M. Mathew Philips (deceased) & Others v. S. Rm. S. Narayana Chettiar
2006-04-27
M.JAICHANDREN
body2006
DigiLaw.ai
Judgment :- 1. This Civil Revision Petition has been filed against the fair and decretal order passed in R.C.A. No. 16 of 2001, dated 31.7.2003, on the file of the Rent Control Appellate Authority (Sub-Court), Ootacamund, reversing the fair and decretal order made in R.C.O.P. No. 17 of 1996, dated 16.4.2001, on the file of the learned Rent Controller (District Munsif), Ootacamund. 2. Heard the learned counsel for the petitioners as well as the respondent. 3. It is the case of the petitioners that the subject matter of tenancy was the premises and the building thereon known as "Beverly" situated at Havelock Road, Ootacamund. Before filing the Rent Control Original Petition the respondent/landlord filed a suit in O.S. No.102 of 1992 before the District Munsif Court, Ootacamund, alleging that the premises was let out to the petitioners/tenants for running a lodging house or any other similar business and the lease was a composite lease. The said suit was dismissed on 2.1.1995, holding that the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, alone would apply and the Civil Court had no jurisdiction. Therefore, the Rent Control Original Petition came to be filed by the respondent/landlord. 4. The respondent/landlord had filed R.C.O.P. No. 17 of 1996 before the Rent Controller (District Munsif Court), Ootacamund against the deceased first petitioner/tenant for eviction under Section 10(3)(a)(ii) and (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. This petition was subsequently amended deleting Section 10(3)(a)(iii) and incorporating Section 10(3)(a)(i) of the Act. The Learned Rent Controller, after an elaborate trial, by a well considered order, held that the requirement of the respondent/landlord was not bona fide and dismissed the Eviction Petition filed by the landlord. 5. Aggrieved by the same, the respondent/landlord had filed R.C.A. No. 16 of 2001, before the Rent Control Appellate Authority (Sub-Court), Ootacamund, and the same was allowed. Against the said fair and decretal order, dated 31.7.2003, the present Civil Revision Petition has been filed. 6. It is submitted by the petitioners that the learned Appellate Authority, without adverting to the pleadings and without properly appreciating the evidence or the issues before him reversed the well considered decision of the Rent Controller.
Against the said fair and decretal order, dated 31.7.2003, the present Civil Revision Petition has been filed. 6. It is submitted by the petitioners that the learned Appellate Authority, without adverting to the pleadings and without properly appreciating the evidence or the issues before him reversed the well considered decision of the Rent Controller. It is further submitted that the respondent/landlord had now settled down in Malaysia and his sons were settled at Chennai, Bangalore and other places and there was no one in the respondent/landlord family either residing or doing any business within Ooty Municipality. The Rent Control Original Petition was filed by one Mr. Sathappan, claiming to be the Power of Attorney of the respondent/landlord, which Power of Attorney did not authorize him to institute any eviction proceedings. 7. Though it is the case of the respondent/landlord that his grand children were studying at Ooty and he would be visiting Ooty to see them, P.W.1, the Power Agent had admitted that at present none of the grand children of the respondent/landlord are studying at Ooty. The respondent/ landlord had also claimed that he visits Ooty during the season and hence, he required the premises for his own use. This claim for temporary or seasonal stay cannot be a valid requirement of the landlord for own use. 8. It is further submitted that the respondent/landlord had admitted that the petitioners were running a residential school in the premises and the paramount usage of the premises was for the running of the school. The landlord being aware of the said fact, filed a Petition under Section 10(3)(a)(iii) but subsequently deleted the same and inserted Section 10(3)(a)(i) to give credibility to his innovative theory that he required the premises for his own residential purposes. The further case of the petitioners is that the teamed Appellate Authority, ignoring the lease deeds marked as Exs.P-2, P-3 and P-4 regarding the nature of tenancy, on mere assumption and presumptions, went on to hold that the tenancy was for residential purpose and the school was being run in the premises without the consent of the respondent/landlord. The petitioners/tenants were in possession of the premises since 1974 and running the school in the premises since 1977. The lease agreement was renewed periodically with an increase in rent, for the purpose of running the school.
The petitioners/tenants were in possession of the premises since 1974 and running the school in the premises since 1977. The lease agreement was renewed periodically with an increase in rent, for the purpose of running the school. It is claimed that he was residing in a small portion and the dominant purpose and principal use of the premises was for running the school. As the building had been predominantly used for nonresidential purpose, it assumes the character of non-residential building, and the Petition filed under Section 10(3)(a)(i) was misconceived and not maintainable. 9. On the contrary, it is submitted by the respondent/landlord that his grievance is that-the learned Rent Controller did not properly consider the material and factual issues and the proper legal position and that the orders ceased to be a considered order. The order of the learned Appellate Authority reversing the order of the Rent Controller was not only elaborate but also a well considered one, rendered after correctly appreciating the facts and the position of law. The respondent further submitted that for a landlord to seek eviction, it is not necessary that he has to permanently reside in the town or a city concerned where the building in question is situated and the petitioner/ tenant is attempting to dislodge the settled position of law. 10. It is the case of the respondent/landlord that the petitioners/tenants had admitted that the landlord and the members of his family were visiting Ooty during the season and require the building for their own use. The Appellate Authority, having fully considered the evidence on record, had rendered a well considered judgment, unlike the learned Rent Controller who had passed an order on assumptions and presumptions. 11. It is also the case of the respondent/landlord that initially in the year 1974, a portion of the premises was let out only for residential use. Since the petitioners/tenants had trespassed into the other portions of the premises the lease agreements were renewed from time to time on the assurance that the petitioners/tenants would vacate the premises on the expiry of the lease period. The dominant purpose of letting the premises on lease was never of running a school.
