S. Mohanlal v. R. Kondaiah .

Ramachandra Rao, J.:— This revision petition raises a short and interesting question as to whether the profession of an advocate comes within the meaning of the expression “business” occurring in Section 10(3)(a)(iii)(a) and (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction; Control Act, 1960 (hereinafter referred to as the Act). In view of the importance of the question raised, our learned brother Obul Reddi, J., referred the matter to a Bench of two Judges and that is how the revision has come before us. We may also mention that apart from the above question argument were advanced by the learned Counsel on other points also, inasmuch as the whole case has been referred to a Bench.

2. The brief facts relevant for the purpose of the disposal of this revision may now be staled. The petitioner herein is the tenant and the respondent herein is the owner of a building bearing No. 3119/1 situated at Rashtrapathi Road in Secunderabad. In the building, one room is facing the main road while the three rooms arc in the rear side and the petitioner has been in occupation of these tour rooms for over 18 to 20 years prior to the filing of the petition for eviction, and has been carrying on business in art jewellery. For the purpose of the aforesaid business, he had installed certain machinery in the rear rooms, while the front room which faces the road, is used as a show room. Corresponding to the front room of the suit building, there is a room in the upstairs with open space on the rear side and there is a spiral iron staircase on the front side of the building. It would appear that the suit building which is a mulgie with the corresponding upstair portion had fallen to the share at the respondent in a partition amongst the family members in the year 1957. The respondent also got another mulgie in tobacco bazar in Secuderabad, towards his share in the aforesaid partition. The upstairs portion of the suit building was let out to another tenant who is running a Radio Engineering Institute therein. The mulgie in tobacco bazar bearing No. 1604 which had fallen to the share of the respondent is in the occupation of another tenant one C.K Bala Kotaiah. Prior to the partition between the members of the family of the respondent, his father had filed a petition for eviction in the year 1957, against the petitioner on the ground of wilful default in payment of rent. The petitioner had filed an application for fixation of fair rent. These petitions were however compromised and the rent was enhanced from O.S Rs. 60/- to I.C Rs. 75/-. While so, the respondent who had obtained LL.B Degree in 1956, enrolled as a Pleader and joined the office of Sri K. Ramgopal, a senior Advocate of Secunderabad. In the year 1960 the respondent enrolled himself as an advocate. It is stated that due to health reasons. Sri. K, Ramgopal, confined his practice only to the civil courts and that he had entrusted the cases in other courts like the Munsif's Courts, Rent Controller's Court and Small causes Court to the respondent. The respondent therefore wanted to set up an office of his own for (he purpose of carrying on his practice as an advocate. The respondent states that as the building in the Rashtrapati Road is ideally suited for the purpose of setting up office, he gave a notice to the petitioner on 12-12-1961 (Ex. P. 2) stating that he requires the aforesaid building in question for his personal occupation and he called upon the petitioner to vacate and deliver possession of the same to the respondent by 31-12-61. The petitioner sent a reply Ex. P-3 dated 21-12-61 refusing to vacate the premises on various grounds. Thereupon the respondent filed an application for eviction under Sec. 10 sub-section (3)(a)(iii)(a) and (b) of the Act on the ground that he required the building in question for his personal occupation for the purpose of carrying on his profession as Advocate and that he was not occupying any other non-residential building in the city which was his own or to the possession of which he was entitled, for the purpose of carrying on his prefession. The petitioner contested the application stating-that the requirement of the respondent was not bonafide, that he was having another mulgie in tobacco bazar where he could set up practice, that the respondent was carrying on his profession in a portion of his family house at Marredpally in Secunderabad, that he did not therefore require the mulgie in question for setting up his office, that the petitioner was carrying on his business of manufacturing jewellery in the mulgie for over a long time, that the upstair of the mulgie had fallen vacant some three or four years back, but the respondent did not occupy it and let out the same to a Radio Engineering Institute, that the respondent owned buildirgs where he could carry on his profession, and that it would cause great hardship and less of business to the petitioner if he were to be evicted from the mulgie in question.

3. The Rent Controller after holding an enquiry and recording the evidence of parties found that the responded had failed to occupy the upstair room when it had fallen vacant, that the respondent did ??? establish that he was having a library, a typewriter and a clerk, which according to the Controller, were the requisites for establishing an office of an advocate, that though new constructions were coming up in Rashtrapati Road, there is no evidence to establish that the new constructions could provide equal accommodation and facilities as in the building in question and that the financial hardship that would be caused to the petitioner, if evicted, would be more than the hardship that would be caused to the respondent. Accordingly, he dismissed the petition for eviction.

