Pritam Lal vs Chan Ram and Others

A.P. Singh, J.—This Second Appeal has been filed by the Defendant u/s 100 of the CPC questioning the legality of the judgment and decree passed by the IVth Additional District Judge, Nainital in Civil Appeal No. 30 of 1984.

When the appeal was admitted by this court, following substantial question of law was formulated:

Whether the Defendant-Appellant is tenant or licensee is involved is a question of fact and law.

The facts of the case, in brief, are that the Appellant was allowed to occupy flat No. 2 in ground floor of Santosh Bhavan Hotel Building in the town of Nainital from 15.12.1971 for a period upto approximately 1973 after having executed Visitors'' Contract Form'', which is filed as paper No. 60-C, payment of Rs. 1,000 and Rs. 83 per month under the rules and regulations incorporated on the back of the said form. It was alleged in the plaint filed by Plaintiff Respondent that the Defendant had agreed to pay Rs. 1,800 towards lodging charges from 1979 onwards however he did not give anything. in writing towards payment of the enhanced rate of charges for the flat in his occupation though he continued to give assurances in that regard. It was further alleged that flat No. 2 was a part of ''Santosh Bhavan Hotel Building'' which was a lodging house and to which the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972)(hereinafter referred to in this judgment as ''the Act'') are not applicable. Since the stay of Defendant was not found to be in the interest of ''Santosh Bhavan Hotel Building'', hence his stay in it was terminated by the Plaintiff vide registered letter dated 4.5.1981 calling upon the Defendant to vacate flat No. 2 and to hand over possession to the Plaintiff within one month from the date of the receipt of the notice. The Defendant however failed to vacate flat No. 2 and also did not pay the lodging charges and damages for his over stay in the flat. It was, inter alia, on these allegations that the suit was filed seeking eviction of the Appellant from flat No. 2, which is subject-matter of the suit and also for payment of charges and damages etc.

The Defendant denied that flat No. 2 was a part of a lodging house or a hotel. It was further alleged that the same was not being used for a long time as lodging house, but was being let out to tenants, who were living permanently in different flats of the said hotel. He further alleged that he was in exclusive possession of flat No. 2 and the Plaintiff-landlord had no control on his possession over the flat. It was further asserted that he was having his own furnitures, fixtures, telephone connection, as well as electric and gas connections in the said flat. Various other pleas were also raised.

The question which arises in the case but had not been framed by the court in this appeal at the time of admission of the appeal--whether flat No. 2 is a lodging house or a simple tenement which is governed by the provisions of the Act. The question which has been framed as substantial question of law, with profound respect to the learned Judge, is not the question which need be answered in this appeal. Sole question relevant for the case is whether the Appellant is or is not a tenant of flat No. 2 which is in his occupation. If the answer to the question is in the affirmative the suit must fail; if the question is answered in the negative, the suit must succeed.

The trial court, however, considered the case primarily on the question as to whether status of the Defendant-Appellant was that of a licensee or of a lessee. After analysing the evidence on the record of the suit including accounts books, fixtures and fittings put up in the flat No. 2, it came to the conclusion that the Defendant was not a licensee but a lessee of flat No. 2. It accordingly dismissed the suit holding that the provisions of the Act were clearly attracted and no suit for the eviction of the Appellant was maintainable. The question which was considered and answered by the trial court in the suit could arise in a case u/s 2A and not in a case which is covered by Section 3(a) of the Act.

Feeling aggrieved by the dismissal of his suit the Respondent filed appeal u/s 96 of the Code of Civil Procedure. The IVth Addl. District Judge who heard and decided the appeal, on considering the matter in the light of the provisions of Section 3(1)(a) of the Act held that the Defendant-Appellant was not a tenant of the flat within the meaning of the term used in the Act; hence, he was not entitled to those protections, which are provided against eviction of tenants under the provisions of the Act. The lower appellate court accordingly decreed the suit for the eviction of the Appellant and also for payment of arrears of occupation charges and damages for over stay by the Appellant in the flat. This is how this Second Appeal has been filed by the occupant of flat No. 2, who happened to be Defendant in the suit.

