Taramal vs Laxman Sewak Surey and others

A.P. Sen, J.

This appeal by the Defendant, is directed against a decree of the IVth Additional District Judge, Jabalpur, dated 24th March 1967, affirming the judgment and decree of the 1st Civil Judge, Class II, Jabalpur, dated l9th November)1906.

The facts leading to this appeal, briefly stated, are these. The Plaintiffs initiated this action for eviction of the Defendant from the 2nd front rooms, at 1131, Napler Town, Jabalpur, which were let out to him for business purposes, on the ground that they now require the same for locating a lawyer''s office for Kumari Parmeshwari Surey, who is a member of their family and a practising advocate of this Court. The Plaintiffs have admittedly their residential house in the same compound where the suit premises are situated, but it is far removed from the road being somewhat in the interior and it is not suitable for locating an office. The suit premises are detached from the residential house of the Plaintiffs. Apart from denying that the alleged need is a genuine requirement, the Defendant asserts that the need is a residential need. On these facts, the Courts below have upheld the Plaintiff''s claim and granted to them a decree for ejectment.

Before dealing with this appeal, it is necessary to set out a few more facts. The finding that the Plaintiff''s requirement is a felt need and. therefore, a genuine requirement was not challenged before me nor has the correctness of the conclusion that there is no suitable place in their residential house for locating an office, been questioned. At the trial, the Defendant crossexamined Kumari Parmeshwari Surey (P. W 3) for the purpose of showing that Offices of some other lawyers were located in their residential house with a view to establish that a lawyer''s chamber is, invariably, a part of his residence and, therefore, the Plaintiffs need cannot be non-residential. That line of attack has not been pursued in this appeal. In dealing with this aspect, the Court below has rightly observed:

In my view an office of an advocate could come under both the categories of residential as well as non-residential accommodations under which broad heads of the M. P. Accommodation Control Act, 1961, have divided the accommodations to which it applies. In case the office is detached from the residential house of an advocate, or is far removed, I fail to see how it could be called a residential accommodation. Non-residential accommodation has not been defined in the Act, and all that is understood by the term "non- residential accommodations" as used in the M. P. Accommodation Control Act is that all those accommodations that are not residential in nature would be non-residential An office of a lawyer taken by itself could not be one for a dwelling purpose and, therefore, I am of the view that such an accommodation taken by itself would not be called a residential one.

The main point urged before me is one of principle, i. e. whether the word "business" in Section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961, includes the practice of a profession. It is contended by the Appellant that the word ''business'' connotes a trading or commercial activity and, therefore, Clause (f) has no application where the landlord is carrying on a profession or needs the premises for a member of his family for a like purpose. The contention is devoid of substance and cannot be accepted for reasons I shall presently state.

The construction suggested does violence to the plain language of the section. The word "business" has many shades of meaning. It seems to me that the word in this section is one which ought not to receive a narrow construction. If the word were to be interpreted in a restricted sense, that would deprive a certain class, i. e. persons following a learned profession or practising a liberal art, of the benefit of the section. Thus, a lawyer would not have the beneficial use of his own property for establishing his advocate''s chamber; a doctor his consulting room, dispensary or nursing home; and engineer, architect or chartered accountant, his consultation room; and artist, his studio for exhibition of painting, sculpture or other works of art, etc., etc. that could not be the legislative intent.

In The State of Bombay and Others Vs. The Hospital Mazdoor Sabha and Others, the construction of Section 2(j) of the Industrial Disputes Act came into question. That section defines "industry" to mean "any business, trade, undertaking, manufacture or calling of employers, and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen". Their Lordships examined the meaning of the expression ''business or trade''. They referred to the secondary meaning of the expression "trade" as "any business carried on with a view to profit", whether manual or mercantile, as distinguished from the "liberal arts or learned professions and from agriculture", while "business" is a wider term and means "practically anything which is an occupation as distinguished from a pleasure". They had to consider what meaning had to be ascribed by the various expressions found in the definition by reason of their juxtaposition in the particular provision. They observed thus:

The argument is that certain essential features or attributes are invariably associated with the words ''business and trade'' as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition, though their normal import may be much wider. We are not impressed by this argument.... It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.

There is certainly a fundamental difference between a profession and a trade or business. It is normally understood that trade or business is carried on with a profit motive. But when we come to the question of a profession or calling or an occupation, though they are carried on for the purpose of earning a livelihood, it would certainly be far from correct to say that a profit motive underlies the carrying on of these activities. There is a distinction between the carrying on of a profession on the one hand and the carrying on of a trade or business on the other.

The word "business" in Section 12(1)(f) is used in the wider sense and it is not there synonymous with trade or commerce. The Legislature has not associated the wider word "business" with words of narrower significance like "trade" or "commerce". The word "business" cannot, therefore, be given the narrower or secondary meaning of a trading and commercial activity. The word "business" is a wider term than "trade", and means "practically anything which is an occupation as distinguished from a pleasure" any thing "which requires attention is business", per Lindley, L. J. in Rolls v. Miller.(1884) 27 Ch D 71, C A, at p. 88 It is plain, in my view, that the word "business" in Section 12(1)(f) wide enough to include any profession.