Since the petitioners/tenants had trespassed into the other portions of the premises the lease agreements were renewed from time to time on the assurance that the petitioners/tenants would vacate the premises on the expiry of the lease period. The dominant purpose of letting the premises on lease was never of running a school. The alleged pre-dominant use of the building for nonresidential purposes would not ipso facto convert the building into a non residential building, as the structure of the building was always a residential holiday bungalow and under no stretch of imagination it could be termed as a non-residential building. Therefore, the Application made by the respondent/landlord for eviction under Section 10(3)(a)(i) of the Act is well founded. 12. The respondent/landlord has further stated that the scheduled mentioned building and the premises at "Beverly" Havelock Road, Ootacamund, Nilgiri District, was let out to the petitioners/tenants for residential purpose in the year 1974 on a monthly rent of Rs.425. The rent was increased periodically and the monthly rent on the date of the filing the original petition was Rs.3,500 per month and the respondent/landlord had extended the lease period from time to time. At the time of letting out, it was specifically mentioned in the tenancy agreement that the building and premises must be used only for residential purpose. However, the petitioners/tenants without any authority converted it for non-residential use. When the tenancy agreement was renewed on 28.1.1987, certain conditions were also incorporated in the agreement and it was always understood by the respondent/landlord that the lease was a composite lease. 13. The respondent/landlord had further stated that in the knowledge that the lease in question was one of composite lease, on expiry of the lease period he had filed a suit for recovery of possession, before the District Court, Ootacamund, in O.S. No. 102 of 1992 and the said suit was tried on maintainability. The tenants had taken a factual stand that he had first occupied the petition premises for residential use and that the said occupation was now being used both for residential as well as nonresidential purposes viz., for running a primary school in the petition premises. The tenants had also contended that the Rent Control proceedings alone would apply to the said case.
The tenants had also contended that the Rent Control proceedings alone would apply to the said case. Hence, the said suit was dismissed on maintainability holding that the petitioner would have to file only a Rent Control proceedings to recover possession of the petition building and premises. Therefore, admittedly, since the petition premises was being used both for residential as well as non-residential purposes the respondent/ landlord had filed the Petition in R.C.O.P. No. 17 of 1996 for obtaining possession of the petition premises and building. 14. The respondent landlord further stated that at present the petitioners/ tenants were running a school in a portion of the petition premises and the rest of the petition premises was used. by the tenants for their residential purpose. The conversion of the premises from residential to partially nonresidential use was illegal and without the consent of the respondent/landlord and without following the procedure prescribed under Section 21 of the Act. The respondent/landlord further stated that the school was neither an affiliated school nor had it got any recognition but only a Private School running on its own and it was also not an aided school receiving Governmental grant. 15. It is the further case of the respondent/landlord that his family is a very large one consisting of 3 sons living in India and one son living abroad in the U.S.A and who visits India during holidays and many grand children. Two of the grand children are studying in Lawrence School, Lovedale, Ootacamund. The family members of the landlord often visit Ootacamund for holidays, as they had a special liking for it. When they visit the place, they were forced to stay in Hotels and Club Houses, and sometimes, especially during summer holidays they had to spend their holidays at other places in view of the fact that they could not obtain firm accommodation for their stay. Apart from holiday visits, the landlord and his son Ramaswamy are also often visiting Ootacamund to see the grand children studying in Lawrence School, Lovedale. Therefore, the filing of the Eviction Petition is due to the bona fide requirement of the respondent/landlord and his family members, as he does not own any premises, residential or non-residential at Ootacamund for the purpose of accommodating himself and his family members. 16.
Therefore, the filing of the Eviction Petition is due to the bona fide requirement of the respondent/landlord and his family members, as he does not own any premises, residential or non-residential at Ootacamund for the purpose of accommodating himself and his family members. 16. In the counter statement filed by the petitioners/tenants herein in R.C.O.P. No. 17 of 1996, before the Rent Controller, they had stated that they deny the allegations that they had illegally converted the premises from residential to non-residential use. They had stated that they were running a school in a portion of the premises and the same was well within the knowledge of the landlord as borne out by the evidence adduced in the suit O.S. No. 102 of 1992. It was further stated that the Petition had been filed by the respondent/landlord only with the mala fide intention of evicting the petitioners/tenants and for letting out the premises on a higher rent which is made out from the fact that the respondent/landlord had filed R.C.O.P. No. 62 of 1996 for fixation of fair rent. It is further stated that the school is being run in the petition premises with about 250 students. If the petitioners/ tenants are ordered to be evicted, inconvenience and hardship would be caused to the petitioners/tenants and that the Rent Control Act [Tamil Nadu Buildings (Lease and Rent Control) Act, 1960] has been enacted to protect the tenants from such arbitrary eviction. 17. The Rent Controller had found that the premises in question was used for both residential as well as non-residential purposes and that the requirement of the respondent/landlord for residential use is not bona fide, since the premises was used by the tenants for running a school with the knowledge and acquiescence of the respondent/landlord and there were no objections raised by him for running the school and that Ex-P-2 and Ex-P-3 go to show that the lease itself was executed with the full knowledge of the respondent/landlord about the running of the school in the petition premises. 18. The Rent Controller had come to the conclusion that the Petition under Section 10(3)(a)(i) was not maintainable. Against the said order, a Rent Control Appeal was filed by the respondent/landlord in R.C.A. No. 16 of 2001.
18. The Rent Controller had come to the conclusion that the Petition under Section 10(3)(a)(i) was not maintainable. Against the said order, a Rent Control Appeal was filed by the respondent/landlord in R.C.A. No. 16 of 2001. The Rent Control Appellate Authority reversed the finding holding that the findings of the Rent Controller was based on sentiments rather than on the legal position prescribed by law. Further, the Appellate Authority had stated in his order that the finding of the Rent Controller that the tenancy is for non-residential purpose is not acceptable, and that since there was no reference to the character of lease in Exs.P-1 to P-3, it cannot be accepted that the running of the school was with the consent of the landlord and that there was no intention made out from the exhibits filed that the premises in question was let out for rent for running a school. It was further held by the Appellate Authority that the contention of the tenants that the landlord had acquiesced for the running of the school is not acceptable, since the premises in question was taken by the tenants in the year 1974 only for residential purposes. It was further held by the Appellate Authority that the structure of the building should be considered and not the use to which it has been put to. He had also held that there was no detailed discussion by the Rent Controller as to whether the tenancy was for residential or non-residential purposes. The Rent Control Appellate Authority has found the requirement of the landlord to be bona fide since the building is required for the use of the landlord for residential purposes. 19. During the course of the arguments, the learned counsel for the petitioner states that, the Petition for eviction filed under Section 10(3)(a)(i) was not maintainable as only a small portion of the premises in question was used for residential purposes and a substantial portion was used for running a school since 1978 with the consent and knowledge of the landlord. This is factually seen from the stand taken by the respondent/landlord in O.S. No. 102 of 1992 that the premises was let out for non-residential purposes and therefore, even the Petition originally filed under Section 10(3)(a)(iii) was subsequently amended to one under Section 10(3)(a)(i).