4. On appeal ???y the respondent, the appeallate authority rejected the appeal, and the respondent preferred a revision, C.R.P 611 of 1964 to this Court. The said revision petition was disposed of by one of us (Gopal Rao Ekbote. J.,) on 24-12-65, allowing the revision petition and remanding the case to the appellate authority for disposal on merits. The order of remand by the learned Judge is as follows:—

“The central point of dispute between the parties therefore was whether the petitioner has another non residential building either in his possession or to which he is entitled and secondly whether his requirements are bonafide While the Rent Controller dismissed the petition. On altogether a different point, withhout dealing with it the lower appellate court merely on the ground that the petitioner is runnine a Kirana shop held that he is in possession of another non-residencial building, and he cannot therefore ask for eviction. This obviously is not only an incorrect statement of fact but is an incorrect statement of law also. A look at the deposition of the respondent would indicate that he himself admits that this Kirana Shop belongs to the joint family and not exclusively to the petitioner. That could not have been therefore a ground for dismissing the petition. It is evident from schedule No. 4 of the partition deed that this Kirana Shop was not allotted to the petitioner. It was therefore necessary to consider whether a partnership firm which is running the Kirana Shop in which the petitioner is in exclusive possession of another non residential building. It has to be further considered that when the Kirana Shop is admittedly being run there is partnership with other members of the family now can the petitioner set up his professional office there. As these points have not been carefully considered I have no other alternative than to remit the case to the lower appellate court. That apart there are various other arguments which were advanced and as a final court of fact it was expected of the lower appellate court to deal with them and nor hang the fate of the case only on one point. This revision petition therefore is allowed, the order of the court below set aside and the case remitted to it for its disposal on merits and in accordance with law. Costs will abide the result of the appeal before the lower court. The appeal may be expeditiously disposed of.”

5. After remand, the appellate authority, on a consideration of the material, on record, held that the question of hardship was irrelevant as the case is not one which falls under Section 10(c) of the Act. The only point that was considered by the appellate authority was whether the respondent required the building in question bonafide for his personal occupation for carrying on his profession as an advocate. The appellate authority found that the respondent was independently practising the profession as an Advocate, that there was no room available for him in the family house at Marredpally for setting up an office, that the requirement of the respondent of the building in question for setting up the office is bonafide, that the respondent required the entire permises for his occupation and that the tenancy could not be split up and that the letting out of the upstair portion of the building to the Radio Engineering Institute, was in the year 1958 or 1959 when the respondent had not yet set up independent practice. The appellate authority also found that there was no substance in the contention of the petitioner that the respondent could carry on the profession in a portion of the mulgie in tobacco bazar, where it is alleged, the family kirana business is being carried on It therefore came to the conclusion that the respondent required the mulgie in question bonafide for carrying on his profession as an advocate. It according allowed the appeal and directed eviction of the petitioner Against the said order of the appellate authority, the petitioner has come up in revision to this court.

6. We shall now deal with the principal submission made by Sri Y. Suryanarayana, the learned Counsel for the petitioner, viz., that practising the profession of an advocate, does not amount to carrying on ‘business’ within the meaning of Section 10(3)(a)(iii)(a) and (b) of the said Act and that the respondent was not entitled to seek eviction of a non-residential building for the purpose of setting on office therein for carrying on his profession as an advocate. The learned Counsel submits that there is a wall market distinction between business, trade and profession and such a distinction is found in the Income-Tax Act as well as in Article 19(1)(g) of the Constitution of India, that the word ‘business’ occuring in the Act should be construed only as referring to a commercial or trade activity and that it would not apply to a profession like a lawyer or a doctor or other activities of a professional character. In support of his contention he strongly relies upon a decision of the Kerala High Court in Sethuram v. Meenakshi . A.I.R 1967 Kerala 88.

7. Sri K. Venkatachar, the learned Counsel for the respondent (land-lord) submits that the word, ‘business’ occurring in Section 10 of the Act, should not be given a narrow interpretation, but should be given widest meaning that any other construction would defeat the purpose and object of the Act and would also create hardship to a particular class of land-lords who carry on the professions like that on an advocate or a medical practitioner etc., and that a reasonable interpretation should be placed on the word ‘business’ to avoid any such hardship and a construction which would avoid any invidious discrimination in application and enforcement of the provisons of the Act.

8. In order to appreciate the contentions of the learned Counsel, it is necessary to read the provisions of Section 10(3) of the Act in so far as they are relevant for the purpose of this Act.

