judgement:
Civil Appeal No. 1038 of 1973.
Appeal by certificate from the Judgment and Order dated the 19th February 1973 of the Calcutta High Court in Appeal from Original Order No. 200 of 1971.
section Chowdhuri, P.P. Ginwala, T.A. Ramachandran and D.N. Gupta for the Appellants.
V.S. Desai, Champt Rai and Miss A. Subhashini for Respondents No. 1 & 2.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by certificate under Article 133 of the Constitution arises out of a writ petition filed by the appellants under Article 226 of the Constitution of India before the High Court of Calcutta.
The appellants are partners of a firm of Solicitors known as M/s. Orr Dignam & Co. having its office at Calcutta.
The appellants acted as the Solicitors of a German Corporation known as Ferbwerke Hoechst Aktiengesellschaft Vormals Mester Lucius & Bruning (a Corporation organised under the law of Federal Republic of Germany) (hereinafter referred to as 'the German Corporation ' ) in two suits filed on the Original Side of the Calcutta High Court one Suit No. 511 of 1962 filed by the Bengal Chemical and Pharmaceutical Works Ltd. against German Corporation and another Suit No. 1124 of 1962 filed by the German Corporation against the Bengal Chemical and Pharmaceutical Works Ltd. on the alleged infringement of a patent.
The appellants were instructed by a firm of Solicitors in London namely M/s. Ashurst, Morris, Crisp & Co. (hereinafter referred to as 'the London Solicitors ') who were also acting for the German Corporation by a cable dated May 31, 1965 to retain in the said suits Mr. Blanco White Q.C., a resident of the United Kingdom, who was a barrister having considerable practice in the branch of patent law.
On his arrival in India, the appellants accordingly retained Mr. Blanco White as the counsel to argue the case of their clients the German Corporation even though they did not deliver any briefs to him and also did not 390 pay or undertake any obligation to pay any fees for his services.
The briefs had been earlier delivered by the London Solicitors.
It is stated that they did not know as to how much amount was payable to him by the London Solicitors by way of fees.
The hearing of one of the said two suits lasted for thirteen days commencing from January 27, 1970 and was concluded on February 16, 1970.
Mr Blanco White left India on February 17, 1970 after the hearing was over without making any arrangement regarding the payment of income tax on the fees earned by him by arguing the case of the German Corporation.
Thereafter on February 19, 1970, the appellants received a notice from the Income tax Officer, 'A ' Ward, Foreiga Section asking them to furnish information about the fees earned in India by Mr. Blanco White as counsel engaged by them to argue the case of their clients i.e. the German Corporation and also drawing their attention to the liability arising under section 195 (2) of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') which required them to deduct the tax payable under the Act at source on payments made to a non resident.
The appellants sent a reply to that letter on February 24, 1970 stating that Mr. Blanco White had been engaged by the London Solicitors of the German Corporation to appear before the Calcutta High Court on behalf of the German Corporation and that they had neither briefed him nor had they incurred any liability to pay him any fees.
They, therefore, denied their liability under section 195(2) of the Act.
Incidentally it may be stated here that the appellants referred to one other suit i. e. Suit No. 422 of 1963 on the file of the Calcutta High Court filed by the German Corporation against Albert David Ltd. in which also Mr. Blanco White had been engaged for the German Corporation.
Thereupon by a letter dated February 27, 1970 the Income tax Officer informed the appellants that he proposed to proceed against them under section 163 (1) of the Act treating them as the agents of Mr. Blanco White on the ground that the income in question had arisen on account of the business connection that existed between the appellants and Mr. Blanco White.
To this, the appellants sent a long reply dated March 10/11, 1970 denying their liability to be proceeded against under section 163 (1) of the Act.
In the course of the said reply, the appellants contended inter alia that they had not either engaged or briefed Mr. Blanco White in the three suits on the file of the Calcutta High Court; that they had not paid or promised to pay any fees lo him and that, therefore, no income had accrued to Mr. Blanco White on account of any business connection that existed between them and Mr. Blanco White.
The appellants further contended that as Mr. Blanco White was a 391 barrister who was not carrying on any business but had only, rendered professional service in Calcutta, the connection if any, could not be a business connection.
They also questioned the jurisdiction of the Income tax Officer to make any assessment treating them as the representative assessees of Mr. Blanco White.
The Income tax Officer by his letter dated March 25, 1970 rejected the plea of the appellants and called upon them to appear before them on April 18, 1970 to make any other submission that they had to make.
Thereafter the appellants filed a petition under Article 226 of the Constitution before the High Court of Calcutta and obtained a rule nisi on May 25,1970) calling upon the Income tax Officer, the Commissioner of Income tax West Bengal and the Union of India to show cause as to why the proposal to initiate proceedings under the Act as stated above should not be quashed and a writ in the nature of mandamus prohibiting them from proceeding against the appellants under section 163(1) of the Act should not be issued.
The petition was contested by the respondents.
In the Counter Affidavit filed by the Income tax Officer, it was asserted that the Department had received information that Mr. Blanco White had charged Rs. 17,000/ per day by way of fees for appearing in the Calcutta High Court in the suits referred to above; that Mr. Blanco White was not domiciled in India; that inasmuch as his stay in India did not exceed ninety days it was not necessary for him to obtain a Tax Exemption Certificate for leaving India; that the appellants had acted as instructing Solicitors to the German Corporation in the three suits in which Mr. Blanco White had argued as counsel; that he could not have, according to the Calcutta High Court Rules (Original Side) appeared before that court unless he was instructed by an Attorney of that Court was in the instant case happened to be the appellants and that, therefore.
there existed a business connection which brought the appellants within the scope of section 163(1) of the Act.
It was also contended by the respondents that the petition was premature as the matter had still to be decided in accordance with the procedure prescribed by the Act.
The learned Single Judge who heard the petition was of the view that the question whether the case came within the purview of section 163(1) had to be determined after ascertainment of facts by the Income tax Officer and that therefore, the petition was liable to be dismissed on the ground that it was a premature one.
Accordingly he dismissed it without expressing any opinion on the merits of the case.
Aggrieved by the decision of the Single Judge, the appellants preferred an appeal before the Division Bench of the Calcutta High Court.
The Division Bench dismissed the appeal holding, inter 392 alia, that from the facts disclosed before the Court it appeared that from May 31, 1965 upto February 16, 1970 there was business connection (directly of indirectly through correspondence) between the appellants firm and the non resident British counsel, Mr. Blanco White, that it could not be said that there was no element of continuity and that the transaction was a solicitory and isolated one and that taking into account the surrounding circumstances and particularly the relationship between the Solicitors and a counsel, an agency could very well be said to have been established between the appellants ' firm and the non resident British counsel, Mr. Blanco White.
The Division Bench further held that there was business connection between them and that it was not possible to accept the contentions of appellants that no income either accrued or arose to Mr. Blanco White in India.
The appeal was accordingly dismissed.
On a certificate granted by the Division Bench under Article 133 of the Constitution, the appellants have come up in appeal to this Court against the judgment of the Division Bench of the High Court.
It should be stated here that alongwith the petition for a certificate under Article 133 of the Constitution, the appellants filed an application before the High Court for stay of further proceedings before the Department.
On that application, the High Court passed an order on March 12, 1973 stating that the order of stay already granted would continue subject to the following modification. "(1) The respondents will be at liberty to decide after giving the petitioners a hearing whether the petitioners firm should be treated as agent of Mr. Blanco White under section 163 of the Income tax Act.