This is factually seen from the stand taken by the respondent/landlord in O.S. No. 102 of 1992 that the premises was let out for non-residential purposes and therefore, even the Petition originally filed under Section 10(3)(a)(iii) was subsequently amended to one under Section 10(3)(a)(i). It is also contended by the learned counsel for the petitioner that the Power Agent who has filed the original Petition has no locus standi to speak about the requirement of the landlord for own use of the premises or for want of consent by the tenant for using the premises to run a school. 20. Further, several letters exchanged between the tenants and the landlord, marked as exhibits, show that the landlord had full knowledge of the running of the school by the tenants in the petition premises. Knowing that the premises was used for running a school and having extended the lease deed the landlord is estopped from claiming want of knowledge for use of the premises for non-residential purposes. 21. It is further submitted by the learned counsel for the petitioner that the finding of the Appellate Authority that the landlord/respondent had no intention to let out the premises for non-residential premises is not based on any material or evidence. The Appellate Authority having accepted that the school is conducted in a major portion of the premises is not justified in holding that there is no acquiescence by the landlord. 22. It is further contended that the Appellate Authority erred in referring to the letters written by the Agent of the Landlord/respondent to hold that the landlord did not permit the tenant to run a school. As long as the landlord had not denied or replied to the tenant's letters, adverse inference could be drawn against the landlord and the presumption is that the premises was used for the running of a school with the consent and knowledge of the landlord. Once the landlord concedes that the premises was used both for residential as well as non-residential purposes and when he had acquiesced in the said usage, the, Appellate Authority erred in his finding that the tenancy is only for the residential purpose and usage of the premises for non-residential purpose is unauthorized. It is pertinent to note that eviction was not prayed on the ground of different user (Section 10(2)(ii)(b) of the Act).
It is pertinent to note that eviction was not prayed on the ground of different user (Section 10(2)(ii)(b) of the Act). Section 114 of the Indian Evidence Act speaks about presumption and Section 115 refers to estoppel. Section 114 of the Indian Evidence Act states that the Court may presume the existence of any fact on the basis of human conduct. Under Section 115 of Indian Evidence Act when one person by his declaratory Act or omission permitted another person to believe something to be true he is estopped from contesting otherwise. The Appellate Authority is not justified in ignoring the principle laid down in the decision in Miss S. Sanyal v. Gian Chand, AIR 1968 SC 438 . The provisions of the Delhi Rent Control Act and Tamil Nadu Rent Control Act in so far as eviction of a premises for residential purposes or non-residential purposes are one and the same. The Appellate Authority is bound by the said judgment. The decisions in V Balakrishna Menon v. M.A.K. Govindan, 1979 (1) MLJ 237 and Bashruddin v. P. Somasundaram, 2000 (1) CTC 723 are not correct. The requirement of the landlord is not bona fide and his only, intention is to coerce the respondent to pay higher rent. The requirement of the premises is not based on any legal necessity or imminent need. 23. On the contrary, the learned counsel appearing for the landlord contends that the concurrent findings of the authorities below are that the requirement of the landlord is bona fide. It is in the final analysis that the Rent Controller has gone against the landlord, despite the finding that the landlord's requirement of the building for his own use and occupation is bona fide, since such requirement is only during summer holidays. The Rent Control Appellate Authority has clearly held that the need of the landlord is genuine and bona fide. This concurrent finding has not been effectively challenged by the tenants. 24. It is stated on behalf of the respondent/landlord that the relative hardship is not a factor to be considered in an Eviction Petition filed under Section 10(3)(a)(i) of the Act. The law is well settled and it could be a consideration only under Section 10(3)(c) and not otherwise.
This concurrent finding has not been effectively challenged by the tenants. 24. It is stated on behalf of the respondent/landlord that the relative hardship is not a factor to be considered in an Eviction Petition filed under Section 10(3)(a)(i) of the Act. The law is well settled and it could be a consideration only under Section 10(3)(c) and not otherwise. The tenants assume the building to be a non-residential building on the nature of its user and contends that the Petition is not maintainable, since the requirement of the landlord is sought for residential use. Though the tenants admit that the initial letting is for residential use it is their claim that thereafter the landlord had acquiesced the tenant's use of the building for non-residential purpose and therefore, contends that the building is a non-residential building and the Petition is liable to be dismissed. According to the landlord such an argument is not acceptable. The landlord reiterates that the building is a residential building as could be seen from the nature of the building. In the lease deed, dated 28.10.1974, when describing the building in the schedule to the lease deed, the western portion is stated to have one sitting room, one office room, one dining hall, two bedrooms, two bath-rooms, one kitchen, passage and garage connected to the building together with two servant quarters and one servant bath-room. This will show the, structure of the building to be a residential building. The view that user decides nature of the building has been over turned by the amendment in the 1960 Act and confirmed by reported decisions of the Supreme Court. 25. It is further contended by the counsel for the landlord that there is no question of acquiescence in view of Section 21 of the Act, according to which a specific order must be obtained for conversion of a residential building into a non-residential building from the Controller who is defined to be Rent Controller within the meaning of Section 2(9) of the Act. The respondent has further contended that the tenant has not raised any valid ground in his statement in the R.C.O.P. regarding non-applicability of Section 10(3)(a)(i) and that the building is a non-residential building.
