Sri Radhakrishna School vs S.P. Shanmugha Mudaliar

Palaniswamy, J.—This revision petition has been filed by the tenant of a building against the order of the appellate authority directing his

conviction. The respondent landlord sought eviction on the ground that the premises bad been put to a use other than that for which it was leased,

namely, that the building let for nonresidential purposes was being used for residence also. The petitioner contended that the letting was for

composite purposes, namely, for residential as well as for non-residential purposes. The Rent Controller found that the Manager of the petitioner

school was residing in a portion of the premises from 1943 and that the letting was for both residential and non-residential purposes. Having come

to these conclusions he dismissed the petition for eviction. In the appeal preferred by the landlord-respondent, the appellate authority held differing

from the Rent Controller, that the letting was only for non-residential purpose. But he did not record a finding as to the date from which the

Manager of the petitioner school took up residence in a portion of the premises. In as much as he held that the original letting was for non-

residential purpose only and inasmuch as it was found on the evidence that the Manager of the school was residing in a portion of the school, he

differed from the Rent Controller and directed eviction. It is against this order that the petitioner has come up in revision. In view of the order,

which I propose to pass, I shall express no opinion on the merits of the contentions. The landlord has not set out in the petition the date from which

a portion of the premises is being used for residential purpose. Nor is there any allegation, as to the exact portion in the occupation of the Manager

of the school. In order to entitle the landlord to an order for eviction under S. 10 (2) (ii) (b) it Is necessary for him to allege that the tenant has,

after 23rd October, 1945, without his written consent used the building for a purpose other than that for which it was leased. In other words, the

date of commencement of user of the building for a different purpose should be set out. It is also necessary in the instant case to find out the extent

of the portion of the building in the occupation of the manager for his residence for the purpose of determining whether by the mere user of a

portion by the Manager of the school for his residential purpose, the substantial character of the letting has been altered. The appellate authority

has not bestowed his attention on those aspects of the case.

If the occupation of the portion of the premises for residential purposes is from a date prior to 23rd October, 1945, as found by the Rent

Controller, then the landlord may not be entitled to eviction. This aspect also has not been considered by the appellate authority even though there

is the finding by the Rent Controller that the occupation of a portion of the premises for residential purpose was from 1943. This finding also

requires further examination as the Manager of the school himself says that he became a Manager only in 1950. In the fact of these infirmities there

cannot be a satisfactory disposal of the case. It is therefore necessary that the matter goes back to the Rent Controller to find out whether the

Manager of the school is occupying a portion for his residential purpose from a date anterior to or subsequent to 23rd October, 1945 and the

proportion of the portion so being used with reference to the entire premises and whether such occupation is sufficient to attract the application of

S. 10 (2) (ii) (b) of the Act. With these observations the order of the appellate authority is set aside and the matter is remitted to the Rent

Controller. Costs of this petition will abide the result.