A tenant's use of business premises for residential purposes is not a breach of the lease agreement if the use is ancillary to the business and does not cause any annoyance or disturbance to the landlord or other tenants.

Soni, J.

1. This is a revision application under Rule 6 of the Delhi Rent Control, (Procedure) Rules, 1847 seeking to revise the order of the Senior Subordinate Judge posted in Delhi directing that the applicant be evicted from the premises.

2. The suit was originally brought by Mr. Bal Raj Arora landlord against the applicant who was his tenant alleging that he had not been paying his rent and that he Had been using the premises for purposes other than for which the premises had been let and also in contravention of the terms of the lease between the Government and the plaintiff. After the plaint had been admitted notice was issued to the defendant to appear and put in his defence. The first date of hearing was 4-9-1951. On that day the plaintiff appeared but the defendant was absent and ex parte proceedings were ordered and the case was adjourned, to the next day. Towards the close of the courts sitting on 4-9-1951 the defendant appeared and put in an application asking that the order regarding ex parte proceedings to be taken against him be set aside as he had been prevented by misrepresentation having been made to him by the plaintiff that he would withdraw the suit and that was the reason for his not coming and attending the Court. The defendant also alleged that he had brought the arrears of rent with him. The Court ordered this application to be heard the next day. This application has been shown as an application under Order 13, Rule 7, but it is really an application under Order 9, Rule 7. Under Order 9, Rule 6, where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, the Court may proceed ex parte if it is proved that the summons was duly served. Under the provisions of Rule 7 of this Order where the Court has adjourned the hearing of the suit ex parte, & the deft, at or before such hearing, appears & assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. On the 5th of September the Court heard the application of the defendant for setting aside the ex parte proceedings against him. The Court set aside its order of the previous day on payment of Rs. 15/- as costs. The result of this order, according to the provisions of Rule 7, is that the Court permitted the defendant to appear "as if he had appeared on the day fixed for his appearance". If the defendant had appeared on the day fixed for his appearance which was the 4th of September and had put in the arrears of rent, then so far as the provision of law concerning the deposit of the money on the first day of hearing is concerned it was satisfied when the money had actually been brought on the 4th though it was ordered to be deposited by the Court on the 5th. In my opinion therefore issues 2 and 3 that were framed in this case should not have been framed by operation of Rule 7. The Court having set aside the ex parte proceedings, the result 08 which being that the defendant was put in the same position as if he had appeared on the first day of hearing, these issues did not arise. The trial Judge held that the deposit must be deemed to have been made on the first day of hearing. Regarding the other issues that arose in the case, the trial Judge came to the conclusion that the premises that were let out to the defendant had no doubt been premises which were business premises but a small portion of the premises being used for residence was not excluded from such use by the defendant. The trial Judge, therefore, held that the arrears having been paid there was no grievance of the landlord proved against the defendant and therefore dismissed the landlords suit. The landlord appealed. On appeal the Senior Subordinate Judge held that the deposit had not been properly made on the first day of hearing, the Judge regarding that as an important point in the case. Regardin