The respondent has further contended that the tenant has not raised any valid ground in his statement in the R.C.O.P. regarding non-applicability of Section 10(3)(a)(i) and that the building is a non-residential building. Except for the defence that the building is being sought on mala fide grounds for letting out on a higher rent, by the landlord, the relative hardship caused to the respondent/tenant and that the Rent Controller has no jurisdiction to entertain the Petition, there are no other defences raised in the counter. 26. The Learned counsel appearing for the petitioner relied on the following decisions of the Court to show that the order of eviction passed by Rent Control Appellate Authority is bad in law: (a) In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 , the Supreme Court has held as follows: “.......13. Chamber's 20th Century Dictionary defines bona fide to mean "in good faith genuine". The word "genuine" means "natural : not spurious: real pure : sincere". The Law Dictionary, Mozley and Whitley define bona fide to mean "good faith, without fraud or deceit". Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bona fide" is suggestive of legislative intent that a mere desire, which is the outcome of whim or fancy is not taken note of by the Rent Control legislation. A requirement in the sense of felt need, which is an outcome of a sincere honest desire in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the f acts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest.
The judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, the positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against." (b) In the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd and others, 2005 (3) CTC 128, this Court has held as follows: “.......14. Order 3, Rules I and 2, C.P.C., empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3, Rules I and 2, C.P.C., confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal.
In our view the word "acts" employed in Order 3, Rules I and 2, C.P.C., confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attoney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined." (c) In the case of T.N. Lakshmanan v. M/s. S.P. Hajee Alavudeen Saheb Sons, 1980 (1) MLJ 9, this Court has held as follows: “........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." (d) In the case of T. Dakshinamoorthy v. Thulja Bai and another, AIR 1952 Mad. 413 , this Court has held as follows: “.......15. It seems to us, therefore, that what is at the inception a residential building may well become a non-residential by force of the terms of a letting, and that any conversion, after the letting, of a residential building into a non-residential may well take place within and only within the limits which the statute prescribes. That if prior to a letting a building happens to have been of one character it must for ever keep that character irrespective of what the effect of the letting or of the acts of parties subsequent to the letting may be, seems to our minds to be a difficult, if not impossible, position, having regard to the considerations above set forth. The original design of the structure may have been one suitable to residence, but if by the letting it became non-residence in character, there is no reason why one may not take it as such for the purpose of Section 7, sub-section (3).
The original design of the structure may have been one suitable to residence, but if by the letting it became non-residence in character, there is no reason why one may not take it as such for the purpose of Section 7, sub-section (3). It seems to us that if a landlord has let out a building for a residential or non-residential purpose as the case may be, it is only fair that when he seeks an order directing the tenant to put him in possession of the property, he has to show that he fulfils the requirements of sub-clause (i) or (ii) of Clause (a) of sub-section (3) of Section 7. Having let out the building as for a non-residential purpose, it would be unfair if we were allowed to urge the requirements of the building for his own occupation, which is really a condition of his seeking to recover a residential building let out by him. The purpose of the letting and the condition of the landlord's recovery have alike reference to a residential or non-residential purpose according as a given case falls under sub-clause (i) or sub clause (ii) of sub-section 3(a) of Section 7." (e) In the case of C.R.I Limited v. Murali Mani and others, 2001 (1) CTC 26 , this Court has held as follows: "...16. It is also relevant to point out that the demised premises has been leased out for non-residential purposes and the landlady has sought for eviction of the revision petitioner for residential purposes. The law is well settled that eviction can be sought against the tenant by the landlord of a non-residential premises for non-residential purposes alone and not for residential purposes, subject to Section 21 of the Act." (f) In the case of D.C. Oswal v. V.K. Subbiah and others, AIR 1992 SC 184 , the Supreme Court has held as follows: “5. Counsel for the respondents does not dispute that from 1973 there has been change of use. The Petition for eviction is of 1980. It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground.
Counsel for the respondents does not dispute that from 1973 there has been change of use. The Petition for eviction is of 1980. It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground. In these circumstances, we are prepared to accept the submission advanced on behalf of the appellant that the landlords accepted the user to be also other than residential." (g) In the case of Miss S. Sanyal v. Gian Chand, AIR 1968 SC 438 , the Supreme Court has held as follows: “… (3) In the present case, the First Appellant Court held that the house was 'let out for running a school and for residence'. The High Court held that where there is a composite letting, it is open to the Court to disintegrate the contract of tenancy, and if the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which "is being used" by the tenant for residential purposes. In so holding, in our judgment, the High Court erred. The jurisdiction of the Court may be exercised under Section 13(1)(e) of the Act only when the premises are let for residential purposes and not when the premises being let for composite purposes, are used in specific portions for purpose residential and non-residential. The contract of tenancy is a single and indivisible contract, and in the absence of any statutory provision to that effect it is not open to the Court to divide it into two contracts - one of letting for residential purposes, and the other for non-residential purposes, and to grant relief under Section 13(1)(e) of the Act limited to the portion of the demised property which "is being used" for residential purposes." (h) In the case of Dr.
Gopal Dass Verma v. S.K. Bharadwaj, AIR 1963 SC 337 , the Supreme Court has held as follows: “.......in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can be successfully terminated merely by showing that the tenant has acquired a suitable residence." (i) In the case of V.V Venkataraman v. S. Radhakrishnan, 1982 TLNJ 15, this Court has held as follows: “......There is nothing in the said judgment which lends support to the proposition put forth by the learned counsel for the petitioner that even in the case of an Application under Section 10(3)(a)(i), the question of relative hardship as between the tenant and the landlord should be considered. Section 10(3)(a) of the Act enables the landlord to apply for eviction of the tenant from a residential or non residential building as the case may be, when the landlord or any member of his family is not occupying such a building of his own in the city, town or village concerned, and Section 10(3)(e) enjoins upon the Rent Controller to examine the claim of the landlord to find out as to whether it is bona fide. The Proviso added after Section 10(3)(e) of the Act reads as follows: "Provided that, in the case of an application under Clause (c), the Controller shall reject the Application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord” The said Proviso has reference only to an Application under Section 10(3)(c) of the Act, which enables the landlord who is occupying only a part of building, whether residential or non-residential, to apply to the Controller for an order of eviction, if he requires additional accommodation. The Proviso extracted above would have no bearing at all with reference to an Application under Section 10(3)(a) of the Act," (j) In the case of K. Krishnan Nair v. Valliammal, AIR (36) 1949 Mad. 785, this Court has held as follows: " ....The primary purpose for which the building is let out or used Should be the determining factor in deciding whether a building is residential or non-residential.
