In Re: N.C. Kuppuswami Ayyangar

Ramaswami, J.—This is a civil revision petition sought to be filed against the revisory order of the learned District Judge of Coimbatore in

C.R.P. No. 80 of 1956, under S. 12-B of the Madras Buildings (Lease and Rent Control) Act, XXV of 1949, which empowers the High Court,

to call for and examine the records relating to any order passed or proceeding taken under the said Act for the purpose of satisfying itself as to the

legality, regularity or propriety of such order or proceeding. This is a revision of a revision. The facts are: Sivakamu Ammal is the owner of a

dwelling house in Erode Town. This Sivakamu Ammal let out this house to a doctor by name N.C. Kuppuswami Aiyangar. From 1953 this

Sivakamu Ammal who is found to require this house bona fide for her own occupation has been requesting the tenant to vacate the house. The

tenant has been putting off with evasive promises to do so. In the money order coupon Ex. P.5 dated 13th October 1953 the tenant writes: ""I am

extremely sorry I cannot vacate the house now. I shall do so as soon as I get a building."" In Ex. P.6 letter dated 23rd June 1953 he writes: ""As

suggested in your letter I am unable to vacate the house"" In his letter dated 30th July 1953, the tenant has written ""Regarding vacating the house I

shall do it at an early date."" This Sivakamu Ammal applied to the Rent Controller for eviction on four grounds: viz., (a) that there has been wilful

default in the payment of rent; (b) that the tenant had damaged the house; (c) that the owner wanted the house for her own occupation, and (d) that

the tenant who took the house on rent as a dwelling house is using it also as a business premises for carrying on a dispensary there.

The Rent Controller found that the tenant has been irregular in his payment of rent and in fact in his letter Ex. P.7, dated 14th December 1953

the tenant has stated ""I am a defaulter for the last month"" but that this default was not wilful and that after the petition was filed the tenant has been

depositing the rent regularly and there was no arrear at the time of the enquiry. In regard to point (b) he held that the tenant was keeping the house

in a dirty condition but had not caused any wilful damage. In regard to ground (c) he came to the conclusion that the landlady required bona fide

the house for her own occupation and that she was entitled to the relief asked for as she was not occupying any other residential building of her

own in that city, and fulfilling all the considerations determining reasonable and bona fide requirements of the landlord; for an exhaustive discussion

of this topic see Ch. XVI, page 250 and'' foll of Andhyarjuna''s Principles of Rent Control, Bombay New Book Co. In regard to ground (d) he

came to the conclusion that though on inspection he found the building to be suitable more for dwelling purposes than for non-residential purposes-

the test for deciding whether a premises is a house is its suitability as a place of residence-Vide Malhar Rao v. Vinoyak 5 D.L.R.M.B. 45 and

though it was situated in the heart of residential quarters in Erode Town, it had not been proved before him that it was leased for residential

purposes alone but that this would not prevent the owner from applying for eviction, following the Full Bench decision in Dakshinamoirthy v. Thulia

Bai (1952)1 M.L.J. 390=65 L.W. 242 (F.B.), where it was held that if the letting was equally for residential and nonresidential purposes and not

mainly for the one or the other kind of purpose, the application of the landlord will stand whether filed under S. 7 (3) (a) (i) or S. 7 (3) (a) (ii) of

the Act. The Rent Controller therefore ordered eviction.

The tenant has taken the matter both by way appeal to the learned Subordinate Judge. Coimbatore, in C.M.A. No. 2 of 1955 and in revision to

the learned District judge of Coimbatore in C.R.P. No. 80 of 1936. Both of them unhesitatingly confirmed the order of the Rent Controller.

The point that has been urged in all these Courts is that this house was let out as business premises and that it was being used only as a business

premises. This is not supported by the evidence on record. First of all, the tenancy does not expressly provide for use of this house for the

particular purpose of carrying on only a dispensary. When the dwelling place is not found to be let on one basis it cannot be assumed without

evidence of a new contract or a variation of the existing contract or without its being made out by the circumstance of the letting: Specific

agreement with the landlord should be shown: William v. Parry (1924) 1 K.B. 936, Oker v. Perraton (1947)2 All E.R. 286, Vyman v. Steward

(1925) 2 K.B. 702. If the change had been agreed to by the landlord the status of the house will be determined as at the time of the expiry of the

notice to quit. Shooter v. Galley (1936) 80 S.J. 74 (C.A.), Court v. Robinson (1951) 2 Q.B. 60= (1951) 1 E.R. 209, Hasell v. Maldermi (1953)

2 All E.R. 58. See discussion in Lloyd and Montgomerie Rent Control, 2nd Edn., pp. 10-11, There must be landlord''s affirmative consent to the

change: Wolfe v. Hogan (1948) 1 All E.R. 570.

Secondly, acceptance of the rent by the landlord after knowledge of user by the tenant will not convert a dwelling house into a non-residential

premises.

Thirdly, the premises will not be treated as non-residential building if they are substantially unsuitable for use as business premises, which is found

to be the case here: Callaghan v. Bristow (1920) 89 L.J. K.B. 817; See discussion in Lloyd and Montgomerie Rent Control 2nd Edn. p.8.

Fourthly, the mere fact that residential premises are also used for carrying on business in a part will not convert it into a non-residential building. It

has been held, for example, that Appalam industry carried on in a room will not make the building non-residential. Lakshman Santu Sintre Vs.

Balkrishna Keshav Shetye, Broder v. Signat 1949 E.Q.D. 112 (C.A.), Curl v. Angela (1948) 2 All E.R. 189; Wimbush v. Cibulia (1949) 2 All

E.R. 432, Wright v. Howell 204 L.T.J. 299 C.A. = 1948 92 S.J. 26.

Fifthly, whether a building is residential or non-residential is a question of fact having regard to certain considerations laid down by Courts in

deciding the question: 1952 1 M.L.J. 399; 1954 1 M.L.J. 29 N.R.C.; See discussions in R. Mathurbutham and R. Srinivasan''s the Madras

Buildings (Lease and Rent Control) Act, 1949, M.L.J. 1955, p. 38 (and p. 42); 62 Cal 547; Lakshman Santu Sintre Vs. Balkrishna Keshav

Shetye, Wright v. Howell 1947 S.J. 26, Railway Assessment v. Great Western Railway 1948 A.C. 299, Macmillan and Co., v. Rees (1946) 1 All

E.R. 675, Vickery v. Maitin 1944 K.B. 679=1944 (2) All E.R. 167; Hicks v. Snooks (1928) 93 J.P. 55, Cohen v. Benjamin (1922) 39 T.L.R.

10, Whitley v. Wilson (1953) 1 Q.B. 679=1952(2) All E.R. 940. For a useful collection of English cases on business premises and dwelling

houses corresponding to our nonresidential and residential buildings, consult Blundells Rent Restriction Cases, 1948, 2nd Edn., and cumulative

supplements. In this case the Rent Controller who inspected the premises, the Appellate Court who heard the appeal and the revisional Court

which looked into the matter to see whether there was any ground to interfere on a point of law, have all come to the conclusion that the premises

do not constitute a nonresidential building taken cut of the scope of the application of S. 7 (3) (a) (i) of the Act. I am bound by this finding of fact.

The net result of this analysis is that there are no grounds to interfere under S. 12-B of the Act and this civil revision petition is dismissed.