P.K. Bahri, J.
(1) These two appeals arise from common judgment of an Additional District Judge dated March 31, 1983, by which he accepted the appeals Rca No. 14/73 and Rca No. 22173 and the suit filed by Nityanand, predecessor-in-interest of the appellants in Rsa No. 248173 was dismissed while Suit No. 492/69 filed by Hans Raj predecessor-in-interest of the respondents in Rsa No. 249/73 was decreed. For the purpose of facility I would describe the appellants i.e. successors-in-interest of Nityanand in Rsa No. 248173 as 'landlord' and the successor-in-interest of Hans Raj as 'tenant'.
(2) The question which would arise for decision in these appeals is as to whether there was a tenancy created in favor of the tenant in respect of the shop or a tenancy was created in respect of the business being run in the said shop
(3) The undisputed facts arc that Nityanand was the owner of the shop in question bearing No. 121/71 Sunder Nagar Market, New Delhi and he had given this shop to one Bahadur who was married to a European lady and he had started the business of cosmetics & hair dressing under the name and style of M/s. Andre Hair Dressing and Cosmetic Store in the said shop somewhere in the year 1958. The shop was well-equipped with all modern tools, machinery fittings fixtures furnitures and a telephone and an air-conditioner for running a sophisticated barbar shop. Bahadur had sold the said equipments for running the barbar shop and also the name under which the said shop was being run to Nityanand and Nityanand for about two years had run the barbar shop under the same name and style but not so successfully. At one point of time his brother was looking after the business. Still it appears that the business was being not run smoothly and Nityanand started looking for some person who could run the said business. It appears that at the relevant time the rent of the similar shop in the said market was about Rs. 125 or so per mensem.
(4) Hans Raj was at that time running a barbar shop at the Mall, Simla and ultimately he was given a telegram by Nityanand to find out whether he would be interested in taking over this business in this shop and on September 1961, an agreement was entered into between Nityanand and Hans Raj in which all important terms agreed upon between the arties were entered into and interpretation of the said document is the real issue between the parties. It is also admitted fact that initial agreement was executed for a period of eleven months and after expiry of eleven months every time a similarly worded agreement was executed as is Ex. P1 and latest agreement in this connection was executed on March 23, 1967. which is Ex. P1. In the suit filed by Hans Raj all the terms of this agreement have been reproduced. Both the parties are relying on the terms of this agreement in support of their respective pleas. So, it is necessary to reproduce the said agreement:
'THISDEED Of Agreement is made on this 23rd day of March, 1967, between Nityanand son of Gopi Ram, resident of 10/11, Bengali Mal Market, New Delhi (hereinafter called the 'First Party') of the first part And Hans Raj son of Shri Nathu Ram at present resident of Jangpura, New Delhi (hereinafter called the 'Second Party') of the second part.
WHEREAS the 'First Party' is the owner of the shop at No. 12/171, Sunder Nagar Market, New Delhi and he is running a business of Cosmetics Hair Dressing under the name and style of M/s. Andre Hair Dresser & Cosmetic Stores in the said shop (being run in the ground floor of 12/171 except a portion consisting of one room in possession of Mittal Stores).
And whereas the 'First Party' has fully equipped the said shop with all sorts of modern tools, machinery, fans, air conditioners, fittings, fixtures, furniture and a telephone, etc. (the list of which is given in Schedule A hereto) and has invested more than a sum of Rs. 32,000 in the said business.
And whereas the said shop enjoys a great goodwill and has a flourishing business but the First Party at present being personally unable to run and to manage, the said business is desirous to give on contract the said business and all the tools, machinery, fans, air conditioners, fittings, fixtures and furniture and telephone etc. and the second party has agreed to take on contract the same.
Now this Deed Witnesses As Follows - 1. That in consideration of the Contract money hereinafter reserved and of the covenants on the part of the 'Second Party' hereinafter contained the 'First Party' hereby gives on contract to the 'Second Party' all that business together with all tools, machinery, fans, air conditioners, fittings, furniture, fixtures and a telephone etc. To Hold the same to the Second Party from the 1st day of April, 1967, for a terms of 11 months paying monthly during the said term the contract money of Rs. 500 in advance on or before the 7th day of every calendar month.
2.That Second Party hereby covenants with the First Party as follows:-
(I)That he shall continue to run the business under the existing name and style of M/s. Andre Hair Dresser and Cosmetic Stores.
(II)That he shall not further give the said business and all the articles mentioned in Schedule 'A' to any one else except with the consent in writing by the first Party.
(III)That he shall use and cause to be used the articles with due diligence and care and Would not cause any damage to the same.
(IV)That he shall pay for the staff employed in running the said business.
(V)That he shall permit the First Party or any one authorised by him on his behalf to enter the shop at any reasonable time to satisfy that all the articles are safe and kept and used properly.
(VI)That he shall pay the water charges, electric charges and telephone bills etc. in addition to contract money.
(VII)That he shall make no addition or alteration in the said fittings and the promises etc., without the written consent of the First Party.
(VIII)That premises of the business or any part thereof shall not be used for residential purposes.
(IX)That during the period of, the business and the articles are on agreement with him he shall use the premises of the shop as a licensee but as soon as the agreement of the business and the articles mentioned in Schedule 'A' is determined the Second Party shall have absolutely no right to use the premises and shall hand over the same to the First Party immediately.