785, this Court has held as follows: " ....The primary purpose for which the building is let out or used Should be the determining factor in deciding whether a building is residential or non-residential. Hence, when premises are taken and used for residential purposes the fact that a portion of the premises was used for making appalams when people were not sleeping there will not make them non-residential; much more so when the portion was also used for sleeping by the members of the family all of whom were not engaged in the appalam. industry." (k) In the case of R. T. Rajamanickam v. Ranganathan, 1995 (1) CTC 529 : 1995 (1) LW 494 , this Court citing P. Kesavan v. Ammukutty Amman, 1988 (1) SCC 202 and Bausching Schmity Private Ltd. v. P.T. Manghani, 1977 (2) SCC 835 , has held as follows: “.......Now that the Supreme Court in the two decisions referred to above laid down that the usage or purpose test in not a conclusive test to decide whether a building is residential or non-residential, but only physical feature or structure of the building is relevant factor." (1) In the case of K.A.M.A.K. Nataraja Nadar & Sons. Iron Paint & Pipe Merchants v. R. Kannan, 2005 (5) CTC 537 , this Court has held as follows: "The landlord attempted to evict the tenants, classifying the building as residential one, thereby claiming the same for personal occupation of the grandson, who is going to be married soon. This ground was brought under cloud, by the tenants stating that the demised premises is, non-residential building used as godown for stocking the goods, for the business of the tenants, and therefore seeking the same for occupation of the grandson, for residential purpose is not maintainable. Section 10(3)(a)(i) of the Act enables the Court to order eviction, in respect of the residential building, if it requires for the occupation of the landlord or any member of his family, if they are not occupying a residential building of their own in the city, town or village concerned, and if it is a non-residential building, only Section 10(3)(a)(iii) of the Act would come into operation. The consideration or the ingredients required under Section 10(3)(a)(i) and 10(3)(a)(iii) of the Act are different in nature and both Sections cannot go together.
The consideration or the ingredients required under Section 10(3)(a)(i) and 10(3)(a)(iii) of the Act are different in nature and both Sections cannot go together. Therefore, the landlord is entitled to evict the revision petitioners on the ground of personal occupation, for residential purpose, if it is made out that the building is used for residential purpose. In other words, if it is made out, that the build is used or let out for non-residential purpose, then the landlord is not entitled to invoke Section 10(3)(a)(i) of the Act." 27. The Learned counsel appearing for the respondent relied on the following decisions of the Court to emphasize that the order of eviction passed against the tenants was in accordance with law as interpreted by the Courts: (a) In the case of Kailash Chand and another v. Dharam Dass, 2005 (5) SCC 375 , the Supreme Court has held as follows: “.......11. Molar Mal case (Molar Mal v. Kay Iron Works (P) Ltd., 2000 (4) SCC 285 ) which has been relied on by the High Court deals with a pari materia provision contained in the Haryana Urban (Control of Rent and Eviction) Act, 1973. There the plea taken by the tenant in his written statement was that the landlord had filed other petitions against other tenants alleging personal requirement and during the pendency of the Eviction Petition in question he had obtained possession of building and lands from three other tenants and hence the landlord's plea for the tenant's eviction was not maintainable, in view of the Third Proviso. The contention of the landlord was that the possession from other tenants was obtained during the pendency of the Eviction Petition and not on the date of filing of the Eviction Petition and, therefore, the Proviso did not apply. This contention of the landlord was repelled by this Court observing that Proviso needed to be interpreted keeping in view the legislative intent and not in a pedantic manner. Not the letter of the law by assigning a literal meaning, but the purpose sought to be achieved by the legislature had to be kept in view. This Court opined that if the landlord had obtained possession of the premises/land belonging to the same class of building or tenanted land, wherefrom the eviction was being sought for in the proceedings, then the applicability of the Proviso would be attracted.
This Court opined that if the landlord had obtained possession of the premises/land belonging to the same class of building or tenanted land, wherefrom the eviction was being sought for in the proceedings, then the applicability of the Proviso would be attracted. To record a finding in that regard, the case was remanded to the Trial Court by framing and issue and allowing liberty to the parties to adduce evidence. Molar Mal case does not deal with the situation like the one before us nor does it answer the question as is posed in the case before us. In Molar Mal case this Court has not expressed any opinion if the applicability of the Third Proviso would be attracted if there was no order of eviction pursuant to which the landlords came into occupation of another residential building and what was done, was only an exchange of accommodation by way of mutual settlement and without intervention of the Court, though such settlement was brought to the notice of the Court. “ ......25. Undoubtedly, the Himachal Pradesh Urban Rent Control Act, 1987 has been enacted for the purpose of providing for the control of rents and evictions because of paucity of accommodation in urban areas. The Rent Control legislations generally aim at preventing rack-renting and resorting to evictions by unscrupulous and greedy landlords, who take advantage of the shortage in availability of accommodations in cities and dictate their terms to the tenants and if they do not follow the dictates, subject them to eviction. The Rent Control legislations are generally heavily loaded in favour of the tenants and the provision dealing with which the Courts at times lean in favour of the landlords is the one which permits the landlord to seek eviction of the tenant on the ground of requirement for his own occupation, residential or non-residential. There are weak amongst the tenants as also amongst the landlords. [Joginder Pal v. Naval Kishore Behal, 2002 (5) SCC 397 ]. Take the case of a landlord knocking the doors of the Court seeking its assistance for a roof over his head or for a reasonably comfortable living, when he is himself either in a rented accommodation or squeezing himself and his family members in a limited space, while the tenant protected by the Rent Control law is comfortably occupying the premises of the landlord or a part thereof.