1961: (2) If they so decide the respondents will be at liberty to issue a notice under section 148 of the Act but will not take any further steps thereafter until the disposal of the application; (3) The petitioners will also be at liberty to appeal from any order made under section 163 without prejudice to their contentions in the proposed appeal to the Supreme Court".
We are informed that pursuant to the liberty given by the said order, the Income tax Officer made an order on March 23, 1977 treating the appellants ' firm as the agent of Mr. Blanco White under section 163(1) of the Act and also on the same date issued a notice 393 under section 148 of the Act to the appellants to file a return of the income of Mr. Blanco White.
It is also stated that the appellants preferred an appeal against that order before the Appellate Assistant Commissioner without prejudice to the appellants ' contentions in their appeal to this Court.
Ultimately on November 30, 1973 this Court made an order that the appellants might apply to the Appellate Assistant Commissioner for an order of stay in respect of the question whether they were agents of Mr. Blanco White and that at any rate even if the Income tax Officer were to proceed with the case, he would make the assessment but would not make a final demand till the disposal of the appeal.
It is further stated that pursuant to the notice under section 148 of the Act, the appellants filed a 'nil ' return.
Thereafter we are informed that the Income tax Officer intimated the appellants on September 17, 1977 that he had completed the assessment of Mr. Blanco White for the assessment year 1970 71 treating the appellants ' firm as the agent and that copies of the assessment order, demand notice and challan would be forwarded to them after disposal of this appeal.
It is necessary to refer at this stage to certain relevant facts of the case.
The appellants were acting as the Solicitors of the German Corporation in India in the cases referred to above and the London.
Solicitors were acting as its Solicitors in London.
Suits Nos.
511 and 1124 had been instituted in 1962 and suit No. 422 in 1963.
On May 31, 1965, the London Solicitors sent a cable to the appellants which read as follows: " Dignior Calcutta We act for Farewerke Hoechst this country and understand that you act India stop in connection acting infringement Indian Tolbutamide patent have been instructed to retain Blanco White as counsel to attend hearings Calcutta and Bombay stop Imperative to know dates of respective actions since counsel can only accept subject to other Commitments stop Please cable hearing dates if known or date when Information available stop our Ref Lcc.
Ashursts London Col Blanco White REF: LCC.
" The above cable shows that the London Solicitors had sought information about the suits in Calcutta to enable them to engage Mr. Blanco White to plead on behalf of the German Corporation in the said suits.
On December 23, 1969, the London Solicitors 394 wrote a letter to the appellants in which it was stated that the copies of certain documents sent by the appellants had been handed over to Mr. Blanco White in addition to copies of certain other documents which they themselves had handed over to him.
A part of the aforesaid letter which is relevant for the purpose of the present case, is reproduced below: ".
We are asking Mr. Divecha of Hoechst Pharmaceuticals Limited, Bombay, to arrange for copies of the evidence in the Bombay case to be sent to you.
The formulation of the evidence can then be discussed between you and your Counsel and Mr. Blanco White when he arrives in Calcutta.
The remaining documents which we are sending you are three bound volumes of pleadings which you sent to us in the early stages but which will no doubt be of use to you at the trial, Mr. Blanco White of course has copies of all the pleadings in the three cases.
There are a number of points which Mr. Blanco White has asked us to put to you for consideration and these are as follows: 1.
It is not entirely clear from the pleadings that Indian Patent No. 66049 is a document in the Albert David case.
Will you please consider whether this specification may have to be strictly proved ? 2.
In the infringement action by Hoechst against Bengal Chemicals, the defendants have objected there is no claim against the second and third dependants, that is the inventors named in the Patent.
Mr. Blanco White sees no reason to pursue this point and, subject to your views, would suggest that it is abandoned.
In the threats action by Bengal Chemicals, again subject to your views, Mr. Blanco White would not propose to argue that Hoechst did not in fact threaten proceedings.
Also in the threats action, there is a point which we would mention here on which we are asking Hoechst Pharmaceuticals Limited of Bombay for information.
Bengal Chemicals have said in their affidavits filed in the interlocutory proceedings in April 1962 that they stopped production of Tolbutamide because of the threats made by Hoechst.
395 At the same time it appears that they published advertisements in the Punjab Medical Journal and the Indian Medical Journal of Ist May of that year.
We are asking Hoechst Pharmaceuticals if they can say when these advertisements would have had to have been sent to those Journals for publication on that date.
Mr. Blanco White will be flying in Calcutta on BOAC Flight No. 914 leaving London on Tuesday, 20th January 1970 and arriving at 6.40 a.m. local time on Wednesday, 21st January.
He would like to have preliminary discussion with you and counsel on matters of procedure, etc.
On Thursday morning and possibly Wednesday afternoon.
We believe that the gentlemen from Hoechst, Frankfurt plan to arrive in Calcutta on Thursday, 22nd January, so as to be available for more detailed talks starting on Friday.
We are asking Hoechst, Bombay to arrange for hotel accommodation for Mr. Blanco White.
" Then there is the letter dated January 8, 1970 written by the London Solicitors to the appellants enclosing copies of the briefs which had been delivered by the London Solicitors to Mr. Blanco White.
The said suits came up for hearing on January 27, 1970.
The appellants had engaged Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose to appear on behalf of the German Corporation in the said suits.
In paragraph 6 of the writ petition filed before the High Court out of which this appeal arises, the appellants have stated as follows: "On 27th January 1970 the said suits were called on before his Lordship the Hon 'ble Mr. Justice K.L. Roy.
It was decided to take up Suit No. 1124 of 1962 first.
In the said suit Mr. Blanco White, Q.C. appeared with Mr. P.P. Ginwala, Mr. A.K. Basu and Mr. Sankar Ghose.
The said suit No. 1124 of 1962 was heard on 27th, 28th, 29th, 30th January 1970, 2nd, 3rd, 4th, 5th, 6th.
9th, 12th, 13th and 16th February 1970 and judgment was reserved.
The other suits were adjourned until after the judgment.
" In his letter dated March 21, 1973 written to the London Solicitors marked as Annexure 'E ' to the writ petition, Mr. Blanco White while attempting to make out a case supporting the appellants admitted that he was not disputing that when he was actually in 396 Court in Calcutta, he was, formally, there on instructions from the appellants as attorneys.
The relevant part of that letter reads: "Dear Mr. Gane, Farbwerke Hoechst vs Bengal Chemical.
Certainly I can confirm that, when I appeared before the Calcutta High Court in January and February 1970.
I was briefed by your firm and not by Orr.
Dignam & Co. Accordingly, whilst I would not dispute that when I was actually in Court in Calcutta I was, formally, there on instructions from Orr.
Dignam as attorneys of record, all arrangements relating to my fees were made with you (as the English Solicitors of Hoechst in Germany) and Orr.
Dignam were at no time concerned with these arrangements." Mr. Blanco White left India on February 17, 1970 without making any arrangement for the settlement of his liability under the Act.
When the Income tax Officer issued the notice dated February 19, 1970 to the appellants drawing their attention to the provisions contained in section 195(2) of the Act and requesting them to furnish information regarding the income earned by Mr. Blanco White by arguing the case before the Calcutta High Court on behalf of the German Corporation, the appellants replied on February 24, 1970 stating that the London Solicitors had engaged Mr. Blanco White to appear on behalf of the German Corporation before the Calcutta High Court; that the appellants had not briefed him nor did they know on what fees, if any, he had been engaged.
