Full Judgment Text
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PETITIONER:
M. PADMANABHA SETTY
Vs.
RESPONDENT:
K. P. PAPIAH SETTY
DATE OF JUDGMENT:
11/03/1966
BENCH:
ACT:
Mysore House Rent and Accommodation Control Act (30 of
1951), s. 8(3)(a)(ii)-"Entitled to possession", meaning of.
HEADNOTE:
The appellant and the respondent were the tenant and
landlord respectively, of the non-residential premises in
dispute. The respondent’s application under s. 8(3)(a)(ii)
of the Mysore House Rent and Accommodation Control Act,
1951, for eviction of the appellant on the ground that the
respondent required the premises for the purpose of shifting
his business which he was carrying on in a rented building,
was ordered, but the order was set aside by the appellate
court. The High Court in revision set aside the appellate
order and restored the order of eviction.
In appeal to this Court, it was contended that : (i) since
the respondent was, within the meaning of s. 8(3)(a)(ii),
"entitled to possession" of the building in his occupation
he had no right to ask for the appellant’s eviction; and
(ii) the High Court should not have interfered in revision
under s. 17 of the Act.
HELD (i) The High Court was right in ordering the eviction
of the appellant from the premises.
The respondent, who was in occupation of a building as a
tenant, and over which he had no absolute right of
possession but only a right to remainin possession till
one of the conditions in s. 8(2) is satisfied. could notbe
said to be "entitled to possession" of that building. Those
words aremore akin to the right of possession which an
owner has in respect ofa building owned and occupied by
him. [873 F-G]
(ii)In not following the decision of the High Court in
Narayanappa v. Narasimhiah, [1962] Mys. L.J. 760, the
appellate court acted with material irregularity and so the
High Court could set aside the appellate order in revision.
[874 B]
Thanappa Chetty v. Govindaswami Naicker, A.I.R. 1952 Mad.
553 overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 756 of 1965.
Appeal by special leave from the judgment and order dated
April 9, 1965 of the Mysore High Court in Civil Revision
Petition No. 1044 of 1962.
S. K. Venkatarangaiengar G. L. Sanghi, J. B. Dadachanji
O. C. Mathur and Ravinder Narain, for the appellant.
Mirle N. Lakshminaraynappa O. P. Malhotra, S. S. Khanduja
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Ganpat Rai, for the respondent.
869
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against
the judgment of the High Court of Mysore in Civil Revision
Petition No. 1044 of 1962, filed under s. 17 of the Mysore
House Rent and Accommodation Control Act, 1951 (Mysore Act
30 of 1951)hereinafter referred to as the Act-whereby the
High Court set aside the order passed by the III Additional
District Judge, Bangalore. The III Additional Judge had set
aside the order of’ the First Munsiff, Bangalore, who had
directed the eviction of the tenant from the premises in
dispute.
The appellant before us, Padmanabha Setty, hereinafter
referred to as the tenant, was the tenant of a non-
residential premises No. 281, Old Tharagupet, Bangalore
City. ]’be tenant had installed some machinery in the
premises. The respondent, K. P. Papiah Setty, is the
landlord. He had purchased the premises for his own use and
occupation, namely, for the purpose of shifting his business
which hewas carrying on in a rented building to the
premises in dispute. The landlord tiled an application
under s.8(3)(a)(ii) of theAct for the eviction of the
tenant on the ground that he required the premises in
dispute for his own use and occupation. It is not necessary
to give the other allegations made in the application as
both the First Munsiff, Bangalore, and the III Additional
District Judge, Bangalore, have found that the landlord
required the premises for his bonafide use and occupation,
namely, for shifting his business from the rented premises
to the premises in dispute. The III Additional District
Judge, however, held that under s. 8(3)(a)(ii) the landlord
was not entitled to possession of the premises in dispute
unless and until he was prepared to vacate the shops in
which he was trading at the time. This finding of the
learned Additional Judge was contrary to the decision of the
Mysore High Court in S. G. Narayanappa and Bros. v. A. N.
Narasimhiah(1). The landlord then filed a revision petition
under s. 17 of the Act, and the High Court, following the
decision in S. G. Naravanappa and Bros. v. A. N.
Narasimhiah(1) set aside the order of the Additional
District Judge. The tenant having obtained special leave,
the matter is now before us.
Two points are raised before us: (1) that the construction
put upon s. 8(3)(a) (ii) of the Act by the Mysore High Court
is erroneous and the construction put upon a similar
provision by the Madras High Court in V. Thanappa Chetty v.