“10(3)(a). A land-lord may, subject to the provisions of clause (d). apply to the Controller for an order directing the tenant to put the landlord in possession of the building:—

(i) in case it is a residential building—

(a) if the landlord it not occupying a residential building of his own in the city, town or Village concerned and he requires it for his own occupation;

(b) if the landlord who has more buildings than one in the city, town or village concerned is in occupation of one such building and he bonafide requires another building instead for his own occupation;

(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the land-lord requires it for his own use and if he is not occupying any such building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Actor otherwise;

(iii) in case it is any other non-residential building, if the land-lord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise—

(a) for the purpose of a business which he is carrying on, on the date the of application, or

(b) for the purpose of a business which in the opinion of the Controller, the landlord bonafide proposes to commence:

9. The other portions of the Section which are not relevant, are omitted. The word “business” has not been defined in the Act and the said word should therefore be given a meaning which it ordinarily bears in the English language. Now if we refer to the several English Dictionaries, several meanings have been given to the word “business”, and they are set out below.

10. According to the Chamber's Twentieth Century Dictionary, “business” means, employment, trade, profession, or occupation; a task or errand incumbent or undertaken; matter requiring attention; dealings commercial activity; a commercial or industrial concerns one's concerns: or affairs; a matter or affair; in a manner from either.

11. Amongst the several meanings given to the word “business” in the Oxford English Dictionary, the following are relevant.

“A task appointed or urdertaken a person's official duty, part or province; function, occupation.”

“A person's official or professional duties as a whole; stated occupation, profession, or trade;

“A pursuit or occupation demanding time and attention; a serious employment as distinguished from a past time.

A particular occupation; a trade or profession. Trade, commercial transactions or engagements.”

12. In Bouvier's Law Dictionary, “business” means “that which occupies the time, attention, and labour of men for the purpose of livelihood or profit but it is not necessary that it should be the sole occupation or employment. It embraces everything about which a person can be employed. It is a word of large and indefinite import; the legislature could not well have used a larger word.”

According to Stroud's Judicial Dictionary, “business” has a more extensive meaning than the word “trade.”

According to Wharton's Law Lexicon, the word, “business” in the Registration of Business Names Act, 1916, includes profession.

According to Black's Law Dictionary, the term “business” has no definite or legal meaning.

According to Ramanatha Aiyar's Law Lexicon, the word “business” is of a large signification, and in its broadest sense includes nearly all the affairs in wihch either an individual or a corporation can be actors.

13. It is further stated in the same Lexicon that the word “business” has no definite technical meaning, but is to be read with reference to the object and intent of the Act in which it occurs. From the Dictionary meanings extracted above, it is therefore clear that the word business is a general expression. It has to be interpreted with reference to the object and scheme of a the Act. The object of the Act as contained in the preamble is to regulate the lessing of buildings and control the rents thereof and also to prevent unreasonable eviction of tenants therefrom. In construing the word “business” an interpretation should be placed which would effectuate the purpose of the Act. It the word, “business” is to be confirmed only to a trade or commercial activity, a large class of landholders who carry on the professions would be excluded from availing the remedies under the Act. If such an interpretation is adopted, they will be subjected to the restrictions imposed by the Act but will be unable to get any relict under the Act. The Act while imposing restrictions on the landlords, also confers certain rigths on them. It cannot be interpreted in such a manner as to subject them to the restrictions of the Act, but at the same time preclude them from availing the remedies or claiming reliefs under the Act. Such an interpretation would also lead to an invidious discrimination against a large class of landholders. If a wider connotation is given to the expression, ‘business’ such unequal application of the Act can be avoided. The intention of the Legislature as could be gathered from the scheme and object of the Act is not to exclude the persons carrying on the professions from claiming the benefit of the provisions of Sec. 10(3) of the Act. Maxwell on the Interpretation of Statues (10th Edition) at page 17, states:

“Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the state purports to be regulating; and that alternative is to be rejected which will introduce uncertainty friction or confusion into the working of the system.”

14. Again at Page 25 the learned author observed:

“The words of statute when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view.”

15. Again at Page 201 the author further states:

“Whenever the language of the legislature admits of two constructions and, if construed in one way would lead to obvious injustice, the courts set upon the view that such a result could not have been intended unless the intention had been manifested in express words.”

16. The only point we have to consider is whether the legislature intended to use the expression “business” in Sec. 10(3) of the Act in its wider significance or in a narrower sense. If the said expression is given a narrower meaning, it would lead to obvious injustice and will preclude a large class of landholders from availing the remedies under the Act and it would defeat the very object and purpose of the Act, whereas if a wider meaning is given, it will give full effect to the purpose of the Act. We are therefore clearly of the opinion that the word “business” has been used in the context of Sec. 10(3) of the Act in its wider significance and such a construction would avoid injustice and hardship and unreasonableness and also unequal application or enforcement of the provisions of the Act.

17. Even if we take the scheme of Sec. 10(3) of the Act a broad distinction is drawn between a residential and non-residential building. A landlord can seek eviction from a residential building for residential purpose and a non-residential building for non-residential purpose. The word “business” should be construed as in the sense of a non-residential purpose, be it a commercial activity or a professional activity or an official activity.