In Re Villiama'' Will Trusts, Chartered Bank of India, Australia and China and Anr. v. Villiama and others, (1953) 1 All E R 536 Danckwerts J., in repelling a similar contention, observed:

I turn to the meaning of the word "business", and it seems to me that it is plain, on the meanings found attributed to the word in the dictionaries and in the authorities, that "business" is capable of including the practice of a profession. The Oxford Dictionary gives, among others, this meaning:

Habitual occupation; profession; trade". That plainly includes the profession of a doctor. In Smith v. Anderson, decided in 1880, a case which, on its facts, has nothing to do with the present, Sir George Jessel, M, R 15 Ch. D 258, 259, refers with approval to various meanings which be finds of the word "business" in Johason''s Dictionary and in the Imperial Dictionary. In the latter dictionary he refers to the definition "Business, employment; that which occupies-the time and attention and labour of men for the purpose of profit or improvement". Sir George Jessel, M.R., goes on to say:

That is to say, anything which occupies the time and attention and labour of a man for the purpose of profit is business. It is a word of extensive use and indefinite signification.

Quoting again from the Imperial Dictionary, he says (ibid):

''Business is a particular occupation, as agriculture, trade, mechanics, art, or profession, and when used in connection with particular employments it admits of the plural, that is, business''. Therefore, the Legislature (in the relevant Act) could not well have used a larger word.

In Manchester Corporation v. Buttle 27 Ch. D. 88 Eve J., was concerned with a Water Act. Under the Manchester Corporation Water-works and Improvement Act, 1869, Section 16, no person is entitled to require, nor is the corporation bound to supply, any dwelling-house in the borough with water (otherwise than by meter or special agreement) where any part of such dwelling-house is used for any trade or business purposes. In that case it was held that the residence of a dentist where he practised the profession of dentistry was a dwelling-house used in part for business purposes, and, therefore, the corporation was entitled to demand and be paid an annual sum in addition to the ordinary domestic and public water rates charged in respect of dwelling-house not so used, although the water supplied was used for domestic purposes within the meaning of a local Act of 1847. In Rolls v. Miller Lindley L. J., said:

When we look into the dictionaries as to the meaning of the word ''business'', I do not think they throw much light upon it. The word means almost anything which is an occupation, as distinguished from a pleasure-anything which is an occupation or duty which requires attention is a business - I do not think we can get much aid from the dictionary.

The authority in Stuchbery and son v. General Accident, Fire and Life Assurance Corporation, Ltd.,(1949) 1 All E R. 1026 relied upon by the learned Counsel for the Appellant, is distinguishable, on its own facts. There, Lord Greene M. R., held that the carrying on of a solicitor''s business was not carrying on of a "trade or business" within the meaning of Sections 4(1) and 17(1) of the Landlord and Tenant Act, 1927, for purposes of claiming compensation for good-will, at the termination of tenancy. That was a construction forced by the special features of that legislation. It contained a proviso to the following effect:

For the purposes of this section, premises shall not be deemed to be premises used for carrying on thereat a trade or business (a) by reason of their being used for the purpose of carrying on thereat any profession." (p 1031).

The word "business", appearing in that Act, had in the setting and context in which it appeared, a narrow meaning. Accordingly, Lord Greene, states:

I have said that the meaning of the phrase "trade or business" must depend on the particular context in which that exp-ession is found, and, to my mind, if there is anything that the language of this section shows beyond any possibility of question, it is that the Legislature is contemplating a distinct and important difference between a trade or business and a profession........... In a case where the context shows a distinction between a trade or business, on the one hand, and a profession, on the other, I should think it would require a very bold man to say that a solicitor''s practice is to be put into the "trade or business" class and excluded from the professional class. It is quite clear from the context that the Legislature is not contemplating that a particular activity would be in both ......... It appears to me to be very reasonable that the Legislature should have drawn the distinction, which I shall show it has drawn, between professions and trades or business, for the reason that to many minds the conception of a profession excludes altogether the idea of a good-will adherent to premises which will be annexed by the landlord of the premises when the professional man''s tenancy comes to an end.... I have no difficulty in coming to the conclusion that the carrying on of this solicitors'' business is not the carrying on of a trade or business within the meaning of that phrase in this Act of Parliament.

(Underlining here Italicised is mine)

The underlined portions show that the context controlled the meaning of the word ''''business".

I am aware that Menon C. J. and Govind Nair J., in M.P. Sethurama Menon Vs. Thaiparambath Kunhukutty Amma''s daughter, Meenakshi Amma and Others, have taken a somewhat different view but that decision is hardly of any assistance because the language of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, was different. The expression used in that Act was "trade or business". Now, the association of a wider word "business" with the word "trade" of a narrower significance brings into play a different rule of construction. By using the word "business" in section 12(1)(f) in the Madhya Pradesh Act, the Legislature has given to the section a much wider application. That is the view taken by this Court in Tarachand Gupta v. Mst. Annapurna Bai and Ors. 1968 MPLJ 751: S, A. No. 236 of 1966, decided on 13th September 1966, and I would follow that view.

Lastly, the learned Counsel for the Appellant makes an effort to get a remand of the suit by pressing the application for amendment which has been rejected by the Court below. Having heard the counsel, I am satisfied that the amendment was rightly disallowed. The protection to a statutory tenant lapses with the passing of a decree and such a person has no right to bring on record new circumstances which were not in existence on the date of passing of the decree. That is a conclusion which is irresistable from the definition of a tenant in Section 2(i) of the Act which excludes a person from the category of a "tenant" against whom any order or decree for eviction has been made. Although, an appeal is in the nature of a continuation of the suit, nevertheless, the statutory tenant cannot urge any new facts which subsequently come into existence. Apart from this, the application cannot be granted as it is vague and lacking in particulars, and besides, it is not necessary for determining the real questions in controversy between the parties. The application cannot also be allowed because it is not bona fide. The effect of allowing the amendment would necessarily necessitate in a remand of the suit which would cause manifest injustice to the Plaintiffs. It must, accordingly, be held that the application was rightly rejected.

The result is that the appeal fails and is dismissed with costs. Hearing fee Rs. 100, if certified.