3.The First Party hereby covenants with the Second Party as follows:-
(A)That the Second Party paying the contract money, hereby reserved and performing the covenants or the contract herein contained may hold enjoy the business and articles during the said term without any interruption by the First Party (or any other persons whosoever).
(B)That he will at the request and cost of the Second Party at the end of the term of 11 months, hereby granted and so from time to him hereafter at the end of each such successive further term of 11 months as he shall be granted execute to the 'Second Party' a new contract of the business and articles on such covenants and provisions herein contained: Provided always and it is hereby agreed that :-
(I)Whenever any part of the contract money hereby reserved shall be in arrears for 3 months after due date or there shall be a breach of any of the covenants by the Second Party therein contained the First Party may enter and take possession of the business, articles and the premises and determinate the contract.
(II)The contract hereby created shall be determinable at the option of the Second Party by giving to the First Party three months' notice in writing.
(III)On the determination of the contract the Second Party shall hand over the possession of the business premises, restore to the First Party all the articles mentioned in Schedule A in good working condition and if any articles is lost to replace it by in article of the similar quality cost.
(5) That the Second Party shall keep a sum of Rs. 5.000 (Rupees five thousand only) with the First Party as security for the due performance of the terms of the contract and for keeping all the articles mentioned in Schedule A in good and proper condition. If any damage is caused to the said articles (ordinary wear and tear exempted), the First Party shall be entitled to make good the damage from the said amount of of the security. In Witness Whereof the parries hereto have signed this Contract Deed on the day of the year first above written.'
(6) Admittedly Along with each agreement annexure 'A ' was attached which ran into five pages which contain the details of tools, implements, machinery furnishings, fitting etc. provided in the shop for running the barber business under the said name and style and were valued at Rs. 30,421. A joint statement by counsel for the parties was made on October 16, 1968, after the issues were framed to the following effect:
'IF is admitted by the parties that the agreements executed by the parties from 1961 to 1967 contained the same terms arid conditions as in agreement Ex. P1 in File No- 245/68. The articles as contained in Ex. P2 also continued to be mentioned as the same in all the agreements executed from 1961 to 1967 although according to the plaintiff Hans Raj some of the articles were returned to Nityanand in 1967.'
(7) Hans Raj had instituted Suit No. 249/68 seeking a decree for declaration that he has been a tenant in. the said shop and consequential relief of injunction restraining the landlord from dispossessing the plaintiff from the said shop and the other articles except in due course of law. Nityanand had instituted Suit No. 307/68 seeking decree for mandatory injunction for getting possession of the business Along with the said articles and tools and the said shop. Besides these two suits the tenant and the landlord had instituted one suit each more turn seeking injunctions the decisions in those suits no longer survive for decision before this court and I need not refer to the details of those suits. The four suits were consolidated by the trial court and proceedings were recorded in Suit No. 249168 and all the four suits were disposed of by common judgment dated March 31. 1971.
(8) The findings of the first appellate court that tenant has been in exclusive possession of the shop in question is a finding of fact and is not being challenged before me by counsel for the landlord. The. tenant had examined Public Witness 1 an official from the office of the Chief Inspector of Shops to prove that the shop being run under the aforesaid name and style stands registered in the name of the tenant since September. 1963 and he examined PW2 Ujjagar Singh who has been running an air-conditioning business in Sunder Nagar Market since 1959 and he gave evidence regarding the exclusive possession of the shop and in cross-examination he admitted that prior to tenant running the business in the shop the business was being run by Nityanand through bids brother. He has no knowledge about the terms on which the business of the shop had been given to Hans Raj. He admitted that similar barber shop was being run in 1959 in the premises. PW4 is another shopkeeper of that market since 1958 and he also deposed about exclusive possession of Hans Raj of the said shop and in cross-examination he admitted that the barber shop under the said name and style was being run since 1958. He also has no knowledge about the terms on which the business of the shop had been given to Hans Raj. Public Witness 5 has been working as Manager in another shop in Sunder Nagar Market and also deposed about exclusive possession of shop by Hans Raj but was not aware of the terms and conditions of the agreement between the parties. Public Witness 6 Ramesh Chander worked as employees in the shop from 1962 to 1967 and he deposed that air-conditioner was returned but he does not say to whom it was given. He stated that air-conditioner was returned by him and one mechanic and one Faqir Chand. No receipt was taken admittedly for returning any air-conditioner or any other implements to Nityanand by Hans Raj. Public Witness 7 Faqir Chand also deposed about return of air-conditioner had some implements to Nityanand but he also was an employee of Hans Raj and did not give any particular year or date when those things were returned. Public Witness 8 Sat Pal was not examined in respect of the controversy now surviving for decision in these appeals. Public Witness 9 Mahboob Khan deposed about new air-conditioner being installed by Hans Raj in the shop in the year 1961 in place of old air-conditioner of Model 1957. He stated that old air-conditioner was returned to Nityanand but no receipt was taken. Public Witness 10 & Public Witness 11 were officials from the office of the Newspaper 'Statesman' and Times of India to prove the advertisements given by Hans Raj in respect of the business being run in the shop. Public Witness 12 official from Central Licensing Area and Public Witness 13 official from the Mcd were examined to show that Hans Raj had been running the business in this shop.