18. Now we shall deal with the case law cited at the bar. Sri Y. Suryanarayana the learned counsel for the petitioner places strong reliance on a decision of the Kerala High Court in Sethurama v. Meenakshi. In the said case, the appellant who is a “practising advocate at Calicut”, was sought to be evicted from a building where he was carrying on his profession of an advocate, under the provisions of Section 11 of the Keral Buildings (Lease and Rent Control) Act of 19???5 (hereinafter called the Kerala Act). Sub-section (3) of Sec. 11 of the Kerala Act provides that the landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. The second proviso to the sub-section reads as follows:—

“Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business.”

19. The main question that arose for consideration was, whether an advocate could be considered to carry on a “trade or business” within the meaning of that expression as used in the said proviso. The learned Judges M.S Menon, C.J, and P. Govindan Nair, J., observed, that

“The expression “trade or business” connotes a commercial activity and that the expression “Profession” does not and is virtually at the other end of the scale.”

20. The learned Judges further referred to the provisions of Article 19(1)(???) of the Constitution and Rule 40 of the rules made by the Bar Council of India under Section 49 of the Advocates Act, 1961, and ultimately held at page 90, as follows:—

“It is tot contended that an advocate's profession will be covered by the word “trade”. The only contention is that it will be covered by the word “business”. Even assuming that the word “business” is a word of ambiguous import and that it takes its content from its context, we do not think it can be said that the word “business” in the expression “trade or business” occurring in the proviso will include the profession of an advocate.”

21. This view no doubt supports the contention of the learned counsel for the petitioner. But it has to be noticed that in the Kerala Act, the proviso which fell for consideration, is with respect to a tenant carrying on any trade or business and not the landlord who requires the building for carrying on his business. This by itself may not be a fact on which we could distinguish that case. But one distinguishing feature which we have to notice is that the proviso in the Kerala Act employs the expression “trade or business”, white in Sec. 10(3) of the A.P Buildings (Lease Rent and Eviction, Control Act, 1960, only the word “business” is used in Sec 10(3) of the Act. The word “business” in the Kerala Act is preceded by the word “trade” The word “business” which is of a general import follows particular and specific word “trade.” Probably applying the doctrine of ejusdem generis, the expression “business” there could be confined only to an activity of a commercial nature like trade. Though, no doubt the learned Judges did not place any restricted interpretation on the word, “business” by applying the doctrine of ejusdem generis, we are inclined to think that the interpretation placed by the learned Judges, could be supported on the said doctrine. We are however unable to agree with the learned Judges, with great respect, that the word “business” could be interpreted by referring to the provisions of Article 19(1)(g) of the Constitution or Rule 10 of the Rules made by the Bar Council of India. Whereever a distinction is sought to be between business, trade or occupation, or profession, the legislature has been doing so by expressly employing the aforesaid expression in the enactment itself. The Income-tax Act, it is well known, draws a distinction between business, trade, occupation and profession. Similarly Article 19(1)(g) of the Constitution makes a provision far safeguarding the right to practice any profession or to carry on any occupation, trade or business. But it should be remembered that both the subject-matters of the particular enactments and the context in which these words are employed and the object and the scheme of the legislations are wholly different. As we have mentioned earlier the word “business” being of a wide significance, should take its meaning from the context in which it is employed in the particular enactment. We are of the considered opinion that the word “business” occurring in the Act (A.P Act) should be construed, keeping in view the subject matter and object of the legislation and also the context in which it occurs in the said Act. With great respect, we are therefore unable to agree with the view taken by the learned Judges of the Kerala High Court in the aforesaid decision.

22. The next of the decisions in which reliance is placed by the learned counsel for the petitioner is Stuchbrey v. General Accident Fire and Life Assurone Corporation, Ltd.. The facts of the said case are, that a firm of solicitors were the lessees of certain premises where (hey had carried on their practice of solicitors since 1935. They also acted as Agents for insurance companies and building societies and one of the partners acted as clerk to the justices. When their lease expired in September, 19???, they applied under the Landlord and Tenant Act, 1927, for the grant of a new lease or for 3,000 L, as compensation for loss of good will. On the refernce made to the referee, he found that the applicants were carrying on the trade or business of agents for insurance and building societies. But be further found that they had not established that the necessary goodwill had attached to the premises to entitle them to a new lease, or, alternatively to compensation. The county Court Judge, agreed with the view of the referee that the applicants were carrying on trade or business, but differing with the view of the referee held, that the necessary goodwill had been established in respect of the applicants' busines as solicitors and that the applicants were is entitled to a new lease for futhe period of 14 years from September 15, 1948. On appeal, in the Court of Appeal, the learned Lord Greene, M.R allowed the appeal holding that carrying on of a solicitors business was the carrying on of profession and was not the carying on of a ‘trade or business’ within the meaning of that phrase in the Land Lord and Tenant Act, 1927. On this finding and other findings reached by the learned Lord, the claim of the applicants for compensation or for new lease under the landlord and Tenant Act, was rejected. But the interpretation placed by the learned Judges on the expression, “trade or business”, was only with reference to the Landlord and Tenant Act. Their Londships did not intend to lay down that the word “business” is not capable of bearing awider connotation if the subject-matter and the object of the particular enactment and the context in which it occurs, so requires. This is clear from the observations made By Lord Greene M.R, at page 263 which are to the following effect:—