Arcot Govindaswami Naicker(2) is correct; and (2) that the
High Court was not right in setting aside the order of the
Additional District Judge in a revision under s. 1 7 of the
Act.
(1) [1962] Mys. L. J. 76).
(2) A.I.R, 1952 Mad. 553.
870
The Act was passed to regulate the letting of residential
and non-residential houses and to control the rents of such
houses and to prevent unreasonable eviction of tenants
therefrom in the State of Mysore. The word "tenant" is
defined as follows in sub-s. (9) of S. 2 of the Act:
" ’tenant’ means any person by whom or on
whose account rent is payable for a house and
includes the surviving spouse or any son or
daughter of a deceased tenant who had been
living with the tenant in the house as a
member of the tenant’s family up to the death
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of the tenant and a person continuing in
possession after the termination of the
tenancy in his favour, but does not include a
person placed in occupation of a house by its
tenant or a person to whom the collection of
rents or fees in a public market, cart-stand
or slaughter-house or of rents for shops has
been farmed out or leased by a local
authority."
There is no doubt that the definition of the word "tenant"
is wider than the ordinary meaning of the word and includes
a person ,continuing in possession after the termination of
the tenancy in his favour. Section 4 deals with the
determination of fair rent and s. 5 with lawful increase of
or addition to or reduction in fair rent. Section 6
prohibits the landlord from claiming or receiving anything
in excess of fair rent or agreed rent. Section 7 deals with
issue of receipts for rent. Sections 7A and 7-B deal with
the right of tenant to deposit rent in certain cases and
time for deposit and savings. Section 7-C deals with
eviction of tenant in occupation of a house under an
allotment order. Section 8 deals with eviction of tenants
and provides that ,a tenant shall not be evicted whether in
execution of a decree or otherwise except in accordance with
the provisions of s.7-C or of this section. Sub-section (2)
provides the circumstances in which a landlord would be
entitled to seek eviction of a tenant in possession. For
instance, a landlord is entitled to evict a tenant if the
tenant has not tendered or paid the rent due by him in
respect of the premises within the time fixed in the
agreement of tenancy with the landlord on in the absence of
any such agreement, by the last day of the month next
following that for which the rent is payable; if he has
transferred his right under the lease or sublet the entire
premises or any portion thereof; or used the premises for
the purpose other than that for which they were leased; or
if the tenant has committed such acts of waste as are likely
to impair materially the value or utility of the house; or
if the tenant has without the landlord’s consent in writing
erected on the house or any portion thereof any permanent ’
structure; or if the tenant or any person residing with the
tenant has been guilty of such acts and conduct as amounts
to nuisance or annoyance to the adjoining or neighbouring
occupiers
871
or has been using the house or allowing the house to be used
for immoral or illegal purposes; or that the house is
reasonably and bona fide required by the landlord for
carrying out repairs or reconstruction which cannot be
carried out without the house being vacated; or that the
house has not been used without reasonable cause for the
purpose for which it was let for a continuous period of
three months immediately preceding the date of application;
or that the tenant, after the commencement of the Act, has
built, acquired vacant possession of or been allotted a
suitable house.
We have set out these conditions in detail because it would
be relevant to consider whether in view of these conditions
a tenant can be said to have a right to possession of the
premises of which he is a tenant. Then we come to sub-s.
(3) (a) which reads as follows:
"(3)(a) A landlord may, subject to the
provisions of clause (d) apply to the court
for an order directing the tenant to put the
landlord in possession of the house-
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(i)in case it is a residential building, if
the landlord requires it for his own
occupation or for the occupation of a member
of his family and if he or such member, as the
case may be, is not occupying a residential
building of his own in the city, town or
village concerned;
(ii)in case it is a non-residential
building, if the landlord requires it for a
business which he or a member of his family is
carrying on and if for the purposes of the
said business is not in occupation of a non-
residential building which is owned by or to
the possession of which the landlord or such
member, as the case may be, is entitled
whether under this Act or otherwise."
It is not necessary to set out the Explanation or the first
proviso but the second proviso is relevant and runs thus:
"Provided further that where a landlord has
obtained possession of a house for his own use
or occupation or for the use or occupation of
a member of his family under this clause he
shall not be entitled to apply again under
this clause-
(ii)for possession of another non-
residential building of his own, for himself
or for the same member of his family, in case
he has obtained possession of a nonresidential
building."
The Madras High Court held in V. Thannappa Chetty v. Arcot
Govindaswami Naicker (1) that the tenant under the Madras
(1) A.I.R. 1952 Mad. 553 at p. 554-555.