(9) Public Witness 15 Shanti Swaroop, who is having his business of barber shop in Connaught Place, deposed that at first he was approached by Nityanand for helping him in carrying on hairdressing business in the shop in question and he expressed his inability and at that time the business in the shop has come to a standstill and at his instance Hans Raj, who was already running a barber shop at Simla, was contacted, Public Witness 16 Vishwanath claims to have worked in the shop as employee in 1960 and stated that business was very poor when he worked there for one and a half month. He admitted in cross-examination that shop wa,s well-equipped with up-to-date modern equipments for running the said barber shop. Public Witness 17 Ram Rakha Rai, who is having barber shop in Connaught Place, deposed that he was also contacted by Nityanand for giving the said shop to him at the rent of Rs. 500 but he expressed his inability to run the said shop and at his instance Hans Raj was contacted who came and entered into agreement with Nityanand for getting the said shop. He admitted that in 1960 Nityanand was running the barber shop in the said premises and he had employed servants. PW18 Kartar Chand, who was working in Ashoka Hotel in 1959, deposed about Bahadur having started the barbar shop and having sold the equipment and business to Nityanand in 1959. PW19 Rattan Singh deposed that he was approached by Nityanand for working in his barber shop. Public Witness 19/S. K. Goel (again numbered was Public Witness 19) from Desu proved on record the electricity bills Exs. Public Witness 19/1 to Public Witness 19/6 of the shop in question. The electric connections stand in the name of Nityanand. Hans Raj appeared as Public Witness 20 and deposed that he had taken the shop on rent and he has been in exclusive possession of the shop. He stated that the furniture and fittings were rented out to him Along with the shop and the value of the said fittings, furnitures etc. was assessed at Rs. 30,000 or so. He filed on record his income-tax assessment orders and some receipts Ex. Public Witness 20/2 to Ex. Public Witness 20/6.
(10) In cross-examination he admitted that before he took the shop the business under the same name and style was being carried on but that business had been closed by Nityanand. He admitted that value of each article and tool and equipment lying in the shop was separately assessed and recorded in the list so attached with the agreement and the said list is Ex. D1. He admitted that agreement was to be renewed after eleven months and it has been done so and last agreement was executed on March 23, 1967 and thereafter he never suggested to the landlord that fresh agreement be executed. He admitted that receipts of the amount being paid month to month were being issued and some of the counterfoils of the said receipts are Exs. D2 to D4. He admitted his signatures on Ex. D4. These receipts show that amount was being received from the tenant as charges for contract of business. He stated that he returned certain articles including air-conditioner to the landlord but had not taken any receipt and he never demanded any such receipt.
(11) It is quite clear that the plea taken by the tenant that air-conditioner and certain, articles were returned to the landlord was not proved. There is no reason when landlord was issuing proper receipts to the tenant as to why the tenant should not have taken any writing from the landlord acknowledging the return of the articles and the air-conditioner. The evidence reproduced above led by the tenant did not in fact go to show that the terms which were incorporated in the agreement, copy of which is Ex. Pi were not agreed upon and some other terms have been agreed upon between the parties. It is also not brought out that there was any other intention of the parties regarding the terms on which the shop or the business was given to the tenant. All this oral evidence was not very necessary in order to decide the real issue arising between the parties.
(12) In rebuttal the tenant examined DW1 & DW2 whose testimony was with regard to other suits which no longer survive for decision in these appeals.
(13) Krishna Kumar S/o Nityanand appeared as DW3 Nityanand had died by that time. His testimony is of no help in deciding the real issue because what he says is contained in the agreement entered into between the parties.
(14) It was tried to be urged on behalf of the tenant by Shri A. C. Shubh learned counsel that the equipment and tools meant for running the barber shop were almost in junk when they were given to the tenant. There is no such plea taken at any stage by the tenant that modern equipments tools and articles mentioned in the annexures attached with each agreement were junk when they were given. No importance can be attached to such a contention.
(15) The terms of the agreement and the list of the articles and the attending circumstances which have come out from the records and the statements of the witnesses examined by the tenant make it very clear that well-equipped modem hair dressing barber business was being run in the shop at the time the same was given to the tenant. It is quite clear that tools, machinery and equipments of which details are given in Ex. D1 could be used only for running the barbar shop and not for running any other business in the shop and there were not such fittings and fixtures and furnitures which could be useful for the premises or building.
(16) Sh. Ishwar Sahai, Senior Advocate, appearing for the landlord has vehemently argued that keeping in view the attending circumstances and particulary the terms of the agreement admittedly executed between the parties, the same clearly show that the dominant intention of the parties was to create lease of the business while the user of the shop has been given incidentally for running of the business and it was not the intention to create lease of the shop. He has pointed out that there is nothing to prove that landlord had any upper hand in this contract or the real intention of the parties was to create the lease and by camouflage the lease of the business has been shown in the agreement. He has referred to Exs. D4 to D6 the assessment of house-tax proceedings of the Corporation wherein the Corporation had taken the rateable value of the shop at the rental of Rs. 125 per month and had treated Rs. 375 per month as hire charges of the machinery tools and other equipments given for the purpose of business of running hair-dressing saloon.