In their letter dated March 10/11, 1970 to the notice dated February 17, 1970 issued by the Income tax Officer to the appellants under section 163(1) of the Act, the appellants again stated that they had not engaged or delivered any brief to Mr. Blanco White and that they had no business connection with him.
It was urged before the High Court by the appellants that there was no sort of connection between the appellants and Mr. Blanco White and even if there was any connection, it was just a casual one and could in no case be termed as business connection: that they had not undertaken to pay any fees to him for appearing in the suits and that, therefore, the appellants were not liable to be assessed.
The Division Bench of the High Court which heard the appeal came to the conclusion that there was business connection between the appellants and Mr. Blanco White; that it could not be said that there was no element of continuity and the transaction was a stray or an isolated one and that the appellants were not entitled to the issue of the writ prayed for on the facts and in the circumstances of the case.
397 For proper appreciation of the contentions advanced by the parties before us, it is necessary to refer to some of the provisions of the Act.
Section 160(1)(i) of the Act provides that in respect of the income of a non resident specified in sub section (1) of section 9 of the Act, the agent of the non resident, including a person who is treated as an agent under section 163 is a representative assessee.
Section 161 (1) of the Act stipulates that every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income; but any such assessment shall be deemed to be made upon him in his representative capacity only, and the tax shall, subject to the other provisions contained in Chapter XV of the Act be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him.
Section 163 (1)(b) and (c) of the Act provides that for purposes of the Act any person in India who has any business connection with the non resident or from or through whom the non resident is in receipt of any income whether directly or indirectly can be treated as an agent of such nonresident.
Section 5(2) of the Act inter alia provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived which accrues or arises or is deemed to accrue or arise to him in India during such year.
The relevant part of section 9(1) of the Act reads: "(1) The following incomes shall be deemed to accrue or arise in India (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through of from any asset or source of income in India or through the transfer of a capital asset situate in India; Explanation For the purposes of this clause (a) in case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India 398 From the facts stated above it is seen that from the year 1965 there was correspondence between the appellants and the London Solicitors who in their turn had engaged Mr. Blanco White in connection with the suits in question.
It shows that there was a connection between the appellants and Mr. Blanco White though it was an indirect one.
After his arrival in India, it must be assumed that the appellants had done all that was suggested in the letter of the London Solicitors dated December 23, 1969.
It is admitted that Mr. Blanco White appeared with the Indian counsel engaged by the appellants and argued the case on behalf of the client of the appellants in the suit in which they were acting as solicitors.
Even though the appellants did not hand over ally briefs directly to Mr. Blanco White, it is seen that part of the records handed over to Mr. Blanco White by the London Solicitors consisted of the copies of records sent by the appellants to the London Solicitors.
It is further seen that Mr. Blanco White appeared before the High Court alongwith the Indian counsel engaged by the appellants, though with the leave of the Court granted presumably under section 32 of the .
We are also of the view that there must have been discussion between the appellants and Mr. Blanco White before the case was argued by him.
Moreover, Mr. Blanco White could appear only with the consent of the appellants who were the Solicitors on record.
In the circumstances, it cannot be said that the High Court was wrong in holding that there was connection between the appellants and Mr. Blanco White.
The said connection cannot also be termed as a casual one having regard to the period over which it had existed.
It was real and intimate and Mr. Blanco White earned the fees for arguing the case in India only through the said connection.
The case satisfies the test laid down by this Court in Commissioner of Income tax, Punjab vs R.D. Aggarwal and Co. and Anr.
for holding that there was connection between the appellants and Mr. Blanco White.
The finding of the High Court on the above question also appears to be well founded The only remaining question which needs examination is whether the said connection was a business connection.
The contention of the appellants is that a professional connection cannot amount to a business connection attracting section 9(1) of the Act.
In support of this contention the appellants depend upon the definitions of the expressions 'business ' and 'profession ' found in 399 section 2 (13) and section 2(36) of the Act.
Section 2(13) of the Act reads: "business" includes any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture".
Section 2(36) of the Act provides: ""Profession" includes vocation ".
Section 14 of the Act which enumerates the heads of income which give rise to a liability to tax under the Act treats the income from profits and gains of business and profession as a single head.
Sections 28 to 44B of the Act constitute the fascicule of provisions dealing generally with the computation of income from business and profession although not all those provisions are applicable to income from a profession.
The definition of the expression 'business ' given in the Act is an inclusive one.
The expression 'business connection ' however is not defined in the Act.
It is manifest that the words in section 9(1) and section 163 are comprehensive enough to include all heads of income mentioned in section 14 of the Act.
It is no doubt true that there is specific reference to 'business ' in section 9(1) and there is no reference to 'profession '.
But no tenable reason is discernible from the statute for excluding income arising out of profession from its scope.
In this connection two submissions are made on behalf of the appellants (1) that it was the intention of the Parliament to exclude non residents engaged in learned professions from the operation of section 9(1) and that even if the intention of the Parliament was not to exclude such persons from section 9(1) since there is an omission to refer to them expressly the lacuna should not be made good by giving a wide interpretation to the expression 'business connection '.
We do not find that there is any substance in the first submission.
There could be no good reason for the Parliament for excluding non resident professional men from the purview of section 9(1) of the Act.
There is no material on which we can reach that conclusion.
In so far as the second submission is concerned, we have to examine whether it would really amount to filling up a lacuna in the section if the expression 'business connection ' is interpreted as including within its scope 'Professional Connection ' also.
400 In Commissioner of Income Tax, Bombay vs Currimbhoy Ebrahim & Sons Ltd., Sir George Rankin speaking for the Judicial Committee of the Privy Council while construing the expression 'business connection ' in section 42(1) of the Indian Income Tax Act 1922 observed: "The phrase " business connection " is different from, though doubtless not unrelated to, the word "business" of which there is a definition in the Act ".
The expression 'business ' does not necessarily mean trade or manufacture only.
It is being used as including within its scope professions, vocations and callings from a fairly long time.
The Shorter oxford English Dictionary defines 'business ' as 'stated occupation, profession or trade ' and ' a man of business ' is defined as meaning 'an attorney ' also.
In view of the above dictionary meaning of the word 'business ' it cannot be said that the definition of business given in section 45 of the Partnership Act, 1890 (53 & 54 Vict. c. 39) was an extended definition intended for the purpose of that Act only.
Section 45 of that Act says: "The expression "business includes every trade, occupation, or profession".
Section 2(b) of the also defines " business" thus: " "business" includes every trade, occupation and profession".
The observation of Rowlatt, J. in Christopher Barker & Sons vs Commissioner of Inland Revenue.
"All professions are business, but all businesses are not professions,. " also supports the view that professions are generally regarded as businesses.
The same learned Judge in another case Commissioner of Inland Revenue vs Marine Steam Turbine Company Limited held: The word 'business ' however is also used in another and a very different sense, as meaning an active occupation or profession continuously carried on and it is in this sense the word is used in the Act with which we are here concerned.
" 401 The word business is one of wide import and it means an A activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income.
We are of the view that in the context in which the expression business connection is used in section 9 (1) of the Act there is no warrant for giving a restricted meaning to it excluding professional connections from its scope.
There is very little substance in the submission made on behalf of the appellants that since Mr. Blanco White could not appear as counsel as of right either under the or under the Calcutta High Court original Side Rules he could not be treated as having any business connection with the appellants.
As noticed earlier Mr. Blanco White appeared alongwith the Indian counsel engaged by the appellants and the appellants continued to represent the German Corporation when Mr. Blanco White argued the case before the High Court.
It is difficult to hold that he was a stranger to the appellants.
