R. Rangaswami Iyengar v. Postmen'S Co-Operative Credit Society Through Its President And Another

The landlord under the Tamil Nadu Act 18 of 1960 (hereinafter referred to as the Act) is the petitioner in this revision. The respondents herein were arrayed as tenant and subtenant respectively before the Principal District Munsif (Rent Controller), Madurai town, before whom the landlord filed a petition for eviction of the tenants in R.C.O.P 738 of 1968. A number of grounds were urged for evicting the respondents, and out of them, the only ground that is being urged in this revision is that under S. 10(3)(a)(iii) of the Act. The Rent Controller did not countenance the case of the landlord, and equally so, the Principal Subordinate Judge (appellate authority) Madurai, dismissed the appeal C.M.A No. 49 of 1970 preferred by the landlord. The present revision is directed against the orders of the appellate authority.

2. Sri S. Navaneethakrishnan, learned counsel for the petitioner, submits that the case of the landlord as borne out by the materials clearly fits in with the provisions of S. 10(3)(a)(iii) of the Act, and the courts below have acted on a misconception of the correct position in law, and only on that account the case of the landlord has been thrown out, On going through the orders of the courts below, I find that the submission of the learned counsel are not without substance. Admittedly, the premises leased cut to the first respondent is non-residential. Equally so, the building in the occupation of the landlord is residential. But, what has been put against the landlord is that he is utilising a portion of that residential building for non-residential purpose, and hence he must be deemed to be in occupation of a non-residential premises, and that will debar him from setting in motion the provisions of S. 10(3)(a)(iii) of the Act. The landlord sought the eviction on the ground that he wants the non-residential building in the occupation of the respondents, for the purpose of accommodating a typewriting institute which he is obliged to run in the residential premises in his occupation. In the course of evidence, the landlord as P.W.1 deposed as follows—“I am running a Balaji Commercial Institution in a portion of my house in Kaka Tope St. There are five typewriting machines in it. It is a small room. The present accommodation is not sufficient. So I bona fide require the petition premises for running the institute”. R.W.1 who is the secretary of the first respondent Society, has admitted that the petitioner running a typewriting institute in the front room of his house.

3. The Rent Controller entertained the impression that it is only when the landlord is carrying on some business in a building not belonging to him, he can apply for possession of a non-residential building belonging to him, and therefore, the portion that is now being used for the purpose of running the institute has got to be treated as a non residential building for the purpose of the Act, inasmuch as he is running the said institute in the premises belonging to him. This impression of the Rent Controller is gathered from his discussion in para 10 of his fair order. The appellate authority seems to have fallen to the same line of thinking when he observed, in para 6 of his fair order, that the landlord has been running the typewriting institute for quite a number of years, and therefore, by the continuous user of a portion of the residential building for non-residential purposes there can be no dispute that the said portion has assumed the character of non-residential building. The learned counsel for the petitioner points out that it cannot be said that the landlord is using the room concerned for running the institution for a long number of years. He points out the evidence of P.W.1 that he has been running the institute since 1966, and the petition for eviction having been filed even in August 1968 this observation of the appellate authority that the said portion has been used for non-residential purpose for a long time is unwarranted. Once we remember that there is no dispute that the premises in occupation of the landlord is residential we have to see as to whether we can accept the contention that was put forth, namely, that by running the typewriting institute in a portion of the residential building, the building must be deemed to have become non-residential. Such a contention cannot be countenanced in view of certain principles recognised and laid down by this court. In Krishna Nair v. Valliammal . 1949 2 M.L.J 74. Panchapakesa Ayyar, J. had occasion to consider the question as to whether the premises can be said to be residential or non-residential. The learned Judge ruled that the main or primary purpose for which the premises is let out or taken or used must be considered. At page 76 of the report, the learned Judge observed as follows—“A lawyer may use a room of his house for giving legal advice to his clients; an astrologer may use a room of his house for giving predictions; a barber may use a room of his house for shaving his clients; but such use of a room will never make a house itself one used for “non-residential purposes.”

4. The question came up for consideration before a Full Bench of this court in Dakshinamurthi v. Thulia Pai . 1952 M.L.J 390=65 L.W 242 F.B., and the Full Bench, while observing at page 397 of the report, that “cases in which premises are used exclusively for business purposes or exclusively for dwelling purposes present no difficulty. It is in cases in which the purpose of the letting happens to be both ways that a test has to be sought for the resolution of the difficulty arising from the dual character of the premises as let” approved the test laid down by Panchapakesa Ayyar, J., in Krishnan Nair v. Valiiammal . 1949 1 M.L.J 74..

5. The true test is that of dominant purpose and principal user. If the building has been predominantly used for non-residential purposes, then it can be said that it will assume the character of a non-residential building. Such is not the case here. As could be seen from the evidence, set forth above, it was only a room that was being used for running the typewriting institute and that too only from 1966 Admittedly, the landlord is residing in the other portions of the building and some other portion is also let out. The mere user of a room in the residential building for non-residential purposes will not make the building as a whole non-residential building so as to bar the landlord from availing of the provision of S. 10(3)(a)(iii) of the Act.

6. I find that both the courts below have not adverted to this question, with the correct approach and with a proper appreciation and application of the principles laid down by this court in the above decisions. In this view, I find that the orders of the courts below suffer an illegality and impropriety which would warrant interference in revision. Accordingly, this revision is allowed and the petition of the landlord in R.C.O.P No. 738 of 1968 on the file of the Principal District Munsif (Rent Controller), Madurai town will stand allowed.

Taking into consideration, the facts and circumstances of the case the respondents will have six months time to vacate. The counsel for the petitioners has no objection for the grant of such time. There will be no order as to costs in this revision.

VCS