This is a revision petition against the order of the learned III Additional District Judge, Bangalore, dated 30th April, 1960 in H.R.C Appeal No. 92/59 reversing the order of the Additional I Munsiff, Bangalore, dated 15-6-1959 passed in H.R.C No. 94/58.
The petitioner, who is admittedly the owner of the non-residential premises bearing No. 54 situate at III Main road, New Tharagupet, Bangalore, caused a lawyer's notice to be issued to the respondent who is a tenant of the above mentioned premises, that he needs the premises occupied by the respondent for his own business purposes and that the non-residential premises which is occupied by him was quite insufficient for purposes of his business. The notice was for terminating the respondent's tenancy of the premises with effect from 31-1-1958 (the date of the notice being 2-1-58) and calling upon the respondent to deliver vacant possession of the shop at the expiry of the period of notice. The respondent failed to comply with the demands made in the notice. Hence, the petitioner filed H.R.C No. 94/1958 before the Additional First Munsiff, Bangalore, seeking eviction on of the respondent from the said premises on the ground that he required the same bona fide for his own use for the purpose of his business. The claim of the petitioner was resisted on the ground that as he is already in possession of a non-residential building on the basis of rental agreement his petition for eviction is unmaintainable. Other objections are also raised on behalf of the respondent that the petition filed by the petitioner was not maintainable. But they are not pressed at the hearing hence not necessary for the disposal of this revision petition. The only point which requires to be considered in this petition is whether the petitioner requited the non-residential premises for purposes of his business and his petition for eviction is maintainable.
In other words, this is a claim which comes under Section 8 sub-sec. 3(a)(ii) of the Mysore House Rent and Accommodation Control Act, 1961. The trial Court, i.e, the First Additional Munsiff, on a consideration of the evidence on record and the circumstances of the case came to the conclusion that the petitioner was entitled to the eviction of the respondent and made an order of eviction against the respondent. On appeal by the respondent, the learned III Additional District Judge, Bangalore, set aside the order passed by the trial Court and allowed the appeal as mentioned above, and dismissed the petition on the ground that the case falls within the principle laid down by the Madras High Court in Thannappa v. Govindasami(1). In that case referring to Section 7(3)(a)(ii) of the Madras Building Lease and Rent Control Act, his Lordship Subba Rao held that a person who is a tenant of a non-residential building and who by virtue of the Act cannot be evicted, except on the conditions set out in the Act, must be held to be a person occupying a non-residential building “to the possession of which he is entitled”, with in the meaning of the said section, i.e, 7(3)(a)(ii) of the Madras Act.
Before adverting to the arguments advanced by the parties it may be noted here that the question of bona fide does not arise in this case. Because, it is not the case of the respondent that the claim of the petitioner is not bona fide, or that the circumstances of the case make out a case of mala fide against the petitioner. It has been strenuously argued by Mr. Ethirajulu Naidu that the benefit to which a tenant is entitled according to the provisions of the Mysore House Rent Control Act is immunity from eviction. His contention is, the immunity from eviction does not mean right to possession. According to him, right to possession involves a positive element in it. Therefore, the immunity from eviction cannot be equated to right to possession. He contends that when a land-lord is not is possession of any premises then it can be said that he is entitled to possession and that this would be the proper interpretation of the words.
“To the possession of which the Landlord……is entitled.”
His argument is that the view taken in the Madras decision relied upon by the lower appellate Court is rather strict and having regard to the principle of the statute it cannot be invoked or made applicable. He pointed out that the provision of the Statute (Mysore House Rent and Accommodation Control Act) on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but it is only a statutory immunity from eviction.
On the other hand it has been pointed out on behalf of the respondent that it is an admitted fact that the Petitioner is in possession of another non-residential building as a tenant. Therefore, he cannot be entitled to an order of eviction against the respondent in view of the provisions contained in Section 8(3)(a)(ii) of the Act. His further contention is that in the presence of an express provision contained in Section 8(3)(a)(ii) of the Act, the only construction of the words mentioned therein can be one which is put by the Madras High Court in the ruling relied upon by the lower appellate Court in its judgment.
After a careful consideration of the arguments advanced before me, I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction, as observed by the Federal Court in the case Kai Khushrao v. Bai Jerbai. It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federal Court by stating that a statutory immunity is not inconsistent with the right to possession and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant. Though the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity for eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in Section 8(3)(a)(ii) of the Mysore House Rent and Accommodation Control Act, is taken in the Madras ruling cited above. As mentioned earlier, the question of bona fides of the petitioner is not in dispute in this case. On the other hand it is not the case of the respondent that the claim of the petitioner is not bona fide. In this situation of the case I do not think that it is necessary for me to consider the argument advanced on behalf of the petitioner that the petitioner is also entitled to an order of eviction against the respondent under Section 8, Sub-Section 2, Cl. XXII of the Mysore House Rent and Accommodation Control Act. Because, on the basis of the view taken by me, as stated above, it cannot be said that the petitioner is a person occupying a non-residential building “to the possession of which he is entitled”, within the meaning of Section 8, Sub-Section 3(a) Cl. (ii), and on this ground only he is entitled to an order of eviction against the respondent.
During the course of the arguments, it was pointed out that the respondent has obtained possession of his own mundy on 17th June, 1958, i.e, subsequent to the foiling of his objection to the application for eviction filed by the petitioner. There has been some argument before me on the question whether this fact would be relevant for the decision of this case. But when once it is concluded that the petitioner is not hit by the provisions contained in Section 8(3)(a)(ii) of the Act and consequently he is entitled to an order of eviction, it is unnecessary to consider the relevancy of the circumstance relied upon on behalf of the petitioner.
On the reasons stated above I am of the opinion that the order of the lower appellate Court is unsustainable and that it should be set aside. I therefore, allow this revision petition and set aside the order of the lower appellate Court and I direct the tenant to put the petitioner in possession of the premises within two months from the date of this order. Taking into consideration all the circumstances of the case, I think it would be just to direct the parties to bear their own costs. It is ordered accordingly.