The tenant is the revision petitioner. A petition for eviction was filed against him on the ground of owner's occupation. The lower court dismissed the said petition. The appellate court allowed the said petition and ordered eviction. Hence, the present Civil Revision Petition.

2. The main point urged before me by learned counsel appearing for the revision petitioner is that admittedly, the respondent is carrying on business in the petition premises and the respondent seeks eviction for owner's occupation to accommodate his son for his residential purposes. According to learned counsel for the petitioner, the petition for eviction is not maintainable under the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. In this connection, he relied upon the decision of this Court in Lakshmanan v. Hajee Alavudeen Saheb Sons (1980-1-MLJ 9), wherein this Court has held that since the premises in question was a non-residential premises and since the claim of the landlord was for residential purposes, the landlord was not entitled to evict the tenant. He also relied upon the dictum laid down by this Court in Padmavathy Ammal v. Manickam (1981 I MLJ 359), which runs as follows:

“The only hurdle the landlady faced in this case was that the premises having been let out for non residential purposes, she cannot disturb such a tenancy, till it comes to an end, and the tenant having acquired statutory rights to resist the recovery of possession in of the property, unless it be for non residential purposes. It is only if the landlady requires it for non-residential purposes she can maintain this petition. In this case, though the claim is not for additional accommodation but is a petition for eviction on the ground of wilful default, in view of the conversion of the building and user for different purposes and for personal occupation, and the absence of provision for enabling the landlord to ask for recovery of possession for residential purposes of a premises having let it out for non residential purposes, the present petition is not maintainable.”

It is no doubt true that the view earlier taken by this Court was that the landlady cannot ask a residential premises for non-residential purposes. But this view underwent a change, as could be from the decision of this Court in Indira v. Vinayagam Chettiar (1989 I MLJ 186), wherein it has been held as follows:

“On a reading of sub clauses (i) to (iii) of S. 10(3)(a), it is important to notice that the building which is the subject matter of those clauses is referred to either as residential building or non-residential building. The clauses do not refer to a building used for non-residential purpose or residential purpose. The use of the adjective ‘residential’ or ‘non-residential’ qualifying the word ‘building’ therefore clearly indicates that what is important is the nature of the building and not the use to which it is put. This construction is supported by the restriction on the power of the landlord or the tenant to convert a residential building into a non-residential building imposed by S. 21. The conversion referred to has reference to the nature and character of the building as such. When the three sub clauses of S. 10(3)(a) refer to the building being residential or non-residential the reference is obviously to the nature and structural characteristics of the building as such. If a residential building is used for non-residential purpose, it cannot be said to be a non-residential building within the meaning of sub-clause (iii). A building which by its nature is non-residential in character will not become residential merely because it is used for residential purposes unless it has been so converted to facilitate its use for residential purpose. Whether a building is non-residential building or not will, therefore, have to be determined on the structural characteristics of the building and the purpose for which it is constructed. There is a statutory bar against conversion of a residential building into a non-residential one. A building which has a bathroom or kitchen and other amenities which are characteristics of a residential building must therefore be treated as a residential building notwithstanding its use for a non-residential purpose.”

This view came to be confirmed by the Supreme Court in the case reported in Busching Scimitz Private Limited v. P.T Menghani ((1977) 2 SCC 835), wherein the Supreme Court has considered the question as follows:

“The question that was posed for consideration before the Supreme Court is as follows:

“Is the purpose of the lease decisive of the character of the accommodation?

While answering the said question, the Supreme Court held as follows:

“Guided by this project oriented approach, we reject the rival extreme positions urged before us by Shri Nariman and Shri Jain Residential premises are not only these which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell. If a beautiful bungalow were let out to a businessman to run a showroom or to a meditation group or music society or meditational or musical uses, it remains nonetheless a residential accommodation. Otherwise, premises, may one day be residential, another day commercial and, on yet a later day, religious. Use or purpose of the letting is not conclusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazaars cannot make them residential premises. This is a case of Reductio Ad Absurdum. .. The house we are considering was built on land given for constructing a residence, is being used even now for residentice, is suitable otherwise for residence and is being credibly demanded for the respondent's residence. Residential suitability being the basic consideration this building fills the bill. Nothing said in the affidavit in opposition puts it out of the pale of residential accomodation. A building which reasonably accomodates a residential user is a residential accomodation nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The purpose test will enable others who own houses to defeat the government by pleading that they do not own residential premises because the lease is for commercial use, built though it was and suitable though it is, for residence.”

