The Gwalior Bench of the Madhya Pradesh High Court has held that the office of an advocate situated in a residential building constitutes a professional activity and cannot be termed as a commercial activity. Justice G.S. Ahluwalia set aside the findings of the lower courts which had refused to grant an eviction decree on the premise that the suit premises were let out for an advocate’s office (commercial) while the bona fide need pleaded was residential.
The Court allowed the second appeal filed by the landlord, granting a decree of eviction under Sections 12(1)(a) and 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961, directing the tenant—an advocate—to vacate the premises within one month.
Background of the Case
The appellant, Anil Kumar Kushwah (Plaintiff), filed a suit for eviction and recovery of arrears of rent against the respondent, Anil Kumar Gupta (Defendant), an advocate. The suit property consists of a room situated in a residential building at Tansen Road, Hajira, Gwalior. The plaintiff pleaded that the defendant was inducted as a tenant on October 17, 2001, for a monthly rent of Rs. 500 plus electricity charges of Rs. 125. The plaintiff sought eviction on the grounds of bona fide need for his youngest son’s studies and non-payment of rent.
The defendant denied the allegations, claiming the rent was Rs. 100 per month with Rs. 25 as electricity charges. He asserted that he used the room as his office for limited hours.
The Trial Court held that the plaintiff’s bona fide need was genuine and the defendant was in arrears of rent. However, it refused to grant a decree of eviction, reasoning that the suit room was let out for “non-residential purposes” (advocate’s office), while the eviction was sought for “residential purposes.”
Both parties appealed the Trial Court’s decision. The 10th Additional District Judge (Fast Track Court), Gwalior, dismissed the plaintiff’s appeal but allowed the defendant’s appeal regarding the rate of rent, reducing the finding on rent to Rs. 125 per month. The plaintiff then approached the High Court.
Legal Issues
The High Court admitted the appeal on substantial questions of law, including:
- Whether the Lower Appellate Court erred in setting aside the Trial Court’s finding on the rate of rent and refusing the decree under Section 12(1)(a).
- Whether the office of an advocate is a commercial activity.
- Whether an appeal under Section 96 of the Civil Procedure Code (CPC) is maintainable against a finding when no decree is passed against the party.
Court’s Analysis
Advocate’s Office is Not Commercial Addressing whether an advocate’s office constitutes commercial activity, the Court relied on its recent judgment in Dheeraj Singh vs. Hemant Kumar Sharma and the Supreme Court decision in M.P. Electricity Board and Ors Vs. Shiv Narayan and Anr. (2005).
The Court observed, “The undisputed fact is that the room in question is situated in a residential building and not in a commercial building.”
Quoting the Supreme Court, the judgment noted:
“The expression ‘commerce’ or ‘commercial’ necessarily has a concept of a trading activity… But in legal profession, there is no such kind of buying or selling nor any trading of any kind whatsoever. Therefore, to compare legal profession with that of trade and business is a far from correct approach and it will totally be misplaced.”
Justice Ahluwalia concluded: “By no stretch of imagination, it can be said that the office of an advocate situated in a residential building can be said to be a commercial activity.”
The Court held that the Trial Court committed a material illegality by dismissing the suit merely on the ground that the office was a commercial activity.
Maintainability of Appeal Against Findings The Court examined Section 96 of the CPC, emphasizing that an appeal lies only against a “decree.” Since the Trial Court had not passed a decree against the defendant (having dismissed the eviction suit), the defendant’s appeal before the Lower Appellate Court against the finding of rent was not maintainable.
The Court stated, “If the respondent/defendant was aggrieved by the findings recorded by the Trial Court, then in absence of a decree against him, he had only two options, i.e., either to file cross objection under Order 44 Rule 2 CPC or to file a civil revision… the appeal filed by defendant was not maintainable.”
Consequently, the Lower Appellate Court’s judgment setting aside the rent fixed by the Trial Court was set aside.
Arrears of Rent and Eviction The Court noted that the defendant failed to deposit rent even at the lower rate of Rs. 125 adjudicated by the Lower Appellate Court, with a delay of 25 months. The defendant’s application for condonation of delay was rejected.
Citing Sayeda Akhtar v. Abdul Ahad and Ashok Kumar Mishra vs. Goverdhan Bhai, the Court reiterated that Section 13 of the M.P. Accommodation Control Act protects a tenant only if they comply with the deposit requirements.
The Court observed: “If the defendant was under any factual confusion… he should have moved an application before this Court for clarification, but deciding not to deposit the rent by taking a decision on his own cannot be said to be a bona fide reason, specifically when the defendant himself is an advocate.”
Decision
The High Court set aside the judgments of both the lower courts insofar as they denied the eviction decree. The suit was decreed under Sections 12(1)(a) (arrears of rent) and 12(1)(e) (bona fide need) of the M.P. Accommodation Control Act.
The respondent was directed to vacate the suit room within one month. The Court further directed that if execution proceedings are initiated, they must be decided within six months, in line with the Supreme Court’s directions in Periyammal vs. V. Rajamani (2025).
Case Details
Case Title: Anil Kumar Kushwah Vs. Anil Kumar Gupta
Case No.: Second Appeal No. 235 of 2010
Coram: Justice G. S. Ahluwalia
Counsel for Appellant: Mr. Abhisehk Singh Bhadauria
Counsel for Respondent: Mr. Vikas Singhal