(17) He has also argued that costly modern equipment worth Rs. 30,000 or so, was given to the tenant for sole purpose of running the business. He has also pointed out that in the terms of the agreement it has been specifically recited that the landlord, who is owner of the shop has been running a business of cosmetic & hair dressing under the name and style of M/s. Andre Hair-Dresser & Cosmetic Store and the owner had equipped the said shop with all sorts of modern tools, machinery, fans, air-conditioner, fittings, annexures, furniture and a telephone and he was personally unable to run and manage the business and was desirous of giving on contract the said business Along with all those tools and machinery and the contract was made for giving the said business to the tenant on payment of Rs. 500 per month as the charges.
(18) He has pointed out that it was clearly stipulated that tenant shall continue to run the business under the existing name and style of M/s. Andre Hair-Dresser & Cosmetic Store and he was not to give that business and articles to anyone else without written consent and the landlord was permitted to enter he premises at any reasonable time to satisfy that all the articles are being kept safely and are being used properly and that he would use the shop only as a licensee for running the said particular business and on termination of the agreement was to return the business as well as the shop to the landlord.
(19) He has also pointed out that the contract stipulated that on termination of the contract the. tenant was to hand over the possession of the business and also to restore all the articles mentioned in Schedule A in good working condition and if any article was to be lost the same was to be replaced by an article of the similar quality and cost. A sum of Rs. 5,000 was kept as security and for due performance of the terms of the contract and if any damage was to be caused except for ordinary wear and tear the said damage was to be made good from the said security
(20) The learned counsel also referred to definition of 'furniture' appearing in dictionary Law Laxicon by Venkataramiah, 2nd Edition Volume Ii, which indicates that only articles given for decoration or use in a dwelling place are covered by that term. He has urged that the tools and implements which arc meant only for the purpose of running barber shop are not covered by the definition of furniture or furnishing or by their popular meanings.
(21) He has, hence, contended that all these facts do show that dominant intent-on of the parties was to give lease of the business and mere fact that the tenant has been put into exclusive possession of the shop would not lead to any legal inference that any tenancy in the shop was intended to be created. He has argued that the learned Sub-Judge has considered all the aspects of the case and has rightly interpreted the terms of the contract entered into between the parties in coming to the conclusion that dominant intention of the parties was to create tenancy of the business and not of the shop and the learned first appellate court misdirected itself in coming to the contrary conclusion on the ground that some of the terms of the contract made between the parties have some similarity with the usual terms of tenancy in respect of any building.
(22) The learned counsel for the tenant, besides taking certain technical objections to which I will make reference in the latter part of the judgment, on merits, has contended that the interpretation given to the terms of the contract between the parties by the first appellate court is correct and the various terms of the contract show that in fact, tenancy was being created in respect of the shop and the landlord who is always in a dominant position as given a colour of contract of business in the document in order to escape the rigours of the Delhi Rent Control Act.
(23) He has argued that as a matter of fact, Ex. Pi agreement requires to be compulsorily registered and having been not so registered cannot be looked into for any purpose. He has argued that mere fact that certain furnitures, fittings and furnishings. have been given to the tenant docs not in any manner have the effect of showing that the business was intended to be let out and not the shop.
(24) He has pointed out that in fact, there has been included in the recital of the contract a misleading fact that any flourishing business was being carried on while in evidence it has come that the shop was closed when the same was let out to the tenant. He has further argued that even in tenancy the restrictions could be placed for using the demised premises for a particular business and mere fact that tenant has agreed to use the shop for running the barber's business under a particular name and style would not be determinative of the dominant intention of the parties that business was being let out and not the shop.
(25) He has referred to various clauses of the contract where reference to the shop appears at different places and has urged that real intention of the parties was to create a tenancy of the shop. He has also argued that most of the equipments and tools and articles given were of consumable nature and there is no term in the contract which required the landlord to replace those perishable articles at any point of time and this fact alone is sufficient to show that the dominant subject-matter of the contract was the shop and not the business.
(26) He has further argued that there is no clause in the contract that the landlord would have any control over the shop or the business and thus, the same should also indicate that the dominant intention of the parties was to lit out the shop and not the business. He has argued that finding of the first appellate court that only a normal lease of the shop has been made is a finding of fact and the same cannot be interfered with in the second appeal.
(27) He has argued that at the time the contract was made the shop was lying closed. So, there could not be any goodwill of the shop being run under the particular name and style. He has also argued that in fact, there was no machinery installed in the shop and thus, it was a simple contract of lease of shop which came into existence between the parties.