The above cited decision of the Supreme Court clearly laid down that the usage or purpose test is not at all a criterion to find out whether a building is residential or non-residential but one must go by structural and physical features of the building to find out whether it is a residential or non-residential building.

“In fact, this view of the Apex Court has been followed by this Court in R.T. Rajamanickam v. Ranganathan (1995-2-MLJ 139 = 1994-2-L.W. 86), wherein this Court has held as follows: “Sec. 14(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act contemplates conversion of a residential building into non-residential building and vice versa. This provision contemplates the structural alteration in the case of conversion of one building into another or vice versa and not on the basis of purpose test. In the instant case, the authorities below have concurrently taken the view that structurewise, the let out building is a residential one and fit for residential accommodation. Therefore, by applying the law laid down in Busching Schmitz Private Limited v. P.T Mehghani (1977) 2 SCC 835, it must be held that the application for eviction by the landlord in this case under Sec. 10(3)(a)(i) of the Act is maintainable. Therefore, there is no difficulty in holding that if the structure of a building indicates that it is a residential purpose, and it is used for non-residential purpose, a petition for eviction filed against a tenant who is carrying on business in that place, is maintainable by the landlord, who wants it for residential purpose.

3. The case on hand has got to be decided on the dictum laid down above. Further, I find from the evidence of PW1 there was a reference to the fact that there is a kitchen and a bathroom and also an oven inside the premises in question, though there is no cross-examination on this point by the respondent. The respondent would say in his cross examination that he had been there for more than twenty five years, that the kitchen was there even earlier, but it was not there at the time when he came as a tenant. The evidence is very much lacking as to the exact structure of the premises. Therefore, to meet the ends of justice and to give a good quietus to the long pending litigation, which started about eight years ago, a Commissioner from this Court can be appointed to visit the premises and find out the exact structure of the premises and to report to this Court, so that this Court can come to a conclusion as to whether the landlord is entitled to an order of eviction, or not. Accordingly, I have appointed a Commissioner to inspect the premises. The Commissioner has since filed the report and his report is clear and categoric that the infrastructure of the portion in occupation of the tenant indicates that it is inductable for domestic use. Therefore, applying the dictum mentioned above, the need of the landlord to occupy the premises for owner's occupation has to be upheld.

4. In the result, the Civil Revision Petition is dismissed. The order passed by the Appellate Authority is confirmed. The tenant seeks time to vacate the premises. Six months' time is granted to the tenant on the following two conditions:— (1) The tenant shall vacate without driving the landlord into Execution Proceedings. (2) He shall not induct any other third party into the premises.

It is claimed by him that ‘Asir Lorry Booking Office’ is the business of the petitioner-tenant. Therefore, the person, whoever is found to be in possession by the Commissioner alone shall be allowed to continue till the tenant vacates within the time granted. These two conditions shall be incorporated as an undertaking in the affidavit to be filed by the petitioner-tenant within four weeks from today. In default of filling such an affidavit, the landlord shall be entitled to proceed with the Execution forthwith. No costs.

5. The Commissioner Mr. R. Devaraj has filed a memo for additional remuneration, wherein he has stated that he had already incurred Rs. 2,000/- for conveyance, boarding, lodging etc.,. Therefore, out of Rs. 3,000/-. What remains in his hand is only Rs. 1,000/-. He has asked for additional remuneration of Rs. 2,000/-. The Commissioner is granted additional remuneration of Rs. 3,000/- to meet the deficit of the earlier amount paid to him. The landlord as well as the tenant shall pay Rs. 1,500/- each to the Commissioner within two weeks from today.

KA/RR/VCS