It was contended by Sri S. N. Srivastava, learned counsel for the Appellant that it was the duty of the lower appellate court to have decided the appeal in the light of the findings which had been recorded by the trial court for dismissing the suit. According to him, there was a positive finding by the trial court that the Defendant was in the exclusive possession of flat No. 2, insofar as he had installed his own telephone connection as well as electricity and gas connections in the flat and that the Plaintiff-Respondent had absolutely no control in the matter of its possession, whatsoever, inasmuch as, the Plaintiff was not even getting the flat, in question, cleaned or repaired, It was contended by the learned counsel that despite there being a finding to the effect that the building was registered as a lodging house, the Defendant-Appellant was its lessee and not a licensee hence he must be deemed to be tenant of the said flat under the lease granted to the Defendant-Appellant by the Plaintiff. It was further argued by Sri Srivastava that it was the duly of the lower appellate court to have considered the case in the background of the overwhelming evidence of exclusive possession of the Appellant over flat No. 2 so as to hold him a lessee and since the finding which had been recorded in this regard by the trial court has not been set aside, therefore, the judgment and the decree which has been passed by the lower appellate court is vitiated by error of law and the same deserves to be set aside.

It was lastly contended by Sri Srivastava that what has been exempted from the operation of the Act is the occupation of a room in a hotel and not a flat of a hotel and since what had been in the occupation of the Appellant was a flat and not a room, therefore, the Appellant will be deemed to be a tenant under the provisions of the Act and the explanation appended to Clause (a) of Sub-section (1) of Section 3 of the Act will have no application to the Appellant.

The contention, in my opinion, is misconceived. The word ''room not been defined in the Act. In the absence of a definition of the word in the Act. the flat even consisting of two living rooms, as has been stated by the learned counsel, with sanitary and other attached facilities too can be termed as a ''room''. What was given to the Appellant by the Respondent was a flat. Whether the flat was two-room flat or it was one-room flat, the size of the flat will make no difference because the word ''room'' used in the section includes rooms and not only one room. In this connection, it will be relevant to invite reference of Section 13(2) of U.P. General Clauses Act, 1904, which provides that in every U.P. enactment, singular will include plural and vice versa. What is intended by word room in the explanation is not confined to occupation of one room but it includes occupation of any accommodation in a hotel or a lodging house by a tenant occupant which may consist of more than one room. Though in common law such an occupant may, looking to the nature of his occupation of the room or rooms, be a lessee or a tenant but so far as the protection which is provided by the Act to the tenant of building is not extended to occupants or lessees or tenants of rooms in a hotel or in a lodging house. In this background of law even if it is accepted that the Defendant was given more than one room in the flat in his occupation, that will hardly make any difference to the result of the suit. The question, therefore, which is relevant for being decided in the light of the provisions of the Act is whether the flat occupied by the Defendant was hotel or a lodging house or not. If it was a lodging house or a hotel, then the number of rooms, which may have been in Appellant''s occupation, will make no difference.

It is evident from the fact that the form which was filled up by the Appellant in his own handwriting, reveals that he had taken occupation of flat No. 2 on the terms and conditions which are provided on the back of the form. Those terms and conditions are being extracted hereinbelow:

No visitor is allowed to sublet his apartment to anyone else or make additions to the members already declared to the booking form.

The accommodation should be made over to the Manager/proprietor on its vacation, who will ensure the presence of articles equipments and fittings. Damages to them will have to be replaced with new ones or its costs paid by the visitor concerned. Change of furniture from one place to the other Is strictly prohibited.

Advance money received in regard to any settlement is not refundable under any circumstances.

Deleted.

Use of Are of any kind in the room is strictly prohibited.

The booking of accommodation is subject to a definite period for which full amount is payable cash in advance. Extension is subject to payment of extended period in advance and written formalities at least three days prior to the expiry of booked period provided the accommodation is available.

Deleted.

Payment by cheques is not acceptable.

The Manager/proprietor reserves the right of withdrawing the services of the flat of terminating the stay of such person or persons as may not be suitable or desirable to the flat in any way."

