary, the top of the roof shall not form part of the premises let out to a tenant."

The exclusion of premises or other accommodation in the hotel would not apply in the present case because the tenancy although was orally created in favour of M/s. Delux Rest House, and the said firm was only arrayed as party defendant in the suit in the name of Firm Delux Rest House but the room (suit premises) was in the building near the said Rest House and the same was not given for the business purposes and was given for residential purpose of the owner of the Rest House only. The defendant No. 1/tenant, however, sublet the same to the defendant No. 2, Suresh Kumar Sharma, an Advocate, which was a fact well proved and established by the plaintiff giving rise to the ground of eviction.

Both the courts below have concurrently found that the factum of subletting has been established by the plaintiff/landlord, which calls for no interference by this Court as there is no contra material available on record to take a different view. So far as the other ground of second default in payment of rent is concerned, in view of first substantial question of law, answered in favour of the landlord, the second question of law need not be answered since even one of the ground established under Section 13 of the Act of 1950, can be upheld and decree on that basis can be sustained.

Accordingly and in view of above, the substantial question of law framed above is answered in favour of plaintiff/landlord/respondent No. 1 and against the appellant/tenant, and it is held that since the suit premises i.e. the room situated in a separate building other than the Rest House, was not the part of the hotel/Rest House of the defendant, therefore, the eviction decree granted by the courts below on the ground of subletting to the defendant No. 2, Suresh Kumar Sharma, Advocate is liable to be upheld, the same is, accordingly, upheld.

Consequently, the present second appeal filed by the appellant/defendant/tenant is dismissed with costs of Rs. 5000/- to be paid by the defendant to the plaintiff within three months from today.

The appellant/defendant/tenant including the subtenant, shall hand over the peaceful and vacant possession of the suit premises to the plaintiff/landlord/respondent No. 1 within a period of six months from today i.e. on or before 08.03.2016 and shall pay mesne profit @ Rs. 5,000/- per month commencing from October, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiff/respondent No. 1, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff/respondent No. 1, within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or house any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the plaintiff/respondent No. 1/landlord on or before 08.03.2016 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff/respondent No. 1 shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.