“At that stage, I think it is convenient to look at the relevent provisions of this Act (Landlord and Tenant Act). Before doing so, I ought perhaps to say this that Mr. Duveen's first argument was to the effect that on the true construction of this Act, the phrase “trade or business” includes a profession such as an ordinary solicitor's profession. In reference to that, I may say quite generally by way of preface that the question of what the phrase “trade or business” comprises must depend on the true construction of the document, if it be a document, in which it is used. It has got, like any other expression, to be interpreted according to its context and, whereas in some contexts I can well imagine, and indeed, no doubt, it is a fact, that the phrase ‘business’ would include the carrying on of a profession like a solicitors' profession, in other contexts such a profession quite equally clearly is excluded from the phrase “business”. Therefore, what we have to discover is not some abstract meaning in the air, but the meaning of the phrase “trade or business” when used in the context of this Act.”

23. From the aforesaid observation, it is amply clear that the learned Lords were only interpreting the expression “trade or business” with reference to the English enactment viz., Landlord and Tenant Act of 1927 and that the same interpretation cannot be made applicable while interpreting the phrase “business” occurring in the Andhra Pradesh Act. The said observations which we have extracted, support the view which we have taken that in the context of the A.P Act the phrase “business” would also include carrying on of a profession of an advocate.

24. Sri Y. Suryanarayana, next invited our attention to a decision of the Madras High Court, in L.M.C??? v. Labour Commr where Srinivasan, J., held, that.

“the office of a chartered architect is not a “Shop” within the meaning of Sec. 2(16) of the Madras Shops and Establishments Act, and that is not a premises where any trade or business is carried on or where any services are rendered to customs.”

25. But the interpretation was reached by the learned Judge with reference to the scheme and object of the Madras Shops and Establishments Act, which intended to provide for the regulation of conditions of work in shops, Commercial Establishments, Restaurants. Theatres and other Establish ments, and with reference to the expression “shop” as defined in the said enactment. The phrase “Shop” was defined in the said enactment as “any premises where any trade or business is carried on”. That the expression “shop” used in the said enactment should be given only a restricted meaning is clear from the observations of the learned Judge at Page 133 which are to the following effect:—

“It therefore seems to me that it cannot be said that the carrying on of a profession is the same thing as the carrying on of a trade or business. Section 2, Sub-section (16), defining a shop is, in my opinion, restricted in its scope It clearly, envisages an activity which as commonly understood is associated with the carrying on of trade or commerce and cannot take in establishments where professional services are rendered.”

26. Referring to a decision of the Supreme Court in the State of Bombay v. Hospital Mazdoor Sabha in which the construction of the word “industry” in Section 2(j) of the Industrial Disputes Act came in for consideration the learned judge observed, that “it is clear from the above decision that despite the fact that words of a very wide significance are used in the section, it is permissble to limit the scope of such a provision”. It is therefore cleats that for the purpose of the enactment which the learned Judge was considering, the learned Judge was inclined to place a restricted meaning on the expression, “trade or business” occurring in the definition of the phrase “shop”. This decision cannot be usefully, pressed into service in construing the word “business” occurring in the legislation, which is concerned with the regulation and control of lease of buildings, like the one which we are considering.

27. The next case relied upon by Sri Y. Suryanarayana, in National Union of Commercial Employees v. M.R Mether Industrial Tribunal, Bombay . A.I.R 1962 S.C 1080.. In the said case, their Lordships of the “Supreme Court, held, that “A soli citors” firm carrying on the work of an attorney, is not an “industry” within the meaning of Sec. 2(j) of the industrial Disputes Act of 1947”. But this decision is concerned only with the interpretation of Industrial Legislation. All that Their Lordships held was that a solicitors firm carrying on the work of an attorney, would not fall within the meaning of an “industry”. Their Lordships were not called upon to decide the question that has arisen here. The scope and object of the Act and the context in which Their Lordships came to the conclusion, were wholly different from those which arise for consideration in this case Their Lordships observed at Page 1085 as follows:—

“The essential basis of an industrial dispute is that it is a dispute arising between capital and labour in enterprises where capital and labour combine to produce commodities or to render service. This essential basis ???ould be absent in the case of liberal professions. A person following a liberal profession does not carvy on his profession in any intelligible sense with the active co-operation of his employees and the principal, if not the sole, capital which he brings into his prosession is his special or peculiar intellectual and educational equipment. That if why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of ‘industry’ under Sec. 2(j) of the slid Act.”