Thus, from the conditions attached in the form, which had been filled up by the Appellant at the time of his admission in the flat as an occupant, it is clearly borne out that he was admitted as an occupant of a hotel on the aforementioned terms and conditions which go to demonstrate that Appellant''s possession of flat No. 2 was to be a licensee whereas the dominant possession of the flat remained with the hotel owner. Therefore, Appellant''s stand that he had exclusive possession of the flat as a lessee is not borne out from the terms and conditions on which he was admitted to occupy the flat. It may be that subsequent to his occupation of the flat the Appellant made additions in the furniture provided in the flat or replaced his own with that of the hotel and also installed gas, telephone and electricity connections but that by itself will not establish his occupation of the flat as a lessee. For the purposes of determining the nature of occupation as a lessee or as a licensee, what is relevant is the terms and conditions of the contract under which the occupation of a property has been allowed or given by the owner. The status of the occupant cannot, however, be Judged from the belongings he has got in the property in his occupation unless it is established by evidence that after having been admitted as a licensee, he renounced his character.

The question, which therefore, is relevant and fell for being decided in the suit in the background of the pleadings of the parties and the provisions of the Act was whether the flat in question was or was not a lodging house. It was not at all necessary for the courts below to dwell up on the question whether or not the Appellant was its licensee or lessee; because the Act does not make any exception In the matter of providing protection against eviction etc. On that ground. The trial court thus erred in deviating from the main issue and straying on issues which had no bearing with the main issue. Though, the trial court has not correctly decided even this issue relating to Appellant''s legal status in relation to the flat in dispute in respect whereof some discussion has been made in the earlier part of this judgment but as has already been observed hereinabove, there was no need to decide the issue in this case. At the cost of repetition, I must emphasise that the view of the explanation which is appended to Section 3(1)(a) of the Act, any person occupying a flat, a room or any oilier accommodation in a hotel or lodging house will not be entitled to seek protection against his eviction etc., from the flat, room or rooms etc., of the hotel or lodging house under the provisions of the Act which are extended only to tenants as per the definition of the word which has been given in the Act.

It was then contended by Sri S. N. Srivastava, learned counsel for the Appellant that since a lodging house or hotel building is not exempted from the applicability of the Act in Section 2 thereof, therefore, irrespective of the fact that the building in question has been registered as a lodging house or hotel, the nature of occupation of the flat in the hotel, etc., will be a decisive factor for the purpose of determining applicability of the provisions of the Act and not mere fact that the flat was part of building which was registered as a hotel or as a lodging house. I find no merit in this contention of the learned counsel either.

The Act had been enacted for the interest of general public so as to regulate, letting, payment of rent and eviction of tenants from certain classes of buildings, which were situated in urban areas, and matters connected therewith. By Section 1, the area of operation of the Act is entire State of Uttar Pradesh, but it has been applied to cities as defined in U.P. Nagar Mahapalika Adhiniyam, 1959, Municipal Boards, notified area Committees and town areas. It also reserves power with the State Government to exclude applicability of the Act from certain cities, Municipal Boards, Notified Area Committee or Town Areas by issuing Gazette Notification in that respect.

Section 2 is the exemption clause. From sub-clauses (a) to (f) of Clause (1) of Section 2 and in Sub-section (2) various buildings have been exempted from the operation of the Act. It is true that lodging house or a hotel or Dharamsala are not the types of buildings which are mentioned in sub-clauses (a) to (f) of Clause (1) in Sub-section (2). But will produce no problem. Exemption of buildings from applicability of the provision of the Act can be provided in one or the other way; making mention of exempted building in Section 2 is one way whereas the other way is demonstrated by Sections 2A and 3(a) coupled with its explanation on which Plaintiff bases his case.

u/s 2A special provision for short term licence is provided which empowers the owner or occupier of a building to grant short term licence to a tenant for occupying the building for purposes of temporary residence for a period not exceeding three months without any order of allotment u/s 16 provided that intimation of grant pi such licence is sent to the District Magistrate within one month from the date of occupation of the building or part by the licensee. Such a licence is also liable to be extended with the permission of the District Magistrate. The person occupying any building or part of it in the manner stated hereinabove too to not entitled to the protection provided to tenants u/s 20 of the Act, though he may have been admitted as a tenant on basis of licence so granted by the owner or licenser.

It appears the trial court proceeded to dwell upon the issue of Appellant being a licensee or a lessee in the light of this provision though this provision (Section 2A) is not at all attracted to a hotel or a lodging house.

Section 2B is not relevant as it provides for constitution of Rent Control Tribunal.

Section 3 of the Act, on which reliance has been placed by the learned counsel for the Respondents, insofar as it is relevant for the purposes of the present case, reads as follows:

....