The appellants may not have engaged him to argue the case but they allowed him at the request of the London Solicitors to argue the case and willingly cooperated with him in doing so.
That it was their case that Mr. Blanco White argued cannot be denied.
The appellants may not have undertaken to pay his fees but he could not have argued and earned the fees without associating himself with the appellants.
The fact that Mr. Blanco White being a barrister could not file a suit to recover the fees would not make any difference in this case as in the letter dated August 19 1980 written by the London Solicitors to the appellants which is produced before us it is stated that the fees of Mr. Blanco White amounted to 2200 with refreshers at the rate of 220 per day.
We need not go into the correctness of these figures but the fact remains that Mr. Blanco White has earned income for the work done in India.
We do not propose to go into question as to what would happen if no fees have been realised by him at all.
In view of the foregoing we are of the view that the judgment of the Division Bench of the High Court which is under appeal does not call for interference.
In the result the appeal is dismissed.
I he parties shall however bear their costs.
V.D. K .
Appeal dismissed.

summary:
The appellants are partners of a firm of Solicitors at Calcutta and they had been engaged by a German Corporation to act on its behalf in three suits pending before the High Court at Calcutta.
A firm of Solicitors in London, namely M/s. Ashurst, Morris, Crisp & Co., which was also acting on behalf of the German Corporation instructed the appellants to retain Mr. Blanco White Q.C., a resident of the United Kingdom, who was a barrister having considerable practice in the branch of patent law, to argue the case in the aforesaid three suits.
The appellants did not deliver any briefs to him and also did not pay or undertake any obligation to pay any fees for his services The briefs had been earlier delivered by the London Solicitors.
Mr. Blanco White left India on February 17, 1970 after arguing the cases for 13 days commencing from January 27, 1970 to February 16, 1970, without making any arrangement regarding the payment of the Income Tax on the fees earned by him.
The Income Tax Officer informed the appellants that he proposed to proceed against them under section 163(1) of the Act treating them as the agents of Mr. Blanco White on the ground that the income arising out of professional charges had arisen on account of the business connection that existed between the appellants and Mr. Blanco White.
Thereafter the appellants challenged the said order of the Income Tax Officer by filing a petition under Article 226 of the Constitution before the High Court of Calcutta.
The learned Single Judge dismissed the petition on the ground that it was a premature one taking the view that the question whether the case came within the purview of section 163(1) of the Act had to be determined after ascertainment of facts by the Income tax officer.
The appeal preferred by the appellants was dismissed by a Division Bench holding (a) there was business connection (directly or indirectly through correspondence) between the appellants ' firm and their non resident British Counsel Mr. Blanco White and that an agency could very well be said to have been established between them; (b) there was business connection between them and (c) income did either accrue or arise to Mr. Blanco White in India.
However, the Division Bench granted certificate to the appellants under Article 133 of the Constitution and hence the appeal.
388 Dismissing the appeal, the Court ^ HELD: 1.
From the facts and other material on record there was connection between the appellants and Mr. Blanco White.
The said connection cannot also be termed as a casual one having regard to the period over which it had existed.
It was real and intimate and Mr. Blanco White earned the fees for arguing the case in India only through the said connection.
From the year 1965 there was correspondence between the appellants and the London Solicitors who in their turn had engaged Mr. Blanco White in connection with the suits in question Mr. Blanco White appeared before the High Court along with Indian counsel engaged by the appellants, though with the leave of the Court granted presumably under section 37 of the Advocates Act, 1951.
Mr. Blanco White could appear only with the consent of the appellants who were the Solicitors on record.
[398 A F] Commissioner of Income tax, Punjab vs R.D. Aggarwal and Co. and Anr., , applied .
2 It is incorrect to suggest that it was the intention of the Parliament to exclude non residents engaged in learned professions from the operation of section 9(1).
The words in section 9(1) and section 163 are comprehensive enough to include all heads of income mentioned in section 14 of the Act.
[393 D].
The expression "business" does not necessarily mean trade or manufacture only it is being used as including within its scope professions, vocations, and callings from a fairly long time.
From section 2(b) of the , it is clear that the "business is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income.
In the context in which the expression "business connection" is used in section 9(1) of the Income Tax Act, 1961 there is no warrant for giving a restricted meaning to it excluding "professional connection" from its scope.
[400 B D, 401 A B] Commissioner of income Tax, Bombay vs Currimbhoy Ebrahim and Sons Ltd., ; Christopher Barker and Sons vs Commissioner of Inland Revenue, at page 228 and Commissioner of Inland Revenue vs Marine Steam Turbine Company Limited, , quoted with approval .
In the instant case, (a) it cannot be said that since Mr. Blanco White could not appear as counsel as of right either under the Advocates Act or under the Calcutta High Court Original Side Rules, he could not be treated as having any business connection with the appellants; (b) since Mr. Blanco White appeared along with the Indian counsel engaged by the appellants and the appellants continued to represent the German Corporation when Mr. Blanco White argued the case before the High Court, it cannot be said that Mr. White was a stranger to the appellants; (c) the appellants may not have engaged him to argue the case but, they allowed him at the request of the London Solicitors to argue the case and willingly co operated with him in doing so; (d) the appellants may not have undertaken to pay Mr. White 's fees but he could not have argued and earned the fees without associating himself with the appellants.
The fact that Mr. Blanco White being a barrister could not file a 389 suit to recover the fees would not make any difference; and (e) that it is seen from the correspondence that Mr. Blanco White has earned the fees amounting to Pounds 2200 with refreshers at the rate of Pounds 220 per day, for the work done in India.
Therefore.
the appellants are liable to tax agents of Mr. Blanco White under section 153(1) of the Income Tax Act, 1961.
[401 B E]


judgement:
Civil Appeal No. 758 of 1978.
Appeal by Special Leave from the Judgment and Order Decree dated 5.10.1977 of the Patna High Court (Ranchi Bench) Ranchi in Appeal from Appellate Decree No. 204 of 1976 (R).
R.K. Garg, V.J. Francis, D.K. Garg and S.K. Jain for the Appellant.
Sarjoo Prasad.
S.N. Misra and A.N. Bardiyar for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
A tenant under a decree of eviction questions its correctness in this appeal by special leave.
Respondents 1 and 2 are the brother 's sons of respondent 3 Kishorilal Vishwakarma.
Respondents commenced an action for ejectment of the appellant under section 11 (2)(c) & (d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act.
1947 ( 'Rent Act ' for short) from a shop forming part of holding No. 188 of Ward No. 3 within the area of Giridih municipality in Bihar State.
371 Claim for possession was founded on the ground mentioned in section 11 (1) (c) alleging that the respondents in good faith required possession of the shop for opening an office and a clinic by first respondent Manoharlal Sharma who by then had become a qualified medical practitioner having obtained M.B.B.S. degree.
The additional ground on which the claim rested was the usual one of default in payment of rent for a period of two months and more as envisaged by section 11 (1) (d).
Default complained of was failure to pay rent for the months of September, October and November, 1972.
Appellant contested the suit, inter alia, contending that he did not commit default in payment of rent for the months of September, October and November, 1972, and that the same was paid but no receipt was passed and that as the respondents were avoiding statutory liability of passing the receipt acknowledging payment of rent the appellant was forced to send the rent by Money Order from December 1972 and he sent the same month after month, and, therefore, he could not be dubbed a defaulter within the meaning of section 11(1) (d).
Controverting the ground of personal requirement, the appellant contended that the property belonged to a firm and, therefore, the same cannot be claimed for the use of any one partner for his business other than the business of the firm.