Provisions like Section 14(3)(a)(i) of the Act should be so interpreted as to advance the cause of justice instructed by the realities of life and practical wisdom. While the tenant needs to be protected, the Courts would not ordinarily deny the relief to the landlord, who genuinely and bona fide requires the premises in occupation of the tenant for occupation by himself or for the members of his family, unless they feel convinced that the so-called requirement of the landlord was a ruse for getting rid of an inconvenient tenant or was otherwise mala fide and did not fall within the four comers of the ground for eviction provided by law". (b) In the case of The Manager, Deluxe Boadlines and another v. Jainullabudeen, 1998 (1) LW 95 , this Court has held as follows: “.......to decide the nature of the building, the structure has to be given predominance and not its user. It has been unequivocally held that the user of the building is not conclusive test to decide the nature of the building .......” (c) In the case of Adil Jamshed Frenchman v. Sardar Dastur Schools Trust and others, 2005 (1) CTC 718 : 2005 (2) SCC 476 , the Supreme Court has held as follows: “.......8. The decree of the Trial Court is based on the landlords' bona fide requirement of the accommodation. In Appeal, the question before the Court for adjudication wag whether the Trial Court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously were within their rights to show that the need of the landlords was not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of the landlords. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 , this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any 'member of the family which would entitle the landlord to seek ejectment of the tenant.
The question to be asked by a judge of facts by placing himself f in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath v. Pooran Lal, 2001 (5) SCC 705 , this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in present and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. (d) In the case of R. T. Rajamanickam v. Ranganathan, 1995 (1) CTC 529 : 1995 (1) LW 494 , this Court has held as follows: "The question for consideration in this case is whether a building can be called as a residential or non-residential on the basis of usage or for the purpose for which it is let out, or the Act contemplates distinction on the basis of structural or physical features of the building." (e) In the case of P. Balambal v. Maj. Gen. L.K. Moorthy (Retd) and another, 2001 (2) CTC 609 , this Court has held as follows: “ .......26 Here is a case, where the respondents having served in the armed forces and have expressed their desire to settle down in their own native town and there is nothing unnatural or improbable in their expectations. Even assuming for a sake of discussion that they may not require the premises through out the year and they would require it only for intermittent periods now and then, even so the bona fides of their requirement do, not become extinguished. In fact, no such contention is raised before me to the effect that the petitioners could make use of the property only for intermittent and for broken periods." (f) In the case of The South Indian Bank Limited v. Saroja Govindarajan, 2001 (1) MLJ 759 , this Court has held as follows: “ .......12. The expression "bona fide" is not a meaningless jargon and it has proper connotation and has been explained by several judgments of the Apex Court.
The expression "bona fide" is not a meaningless jargon and it has proper connotation and has been explained by several judgments of the Apex Court. A pari materia provision of Delhi Rent Control Act has been considered by the Supreme Court in the decision in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 1999 (6) SCC 222 . The Apex Court while considering the bona Mc requirement has held thus: "The term "bona fide" refers to a state of mind. The requirement is not a mere desire. The degree of intensity contemplated by requires" is much higher than mere desire. The phrase "required bona fide' is suggestive to legislative intent that a mere desire, which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need, which is an outcome of a sincere honest desire in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or any other member of the family would entitle him to seek ejectment of the tenant. Looked at from any angle, in setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the ' Court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, the positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretense or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance of the landlord." Thus, the Supreme Court has given a categorical guideline to find out as to the bona fide requirement of the premises by the landlord.
The bona fide requirement has to be culled out from the averments contained in the petition and from the evidence adduced in the proceedings and on such objective determination, if it is proved with certain materials, that the requirement is bona fide, then, definitely, under the provisions of the Act, the landlord is entitled to an order of eviction. The proof required for proving the said bona fide is also only to the satisfaction of the Court to arrive at an objective determination and it is not always necessary to prove the bona fide beyond all reasonable doubt as in criminal proceedings". (g) In the case of Kovilpillai Nadar v. Tiresha Ammal, 1997 (1) LW 585 , this Court has held as follows: “......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 find out whether it is a residential or non-residential building….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 is for residential purpose." (h) In the case of Ravi chandran and others v. Natarajan Nadar and others, 2004 (1) MLJ 458 , this Court has held as follows: “.......11. In the instant case, the premises in question is a non residential one. The landlord was actually running a grocery shop in a rented premises on the date of filing of the petition. He was not occupying any other non-residential building of his own. The landlord in order to show the bona fide has to only establish the genuine present need for own occupation, and he need not prove that he was in danger of being evicted from the rented premises. The landlord is carrying on his business in a rented premises, and he has also deposed that his landlord has been demanding him to vacate the same. It is true that the landlord of the petitioner has not issued any notice calling, for eviction. But, it did not mean that the demand for eviction was false.
The landlord is carrying on his business in a rented premises, and he has also deposed that his landlord has been demanding him to vacate the same. It is true that the landlord of the petitioner has not issued any notice calling, for eviction. But, it did not mean that the demand for eviction was false. It is well settled position of law that in a case like this, the landlord who is carrying on his business in a rented premises, need not prove the danger of his being evicted from the said rented premises. In the instant case, the landlord has established the genuine present need for his own occupation." (i) in the case of Indian Organic Chemicals Limited, Madras v. Radha Venkataraman this Court has held as follows: “ .......18. According to law, it is against the contention put forward by the tenant. Law does not say that there should be a current and urgent need. It is enough if it is reasonably likely to arise in the future. V.R. Krishna lyer, J. As he then was, in the decision in Madhavan v. Ramachandran, I.L.R. 1970 (2) Ker.101 at 108 has held thus: " 'However, respondent's counsel has argued that, since on the date of the institution of the Petition the landlord was a teacher in Perinthalmanna and not at Pathirippala, he had set up only a future and not a present need in his Eviction Petition and this was fatal. I must point out that the consent of need cannot be narrowly understood or pedantically interpreted but applied in a pragmatic way. The petitioner has really been transfer-red to Pathirippala, even as he had alleged in his Petition. He must have reasonably expected a transfer and it might well be said that a need had arisen then. It is not necessary that there should be a current, urgent need. It is enough if it is reasonably likely to arise in the near future. Knowing that between the institution of the petition and the ultimate order from the Apex Court years pass, it will be as good as repealing the provision for eviction on the ground of bona fide, if Courts insist on landlords proving a present need as against a prospective but certain need. Else, when the need confronts him, the building will be years away from him. Proceedings in Court should not become tantalizing tricks".
