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TMI Blog1975 (11) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ting up an electric motor and machinery, it would cause substantial damage to the shop, that the tenant had no right to change the nature of its user without the permission of the owners, and that it was, therefore, necessary that the tenant should be restrained from installing an electric motor and machinery in the shop. They, therefore, filed the aforesaid suit praying for an injunction restraining the tenant from installing an electric motor and machinery in the shop. ( 2. ) Messrs Janki Dass Jai Kumar filed a written statement stating that it had been carrying on the business of food grains in the premises. that it had been let out to it for commercial purposes and no permission from the owners was therefore, required, and that the setting up of a factory and the installation of an electric motor and machinery would not cause damage to the premises. It also contended that the civil court had no jurisdiction to entertain the Suit. The Delhi Municipal Corporation filed a written statement stating that power connection had been sanctioned by the Delhi Administration, and pointing out that no relief had been claimed against it in the Suit. ( 3. ) The appellants-plaintiffs fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to or show that the premises was let out to the tenant for any particular purpose and much less that it was let out only for runing the business of food grains, that the case would come- under the mischief of Section 108(0) of the Transfer of Property Act only if it is proved that the premises was let out to the tenant for a specific purpose, and it is only then that the obligation placed under action 108(0) not to use that premises for any purpose other than .that for which it was leased would come into play, and that in the present case the only thing that appeared on the record was that the premises was let out to the tenant for commercial purposes. The learned Senior Subordinate Judge then considered the question as to whether the running of a flour mill was a commercial purpose or an industrial purpose as it appears to have been contended before him on behalf of the owners that the setting up of a flour mill was an industrial purpose and not a commercial purpose, citing the decisions in Behari Lal v. Chandrawati, A. I. R. 1966 Allahabad 54111) and I.D. Malik v. Duli Chand and others, 1966 D. L. T. 175(2). The learned Senior Subordinate Judge distinguished the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the shop was let out for commercial purposes. He pleaded in paragraph 5 that there was no change in the use of the shop. Obviously, he treated the carrying on of the business of food grains and the running of a flour mill as commercial purposes. It was also stated that the area or the locality was a commercial area with mills, etc. Thus, the stand taken by the tenant was that the use of the shop for carrying on the business of food grains was a commercial purpose, and that the use of the shop for setting up a flour mill was also a commercial purpose, and there was, therefore, no change in the user. The owners filed a replication, but there was no lenial of the picas in paragraphs 4 and 5 of the written statement. ( 8. ) Section 108 of the Transfer of Property Act provides that in the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules set out in the section. The rule in clause (O) of the section provides that the lessee must not use the property for a purpose other than that for which it was leased or damage build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties proceeded on the basis that it was a flour mill that was proposed to be set up by the tenant. Further, the parties proceeded in the lower courts as well as before us on the basis that the business of food grains is a commercial purpose , and the controversy between them is only as regards the nature of the setting up of a flour mill. The trial court held that it was a 'commercial purpose . The lower appellate court also held that it was a commercial purpose and not an industrial purpose . The question for consideration is as to whether the view taken by the lower courts was correct. ( 10. ) Mr . Bhatia referred us to the meanings of the term commercial and industrial given in Webster's Third New International Dictionary. According to the said dictionary, the term commercial means of, in, or relating to commerce . The term ''commerce means the exchange or buying and selling of commodities especially on a large scale and involving transportation from place to place . According to Chamber's Twentieth Century Dictionary, Commerce means interchange of merchandise on a large scale between nations or individuals; extended trade or traffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n into flour and sells the same to others in wholesale or in retail, or grinds grain brought by others for a price. In both the cases, he deals with others in respect of the flour for a price, and in that sense his activity can be regarded as commercial in nature. In other words, the activity of setting up of a flour mill is commercial in one sense and industrial in another sense, i.e. it is partly commercial and partly industrial . In the present case, as already stated, the premises was not leased for any specific purpose, but was leased for commercial purposes and the tenant has been carrying on the business of food grains which according to both the parties is commercial in nature. The new activity is, as explained above, partly commercial and partly industrial . Therefore, it cannot be said that the proposed user of the shop for a flour mill is just the same as the purpose .for which it was leased, viz. commercial purpose . It would be, at least to some extent, a purpose other than that for which it was leased. However, as already, since the original letting was not for any specific purpose, the mere change in the user of the shop does not amount to user by the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the purposes of 3 tenancy have been divided into three clauses by Section 2(i) of the said Act, namely, (1) residence, (2) commercial and (3) any other purpose, that clauses (1) and (2) denote every profit-making use of the premises, while clause (3) includes non-residential and non-commercial uses, i.e. non-profit-making uses in view of the observations of the Supreme Court in Dr. Gopal Das Verma v. Dr. S. K. Bhardwaj, AIR 1963 S.C. 337, (3) that there is no warrant for construing commercial use (clause 2) in a narrow sense to exclude industrial use as it would result in the third category including industry along with non-profit-making purposes, that the number of categories being few, the ambit of each category has to be construed as widely as possible so that each category would have as large a scope as possible, and the third residuary category, is not made to include some purpose which would be comprised in the first two categories on a liberal construction, and that the commercial purpose of the tenancy in the case before him was, therefore, broad enough to include flour mill. In that view, the learned Judge held that even under section 108(0) of the Transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n nature has to be decided by considering the nature of the particular activity in question in each case. In the case before us, it is common ground between the partics that the business of food grains or grocery shop is a commercial purpose. As explained by us earlier, a business of flour mill is partly industrial in nature and partly commercial in nature. Therefore, if the premises was originally let out only for the commercial purpose of business in food grains, the proposal of the tenant to run a business of flour mill would be, at least to some extent, a purpose other than the purpose for which the premises was let within the meaning of the first part of clause (O) of Section 108 of the Transfer of Property Act. But, in the case before us, the concurrent finding of the courts below is that the landlord neither pleaded nor proved that the premises was let out only for the business of food grains. Therefore, the first part of clause (O) of Section 108 was not attracted and the landlords or owners of the premises could not claim to have a cause of action under the first part. As regards the second part of clause (O) of Section 108, we have pointed out that the lower courts c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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