And in any case, the respondents have number of houses in their possession and the requirement alleged on behalf of Manoharlal Sharma was incorrect and unwarranted.
The learned trial judge framed as many as nine issues.
He held against the appellant both on the question of default in payment of rent and the personal requirement and after answering some technical defences raised by the appellant, learned trial judge decreed the suit.
The appellant preferred an appeal to the appellate authority.
When the appeal was pending before the learned Second Additional Subordinate Judge, Giridih, the appellant filed an application supported by an affidavit on September 28, 1976, purporting to be under order 41, rule 27, Code of Civil Procedure contending therein that as originally contended by him the shop belongs to a firm and in Suit No. 4 of 1974 there has been a partition of the properties amongst the members of the firm and the suit shop has been allotted to one Pyarelal, who is neither a plaintiff nor a party to the proceedings and if the shop now belongs to Pyarelal as an exclusive owner, the respondents and especially respondent 1 Manohar Lal Sharma cannot seek to evict the appellant for his personal requirement of the suit shop.
This application was filed 372 with an affidavit drawn at the foot of the application itself.
The learned appellate judge referred to this application in paragraph 12 of his judgment and negatived the contention therein raised observing that allotment of the suit shop to Pyarelal has taken place after the suit was filed and that as earlier the respondents were accepted by the appellant as the landlords of the suit shop, the subsequent partition decree would not help the appellant.
He then made a cryptic observation that 'in any view of the matter the finding of the learned Munsif regarding personal necessity is correct and there is no ground for interference. ' He agreed with the finding of the trial Court that there was default in payment of rent for a period of three months, and, therefore, also the respondents were entitled to a decree for eviction on the ground mentioned in section 11 (1) (d) of the Rent Act.
Accordingly he dismissed the appeal with costs.
A second appeal to the High Court by the tenant met with the same fate.
It is, however, advantageous to notice the approach of the High Court to the two contentions raised on behalf of the appellant.
The contention of the tenant that the ground for personal requirement of respondent 1 Manoharlal Sharma no more survives because he has no subsisting interest in the suit shop in view of the partition decree in Suit No. 4 of 1974 was negatived observing that the appellant had not moved the first appellate court with a proper application under order 41, rule 27 of the Code of Civil Procedure and as there was no such application on the record of the case the contention could not be entertained.
Alternatively, the High Court found it difficult to accept the contention that during the pendency of the appeal if the house in question was allotted to the share of one of the co sharers of the decree (sic) the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone.
Relevant to the second contention the High Court observed that the appellant did not challenge the finding of the two courts below on the question of default in payment of rent.
Accordingly the High Court dismissed the second appeal with costs.
Hence this appeal.
Learned counsel for the appellant canvassed the same two contentions before us which were pressed before the High Court.
It was contended that the High Court was clearly in error in rejecting the contention of the appellant that the ground of personal requirement was no more available to the respondents in view of the partition decree in Suit No. 4 of 1974 because not only the landlord must prove his requirement at the commencement of the action but 373 the landlord for whose requirement the action is commenced must show that his requirement continues throughout the course of proceedings and that he has a subsisting interest in the premises of which possession is sought for his own use.
Reliance was placed in support of this submission on Pasupuleti Venkateswarlu vs The Motor & General Traders.
It was also contended that the High Court was in error in observing that in the absence of a proper application under order 41, rule 27 the court could not entertain the contention thereby sought to be raised.
It was also contended that the High Court was in error in observing that the finding that the appellant was in default in payment of rent for a period of two months was not questioned before it.
Respondents 1 and 2 are the sons of one Sunderlal Sharma.
Respondent 3 is the brother of Sunderlal Sharma.
One Pyarelal is also a brother of Sunderlal Sharma and Respondent 3 and thus an uncle of respondents 1 and 2.
These facts have become very relevant for evaluating and disposing of the contention canvassed before us.
Action for ejectment was filed by respondents 1 and 2 Manoharlal Sharma and Motilal Sharma sons of deceased Sunderlal Sharma, and respondent 3 Kishorilal Vishwakarma, brother of Sunderlal Sharma, inter alia, stating that they are the owners of the suit shop and are thus landlords within the meaning of Rent Act and that they require possession of the suit premises, firstly on the ground that Manoharlal Sharma wants to open his clinic in the suit shop and secondly, that the appellant tenant has committed default in payment of rent for a period of two months and more.
At the first appellate stage appellant filed an application, in the cause title of which it is mentioned that it is an application purporting to be under order 41 rule 27, C.P.C. and at the foot of it there is a sworn affidavit with reference to the contents of the application.
In this application it has been in terms stated that in suit No. 4 of 1974 (Kishorilal Vishwakarma vs Pyarelal Vishwakarma) for partition of the assets of the firm there has been a compromise on August 16, 1974, and that by the partition effected by the decree the suit shop has been allotted to Pyarelal and thereby he became the owner and landlord of the suit shop with reference to the appellant and as he is neither a party to the 374 suit nor has he applied to be joined as a party to the suit, the present respondents have no subsisting interest in the property and, therefore, a decree for eviction on any of the grounds mentioned in the Rent Act could not be passed in their favour.
He requested for setting aside the decree on this ground.
It was further stated in the application that this fact being in the special knowledge of the respondents did not come to the knowledge of the appellant and notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him, and, therefore, he sought to produce this additional evidence at the appellate stage.
A request was made to accept the certified copy of the partition decree evidencing the fact alleged in the application.
The learned appellate judge did not find fault either with the form of the application or compliance with the technical requirement of order 41, rule 27, or in any delay in moving the court for taking on record the additional evidence, The learned judge of the first appellate court disposed of the contention raised in the application on merits as would be evident from paragraph 12 of his judgment.
Not to confound the issue on this point any more, the observation of the learned judge of the first appellate court may be extracted; "After the argument was heard, the deft.
appellant has filed the certified copy of the compromise decree of P.s 4 of 1974 (page 10 begins) Relying on this decree it has been alleged that the house in question has now been allotted to one Pyarelal who is not party to this suit.
So, now, the puffs have no concern with the suit house.
This event had taken place after passing of the decree.
If Pyarelal was co sharer then other co sharer is competent to file a suit on behalf of the other.
From the notice reply ext.
1 it will appear that ownership of the puffs respondent of T.S. 47/73 was accepted.
Once they have accepted that the plaintiffs are the owner now the defendant appellant can not say that the puffs are not the owner of the suit premises.
This partition decree will not help the defendant to say that the puff do not require the house now ? In execution of that partition decree, also the vacant possession will be required.
So, in any view of the matter I find that the findings of the matter I find that the findings of the learned Munsif, regarding the personal necessity is correct and there is ground for interference.
The learned Munsif has rightly appreciated the evidence and has come to the correct findings.
" 375 It would unquestionably appear that the learned judge entertained the application for additional evidence, took it on record and examined it on merits.
In this background, in our opinion, the High Court was clearly in error in ignoring this evidence in second appeal on a technical consideration that a proper application under order 41, r. 27 was not placed before the first appellate court.
Here is what the High Court says: "Whenever any additional evidence is produced before an appellate court a regular application under order 41, rule 27 of the Code of Civil Procedure is filed.
There is no such application in the records of the case.
" Obviously, this is contrary to record.
But the High Court appeared to be in two minds when it proceeded to entertain the contention on merits and negatived it on merits.
Says the High Court further on this point as under: "Apart from that, it is difficult to accept the contention that during the pendency of the appeal if the house in question is allotted to the share of one of the co sharers of the decree, the decree which had been passed in their favour becomes nullity and is liable to be set aside by the appellate court on this ground alone.