Else, when the need confronts him, the building will be years away from him. Proceedings in Court should not become tantalizing tricks". Similar is the case in Secretary, Thevara Co-op Consumer Stores Limited v. Jose, 1984 KLT 290 . In that case, a young man, who intended to many, wanted possession of the building for his own occupation. Marriage did not take place and it was only being thought of. The question was whether such a person can claim eviction on the ground of bona fide own occupation on the ground of future need. His Lordship held as follows: "No person, even when he is a landlord could be found fault with for ordaining his affairs in a proper or planned manner. Planning is, in a sense, a part of regulated modem life. It is, therefore, unjust to suggest that the landlord could seek eviction of a building, for him to live with his spouse, only after undergoing the marriage nuptials. He is justifiably entitled to foresee things and plan his life. The Tribunal or Court would not sit in judgment over his honest or bona fide decision in that regard." (j) In the case of Janaki Ammal and others v. Saminathan and others, 2004 (2) MLJ 14 , this Court has held as follows: “........7. Nextly, the learned counsel for the petitioners has pointed out that in the case involved in Muniammal v. Sundara Mahalingam, 1990 (2) MLJ 186 , the landlord did not take steps to commence the business nor had he been carrying on any business on the date when the petition was filed and therefore it was held in the said decision that the landlord has not satisfied the requirement of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Here also, I am of the opinion that since the tenant himself has admitted in his evidence that the first petitioner herein was carrying on the business in the sale of dhal in a rented premises in Big Bazaar Street, Kumbakonam, the ratio laid down in the said decision cannot help advance the case of the respondent herein. “......9.
Here also, I am of the opinion that since the tenant himself has admitted in his evidence that the first petitioner herein was carrying on the business in the sale of dhal in a rented premises in Big Bazaar Street, Kumbakonam, the ratio laid down in the said decision cannot help advance the case of the respondent herein. “......9. In view of the above reasons, on point of law also, the learned counsel for the respondents has not convinced this Court to accept !he plea that the requirement of the demised premises by the landlord is not bona fide within the meaning of the provision under Section 10(3)(a)(iii) of the Tamil Nadu Act 18 of 1960." (k) In the case of Akbar Ali and others v. Donian Rodrigo and another, 2000 (1) CTC 287 , this Court has held as follows: “.......19. The lower Appellate Court has proceeded to discuss the case rather putting the odds against the landlords. The Rent Control Act is meant to the benefit both the tenant and the landlord. The idea is to protect the tenant 'from unjust eviction. It does not mean that the legitimate request of the landlord to recover possession should be turned down. The idea that the tenant is a victimized person, and he is a weaker Section of the society no longer holds good. If certain circumstances are established, then the landlord is entitled to get an order of eviction. It is not open to the Rent Controller or the Appellate Authority to place an unwarranted rigidity and construe the request of the landlord too narrowly. As held by the Supreme Court in a recent decision the Court must place itself in the armchair of the landlord and construe the request. A pedantic approach is unwarranted. The approach must be to see whether under the circumstances, he is entitled to an order of eviction. The approach of the lower Appellate Court as though it is a criminal proceeding and that the landlord must prove it beyond reasonable doubt is an approach unjust and uncalled, for. The approach and the discussion by the lower Appellate Authority is as though they are deciding criminal proceedings. It is not a proper approach. By such approach, the Appellate Authority would be placing the landlord only at a disadvantage. The law does not intend to place such a handicap upon the landlord.
The approach and the discussion by the lower Appellate Authority is as though they are deciding criminal proceedings. It is not a proper approach. By such approach, the Appellate Authority would be placing the landlord only at a disadvantage. The law does not intend to place such a handicap upon the landlord. Just as a tenant is entitled to be protected from unreasonable eviction, the landlord is equally entitled to get possession on reasonable ground. That benefit should not be deprived by placing a too narrow and too pedantic interpretation. The approach by the lower Appellate Court is more to pick holes in the case of the landlord, then to consider broadly whether the need is genuine or not. As a result, the lower Appellate Court has committed a grave error, which has led to miscarriage of justice. In adopting such a rigid stand the lower Appellate Court has committed grave error. Therefore, in such circumstances, I have no hesitation in holding that the order of the lower Appellate Court has to be set aside, restoring the order of the Rent Controller. In other words, I am satisfied that the landlords have established that the requirement is genuine and therefore, they are entitled to an order of eviction." (1) In the case of Chithiraivadivu Ammal v. Dr. Moses T. Sundar, 1982 (1) MLJ 334 , this Court has held as follows: “.......15. So far as the requirement for own use is concerned, it is true that there is a decision of this Court that in case a landlord or landlady required the premises for own occupation, the question of bona fide is alien for consideration unless there are compelling circumstances to disbelieve the version of the landlord or the landlady. We have already observed that there are compelling circumstances, which have been correctly considered by both the Courts below on the basis of the evidence before them and their conclusion cannot be considered as perverse or baseless ....... (m) In the case of Sarla Ahuja v. United India Insurance Company Ltd., 1998 (3) CTC 679, the Supreme Court has held as follows: “.......11. Learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction.