(28) Both the courts below have referred to the principles enunciated by the Supreme Court in the case of Uttamchand Vs . S. M. Lalwani, : AIR1965SC716 . The Supreme Court in this judgment construed the provisions of M. P. Accommodation Control Act (23 of 1955). The said Act also contains almost similarly worded definition of 'building/premises' as is available in the Delhi Rent Control Act. Facts of that case, in brief were that Dal Mill building with fixed machinery in second working order and accessories was leased out on an annual rent. It was stipulated in the lease that the building was to be used only for running the dal mill. The short question which arose for decision before the Supreme Court was as to whether the lease executed between the parties can be said to be the lease of accommodation within the meaning of Section 3 of the said Act. The definition of 'accommodation' meant to include any land, any building, part of the building, including the garden, open land, out-house, and any furniture supplied by the landlord for use in such building or part of building and any fittings fixed to such building or part of building for the more beneficial enjoyment thereof
(29) The Supreme Court held that the question in such like case would be what is the dominant part of the demise and what is the purpose for which the building was constructed and let out. So, the Supreme Court went out to determine the character of lease by posing a question as to what was the dominant intention of the parties in executing the document. The Supreme Court held as follows :
'AS we have already noticed. Section 3(a)(v)(3) takes within the definition of accommodation any building or part of a building including any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. There can be no doubt that the fittings of the machinery in the present case cannot be said to be fittings which had been fixed for the more beneficial enjoyment of the building. The fittings to which Section 3(a)(v)(3) refers are obviously fittings made in the building to afford incidental amenities for the person occupying the building. That being so, it is clear that the filings in question do not fall under Section 3(a)(v)(3). If the fittings in question had attracted the provisions of Section 3(a)(v)(3) there would have been no difficulty in holding that the lease is in respect of accommodation as defined by the said provision.
What then was the dominant intention of the parties when they entered into the present transaction We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be & lease in respect of the Dal Mill building but the said description is not decisive of the matter because even if the invention of the parties was to let out he Mill to the appellant the building would still have to he described as the Dal Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture or the machinery in regard to the Mill in truth, it is the Mill which is the subject-matter of the lease and it was because the Mill was intended to be let out that the building had in veritably to be let out along with the Mill. The fact 'hat the appellant contends that the machinery which was transferred to him under the lease was found to be not very serviceable and that he had to bring in his own machinery would not alter the character of the transaction. This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all, this is a case where the appellant entered into the lease for the purpose of running the Dat Mill which was located in the building. It is obvious that a Mill of this kind will have to be located in some building or another and so: the mere fact that the lease purports to be in respect of the building will not make it a lease in respect: of an accommodation as defined by Section 3(a)(v)(3). The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. 'The fixtures are the primary object which Smt. Vidyawati (Deceased) Through Her Lrs v. Sh. Hans Raj (Deceased) Through his LRS. the lease was intended to cover and the building in which the fixtures are located comes in incidentally. That is why we think the High Court was right in coming to the conclusion that the rent which the appellant had agreed, to pay to the respondent under the document in question cannot be said to be rent payable turn any accommodation to which the Act applies.'
(30) It is quite evident in the present case that the tools, equipments and special type of furniture supplied to the tenant were not for the more beneficial use of the shop but were meant for particular business of barbar as was the case above before the Supreme Court. The learned counsel for the tenant has tried to distinguish this judgment by urging that in the case before the. Supreme Court a fixed machinery stood installed in the building for running Dal Mill and thus, that was the crux of the matter to decide that dominant intention was to lease dal mill and not the building whereas in the present case no such fixed machinery has been installed. I am afraid that the judgment of the Supreme Court cannot be' distinguished on this ground. The question is as to what was the dominant intention of the parties. For determining that question the court has to see whether the business of barbar has been given in lease or the shop has been given in lease. The tools and equipments and the furniture of which details are available in the annexure of the contract between the parties amply show that business of barbar or hair-dressing saloon was being given intense to the tenant and the dominant intention of the parties is so evident from the terms of the contract and the attending circumstances that there was intention to give the business on lease and not the shop on lease.
(31) In S. Raja Chetty & Another Vs . Jagannathadas Govindas & others : AIR1950Mad284 , the provisions of Madras Buildings (Lease and Rent Control) Act came up for consideration. The definition of 'building' in the said Act is also similar to the definition of 'premises' given in the Delhi Rent Control Act. In the said case the contract stipulated all the piece of ground, with the new cinema theatre including the buildings and stall erected thereon and also the fixtures, fittings and cinematographic talkie equipments, machinery, furniture, scenery were given on lease. It was held. that lease of land and building together with fixtures talkie equipments, machinery and other articles is not a lease of a mere building or a building with compound and furniture of the sort covered by the definition of 'building' and thus, it was held that the said lease is not covered by the provisions of the Rent Act. This judgment also squarely applies to the facts of the present case.
(32) In Dwarka Prasad Vs . Dwarka Das Saraf, : [1976]1SCR277 the definition of 'accommodation' as appearing in U.P. (Temporary) Control of Rent and Eviction Act came up for consideration. It was held by the Supreme Court that a lease of accommodation must essentially be of a building and not a business or industry together with the building in which it is situated. It was observed that a building which is ordinarily let be it for residential or non-residential purposes will not be the bare walls floor and roof but will have necessary amenities to make habitation happy and that is why the legislature has fairly included gardens grounds and out-houses if any, appurtenant to such building as part of the building and likewise leases sometimes are of furnished buildings and that is why any furniture supplied by the landlord for use in such building is treated as part of the building. It was emphasized by the Supreme Court that these additions are appurtenant subservient and beneficial to the building itself and they make occupation of the building more convenient and pleasant but the principle thing demised is the building and the additives are auxiliary. Where the lease is composite has a plurality of purposes the decisive test is the dominant purpose of the demise and under the Act the protected category of accommodation is residential and non-residential building and not business houses. In the said case a lease of a lucrative theatre with expensive cinema equipment was created and it was held that lease did not 'fall within the scope of the definition of 'accommodation' under the said Act. The Supreme Court reiterated the ratio of the decision given in Uttam Chand's case (supra).