This aspect of the matter has (sic) considered on several occasions by this Court where the plaintiff, during the pendency of the suit has assigned his interest.
Even in those cases it has been held that by mere assignment the plaintiff does not lose the right to maintain the suit.
In my view, the position will be all the more difficult for the defendant if any such objection is taken for the first time in the court of appeal.
" What precedents are relied upon by the High Court when it says that the aspect required to be considered by it has been examined on a number of occasions left us guessing because there is no citation in the judgment.
If the precedent relied upon was quoted in the judgment we could have profitably examined the precedent itself.
In the absence of it the contention being a pure question of law will have to be examined on its own merits.
The procedural conundrum may be cleared out at the threshold.
Was there a proper application before the appellate court under 376 order 41, rule 27.
It must be answered in the affirmative.
The application Annexure II page 36 of the record recites in its title as: 'Petition under order 41, rule 27 of the Civil Procedure Code '.
It is founded on an affidavit.
It is a well recognised practice commonly adopted in courts that where an application is required to be supported by an affidavit the application is drawn up and at the foot of it an affidavit is sworn.
Even taking the most technical view of the requirement of order 41, r.27, C.P.C. the petition purporting to be under order 41 rule 27 meets with the requirement of the situation.
The contention of delay in moving the application will be presently examined but the High Court could not have rejected the contention raised by the appellant on the ground that a proper application under order 41, rule 27, is not to be found on record.
To some extent this observation would indicate that the record of the case was not examined with the thoroughness as is expected in disposing of the appeal.
In fact, the first appellate court whose grievance was that the application was filed after the arguments were concluded, has had no objection in treating the application to be one under order 41, rule 27.
It has been so treated and has been disposed of on merits as per the passage from the judgment extracted hereinbefore.
The High Court, therefore, was squarely in error in rejecting the contention on the narrow ground that there was no proper application under order 41, rule 27.
Now, probing the merits of the contention, the first thing that stares in the face is whether where a suit is filed by a person claiming to be landlord on the ground that he in good faith requires the suit premises for his own use and occupation, would he still be entitled to a decree for possession on this ground even if during the course of proceedings his interest in the suit premises has come to an end and on the date of the final decree he had no subsisting interest in the suit premises? In other words, how should the Court approach a proceeding under the Rent Act while taking into consideration the subsequent events which would non suit the plaintiff? The expression 'landlord ' has been defined in section 2 (d) of the Rent Act which reads as under: "landlord" includes the persons who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit, or himself and others or as an agent, trustee, executor, administrator, 377 receiver or guardian or who would so receive the rent, or be entitled to receive the rent if the building were let to a tenant.
" The inclusive definition is couched in very wide language.
However this wide amplitude of the expression has been cut down by the explanation appended to sub clause (c) of sub section (1) of section 11 which reads a under: 11.
Eviction of tenants: (a) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Dispute Act, 1947 and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction there from except in execution of a decree passed by the Court on one or more of the following grounds; . . (c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord; Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall thenceforth constitute the building within the meaning of clause (aa) of section 2, and the rent so fixed shall be deemed to be the fair rent fixed under section 5; Explanation: In this clause the word "landlord" shall not include an agent referred to in clause (d) of section 2." Therefore, while taking advantage of the enabling provision enacted in s.11 (1) (c), the person claiming possession on the ground of 378 his reasonable requirement of the leased building must show that he is a landlord in the sense that he is owner of the building and has a right to occupy the same in his own right.
A mere rent collector, though may be included in the expression landlord in its wide amplitude cannot be treated as a landlord for the purposes of section 11 (1) (c).
This becomes manifestly clear from the explanation appended to the sub section.
By restricting the meaning of expression landlord for the purpose of section 11(1)(c), the legislature manifested its intention namely that landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own.
Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use.
The latter part of the section envisages a situation where the landlord is holding the buildings for the benefit of some other person but in that case landlord can seek to evict tenant not for his personal use but for the personal requirement of that person for whose benefit he holds the building.
The second clause contemplates a situation of trustees and cesti que trust but when the case is governed by the first part of sub clause (c) of sub section (1) of s.11, the person claiming possession for personal requirement must be such a landlord who wants possession for his own occupation and this would imply that he must be a person who has a right to remain in occupation against the whole world and not someone who has no subsisting interest in the property and is merely a rent collector such as an agent, executor, administrator or a receiver of the property.
For the purposes of section 11(1)(c) the expression landlord could, therefore, mean a person who is the owner of the building and who has a right to remain in occupation and actual possession of the building to the exclusion of everyone else.
It is such a person who can seek to evict the tenant on the ground that he requires possession in good faith for his own occupation.
A rent collector or an agent is not entitled to occupy the house in his own right.
Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house.
He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation.
That can be the only reasonable interpretation one can put on the ingredients of sub clause (c) of section 11(1) which reads: "Where building is reasonably and in good faith required by the landlord 379 for his own occupation. ".
Assuming that the expression 'landlord ' has to be understood with the same connotation as is spelt out by the definition clause, even a rent collector or a receiver of the property appointed by the Court in bankruptcy proceedings would be able to evict the tenant alleging that wants the building for his own occupation, a right which he could not have claimed against the real owner.
Therefore, the explanation to clause (d) which cuts down the wide amplitude of the expression 'landlord ' would unmistakably show that for the purposes of clause (c) such landlord who in the sense in which the word 'owner ' is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his own occupation.
The next step to be taken is whether where a person claiming to be such a landlord has sought to evict the tenant for his own occupation of the building but lost his interest in entirety in the building during the pendency of the appeal which is a continuation of the suit.
Would he still be entitled to maintain or continue the action after the cessation or extinguishment of his interest in the building? To examine this contention on merits one feature of the proceedings under the Rent Act may be taken into consideration.
To what extent and in what circumstances the court can take notice of events subsequent to the institution of the action is the core problem.
This is no more res integra and need not be examined in depth.
In Pasupuleti Venkataeswarlus ' case this Court examined this question in relation to a proceeding under the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960.
The landlord in that case sought to evict the tenant as he wanted to start his own business in the demised premises.
In other words, action was for eviction for personal requirement.
In the zig zag course of proceedings it transpired that subsequent to the commencement of the action the landlord had come into possession of another shop which would meet with his requirement and on this subsequent event tenant requested the court to non suit the plaintiff.
At that stage the proceedings were pending before the High Court in a revision petition at the instance of the landlord questioning a remand to the trial court by the first appellate court for investigation of certain facts.
In this revision at the instance of the landlord the High Court took notice of the subsequent event that the landlord 's requirement had been fully satisfied as he had come in possession of another shop.
In appeal by the landlord to this Court, a serious exception was taken that the High Court could not have taken into consideration an event subsequent to the commencement of the proceedings and non 380 suit the landlord and that too at a stage when the proceedings were pending in revision at the instance of the landlord.
Negativing this contention and dismissing the appeal this Court, after referring to the decision in Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhri quoted with approval the following passage from Patterson vs State of Alabama : "We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires.
And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
" In the leading judgment in Lachmeshwar Prasad Shukul 's case Varadachariar, J. observed that an appeal being in the nature of a re hearing the Courts in India have in numerous cases recognised that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts which have come into existence after the decree appealed against was made.
Krishna Iyer, J. summed up the position in Pasupuleti Venkateswarlu 's case: "It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process.
If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy.
Equity justifies binding the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances.
Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court.
If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or 381 justice.