872
Buildings (Lease and Rent Control) Act (Madras Act 15 of
1946) had a right to possession unless and until he was
evicted under the provisions of the Madras Act, and,
therefore, the landlord would not be entitled to possession
of a non-residential building if he was in possession of
another non-residential building as a tenant, for in such a
case he would be entitled to possession of those premises.
The reasoning of Subba Rao, J., then a Judge of the High
Court of Madras, was as follows:
"It will, therefore, be seen that the
relationship between the landlord and tenant
even in cases in which such relationship
terminated under the provisions of the
Transfer of Property Act, continues su
bject to
the provisions of the Act. The rights of the
tenants as well as the landlord are defined.
The tenant tinder the Act has a right to
possession unless and until he is evicted
under the provisions of the Act. Under the
provisions of the Act, a landlord will not be
entitled to the possession of his non-
residential buildings, if he obtains an order
for eviction against another tenant in respect
of another non-residential building, or if he
is in possession of another non-residential
building as a tenant; for in either case he is
entitled to possession of that premises. The
words used in the section, viz., "to the
possession of which he is entitled" are wide
and I do not see any reason why the latter
category should be excluded from the express
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words used which in their ordinary meaning
take in that class."
"It was argued that a statutory immunity is
different from a right to possession. But in
my view a statutory immunity is not
inconsistent with a right to possession. The
statutory immunity itself creates a right in
him to continue in possession till he is
evicted under the provisions of the Act."
The Mysore High Court dissented from this
decision of the Madras High Court, and the
reasoning of Ahmed Ali Khan, J., in S. G.
Narayanappa and Bros. v. A. N. Narasimhiah(1)
is as under:
"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 (2). It appears that
his Lordship in the Madras case distinguished
the said observations in the said case of the
Federa Court by stating that a statutory
immunity is not inconsistent with the right to
posses-
(1)[1962] Mys.L.J.76
(2) A. I. R. 1949 F. C. 124 (128).
873
sion 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 immuni
ty from
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 s. 8(3) (a)(ii) of
the Mysore House Rent and Accommodation
Control Act, as taken in the Madras ruling
cited above."
In our opinion, with great respect to Subba Rao, J., Ahmed
Ali Khan, J., arrived at the correct conclusion. A tenant
who can be evicted under the conditions prescribed in s.
8(2) of the Act cannot be said, in our view, to be entitled
to the possession of the premises of which he is a tenant.
No doubt he cannot be evicted till one or more of the
conditions prescribed by the section are fulfilled, but it
is difficult to equate his right to stay in the premises
till he is evicted to an entitlement of the possession of
the premises. Section 8(3)(a)(ii) deals with two types of
cases; first where the landlord is in occupation of a non-
residential building which is owned by him, and secondly, a
non-residential building of which he is in occupation not as
a landlord but otherwise. The object of the Act is to
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prevent unreasonable evictions of tenants. Can it be said
that the Legislature is considering it to be unreasonable
for a landlord to shift to his own premises while he is in
occupation of tenanted premises over which he has not an
absolute right of possession but only a right to remain in
possession till one of the conditions in s. 8(2) is
satisfied, and over one of which he has no control. For
instance, the landlord may require the premises for repairs
or reconstruction or the neighbours may complain that the
tenant is guilty of nuisance or annoyance, or the landlord
may think that the tenant has committed some acts of waste
as are likely to impair materially the value or utility of
the house. If any of these conditions is proved, he is
liable to be evicted. In our view, in the context the words
"entitled to possession" have a more positive content and
are more akin to the right of possession which an owner has
in respect of the building owned and occupied by him.
In conclusion we are of the view that the High Court was
right in holding that the Additional District Judge erred in
not following the decision of the Mysore High Court in S. G.
Narayanappa and Bros. v. A. N. Narasimhiah.(1)
(1) (1962) Mys. L.J. 760.
M12Sup.C.I.166-10
874
There is no force in the second point raised by the learned
counsel of the tenant. It is true that the jurisdiction of
a High Court under provisions similar to S. 1 7 of the Act
is limited, but we cannot say that the High Court was wrong
in holding that the Additional District Judge acted with
material irregularity in not following the decision of the
Mysore High Court when that decision had been rendered in a
case arising from an earlier order of the same Additional
District Judge. It may be that this decision was not
pointed out to the Additional District Judge but we cannot,
in exercise of our jurisdiction under Art. 136 of the
Constitution, say that the High Court should not have set
aside the order of the Additional District Judge on this
ground.
In the result the appeal fails and is dismissed with costs.
The tenant is granted two months’ time from today to vacate
and deliver possession of the premises in dispute to the
landlord.
Appeal dismissed.
875