Rajamani v. S. Mohammed Rasheed — 1994 DIGILAW 970 (MAD)

Judgment :- 1. The tenant is the petitioner herein. The premises was let out to the petitioner for both residential as well as for running a mess. As the respondents required the premises for occupation of their son Sheik Mohammed, the petitioner was requested to vacate the premises. As the tenant had refused to vacate the premises, the respondents filed H.R.C.O.P. No. 21 of 1992 under S. 10(3)(i) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 on the ground that the building is bona fide required for the occupation of the son of the respondents. 2. The petitioner-tenant resisted the eviction petition contending that the original letting was for only non-residential purpose and that the claim of the respondents requiring the petition premises for the occupation of their son, is not bona fide. 3. The learned Rent Controller who tried the petition, held on the evidence that the original letting was for both residential and non-residential purposes, that the claim of the respondents/landlords that the building is required for the personal occupation of their son, is bona fide and therefore, allowed the petition by his order dated 25.2.1993. Taking into account the nature of the business conducted by the petitioner, the Rent Controller granted six months time to vacate the premises. 4. Against the said order of the Rent Controller, the tenant filed R.C.A. No. 6 of 1993 to the Appellate Authority viz., Additional District Judge, Pondicherry at Karaikkal. The Appellate Authority by his order dated 31.3.1994 concurred with the findings of the Rent Controller and held that the eviction petition is maintainable, since the original letting was for both residential and non-residential purposes, and that the claim of the landlords that the building is bona fide required for the occupation of their son is established and on that conclusion, dismissed the appeal, confirming the order of eviction. The Appellate Authority, however, also granted six months time to vacate the premises. The petitioner has now filed the abovesaid Civil Revision Petition against the order of the Appellate Authority. 5. Mr. The Appellate Authority, however, also granted six months time to vacate the premises. The petitioner has now filed the abovesaid Civil Revision Petition against the order of the Appellate Authority. 5. Mr. K. Chandrasekaran, learned counsel appearing for the petitioner-tenant contended that the Courts below have not correctly appreciated the decision of the Full Bench reported in 1952(1) M.L.J. 390 , wherein the Full Bench of this Court laid down 5 tests in the case of a building let in for both residential and non-residential purposes, that the Courts below have also not given any finding as to what is the main, real and substantial purpose for which the building was let out and if the Courts below had embarked on such line of enquiry, it would have definitely come to the conclusion that the main, real and substantial purpose was only for running a Mess. This is the only contention raised by Mr. K. Chandrasekaran at the time of his arguments. 6. Per contra, Mr. K. Yamunan, learned counsel appearing for the respondents contended that the Courts below have rightly ordered eviction and have concurrently held that the original letting is both for residential and non-residential purposes and that it was also admitted by the petitioner/tenant. Further, it is contended that it is also admitted that the respondents do not own any building of their own, which is in their occupation in Karaikkal. Under these circumstances, Mr. K. Yamunan would contend that there are no grounds at all to interfere with the concurrent findings of facts arrived at by the Courts below. 7. I have gone through the entire pleadings, the evidence tendered by both parties both oral and documentary and I have carefully considered the rival arguments of both the learned counsel appearing for either parties. In my opinion, the learned Appellate Authority/District Judge, has analysed the recitals in the lease deed and held that the original letting was both for residential and for non-residential purposes. In my opinion, the Courts below have rightly relied on the admitted recitals in the lease deeds, the existence of which is not at all in dispute. 8. So, the learned counsel appearing for the petitioner placed reliance on the Full Bench decision of our High Court reported in 1952(1) M.L.J. 390 = 65 L.W. 242, T. Dakshinamoorthy v. Thulja Bai and another . 