28. These observations make it clear that for the purpose of Industrial Legislation, their Lordships were not inclined to hold that a liberal profession like that of an attorney would fall within the meaning of “industry” under the said legislation. That the profession carried on by a solicitor, could also be called “business”, is clear from the following observations made by their Lordships at page 1086.

“The work of a solicitor is; in a loose sense, of course, business and so if the solicitors entered into an agreement in restraint of trade, its validity would have to be judged on the basis that their work is in the nature of business. That, however, is hardly relevant in determining the question as to whether the said work is an industry under section 2(j)”

29. V.M Deshmukh v. K.M Kothari cited by the learned Counsel, does not help the petitioner. On the other hand in the said case it was assumed by their Lordships, Mangalmurti & Mudholkar, JJ., that the running of a Maternity Home, would clearly constitute carrying on of a business within the meaning of C.P & Berar Letting of Houses & Rent Control Order, 1949. The main decision however turned upon a different point viz., upon the interpretation of the expression “His own business” and it is unnecessary to refer in detail to the facts of the aforesaid case.

30. The decisions in Venkataswami & Sons v. Virabhadraswami, and Hussain saheb v. Mowlvi Saheb . 1956 A.L.T 370, have also no application to the facts of this case inasmuch as the question that falls for consideration here did not arise nor was it decided therein. However the decision in Kesavan Nair v. Babu Naidu . A.I.R 1954 Mad. 892. to which cur attention was invited by Sri Y. Suryanarayana supports the view takes by us viz., that the word “business”, should be given a wider meaning in the context of the Rent Control Legislation. Ramaswami, J., observed as follows:—

“The term “business” includes every trade, occupation and profession. The word “business” has no technical meaning, but is to be read with reference to the object and inherit of the Act in which it occurs. The term “busies” means an affair requiring attention and care; that which business or occupies one's attention and labour as his chief concern: mercantile pursuits: that which one does for a livelihood, occupation, employment.

31. It is however unnecessary to refer to the actual facts in the aforesaid case as they have no analogy to the present case.

32. Sri K. Venkatachar, the learned counsel for the respondent, draws out at tention to a ruling In re, Williams' Will trusts5; in support of his contention that the word, “business” in its widest connotation takes in also liberal professions like that of an advocate or a medical practitioner. In the said case, a testator, by his will directed his ???ustees to invest a portion of the net proceeds of the sale of his residuary estate and pay the income thereof to his son for life and further directed that “notwithstanding anything hereinafter contained, on my said son attaining the age of thirty-five years, my trustees shall have power in their absolute discretion to raise and pay to my said son any part or parts of the said sum not exceeding altogether twenty five percent thereof for the purpose of starting my said son in business or for the advancement of any business with which he may be concerned.” In 1942 the son became qualified as a medical practitioner and on September 20, 1943 he attained the age of thirty-five years. Construing the recitals of the said will, His Lordship Danekwerts, J., held,

“the object of the advancement clause being to assist J. (the son) to acquire a gainful occupation, the word “business” included medical practice, and, the possession of a residence convenient (either by reason of its situation or because its accommodation included a surgery) for the purpose of practice being an important element in the advancement in his profession of a medical practitoner, the trustees, on the true construction of the advancement clause were empowered to expend moneys up to the limit of one quarter of the fund in purchasing a dwelling house for J. and his family to be used in connection with a prospective medical practice.”

33. At page 537 of the said Reports, the learned Judge observed as follows—

“I turn to the meaning of the word “business”, and it seems to me that it is plain, on the meanings found attributed to the word in the dictionaries and in the authorities and “business” is capable of including the practice of a profession.”