(33) In the present case also the furniture and fittings and the tools and implements which have been given Along with the shop were not meant for the more beneficial use of the shop but were meant exclusively for running of the hair-dressing saloon. So it cannot be said that the lease of the building has been created in the present case. The dominant intention of parties is to be found out from the terms of the lease. Keeping in view all these facts in my opinion there could not be any other interpretation of the terms of the contract entered into between the parties that the dominant intention was to create a lease of the business and not lease of the building.
(34) A Full Bench of the Punjab & Haryana High Court in the case of Dalip Single v. Bhagwan Bai (deceased) 1989(2) Rcr 383 considered the similar provisions of East Punjab Urban Rent Restriction Act 1949 and held that in case a running flour business is let out Along with the building the dominant intention was to let out the flour mill business and not the building.
(35) Counsel for the tenant has also made reference to certain judgments which are in my opinion not of any help in showing that in the present case lease of the shop was created and not the lease of the business. The first judgment referred by him in is Sherif Dadumipaji v. Emperor Air 1930 Bom 165 which only construed the particular document to see whether lease is created or a license has been given and one of the important characteristics to show that a lease is created is giving of exclusive possession of the building. There is no dispute about this principle of law.
(36) He has referred to Associated Hotels of India Ltd. Vs . R. N. Kapoor : [1960]1SCR368 where a question which arose for consideration was whether a room in hotel had been given or a space in hotel has been let out for carrying on business of- hair-dressing. I do not understand how this judgment can be of any help in deciding as to what the dominant intention of the parties in the present case is ?
(37) In Eswari Amma & Another Vs . M. K. Korah & Others : AIR1972Mad339 again The question was whether a lease has been created or not in respect of a particular building. It was held that what constituted a lease is transfer of a right to enjoy immovable property. Section 105 of the Transfer of Property Act is very clear on this point. The question in the present case is whether lease of the business has been created or lease of shop has been created and this judgment does not help in deciding that issue.
(38) The learned counsel made reference to Ram Pukar Singh & others Vs . Sita Ram Mahton & others : AIR1973Pat310 . Shridhar Atmaram Ghadav Vs . The Corporation of the City of Nagpur : AIR1971Bom273 . Bal Mukand Vs . Joint Hindu Family Firm known as Munna Lal Ramji Lal & others, . Shyamsunder Prasad Gupta & others Vs . Darbhangi Rai & others, : AIR1960Pat420 and Kanshi Ram & Others Vs . Kesho Ram Bahna & Others, and Shriparapu Ramanna v. Mallikarjuna Prasada Nayudu, 1894 Mad 43 in support of his contention that finding of fact arrived at by the first appellate court cannot be interfered with in second appeal. He has also cited Raj Ram v. Ganesh Hari Karkhanis 1897 2nd Bom 91 which lays down that finding which was a mixed one of law and fact was a finding with which the High Court could not interfere- in the second appeal.
(39) All these judgments are not applicable as in the present case the finding of the two courts below is purely a question of law and not a mixed Question of fact and law. However in Sir Chunilal V. Mehta & Sons v. Century Spinning & . : AIR1962SC1314 it has been laid down that it is well settled that the construction of a document of title or of a document which is the foundation of the rights of the parties necessarily raised a question of law. In the present case the two courts below were concerned with the interpretation of the written contract entered into between the parties which is the foundation of the rights of the parties and thus interpretation of such a fundamental document is a question of law. Hence in second appeal the High Court can examine such a question of law.
(40) The learned first appellate court was very much influenced by factually wrong recital given in the agreements that a flourishing business was being carried on in the shop. The dominant intention of the parties is to be culled out from reading of whole of the document and all offending circumstances. Mere fact that at the time the business was let out to the tenant the business was not so flourishing and landlord was not able to run the business properly would not be the sole criterion for deciding whether dominant intention was to give the business on rent or give the shop on rent.
(41) It was not necessary that the landlord should have kept any control over the business which was being let out. After all letting out of the business means that the tenant would run the business in the manner he would like to run without there being any interference from the landlord. The contention that there was no stipulation that landlord would replace consumable tools and equipments meaning thereby that business was not being let out is also devoid of any merit inasmuch as the nature of the equipments and the tools given for running the business is such that they were not items which could be consumed and become unusable in any short duration. The agreement was renewed after every eleven months and list of articles was attached with every agreement. It was not the case pleaded by the tenant that at any time less items were given or the items were not in good condition when they were given each time the agreement was renewed. The items which have been given for running the business in the shop inter alias include one neon sign board, almirahs, safe, cushioned chairs, carpet, show-cases, telephone connection, cabins, gents chairs for hair cutting, ladies chairs for hair cutting, trolleys with glass tops, glass stands, mirrors, fans, hair clippers, scent, sprayers, razor sharpner, scissors etc. in addition to one air- conditioner.
(42) For determining the dominant intention of the parties the aforesaid articles and equipments and tools given for running the business and the fact that the business in a particular name and style was to be run by the tenant and Rs. 500 was fixed for running the business and the said amount could not be spilt up as some portion as rent for the shop and some portion as hire charges for the articles cumulatively go to show that parties intended to let out the business and not the shop.