8. So, the learned counsel appearing for the petitioner placed reliance on the Full Bench decision of our High Court reported in 1952(1) M.L.J. 390 = 65 L.W. 242, T. Dakshinamoorthy v. Thulja Bai and another . The only question in that case was whether the building which was the subject matter of the application, was a residential or non-residential building. For the purpose of determining whether a building is a residential or non-residential building, the Full bench has indicated a few salient considerations: “(1). Where there is an instrument of tenancy specifically and explicitly declaring the purpose of the letting as a 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 aliunde 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 sometime 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 p urpose and the other for the other purpose. In such a case, it seems to us, that what has to be determined as a question of fact is, what was the real, main and substantial purpose of the letting”. According to Mr. Chandrasekaran, learned counsel appearing for the petitioner, the Appellate Authority failed to follow the 5th dictum which was laid down by the Full Bench and erred in not even giving a finding as to what is the main, real and substantial purpose, for which the building was let out. According to Mr. Chandrasekaran, learned counsel appearing for the petitioner, the Appellate Authority failed to follow the 5th dictum which was laid down by the Full Bench and erred in not even giving a finding as to what is the main, real and substantial purpose, for which the building was let out. In my opinion, the 5th test laid down by the Full Bench, will not arise for consideration since it was categorically admitted by the tenant and also while explicitly stated in the instrument of tenancy that letting of the building is for residential and non-residential purposes. In my opinion, the question for considering the other test laid down by the Full Bench, will arise only if there is no instrument of tenancy. There is no dispute between the parties that the tenant has executed three instruments of tenancy in favour of the landlords and that the said instrument specifically mentions the purpose of letting as residential and non-residential. 9. I have also carefully gone through the oral evidence let in on behalf of the landlords and on behalf of the tenant. The witness examined on the side of the landlords specifically mentioned in his evidence that the property was leased out to the tenant on 13.10.1985 for the purpose of residential and non-residential purposes, and again the original lease was for a period of 11 months and after the expiry of the said lease, a fresh lease deed was executed between the parties. Lastly, a lease deed was exe cuted on 3.5.1989 fixing the rent at Rs. 425/- per month. In cross-examination, nothing has been elicited from the witness examined on the side of the landlord that the letting of the building is not for both residential and non-residential purposes. The tenants husband Kasinathan has examined himself as R.W. 1. He has clearly admitted in his deposition that the premises was taken on lease by the respondent from the 2nd petitioner to conduct a hotel in the name and style of “Chettinadu Mess” and that t hey are also living in the premises only by paying rent. In cross-examination, he has clearly admitted that lease deeds were entered into between the respondent and the second petitioner for a period of 11 months at a time in respect of the petition premises and in three lease deeds dated 1.1.87, 12.2.88 and 3.5.89 the respondent has signed. In cross-examination, he has clearly admitted that lease deeds were entered into between the respondent and the second petitioner for a period of 11 months at a time in respect of the petition premises and in three lease deeds dated 1.1.87, 12.2.88 and 3.5.89 the respondent has signed. It is useful to extract his evidence in this context: “In all the documents it is mentioned that the lease was for purpose of residence and running a Mess”. When there is clear admission in regard to the nature of lease viz., both residential and nonresidential by the witness examined on the side of the tenant, in my view, there is no need for the Courts below to conduct a roving enquiry in regard to the other tests laid down by the Full Bench or our High Court. The learned Appellate Authority, on a consideration of the materials placed before him, both oral and documentary, has held that the building was let out for both residential and non-residential purposes, by lease deeds dated 30.5.1985, 1.1.87, 12.2.88 and 3.5.89. He has also further held that in all the lease deeds, the purpose for lease is mentioned as residential and for running a mess. The learned Appellate Authority while considering the bona fide nature of the requirement of the landlord has also specifically held that as a matter of fact, the landlord has not owned any residential premises at Karaikal which in fact, admittedly, was not refuted or challenged. On the facts and circumstances and the evidence, the authorities below in this case have concurrently found that the case of the respondents-landlord that premises had been let out both for residential and non-residential purposes. The said concurrent finding, in my opinion, is acceptable to this Court. It is also evident from the finding of both the Courts that the respondents do no have any other building of their own, for the purpose of providing accommodation for their son. No exception can therefore be taken to the order for eviction passed against the tenant by the Authorities below. No other points were argued. The concurrent finding of both the Courts below, ordering eviction of the petitioner/tenant, is therefore confirmed and the Civil Revision Petition is dismissed. There will be no order as to costs.