We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed." To sum up, there was a proper and regular application to meet with the requirements of order 41 rule 27, CPC for additional evidence inviting the Court 's attention to a subsequent event of vital importance cutting at the root of the plaintiff 's right to continue the action.
Coupled with it, there was evidence in the form of a certified copy of the decree showing that the plaintiffs, even if they had some shade of title to commence action, they having lost all interest in the property and the property having become one of exclusive ownership of a person not a party to the proceedings, were no more entitled to continue the proceedings for their own benefit.
Have the first appellate court and the High Court acted in accordance with law in ignoring this subsequent event of vital importance ? The first appellate court, as pointed out earlier, proceeded to examine the contention on merits and rejected it on the ground that this being an event subsequent to the passing of the decree by the trial court, no notice could be taken of it, a view contrary to the law laid down by this Court.
Same is true of the High Court when it said that even if the landlord who commenced action lost all interest in the property subsequent to the passing of the decree, the decree does not become a nullity and at any rate no note of the subsequent events can be taken in the absence of a proper application under order 41, rule 27, C.P.C.
But the next observation of the High Court that where the plaintiff landlord 's interest in the property is extinguished subsequent to the decree by the trial court, he does not lose his right to maintain and continue the action, is opposed to the very scheme of the Rent Act and the provisions contained in sections 11(1)(c) and 12.
Both the courts were, therefore, clearly in error in ignoring this vital piece of evidence which goes to the root of the matter and would surely non suit the plaintiffs.
Once this subsequent event of landlord 's interest in the property getting extinguished as the property in question is allotted as an exclusive owner to a sharer upon a partition amongst co sharers, is properly evaluated, unless some proper explanation is offered by the landlords who are parties to the proceedings, the plaintiffs are 382 liable to be non suited.
This does not require much of a discussion because plaintiffs sought possession for personal requirement of respondent 1 Manohar Lal Sharma.
Monohar Lal Sharma wanted to start his clinic, as he is a qualified medical practitioner, in the suit premises.
Manohar Lal Sharma is neither an owner nor a co owner nor he has any interest in the suit property since the date of partition effected by compromise between the co sharers in Suit No. 4/75.
If action were to start today a or day after the decree for partition, could Manohar Lal Sharma ever file a suit for evicting the present appellant from the suit shop on the ground that he wanted to start his clinic in the suit shop ? If Manoharlal Sharma can bring such an action he can as well evict any tenant from any premises with which he has no connection.
Even if at the commencement of the action Manoharlal Sharma was a co owner alongwith his brother and uncle and, therefore, he had a semblance of title to commence action for eviction, once the co owner parted company, partitioned property by metes and bounds and the suit property came to be allotted to Pyarelal as an exclusive owner.
Manoharlal Sharma cannot claim eviction of the tenant from such property in which he has no subsisting interest.
And even if this event occurred subsequent to the passing of the decree by the trial court, this subsequent event should have been noticed at the appellate stage because the appeal is nothing else but a continuation of the suit and in a proceeding under the Rent Act the relief has to be moulded according to the situation on the date of the decree; the decree would mean the decree which is final and not correctible by any judicial proceeding.
Manoharlal Sharma, therefore, cannot seek to evict the tenant for his personal requirement.
Therefore, the suit for eviction under s.11(1)(c) would ordinarily fail on this ground.
However, as the fresh evidence is being taken into consideration and as both the appellate courts and the High Court, have erred in approaching the matter by ignoring the subsequent event, it would be presently pointed out that in order to do justice between the parties the matter will have to be remanded to the first appellate court.
Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place.
The learned judge of the first appellate court while upholding the claim of personal requirement of respondent 1 has observed as under: "It is for the plaintiffs to decide whatever they think fit and proper.
It is not for the defendant to suggest as 383 to what they should do.
The defendant has led evidence to show that the plaintiffs have got some more houses at Girdih.
The defendant appellant has also filed certified copy of judgment of one suit No. 47/73 which is Ext.
only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih.
I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them.
It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs".
This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country.
The time honoured notion that the right of re entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re enter.
One such ground is of personal requirement of landlord.
When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent.
To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de 'etre of the Rent Act.
Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord 's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court.
It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant.
This approach would put a premium on the landlord 's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate.
To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the 384 same.
The Court must understand and appreciate the relationship between legal rules and one of necessities of life shelter and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe.
In 'The Sociology of Law ', edited by Pat Carlen, the author examines the rent and rent legislation in England and Wales and observes as under: "The prevailing paradigms of neo classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation.
The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the wider image of social relations which produces it".
It was, however, contended on behalf of the respondents that even if in view of the subsequent event the plaintiffs landlords were not entitled to recover possession on the ground set out in s.11(1)(c) yet the respondents would still be entitled to evict the appellant on the ground mentioned in section 11(1) (d) in as much as all the courts have concurrently found that the appellant was in default of payment of rent for a period of three months, i. e. September, October and November, 1972, and that this finding was not even questioned before the High Court as mentioned in paragraph 3 of the judgement of the High Court.
The appellant has set out ground No. V in his petition for special leave in the following terms: "Because the High Court erred in holding that the findings regarding default in payment of rent and of personal necessity were not challenged before the High Court".
Undoubtedly, what the High Court states in its judgment on the question whether a particular finding was challenged or not challenged is entitled to highest respect at our hands and must ordinarily be always accepted.
We have lingering hesitation in the facts of this case for two specific reasons: (i) that there are some recitals in the judgment of the High Court specifically referred to herein before which show that certain aspects have been disposed of cursorily, lacking precision; and (ii) that a tenant who examined as many as eight witnesses including himself to prove that the rent was paid and who specifically pleaded that fact in reply to the notice served by the landlords and who meticulously fought his case by making an application for additional evidence at the appellate 385 stage would not give up the contention and if he had in fact given it up there was no justification for still taking the matter to the highest court.
Even then we would have overlooked the contention to the contrary and accepted what has been stated in the judgment but for the fact that subsequent event stated hereinabove may have a direct impact on the title of the landlords respondents to evict the appellant on the ground of non payment of rent.
If on examining and evaluating the contents of the certified copy of the decree in partition suit No. 4/74 it is established conclusively that the property has been exclusively allotted to Pyarelal who has not applied to be joined as party to these proceedings though he has filed some affidavit in this appeal before this Court and if no reservation is made in the decree for continuation of the proceedings for recovering possession on the ground of non payment of rent in favour of the present respondents nor have the present respondents undertaken any liability to continue the proceedings on behalf of Pyarelal Sharma for the limited purpose of recovery of rent, in our opinion it would be extremely doubtful if the respondents can still maintain the action for recovering rent and for possession on the grounds mentioned in section 11(1)(c) & (d).
That aspect has not at all been examined either by the first appellate Court or by the High Court.
If 'A ', a landlord commences action for eviction against his tenant on the only ground of non payment of rent and during the pendency of the proceedings transfers the property lock stock and barrel to a third person and if the third person is not before the Court, without finally expressing any opinion because the remand is contemplated, it is just unthinkable that such a landlord can continue the suit even after he had no interest in the property.
The aspect may have to be examined in The background of the contract between the landlord who commenced the action and his transferee, or the transferee having reserved some right came to the Court for being impleaded as a party to continue the action and his, right to continue, may be examined.
These aspects arc not examined by any Court though decision on them goes to the root of the matter.
Therefore, a remand is inevitable in the circumstances of this case.
