T.N. Lakshmanan vs S.P. Hajee Alavudeen Saheb Sons

R. Sengottuvelan, J.—This revision petition arises out of the decision of the learned Subordinate Judge of Salem in C.M.A. No. 2 of 1975.

The present petitioner, who is the landlord, filed an application for evicting the respondent who is a tenant of the premises bearing Door No. 19,

Old Door No. 41 in Salia Venkatakrishna Chetty Street, Shevapet, Salem Town belonging to the petitioner. The reason for which eviction was

prayed for is, that he required the premises for his own occupation. The petitioner examined himself as P.W. 1 and also examined a witness, P.W.

The learned Rent Controller, on an appreciation of the evidence, came to the conclusion that the petitioner bona fide required the premises for

his own residential purposes. But the learned Rent Controller dismissed the application on the ground that there was no valid notice to quit u/s 106

of the Transfer of Property Act. As against the decision of the Rent Controller the petitioner landlord filed C.M.A. No. 2 of 1975 on the file of the

appellate authority (Subordinate Judge), Salem. The learned Subordinate Judge, on the first point, came to the conclusion that the premises was a

non-residential building and as such the requirement of the landlord for residential purposes is not maintainable. Then on the second point, namely,

on the question of notice u/s 106 of the Transfer of Property Act, he held that the notice to quit is valid. On the second point, both sides contend

that no notice is necessary u/s 106 of the Transfer of Property Act for an application for eviction under the Madras Buildings (Lease and Rent

Control) Act, 1960.

Hence the question turns on the issue whether the petitioner-landlord requires the building bona fide for his own use and whether he can claim

the petition-mentioned premises, which is a non-residential building, for residential purposes. On the first point, whether the petitioner-landlord

requires the premises bona fide for his residential purposes, the evidence of P. Ws. 1 and 2 will have to be looked into. The landlord, who

examined himself as P.W. 1, states that he requires the building for his residence, that he is not possession of any other residential accommodation

and that himself, his wife and children are residing with his mother. The respondent-tenant in his evidence has not definitely disputed the assertion of

the petitioner that he is not in possession of any other premises of his own.

Hence the question turns only on the issue whether the petition-mentioned premises is a residential building or a non-residential building and

whether the petitioner can ask for eviction of the premises for residential purposes in case the petition-mentioned premises is found to be a non-

residential building. With reference to the nature of the building, we have to rely mainly on the oral evidence and the circumstances in this case.

There is no rent deed. No doubt, P.W. 1 asserts that the building is a residential building. But at the same time, he says that the respondent had

been conducting a sage business for 10 to 15 years. He also states that he does not know that the building is not used for residential purposes.

P.W. 2 asserts that the building was let out 35 years ago for residential purposes. It is contended that P.W. 2 is the maternal uncle of P.W. 1 and

as such his evidence is interested. P.W. 2 also says that from the date of letting out of the premises, he does not know whether a business was

conducted in the petition-mentioned premises. As against this, we have the assertion of R.W. 1 that the petitioner rented out the premises only for

non-residential purposes, that he is doing business ever since he became a tenant, that there are no residential houses in the street in which the

petition-mentioned premises is situate, that there is no well, kitchen or bath-room in the petition-mentioned premises and that the assertion that the

petitioner is in requirement of the premises for his residence is not true. Having these facts in mind, we have to come to the conclusion whether the

premises is a residential building or a non-residential building. This Court in a decision reported in T. Dakshinamoorthy Vs. Thulja Bai and

Another, , observed thus:

(1) Where there is an instrument of tennancy specifically and explicitly declaring the purpose of letting as residential or non-residential, no difficulty

generally arises. (2) Where there is no such instrument of tenancy, the question will have to be considered on the basis of direct evidence ali unde

concerning the purpose of the letting, which may be adduced in a case. (3) If no such evidence too is forthcoming, the Court can only look at the

evidence concerning the user of the premises by the tenant down to the date of the application for eviction, as acquiesced in by the landlord. For,

such user, and such acquiescence afford a safe basis for an inference of agreement between the parties as to the purpose of the letting. (4) Where

there is evidence of such user, but there is no evidence of such acquiescence, the structural design, the antecedent user of the building by the

landlord as known to the tenant and other surrounding circumstances, if any, will also have to enter into the determination of the question whether

the building is or is not residential. (5) Difficulty may sometimes still remain, i.e., even after applying the tests above indicated, if the building is

found let for both kinds of purposes, residential and non-residential, no distinction being made between one part as let for one purpose and the

other for the other purpose. In such a case what has to be determined as a question of fact is, what was the real, main and substantial purpose of

the letting?