(43) Assuming for the sake of arguments that the document in question was required to be registered compulsorily even then proviso to Section 49 of the Indian Registration Act makes such a document which is not registered admissible in evidence for knowing the nature and character of the possession. So, the document terms of which are being even verbatim quoted by the tenant in his plaint could be looked into to see as to What sort of possession was being given to the tenant. So, examining the evidence and the terms of the document in question and the attending circumstances an irresistible conclusion can be reached that the dominant intention of the parties was to create a lease of the business and not the lease of the shop and the first appellate court went wrong in upsetting the well considered judgment of the first court in this connection and thus the judgment of the first appellate court is liable to be reversed.
(44) The learned counsel for the tenant has then contended that proper issues in the suit were not framed and thus tenant could not lead proper evidence to show that in fact, lease of the shop was created and not lease of the business. The two important issues framed in the suits were as follows:
1. Whether the relationship of landlord and tenant exists between the parties in respect of the shop and the furniture as alleged ?
2.Whether the defendant is a licensee in respect of the shop and furniture etc. as alleged by the plaintiff 7
(45) It is quite clear that if the dominant intention of the parties was to create a lease of the shop the issue No. 1 quoted above would have been decided in favor of the tenant. So, in rebuttal to this issue the case of the landlord was that in fact lease of the business has been made between the parties. So, it cannot be said that the tenant was misled by frame of the issues. The parties knew as to what case they have set up in the pleadings and what case they have to prove by leading evidence. So, even if there was any error or defect in the frame of the issue that has not caused any prejudice to the case of the tenant.
(46) It was then contended by learned counsel for the tenant that no substantial question of law has been framed by the court while admitting the appeal and thus the appeal could not be deemed to have been admitted for hearing. Counsel for the tenant forgets that these appeals were filed before the Code of Civil Procedure was amended in 1976 and there was no requirement in Section 100 of the Old Code of Civil Procedure for framing any question of law before admitting the appeal to hearing. The first order made in these appeals is of 'Notice'. It had been the practice of this court before the amendment of the Code of Civil Procedure in 1976 lo entertain and admit the appeal by using the said one word ''Notice', So, it cannot be said that appeal has not been admitted in accordance with law for regular hearing.
(47) The learned counsel forthe tenant has drawn my attention to the subsequent events showing that the tenant had filed a petition seeking fixation of standard rent and the. same. was dismissed by Shri M. A. Khan, Additional Rent Controller holding that petition for fixation of standard rent was hopelessly barred by limitation. He has argued that finding of the Additional Rent Controller in the said case that the provisions of the Delhi Rent Control Act were applicable operate as rest judicata. The argument is totally fallacious. These appeals were pending in this court when the tenant moved a petition for fixation of standard rent. The landlord had taken the plea before the Controller that the provisions of the Delhi Rent Control Act were nut applicable as no lease of the shop was created. The Rent Controller had dismissed the petition of the tenant holding the same to be time barred. It does not mean that any finding given adverse to the landlord on the point of applicability of the provisions of Delhi Rent Control Act would operate as ren judicata against the landlord because landlord had no right to file any appeal in challenging the said adverse finding. Even under Section 50 of the Delhi Rent Control Act the finding of the Controller is not final but is subject to the decision of the civil court on the question of existence of relationship of landlord tenant in respect of the building. In the case of Richpal Singh & Others v. Dalip 1987(2) RCR 351 the Supreme Court considered the provisions of Punjab Tenancy Act, 1887 and particularly Section 77 and held that decision of the revenue authorities on the question of existence of relationship of landlord tenant does not operate as rest judicata and as such finding is subject to the decision of the civil court. So, it cannot be said that the judgment given by the Additional Rent Controller operates as rest judicata on the issue arising for decision in this court in these two appeals.
(48) It was also contended that the landlord Is estopped from saying that there is no tenancy of the building when he had enjoyed the benefit of judgment of the Controller. The contention is not understandable at all. The landlord never succumbed to the jurisdiction of the Controller and he is not bound by any adverse finding given by the Controller because he had no right to file an appeal against such adverse finding.
(49) During the course of hearing the tenant had moved an application for praying that landlord be required to file in this case the lists of the annexures of all the agreements entered into between the parties. Counsel for the tenant has urged that if those lists are produced they may show that some less articles or tools or equipments were given at one particular time or some more articles were given. I do not 'understand the purpose for which this application has been given. It is admitted case even in the plaint filed by the tenant that the tools, articles, machines and equipments as mentioned in the annexure to the agreement were given and I do not see any reason why any direction should be given at this stage for calling upon the landlord to produce any such lists. The case can be effectively decided by this court by interpreting the terms of the contract. So, there is no need to have any additional guidance for deciding the main question arising between the parties.
(50) The learned counsel for the tenant then drew my attention to the provisions of Order Vi Rule 14-A of the Code of Civil Procedure which require that in case new address of the party is not furnished then the proceedings can be stayed. He has pointed out that appellant No. 4 who has since married has not furnished the present address. I do not think that such proceedings are liable to be stayed when interests of appellant No. 4 are common with the interests of all other appellants and appellant No. 4 is represented by the same counsel who is appearing for all other appellants. So, there is no question of staying the decision of the appeal till fresh address is furnished in respect of appellant No. 4. Counsel for the tenant has not explained as to what prejudice could be deemed to have been caused to the tenant on the omission of appellant No. 4 to furnish the fresh address.