34. This case supports the view contended for by the respondent and which we have taken earlier that the word, “business” occurring in the Act, would also take in the profession of an advocate or an attorney. Sri Y. Suryanarayana, the learned counsel for the petitioner, sought to distinguish the aforesaid decision on the ground that it related to the construction of the word “business” occurring in a deed and not in a Statute. No doubt the learned Judge was construing the recitals of a will and not an enactment. But the question we have to consider is whether the expresssion, “business” in its wider significance, is also capable of taking it its ambit the carrying on or practising a profession like that of an Advocate. The aforesaid decision amply establishes that in its normal usage the word, “business” would also take in a profession. The only question is whether a wider or narrower meaning should be given to the word “business” in the context in which it occurs in the Act. When once we reach the conclusion as we did that the word “business” takes in its fold, also practising of a profession, we are inclined to hold that the wider meaning should be given to the said expression in interpreting the provisions of Sec 10(3) of the Act. For all the foregoing reasons, we are therefore of the considered opinion that practising of a profession like that of a lawyer falls within the meaning of the expression “carrying on business” occursing in Sec. 10(3)(a)(iii)(a) and (b) of the Act, and that the respondent is entitled to maintain the application for the eviction against the petitioner for the purpose of setting up his office of an advocate.

35. Sri Suryanarayana, then advanced arguments on the merits of the case. He fi??? submitted that the lower court did not comply with the directions contained in the order of remand and did not determine the questions which were directed to be decided by this court. He submitted that the lower court did not decide whether the family was carrying on business in the mulgie in Tobacco bazar, and if so, whether there was sufficient space for the respondent to carry on his business in the aforesaid premises or not, and also that the question of bonafide requirement was not considered by the lower appellate court. We are unable to agree with this submission. On a perusal of the order of the appellate authority we find that toe appellate authority framed the only point for consideration, whether the suit premises was bonafide required for the personal occupation of the respondent. He thereafter referred to the contentions of the petitioner that the respondent could carry on his business in the family house at Marrrddpaliy or in the mulgie in tobacco bazar which bad fallen to the share of the respondent, or in the upstair portion of the mulgie from which the petitioner is sought to be evicted All these contenttions were death with by the learned Judge in Paras 11 to 16 of the appellate order and ultimately recorded his finding that the buildings were not available for the respondent for carrying on his profession and that the requirement of the respondent was bonafide. In view of this, we see no substance in the contention of the learned counsel that the order of remand was not complied with by appellate authority. Another submission sough, to be raised by the learned counsel for the petitioner is that the tenancy was not terminated in accordance with the provisions of Sec. 106 or Transfer of Property Act. But in view of the decision of this Court in Uligappa v. Mohana Rao given by a Division Bench, consisting of one of us (Gopal Rao Ekbote, J) and Venkateswara Rao, J., the learned Counsel fairly conceded that he was not pressing this point. It is also fairly conceded by him that this question was not raised either before the Rent Controller or before the appellant authority nor even in the grounds of Revision. We are not also inclined to allow him to raise this question at this belated stage.

36. Sri V. Suryanarayana, the learned counsel for the petitioner, submitted that the application for eviction was not maintainable as the requirements of section 10(3)(a)(iii) of the Act, were not satisfied. His submission is that the respondent has other non-residential buildings in the city where he could carry on his practice as an advocate and therefore under Sec. 10(3)(a)(iii) of the Act, he cannot seek eviction unless he satisfies that the respondent is not occupying a non-residential building in the city which is his own or to the possession of which he is entitled under this Act, or otherwise.” It is not the case of the petitioner that the respondent is occupying any building to the possession of which he is entitled under the Act or other-wise. The only submission is that the respondent owns other non-residential buildings in the city and is in occupation of the same. But this is essentially a question of fact on which the appellate court has come to the conclusion that the respondent it not in actual occupation of any nonresidential building which he owns in the City.

37. We may also point out that in para 5 of the petition for eviction it is expressly and specifically stated by the respondent that he is not occupying a non residential building in the city which is his owner to the possession of which he is entitled for the purposes of carrying on his professions. This allegation has not been controverted by the petitioner in the counter filed by him. It is only at the stage of evidence that the petitioner sought to establish a new case that the respondent was occupying other non-residential buildings of his own. It is well established that an averment in the pleading which is not expressly denied, must be taken to be admitted. However as evidence was allowed to be let on this point and both the lower authorities considered this question, we shall refer to the arguments of the learned counsel on this question.

38. Sri Y. Suryanarayana, points out that the building bearing No. 1604 in tobacco bazar had fallen to the share of the respondent in the partition between the members of the family and that he is actually carrying on the business therein along with the other members of the family. It is clear from a perusal of the partition-deed, that the building bearing No. 1604 in tobacco bazar was allotted to the respondent and not to the members of the family and that the family business is being carried on at the building bearing No. 1640 which had fallen to the share of one Rumala Radhakrishna, according to Schedule V of the partition deed. In the order of remand made by the court in C.R.P 611/64, it is clearly stated as follows:—

“A look at the depositions of the respondent (tenant) would indicate that he himself admits that this kirana shop belongs to the joint family and not exclusively to the petitioner. That could not have been therefore a ground for dismissing the petition. It is evident from schedule No. 4 of the partition deed that this Kirana shop was not allotted to the petitioner.”