Accordingly, we allow this appeal and set aside the decree of the High Court and the first appellate Court and remand the case to the first appellate Court which, after granting the application under order 41, r. 27 and taking the certified copy of the decree in partition suit No. 4/74 on record and after giving an opportunity to the parties before it to lead any additional evidence pursuant to this additional evidence, would decide the following two questions: 386 (1) Does the partition decree transfer the suit shop to Pyarelal Sharma exclusively ? (2) If yes, can the respondents (plaintiffs) maintain action and are entitled to evict the appellant (defendant) on the ground of personal requirement of Manohar Lal Sharma (respondent 1) and/or on the ground of default as contemplated by section 11(1)(d) of the Rent Act ? On the evidence on these issues the Court may mould the final relief consistent with its findings.
With this direction the appeal is remanded to the first appellate Court.
In the circumstances of the case there will be no order as to costs.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
Respondents 1 and 2 are the brother 's sons of Respondent No. 3.
These respondents commenced an action for ejectment of the appellant from a shop under section 11(1)(c) & (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, alleging that the respondents in good faith required possession of the shop for opening an office and a clinic by the first respondent who had become a qualified medical practitioner, and that there was default in payment of rent for a period of three months i.e. September, October and November, 1972.
The appellant contested the suit for eviction contending that he did not commit default in payment of rent for the three months and that the same was paid but no receipt was passed and that as the respondents were avoiding the statutory liability of passing the receipt acknowledging payment of rent, the appellant was forced to send the rent by money order from December, 1972 and he sent the same month after month, and therefore, he could not be dubbed a defaulter.
The ground for personal requirement was controverted contending that the property belonged to a firm, and therefore, the same cannot be claimed for the use of any one partner for his business other than the business of the firm.
It was further contended that the respondents also owned a number of houses and their requirement for Respondent No. 1 was incorrect and unwarranted.
The Trial Court held against the appellant both on the question of default in payment of rent and personal requirement and ordered eviction.
The appellant preferred an appeal and when the appeal was pending before the appellate authority, he moved an application under Order 41, Rule 27 of the Code of Civil Procedure contending that there had been a partition of the properties amongst the members of the firm and the suit shop had been allotted 368 to one 'P ' who was neither a plaintiff nor a party to the proceedings and if the shop belonged to him as an exclusive owner, the respondents and especially respondent No. 1 could not seek to evict the appellant for his personal requirement of the suit shop.
The appellate judge holding that the respondents were accepted by the appellant as the landlords of the suit shop, the subsequent partition decree would not help the appellant and agreeing with the finding of the Trial Court that there was default in payment of rent for a period of three months, he dismissed the appeal.
The second appeal to the High Court by the appellant was dismissed, holding that the appellant had not moved the first appellate court with a proper application under order 41, rule 27 of the Code of Civil Procedure and as there was no such application on the record of the case the contention could not be entertained, and that the appellant did not challenge the finding of the courts on the question of default in payment of rent.
In the appeal to this Court, it was contended on behalf of the appellant tenant that: (1) the High Court was in error in rejecting the contention of the appellant that the ground of personal requirement was no more available to the respondents in view of the partition decree because not only the landlord must prove his requirement at the commencement of the action but the landlord for whose requirement the action is commenced must show that his requirement continues throughout the course of proceedings and that he had a subsisting interest in the premises of which possession is sought for his own use, (2) the High Court was in error in observing that in the absence of a proper application under order 41, rule 27 the Court could not entertain the contention thereby sought to be raised, and that the finding that the appellant was in default in payment of rent for a period of two months was not questioned before it.
Allowing the appeal, ^ HELD: 1.
The decree of the High Court and the first appellate court are set aside and the case remanded to the first appellate court, which after granting the application under order 41, rule 27, and taking the certified copy of the decree in the partition suit on record and after giving an opportunity to the parties to lead any additional evidence should decide, whether the partition decree transfers the suit shop to 'P ' exclusively and whether the respondents can maintain the action and are entitled to evict the appellant on the ground of personal requirement of respondent No. 1 and or on the ground of default.
[385 G 386 B] 2.
The expression 'landlord ' which has been defined in section 2(d) of the Rent Act is an inclusive definition couched in very wide language.
This wide amplitude of the expression has however been cut down by the explanation appended to sub clause (c) of sub section (1) of section 11.
The person claiming possession on the ground of his reasonable requirement of the leased building must show that he is a landlord in the sense that he is the owner of the building and has a right to occupy the same in his own right.
A mere rent collector, though may be included in the expression landlord in its wide amplitude cannot be treated as landlord for the purposes of section 11(1)(c).
[376 G 378 B] 369 3.
The legislature by restricting the meaning of the expression 'landlord ' for the purpose of Section 11(1)(c), manifested its intention namely that landlord alone can sue for eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own.
Such landlord who is an owner and who would have a right to occupy the building in his own right, can seek possession for his own use.
A rent collector or an agent is not entitled to occupy the house in his own right.
Even if such a person be a lessor and, therefore, a landlord within the expanded inclusive definition of the expression landlord, nonetheless he cannot seek to evict the tenant on the ground that he wants to personally occupy the house.
He cannot claim such a right against the real owner and as a necessary corollary he cannot seek to evict the tenant on the ground that he wants possession of the premises for his own occupation.
[378 C, G] In the instant case the application for additional evidence was filed after the arguments were concluded.
The Judge had no objection in treating it to be one under Or 41 rule 27, took it on record and examined it on merits.
The High Court was clearly in error in ignoring the evidence in second appeal on a technical consideration that a proper application under order 41, rule 27, was not placed before the first appellate court.
C, 375 A B] In the instant case, there was a proper and regular application to meet with the requirements of order 41, rule 27, CPC for additional evidence inviting the court 's attention to a subsequent event of vital importance cutting at the root of the plaintiff 's right to continue the action.
Coupled with it, there was evidence in the form of a certified copy of the decree in a partition suit showing that the respondents even if they had some shade of title to commence action, they having lost all interest in the property and the property having become one of exclusive ownership of a person not a party to the proceedings were no more entitled to continue the proceedings for their own benefit.
Both the lower appellate court and the High Court were clearly in error in ignoring this vital piece of evidence which goes to the root of the matter and which would non suit the respondents.
[381 C, G] Pasupuleti Venkateswarlu vs The Motor & General Traders, ; and Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhri, , referred to.
The time honoured notion that the right of re entry is unfettered and that the owner landlord is the sold judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re entry and to provide that only on proving some enabling grounds set out in the rent Act the landlord can re enter.
One such ground is of personal requirement of landlord.
When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent.
To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de 'etre of the Rent Act.
If it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord 's claim but in such a situation the court would expect the landlord to establish that the premises which is vacant is not suitable 370 for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court.
To say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant would be unsupported by the Rent Act.
This approach would put a premium on the landlord 's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate.
To curb this very tendency the Rent Act was enacted, and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same.
The Court must understand and appreciate the relationship between legal rules and one of the necessities of life shelter.
[383 C 384 A] In the instant case there are some recitals in the judgment of the High Court which show (i) that certain aspects have been disposed of cursorily, lacking precision, and (ii) that a tenant who examined as many as eight witnesses including himself to prove that the rent was paid and who specifically pleaded that fact in reply to the notice served by the landlords and who meticulously fought his case, by making an application for additional evidence at the appellate stage would not give up the contention and if he had in fact given it up there was no justification for still taking the matter to the highest court.
The subsequent event of partition of the properties have a direct impact on the title of the landlord respondents to evict the appellant on the ground of non payment of rent.
A remand of the case is therefore inevitable.
[384 G 385 B, G]