LODHA, J. - (1.) THIS is a defendant-tenant's second appeal arising out of a suit for arrears of rent and ejectment in respect of a portion of house situated in Chokri Vishwesarji in the city of Jaipur. The house is popularly known as Nanaji ki Haweli and originally belonged to Thakur Devraj Singh from whom the plaintiffs purchased it by a registered sale deed dated the 25th July, 1960. The plaintiffs had already been running a private college named Jaipur College in a part of this Haweli before they purchased it and the defendant was occupying a portion of the 'haweli' as Thakur Devraj Singh's tenant on a monthly rent of Rs. 80/ -. He attorned in favour of the plaintiffs after they had purchased the whole house. The plaintiffs' case is that they required the premises leased out to the defendant for their own residence as well as lor the purpose of providing a hostel for the scholars of the Jaipur College and Vidhya Mandir College so as to run. both the institutions efficiently and ultimately get them recognised by the Government. They alleged that it was with the aforesaid object that they had purchased the Haweli. Notice dated 22 April, 1963 was served by the plaintiffs on the defendant by registered post terminating the letter's tenancy and thereafter the present suit was filed by them in the court of Munsiff (East), Jaipur on 24 July, 1963. Besides personal necessity, the plaintiffs also relied on ground of default having been committed by the defendant by not paying rent for more than six months. They prayed for a decree for ejectment as well as a money decree for Rs. 2,2750/- on account of arrears of rent and damages for use and occupation after the alleged termination of tenancy. The defendant resisted the plaintiffs, suit He denied the plaintiffs' necessity for the premises in question and pleaded that the suit for ejectment was not maintainable as the notice for termination of tenancy being not in accordance with the provisions of secs. 106 of the Transfer of Property Act was not valid His case was that the premises had been taken on rent for the purpose of running 'diamond Printing Press' as well as for cards and preparing card-board boxes and consequently the lease was for manufacturing purposes terminable by six months notice expiring with the end of the year of tenancy.
(2.) AFTER recording the evidence produced by the parties, the trial court decreed the plaintiffs' suit. Dissatisfied with the judgment and decree by the trial court the defendant filed appeal and the learned Additional District Judge No. 1, Jaipur City, Jaipur, by his judgment and decree dated 2 May, 1972, affirmed the judgment and decree by the trial court. Hence this appeal by the defendant. Learned counsel for the appellant has argued the following points in support of the appeal - (1) That the lease was for manufacturing purposes and as such, it shall be deemed to be a lease from year to year terminable by six months notice expiring with the end of the year of tenancy and since in the present case the plan tiffs gave notice Exhibit-2 dated 22 April, 1963 terminating the lease from 24 June, 1963, the notice was bad; (2) That in case the lease is held to be not for manufacturing purposes, even then the notice is bad because it terminates the lease one day before the expiry of the month of tenancy; (3) That the notice is bad also because it only calls upon the defendant to vacate the premises but there is no mention of termination of the tenancy; (4) That the plea regarding personal necessity cannot be accepted as there is variance between the notice and the plaint on this point; (5) That the defendant had tendered the rent to the plaintiffs by money orders prior to the filing of the suit but the plaintiffs refused the same and consequently the defendant was not a defaulter and the case does not fall under sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and (6) That the rent for the shop in question was being paid by a partnership firm and not by the defendant alone and, therefore, the partnership firm should have been sued and the suit is not maintainable against the defendant. I propose to deal with these points in the same order in which they have been stated above. The first important point for decision in this case is whether the lease was for manufacturing purposes. There has been a considerable argument from both the sides as to what is a 'manufacturing purpose' and a few cases to which I shall presently refer have also been cited by learned counsel. But before I come to case law, it would be necessary to find out the purpose for which the premises were leased out to the defendant. The learned Additional District Judge has held "that besides manufacturing purposes, the suit premises were also used by the defendant for residential purposes on some occasions" and "that it is also not proved that the defendant took the premises on rent for manufacturing purposes only". The finding undoubtedly involves a mixed question of fact and law and, therefore, it has become necessary for me to examine it in second appeal. At thes stage, I wish to point out that no specific issue has been framed on the point whether the premises in question were leased out for manufacturing purposes but the parties seem to have proceeded to trial on this matter under issue No. 6 which is about the validity of notice. However, both the parties haveled evidence on the point and it is not the grievance of either that for want of a specific issue on the point it has been prejudiced. In the original written statement filed on 20 December, 1963, the defendant pleaded that the notice Ex. 2 dated 22 April, 1963 had not been received and no valid notice of termination of tenancy had ever been given. In the amended written state-meat filed on 29 April, 1967, i e. after about more than 3 years, the defendant pleaded that the lease should have been terminated by six months notice under sec. 106 of the Transfer of Property Act, as the lease was for 'diamond Printing Press' in which cards and card-board boxes were manufactured. Thus, it would be clear that this plea of manufacturing purpose was taken at a considerable belated stage.