(m) In the case of Sarla Ahuja v. United India Insurance Company Ltd., 1998 (3) CTC 679, the Supreme Court has held as follows: “.......11. Learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding Court is wholly unreasonable. A reading of the impugned order shows that the High Court has overstepped the limit of its power as a revisional Court. The order impugned on that score is hence vitiated by jurisdictional deficiency. 12. Clause (e) of the proviso to Section 14(1) of the Act affords one of the grounds to the landlord to seek recovery of possession of the building leased. The said clause read thus: 14. (1)(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation; Explanation: For the purpose of this clause, 'premises let for residential purposes' include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes. …… 14. The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises.
It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself " (n) In the case Siddalingamma and another v. Mamtha Shenoy, 2002 (1) LW 600, it has been held as follows: “.......9. Rent Control Legislation generally leans in favour of tenant; it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy." (o) In the case Bashruddin v. P. Somasundaram, 2000 (1) CTC 723 , it has been held as follows: "25. Having regard to, the position that the structure of the building is the deciding factor, we have to see whether the Appellate Authority had examined the position from this angle. In my view, he has completely overlooked the vital admissions made by the tenant that there was only one entrance to the property, that there was a veranda as soon as one entered the property. May be, a Commissioner had not been appointed. But the fact remains, and it can be easily inferred that the structure of the building clearly showed that it was essentially a residential building. Merely because, the leasing out originally had been both for residential and non-residential purpose and possibly because at a particular stage and which is spoken to by the landlord that the respondent/tenant had shifted to Pozhichalur for residence after the filing of the Eviction Petition, would not mean that the property had ceased to be a residential building. We have already noticed that in all records the property had been shown as the residential address of the respondent and his family members including his school studying son, that the ration card also showed the member of his family as residing in the petition property. We have therefore to conclude that the property is residential in structure and if the necessary conditions are satisfied the landlord is entitled to seek eviction for residential purpose.
We have therefore to conclude that the property is residential in structure and if the necessary conditions are satisfied the landlord is entitled to seek eviction for residential purpose. There is vital admission on the part of the respondent that it had been let out for both residential and non-residential purposes, that in the course of evidence he attempted to give a go-bye and falsely alleged that he did not reside in the property at any point of time and used only for non-residential purpose. The authorities already referred to are clear that if the building had been let out equally for residential and non-residential purposes, there cannot be a mathematical calculation in this regard as, the extent of the residential purpose and the extent of the nonresidential purpose. Equally means, equally for residential and nonresidential purposes. On the vital admissions of the respondent alone the landlord has to succeed. It is also to be noted that the respondent talks about the petitioner/landlord owning 10 shops in the locality. He has not let in any evidence as to whether the landlord owns any residential property in the locality. The landlord has also spoken to the enormous inconvenience he is suffering from commuting to and fro Madras for attending his various business in the area where the petition property is situated. The relative hardship that may be caused to the respondent cannot outweigh the advantage that might accrue to the landlord if the tenant is made to vacate the premises." (p) In the case P.S. Palaniappa Chettiar v. A. Simen George, 1983 MLJ 354 , it has been held as follows: “.......It is not necessary that the landlord alone should go into the box and depose about the bona fide requirement. Even his own agent or anybody on his behalf whose evidence is cogent, convincing and trustworthy can be taken on its face value either for upholding or for rejecting the case of the landlord. Under the circumstances, the failure on the part of the landlord to go into the box and examine himself cannot be taken as a ground for not upholding his claim for bona fide requirement of the demised premises .......” 28.
Under the circumstances, the failure on the part of the landlord to go into the box and examine himself cannot be taken as a ground for not upholding his claim for bona fide requirement of the demised premises .......” 28. On weighing the arguments adduced on behalf of the petitioners as well as the respondent and on a perusal of the records placed before this Court for consideration and by applying the decisions of the Courts of law cited, this Court finds that the petition premises was initially leased out only for residential purposes. Later, a portion of it was used for residential purpose and another portion of the building was used by the tenants to run a school. Though this conversion of a portion of the residential building into a commercial building for the purpose of running of a school was with the knowledge of the landlord, as seen from the subsequent lease deeds, it has not been done in accordance with Section 21 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. 29. Further, it is seen from the decided cases that the earlier emphasis on 'user' has given way to tile structure principle which lays emphasis on the structure of the building rather than the use of the building in question is put to. Therefore, if the structure of the building is primarily residential in nature it cannot be said that the landlord should be shut out from claiming it for his own use for residential purposes even though it may be used for a commercial purpose like for running of a school as in this case. This would be true even if the landlord has acquiesced to it. Therefore, it is clear that if a building, basically, residential in structure, is required by the landlord for his own use, which includes the use of his family members, it cannot be denied by the tenant so long the claim made by the landlord remains bona fide. 30. Further, from the facts and circumstances of the case there is nothing to show that the requirement of the building by the landlord for own use is not bona fide. Even if the use may be intermittent or seasonal in nature the landlord cannot be denied the use.
30. Further, from the facts and circumstances of the case there is nothing to show that the requirement of the building by the landlord for own use is not bona fide. Even if the use may be intermittent or seasonal in nature the landlord cannot be denied the use. How well or how often the premises should be used by the landlord is not for the tenant to dictate as long as the requirement of the landlord is shown to be bona fide. 31. The contention of the tenants that a power agent cannot put forth the plea of requirement of the tenanted premises for the bona fide own use of the landlord cannot be sustained. There can be no such restriction on the Power of Attorney granted to the power agent unless there is a specific clause to that effect in the document or it could be proved by necessary implication. 32. The petitioner's claim of relative hardship cannot be invoked in the present case as a residential building is required for 'own use' of the respondent and his family members in accordance with Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. The petitioners have not shown that the respondent or his family members have any other building in the area. 33. Therefore, for the above said reasons, it is found that the order of eviction passed by the Rent Control Appellate Authority in R.C.A.No.16 of 2001, dated 31.7.2003, reversing the order, dated 16.4.2001, made in R.C.O.P.No.17 of 1996 is sustainable in law. Consequently, the Civil Revision Petition is dismissed. Three months time is granted to the petitioners/tenants to vacate the premises. The connected Civil Miscellaneous Petitions are also dismissed. No costs.