Applying the abovesaid principles to the facts of this case, it is the admitted case of both parties that at least for a period of 15 years, the business

was carried on in the premises, and that the landlord"" did not object to the same and this amounts to acquiescence on the part of the landlord for

the business carried on in the petition-mentioned premises. In the absence of any definite evidence wife reference to the nature of the building that

has been let out, we can only turn to the user of the premises and taking into consideration the user and the acquiescence on the part of the

landlord, I have no hesitation in coming to the conclusion that the premises. in question is a non-residential building.

It is contended on the part of the revision petitioner that even in the case of a non-residential building, the landlord can claim to evict the tenant

for his own use for residential purposes. In support of his contention, learned Counsel for the petitioner relies on Section 21 of the Madras

Buildings (Lease and Rent Control) Act, 1960 which states that no residential building shall be converted into a non-residential building except with

the permission in writing of the Controller. He points out that there is no similar provision for a non-residential building and as such a non-residential

building can be converted into a residential building. There is a specific provision with reference to eviction in respect of residential as well as non-

residential buildings in Section 10(3) of the Act. When there is a specific provision in the Act with reference to eviction in respect of residential and

non-residential buildings, we need not draw an analogy by reading Section 21 of the Act.

Then we have to consider whether, as per Sections 10(3)(a)(i) and 10(3)(a)(iii) of the Act, a landlord can claim a non-residential building for his

residential use. Learned counsel for the petitioner contends that it is possible for a landlord to claim a non-residential premises for his residential

use. The counsel for the respondent cites a decision reported in Rengaswami Reddiar v. Minor N. Jayaraj, heir of M.K.A. Kandasami Chettiar''s

Annathana properties, through mother (1978) T.L.N.J. 9, in which Ismail, J., held as follows:

One point that was urged is that the building sought to be obtained for additional accommodation is a non-residential building and the purpose of

additional accommodation is residential There is no substance in this contention. The relevant provision is Section 10(3)(c).

The language of the provision is in complete contrast with that contained in Section 10(3)(a) and the said Section 10(3)(a) compartmentalises the

nature of the buildings and a person can obtain possession of a residential building for his own occupation only for a residential purposes and

similarly a person can obtain vacant possession of a non-residential building only for the purposes of carrying on his own business. In other words,

Section 10(3)(a) compartmentalises the requirement of the landlord with reference to the nature of the building. But such compartmentalisation is

not present in Section 10(3)(c). Not merely such compartmentalisation is not present in Section 10(3)(c), but also the language of Section 10(3)(c)

is general and it states that the application of the landlord under that provision will be notwithstanding anything contained in clause (a). Therefore, I

am unable to hold that the landlord cannot obtain vacant possession of a portion of the building on the ground of requirement of additional

accommodation, if that portion was being used by the tenant for non-residential purposes and the landlord requires the same for residential

purposes.

In the above ruling, this Court pointed out the purport of Section 10(3)(a)(i), 10(3)(a)(iii) and 10(3)(c) of the Act. Section 10(3)(a)(i) deals with a

residential building and lays down that in the case of a residential building, a landlord can ask for eviction for his own occupation if he is not

occupying a residential building of his own in the city. Section 10(3)(a)(iii) lays down that in the case of a non-residential building, a landlord can

ask for eviction of non-residential premises if he is not occupying for purposes of a business a non-residential building in the city. Section 10(3)(c)

lays down that a landlord who is occupying only a part of a building whether residential or non-residential, may, notwithstanding anything contained

in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to

put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is

carrying on, as the case may be. On a reading of these three sections, Ismail, J., came to the conclusion that Sections 10(3)(a)(i) and 10(3)(a)(iii)

compartmentalises the nature of the building, whereas Section 10(3)(c) is general. Applying the same reasoning, I have to come to the conclusion,

in interpreting Section 10(3)(a)(i), that a landlord can ask for eviction of a residential building for residential purposes only and a non-residential

building for non-residential purposes only. Applying these principles, since the premises in question is a non-residential premises and since the claim

of the landlord is for residential purposes, the landlord is not entitled to evict the tenant. Under the circumstances, this civil revision petition is

dismissed. There will be no order as to costs.