39. It is clear that the mulgie bearing No. 1604 in tobacco bazar did not fall to the share of the respondent and that the whole argument of the learned counsel for the petitioner that the family business was hiring carried on in the aforesaid mulgie, and that the respondent owns a non-residential building where he could carry on the profession of an advocate, is based on a wrong assumption of facts. From the inspection report made by the Controller, it is clear that the Mulgie bearing No. 1604 is rented out to one O.K Balakrishna, for his godown. Therefore, the respondent cannot be said to be in occupation of the aforesaid building.

40. Nextly it is submitted by Sri Suryauatayana, that the respondent is in occupation of the upstair room of the mulgie from which the petitioner is sought to be evicted and therefore he is disentitled to make an application. This argument is nut supported by the evidence on record. The lower court ??? clearly found in para 14 of its order that a Radio Engineering Institute has been in occupation of the said upstair room from 1958 or 1959, What is however contended for the petitioner is that the respondent should have occupied the aforesaid premises in 1959 when it fell vacant instead of letting out the same to the Radio Engineering Institute and that the requirement of the respondent could not be said to be bans fide. But this argument is wholly misconceived in as much as bona fides have to be decided with reference to the requirements of the landlord as on the date of the petition for eviction. It is in the evidence of the respondent that he entered the profession as a Pleader in 1956 and was attached to the office of his senior Counsel Sri K. Ramagopal and that in 1960 he enrolled himself an Advocate and that thereafter in 1962 he intended to set up an office of his own and build up independent practice. These facts were not controverted or disputed by the petitioner. On the date of the application for eviction it is clear that the room in the upstair portion was in the occupation of a tenant, viz, Radio Engineering Instititute and was not in the occupasion of the respondent.

41. Inasmuch as the respondent as not in occupation of the Mulgie bearing No. 1604 in tobacco bazar or the upstair portion of the building in question, the respondent has clearly made out a case for eviction under section 10(3)(a)(iii) of the Act.

42. Sri Y. Suryanarayana, also contends that the respondent Is a Junior Lawyer and has started independent practice just prior to the filing of the petition, that he is not possessed of any library or typewriter, nor has he appointed any clerk to indicate that he is actually carrying on the profession independently and that therefore his requirement is not bona fide. But we are wholly unable to agree with this submission. It is not disputed by the petitioner that the respondent was enrolled as a Pleader in 1956 and subsequently in 1960 as an advocate and by 1962 when the petition for eviction came to be filed, the respondent had nearly six years standing at the bar. It is therefore inappropriate to say that the respondent is only a junior practitioner or that he is not capable of having independent practice. Even otherwise the moment a person duly qualifies himself and enrols as a lawyer, he becomes competent to set up practice as an Advocate. Standing at the Bar or the volume of the practice that one may attract at the profession is not the criterion for testing whether the person in carrying the profession or not. Whether he is practising independently Or whether he is attached to the chambers of his senior counsel, he still requires an office of his own where he could receive his own ???ts or prepare his cases. The existence, of a library or a typewriter or the appointment of a clerk is not the sine qua non for carrying on the profession of an advocate. The young lawyer may very well utilise the facilities of a library provided by the senior counsel to whom he is attached or the library attached to the courts or he may have the books which are just necessary for his daily reference. It cannot be postulated that the practice of the profession requires that every lawyer should compulsorily possess a big library. We are therefore unable to agree with the submission of the learned counsel that the requirement of the respondent, is not bonafide.

43. Lastly if is urged by the learned counsel that the respondent does not required all the four rooms of the building for the purpose of carrying on his profession and it is sufficient if the respondent is given one of the rooms in the ground floor. But it is well established that the tenancy cannot be split up as held in Jafer Ali v. Choitram where the learned Judge, Jaganmohan Reddy, J., as he then was, observed as follows:

“The Controller either determines the lease as a whole if he is satisfied that the landlord requires it for his occupation and has no other residential house of his own, or dismisses the application. He cannot be permitted to split up the tenancy, as was done by the Rent Control Appellate Authority in the instant ease, viz., to direct the tenant to vacate ¾ of the suit premises and allowing him to remain in possession of ¼th, and create a new one between the land-lord and the tenant, as that would have the effect of creating a tenancy for the parties.”

44. With great respect, we fully agree with the observation of the learned Judge and reject the contention of the learned counsel for the petitioner on this aspect.

45. As a result of the foregoing discussion, it follows that the order of the Lower Court is valid and proper and does not warrant any interference in this revision petition.

46. The Revision petition is accordingly dismissed with costs.

47. Petitioner will vacate and hand over possession of the building within three months from to day. Otherwise the order of eviction will be executed.

48. Revision dismissed.