(51) Lastly, it has been contended by the learned counsel for the tenant that appellant No. 5 had' become major since long and no application had been given by appellant No. 5 to pursue this case. An application C.M. 256/93 has been given by appellant No. 5 and she has elected to continue with the appeals. Her mother was the guardian who had died long ago. Appellant No. 5 has also filed an affidavit Along with her application in this connection and also filed a fresh power of attorney in the favor of the counsel.
(52) The contention of the learned counsel for the tenant is that appellant No. 5 has become major long back and if she was to file the appeal after becoming major the same would have been time barred and thus as she had not elected to continue with the appeal within the limitation of 60 days which was the period for filing the appeal the whole appeal should be dismissed. There is no merit in this contention. Order XXXII Rule 12 of the Code of Civil Procedure which requires the minor plaintiff to make the election does not at all provide that if no such election is made by minor on attaining the majority the suit is to be dismissed. In Ishar Singh v. Bakshish Singh & Others Air 1929 Lah 555 simile question arose for decision. In the said case during the pendency of the appeal on behalf of a minor it was discovered that the minor had attained the majority after the institution of the appeal and the court instead of calling upon the quondam minor to elect whether he intended to proceed with the appeal or not dismissed it for want of prosecution. The High Court held that the court should not have dismissed the appeal and should have given notice to the minor to find out whether minor who had become major was interested in prosecuting the appeal or not.
(53) In Hazari & another v. Suresh & Others : AIR1979All242 the facts were that two brothers one of whom was minor instituted a suit. The elder brother was the minor's guardian. The minor attained the age of majority during pendency of the suit but thereafter he neither elected to continue the suit nor to a.bandon it. It was held by the High Court that the interest of the two brothers being common the suit could proceed even if the younger brother on attaining majority had not come forward to continue with the suit. However, in the present case that situation has not arisen because appellant No. 5 has now elected to continue with the appeal and there is no limitation prescribed by the statute that how long after attaining the majority the election could be made by the party for continuing the proceedings. There is no limitation prescribed by the statute in this connection. The said provision also come up for consideration before Kerala High Court in Lakshmi v. Padmanabhan Nadar 1967 Kit 490. It was held that under the law the minor must be informed of the pendency of the suit and in absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So; before any adverse order is to be made against the minor who has attained majority the court is liable to give notice which in the present case is not necessary because appellant No. 5 has now come forward to give her consent for continuing the appeal on her behalf as well.
(54) The provisions of Order XXXII Rule 12 of the Code of Civil Procedure also came up for consideration before a Division Bench of Gujarat High Court in Dharamshi Polahai v. Champaklal Vashram & others : AIR1983Guj217 . It was held that merely because the minor plaintiff having become major does not exercise his option under Order XXXII Rule 12 of the Code of Civil Procedure ons way or the other during the pendency of the suit it cannot be said that thereby any irregularity defect or error of the type which affects the merits of the case or jurisdiction of the court gets projected in the proceedings. In the said case the suit had been decreed and still it was held that the decree is not vitiated with the minor plaintiff after becoming major having not exercised the option given under Order XXXII Rule 12 of the Code of Civil Procedure. In the present case before even decision of these appeals the minor who has become major has exercise the option. So, there remains no legal bar in deciding the appeals on merits.
(55) Counsel for the tenant has referred to R. Sami Naidu v. Katha Goundan & Another Air 1940 Mad 522. This judgment is not applicable to the facts of the present case at all. Here the provisions of Order Xxii of the Code of Civil Procedure were being examined. He has also referred to Dulal Chandra Majumdar & Others v. Umesh Chandra Majumdar Air 1966 Ass 93 in which it was laid down that provisions of Order XXXII Rule 12 are attracted only if in the course of trial the plaintiff who when the suit was filed was minor attains majority and not to a case where the plaintiff is alleged to be major on the date of filing of the suit and has wrongly described himself as a minor. I do not understand how this judgment is of any help in support of the contention raised by the learned counsel for the tenant. He has also cited Gadadhar Panda & Another v. Gangadhar Panda & Others : AIR1972Ori24 . In the said case the suit was not maintainable at all when it was instituted in the name of the minor. So, it was held by the court that when the suit was not maintainable at all there was no need to give any permission to the minor who had attained majority to continue the suit. The judgment is also not applicable to the facts of the present case.
(56) It was also urged that Section 27 of the Contract Act vitiates the contract between the parties inasmuch as there has been put restraint on the tenant from doing any business. This contention is preposterous. The contract between the parties only restricts the tenant to do a particular type of business under a particular name and style. Such a contract is not hit by provisions of Section 27 of the Contract Act. In view of the above discussion, I hold thatthe judgment and decree of the first appellate court in both the appeal are liable to be set aside.sdf I allow both the appeals and while setting aside the judgments and decrees of the first appellate court. I restore the judgments and decrees of the learned Sub-Judge. The appellants have costs in both the appeals from the respondents.