(a) ''tenant'' in relation to a building, means a person by whom its rent is payable and on the tenants'' death:

(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;

(2) In the case of a non-residential building, his heirs.

Explanation.--An occupant of a room in a hotel or lodging house shall not be deemed to be a tenant.

The extracted portion of Section 3 defines the word ''tenant''. According to the definition which has been given in Clause (a) of Clause (1) of Section (3) the word ''tenant'' means a person by whom its rent is payable and on his death in the case of a residential building, such only of his heirs who normally resided with him in the building at the time of his death, and, in case of a non-residential buildings all his heirs.

By the Explanation, which had been added by U.P. Act No. 28 of 1976, it has been provided that an occupant of a room in a hotel or of a lodging house shall not be deemed to be a tenant.

Therefore, whether the stay of an occupant of a hotel or of a lodging house is for a temporary period or on permanent basis that question is not at all relevant. What is relevant is whether the building is a hotel or a lodging house or it is not a hotel or a lodging house.

Section 20 of the Act bars filing of suit for eviction of a tenant, except on grounds which have been specified in Clause (2) thereof. Therefore, the bar which has been created by Section 20(1) of the Act is confined to the filing of suit for eviction against a person who is recognised as a tenant under the Act and not against a person who though is not a tenant under the Act but is otherwise a tenant under the common law by virtue of being a lessee. If occupant of a building either as licensee or lessee, is not a tenant for the purpose of the Act then the bar created by Section 20 will not, at all be attracted in respect of such an occupant, notwithstanding the legal status of that occupant in relation to the building in question. Similarly it is also immaterial for the purposes of Section 3 of the Act that the building registered as a lodging house or as a hotel is not the type of building which have been excepted from the scope and ambit of the Act by virtue of mention in sub-clauses (a) to (f) of Section 2(1) or in Section 2(2) of the Act.

The question whether the building in Appellant''s occupation is a lodging house or not, has not been matter of controversy before the courts below. The trial court as well as the first appellate court have concurrently held that Santosh Bhavan Hotel Building, which is called Santosh Hotel, in Balrampur Compound, Nainital is registered since 1967 as lodging house. It is wholly irrelevant that subsequently the Appellant took steps to get that licence cancelled but at the time of his entry as occupant of flat No. 2 the Appellant had been admitted as occupant of the lodging house and also at the time when the suit was filed, it remained a lodging house. Thus, the circumstances referred to above, clearly take out the building in question from the rigours of Section 20 of the Act and the bar imposed against filing of suit for eviction by Section 20(1) of the Act is not attracted to protect the Appellant from his eviction from the flat in question. Voluminous evidence which was tendered by the Appellant before the trial court to demonstrate that the building had never been used as a hotel or as a lodging house, and had been let out to permanent occupants, who have been living in various flats of the hotel for years together is also of no value in the light of the provisions of the Act. It is not at all relevant to find out as to what use the hotel had been put for any number of years. What is relevant is whether the building is or is not a lodging house. Once it is proved that the building is lodging house, other question whether it is being used as lodging house or Is not so being used, is at all not relevant for deciding the case. Trial court, in my opinion, deviated from the real issue and astrayed on irrelevant issues which did not arise to be decided in the suit. It was, therefore, not required for the lower appellate court to have set aside irrelevant findings which were recorded by the trial court as a surplusage and to have weighed the evidence tendered in that respect by the Appellant. I, however, do not agree with the contention made in this respect by the learned counsel for the Appellant. The first appellate court has examined the question relating to the legal character of the Appellant in relation to the building in his occupation. After referring to the evidence and the findings recorded by the trial court, it formed the view that Appellant was not a licensee. For arriving on this conclusion, reliance was placed by the first appellate court on the contract paper executed by the Appellant at the time of his occupation. The view taken by the first appellate court is in consonance of my view.

Once it was established from evidence that the building in Appellant''s occupation was registered as lodging house in the year 1967 and it remained so till the date of the filing of the suit by the Respondent there should be no doubt left that the bar imposed by Section 20 of the Act against filing of suit for eviction of tenants will not be applicable to a lessee or tenant of a hotel or a lodging house. The first appellate court in my opinion, was perfectly Justified in decreeing Respondent''s suit.

The appeal has no merit, which is accordingly dismissed with costs.