(3.) COMING to the evidence, DW/1 Kunj Behari (defendant) has stated that the lease was taken for running a printing press. He has further stated that cardboard boxes, invitation cards, files, registers, envelopes are also prepared in the press. He goes on to state that the telephone-directories of the states of Uttar Pradesh, Bihar, Madhya Pradesh and Rajasthan are also printed and so also the proceedings of the; Parliament. In the course of cross examination, when confronted with his statement dated 25 October, 1962 recorded in civil suit No. 310 of 1951 Acharya Hari, plaintiff vs. Smt. Bhuri - where in he had stated that he was residing in the house in question, the witness replied that he may have given such a statement. DVV/2 Durgalal has stated that the defendant had taken the premises in question on rent for running a press. In the course of cross-examination he deposed that the defendant was living in a house near the house in question but when he was asked as to where the defendant used to live before that, he pleaded ignorance. DW/3 Kapoor has stated that registers, files and pads are prepared as well as printed in the press. DYV/4 Bhanwarlal has also stated that the premises in question were leased out to the defendant for running a press and not for his residence. The statement of DVV/6 Jagdish Prasad is that the defendant also resides in the suit premises on occasions of marriage. One of the plaintiffs' witnesses viz PW/3 Badri Narayan has stated that the defendant lives in a part of the premises in question. The witness has got his shop in front of the Haweli In the course of cross-examination he has stated that he had seen the defendant living in the premises in question 10 to 12 years ago but for the last year or so the defendant is not living there. The original landlord Thakur Devraj Singh who had leased out the premises in question has not been produced by either party. At this stage it may be noted that the best evidence in the matter would have been the rent-note but the same has not been produced. The plaintiffs' case is that it was not handed over to them by the vendor Thakur Devraj Singh. However, DW/l Kunj Behari has admitted that the premises in question had been taken on lease by him 22 to 23 years ago. His statement was recorded on 19 July 1969. Thus according to this version the period of commencement of the lease comes somewhere in 1946. 47 A D. The witness denies whether any rent-note was executed by him at the time of taking the premises in question on lease. He has also stated that printing press is a partnership business and the partnership came into existence in June 1960. He has also produced the original partnership deed though it has not been exhibited. In para No. 2 of this partnership deed it is mentioned that Kunj Beharilal (defendant No. 1) was carrying on the business of printing press and sale of books as a proprietor since 1955. This partnership deed admittedly bears the signatures of Kunj Beharilal. It is clear from this partnership deed that the printing press had been started by the defendant in 1955 whereas according to the defendant himself the premises in question were taken on rent sometime in 1946 47 A. D. This would show that the printing press was started by the defendant about 9 years after he had taken the lease of the suit premises. This takes the wind of the defendant's case out of sail and the defendant's case stands falsified by his own admission contained in his statement and the partnership deed. I am, therefore, not prepared to accept the defendant's version that the suit premises were leased out for running a printing press. Besides that it appears to me that the defendant also resided in the premises in question after taking the same on rent. Even his witness DW/6 Jagdish Prasad has admitted that the premises were used for residence on occasions like marriage etc. In this view of the matter, the learned District Judge was not wrong in drawing inference that at any rate the premises were taken on rent for multipurposes, i. e. for running printing press as well as for residence. Such a multi-purpose cannot be considered a manufacturing purpose and if an authority is needed, reference may be made to Sati Prasanna Mukhejee vs. Mh. Faze (l), wherein it was held that a lease for mixed or multi-purposes like dwelling purposes, for setting up a printing press and for ordinary business purposes is not a lease for 'manufacturing purpose' within the meaning of sec. 106 but is within the meaning of the words for 'any other purpose' used later in that section. Learned counsel for the respondents has, however, argued that even if it is held that the premises were taken on lease for a printing press only, then, too it does not amount to a 'manufacturing purpose'. In this connection he has argued that the defendant's version that telephone directories are manufactured in the press is an improvement in the pleadings and cannot be accepted as even in the amended written statement defendant's plea was that only card board boxes and cards were prepared in the press. It appears to me that the defendant has been changing his case from stage to stage. In his original written statement be did not take the plea of 'manufac-turing purpose' at all. After more than three years he amended the written statement and introduced the plea of 'manufacturing purpose' by alleging that the lease was taken for printing press in which cards and card-board boxes were also manufactured. In the course of evidence he went a step further and stated that not only card-board boxes and cards but registers, telephone directories, files etc. were also manufactured and printed in the press. Much reliance, therefore, cannot be placed upon his version. In Sati Prasanna Mukherjee vs. Md. Fazel (l) the learned Judge also held that printing simpliciter is not necessarily a manufacture. In Allenbury Engineers Pvt. Ltd. vs. Shri Ram Krishna Dalmia (2), their Lordships were pleased to observe that: "the expression 'manufacturing purposes' in sec. 106 is used in its popular and dictionary meaning, the transfer of Property Act not having supplied any dictionary of its own for that expression. The burden of proving that the lease was for manufacturing purposes, must for the purpose of sec. 106 of the Transfer of Property Act, lie on the party who claims it to be so, in the present case the appellant-company. That burden is to establish that the exclusive or atleast the dominant purpose of the lease was the manufacturing purpose (See C. Mackertich vs. Steuart & Co. Ltd. , (AIR 1970 SC 839 ). The word 'manufacture' according to its dietionary meaning, is the making of articles or material (now on a large scale) by physical labour or mechanical power (Shorter Oxford English Dictionary Vol 1,1203 ). According to the Permanent Edition of Words & Phrases Vol. 26 'manufacture' implies change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having distinctive name, character or use. " ;