Madhya Pradesh High Court’s Gwalior Bench held that an advocate’s office in a residential building amounts to professional, not commercial, use. Justice G.S. Ahluwalia set aside lower court rulings and upheld eviction based on bona fide residential requirement.
GWALIOR: The Gwalior Bench of the Madhya Pradesh High Court has determined that an advocate’s office located within a residential building constitutes a professional activity rather than a commercial one.
Justice G.S. Ahluwalia overturned the lower courts’ findings, which had denied an eviction decree based on the argument that the premises were leased for a commercial advocate’s office while the claimed bona fide need was for residential purposes.
The Court upheld the landlord’s second appeal, granting an eviction decree under Sections 12(1)(a) and 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961, and directed the tenant an advocate to vacate the premises within one month.
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Factual Background Of the Case
The appellant, Anil Kumar Kushwah (the Plaintiff), initiated a suit for eviction and recovery of unpaid rent against the respondent, Anil Kumar Gupta (the Defendant), who operates as an advocate. The property in question is a room within a residential building on Tansen Road, Hajira, Gwalior.
The plaintiff claimed that the defendant was made a tenant on October 17, 2001, at a rent of Rs. 500 plus electricity charges of Rs.125. The reason for eviction was a bona fide need concerning his youngest son’s education and non-payment of rent. The defendant contested these claims, stating the rent was actually Rs. 100 per month, with electricity charges of Rs. 25, and asserting that he used the room for his office only during certain hours.
The Trial Court acknowledged the plaintiff’s genuine bona fide need and confirmed the defendant’s rent arrears but declined to issue an eviction decree. The reasoning was that the room was rented for “non-residential purposes” (as an advocate’s office) while the eviction sought was for “residential purposes.”
Being aggrieved by judgment and decree passed by the Trial Court, appellant preferred an appeal and similarly, respondent also preferred an appeal and prayed for setting aside of the findings given by the lower Appellate Court. By impugned judgment and decree dated 30/03/2010, learned lower Appellate Court dismissed the appeal filed by appellant, whereas allowed the appeal filed by respondent.
Legal Issues
The High Court took up the appeal, acknowledging significant questions of law, including:
- Is an appeal under Section 96 of the Civil Procedure Code maintainable against a finding when no decree has been issued against the party?
- Did the Lower Appellate Court make an error by overturning the Trial Court’s rent finding and refusing to issue a decree under Section 12(1)(a)?
- Is an advocate’s office classified as a commercial activity?
Analysis of the Court
1) Maintainability of Appeal : The Court reviewed Section 96 of the CPC, stating that an appeal is permissible only against a “decree.” Given that the Trial Court did not issue a decree against the defendant (having dismissed the eviction suit), the defendant’s appeal to the Lower Appellate Court concerning the rent finding was deemed unmaintainable.
An appeal under Section 96 of the CPC lies only against a decree passed by a court, and not otherwise. Where the decree operates in favour of a party, but certain findings are adverse, the aggrieved party has limited remedies. Such a party may either file cross-objections under Order XLI Rule 22 CPC, or invoke the revisional jurisdiction if no appeal has been preferred by the opposite party.
The right of appeal being purely statutory, it must be exercised strictly in the manner prescribed by law. Section 96 clearly confines the appellate remedy to decrees alone, as a decree and the findings recorded therein are distinct and cannot be treated as interchangeable.
The Court remarked,
“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 the defendant was not maintainable.”
Consequently, the judgment of the Lower Appellate Court, which altered the rent fixed by the Trial Court, was set aside.
2) Advocate’s Office is not commercial: In reviewing whether an advocate’s office qualifies as a commercial activity, the Court referenced its recent ruling in Dheeraj Singh vs. Hemant Kumar Sharma and the Supreme Court’s decision in M.P. Electricity Board and Ors Vs. Shiv Narayan and Anr. (2005).
The judgment remarked,
“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.”
The Court noted,
“The undisputed fact is that the room in question is situated in a residential building and not in a commercial building.”
The court also made it clear that,
“that although the office of an Advocate cannot be said to be a commercial activity provided the same is situated in the residential premises, but where the office of an Advocate is situated in commercial building, then he cannot seek exemption from higher electricity tariff payable on commercial activities.”
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.”
3) Arrears of Rent and evictions:
The Court noted that the defendant failed to deposit the rent, even at the lower rate of Rs 125 established by the Lower Appellate Court, which resulted in a delay of 25 months. The defendant’s request for condoning this delay was denied.
Citing Sayeda Akhtar v. Abdul Ahad and Ashok Kumar Mishra vs. Goverdhan Bhai, the Court reaffirmed that Section 13 of the M.P. Accommodation Control Act only protects tenants who comply with deposit requirements.
The Court remarked,
“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.”
Final Decision
The High Court nullified the lower courts’ judgments that had denied the eviction decree. The suit was decreed under Sections 12(1)(a) (for arrears of rent) and 12(1)(e) (for bona fide need) of the M.P. Accommodation Control Act.
The respondent was ordered to vacate the room within one month, with a directive that any initiation of execution proceedings be resolved within six months, following the Supreme Court’s guidance in Periyammal vs. V. Rajamani (2025).
Both parties sought to appeal the Trial Court’s ruling. The 10th Additional District Judge (Fast Track Court) in Gwalior dismissed the plaintiff’s appeal but allowed the defendant’s appeal regarding the rent, reducing the amount to Rs. 125 per month. The plaintiff subsequently appealed to the High Court.
Case Title: ANIL KUMAR KUSHWAH Versus ANIL KUMAR GUPTA
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