The dominant purpose test laid down in Dakshinamurthy v. Thulja Bai for determining whether a building is residential or non-residential is still good law and has not been overruled by subsequent Supreme Court decisions.

Headnote:
TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960 - SECTION 10(3)(A)(I) - EVICTION OF TENANT - BONA FIDE REQUIREMENT FOR OWN OCCUPATION - RESIDENTIAL BUILDING - DOMINANT PURPOSE TEST.
Fact of the Case:

The petitioner, a tenant, challenged the order of the Appellate Authority directing his eviction from the premises on the ground that the respondent, the landlord, bona fide required the premises for his own occupation. The Rent Controller had rejected the eviction petition, but the Appellate Authority allowed it, finding that the building was let out mainly and substantially for residential purposes and incidentally for non-residential purposes.
Finding of the Court:

The court upheld the order of the Appellate Authority, holding that the Full Bench decision in Dakshinamurthy v. Thulja Bai, which laid down the dominant purpose test for determining whether a building is residential or non-residential, was still good law and had not been overruled by subsequent Supreme Court decisions.
Issues: 1. Whether the Full Bench decision in Dakshinamurthy v. Thulja Bai, which laid down the dominant purpose test for determining whether a building is residential or non-residential, was still good law. 2. Whether the building in question was let out mainly and substantially for residential purposes or for non-residential purposes.
Ratio Decidendi: 1. The court held that the Full Bench decision in Dakshinamurthy v. Thulja Bai was still good law and had not been overruled by subsequent Supreme Court decisions. The court distinguished the Supreme Court decisions relied on by the petitioner on the ground that they dealt with a different statute, the Delhi and Ajmer Rent Control Act, 1952, which had a different definition of 'premises' and contemplated a threefold classification of the purpose for which a building could be let out (residential, commercial, and any other purpose), while the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 only contemplated a dichotomous division of the purpose (residential and non-residential). 2. The court held that the Appellate Authority's finding that the building in question was let out mainly and substantially for residential purposes and incidentally for non-residential purposes was supported by the evidence and was not perverse.
Final Decision: The court dismissed the civil revision petition and upheld the order of the Appellate Authority directing the eviction of the petitioner.

ORDER.- This is a petition filed by a tenant to revise the order of the Appellate Authority functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960 (hereinafter referred to as the Act) directing the eviction of the petitioner herein from the premises in question. Most of the facts are not in controversy. The respondent filed a petition under the provisions of the Act for eviction of the petitioner herein on three different grounds. One was that he bona fide required the premises for his own occupation, the second was that the petitioner has committed wilful default in the payment of the rent and the third was that the petitioner had put the property to a use different from the one for which it was leased out. The petitioner denied all the three grounds. The Rent Controller rejected all the three grounds and dismissed the petition for eviction filed by the respondent herein. Thereupon, the respondent preferred an appeal to the Appellate Authority prescribed under the Act. Before the Appellate Authority, the finding of the Rent Controller on the second and the third grounds was not challenged. The only ground on which the appeal was prosecuted was that the respondent herein bona fide required the premises for his own occupation, that he was living in a rented premises and that he had no other building in the place in question. The Appellate Authority accepted this contention of the respondent herein and ordered the eviction of the petitioner from the premises in question, it is this order of the Appellate Authority, that is sought to be revised in the present civil revision petition filed under section 25 of the Act.

2. Before proceeding with the question of law that was sought to be raised before this Court, I must refer to the nature of the defence put forward by the petitioner herein in respect of this particular ground for eviction, namely, the respondent herein bona fide required the building for his own occupation. The contention that was advanced was that the building was let out for residential as well as for non-residential purposes and therefore the respondent herein cannot obtain possession of the premises for his own residential purpose. This contention was rejected by the Appellate Authority following the decision of a Full Bench of this Court in Dakshinamurthy v.Thulja Bai1. That judgment held that for the purpose of finding out whether the purpose for which a building was let out was residential or non-residential the dominant purpose has to be determined and if the dominant purpose was residential, the fact that a part of the premises was put to nonresidential use will not change the character of the original purpose and vice versa. The learned counsel for the petitioner challenges this conclusion. Mr. MR. Narayanaswami, learned counsel for the petitioner did not contend that the decision of the Appellate Authority is not in accordance with the Full Bench decision of this Court referred to already. On the other hand, the learned counsel had to concede that the law laid down by the Full Bench of this Court is to that effect only and the Appellate Authority, simply followed the Full Bench decision. However what he contends is that in view of the subsequent decisions of the Supreme Court the Full Bench decision is no longer good law, since according to the learned counsel for the petitioner the Supreme Court has held that in such cases, where a building has been let out for residential as well as non-residential purpose the Rent Controller has no jurisdiction at all under the Act to order eviction of the tenant. Therefore, I have to consider in. the present civil revision petition the soundness or otherwise of this contention.

3. In this particular case the Appellate Authority as far as the purpose of the tenancy is concerned has recorded the following finding:-

“It is clear that the building was taken by him (petitioner-tenant) for residential and non-residential pu

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Judicial Analysis

1978 Supreme(Mad) 181

IN THE HIGH COURT OF JUDICATURE AT MADRASM.M. Ismail, J.V. Balakrishna Menon .....Appellant(s)VersusM.A.K. Govindan .....Respondent(s)C.R.P. No. 2063 of 1977.Decided On : 03 March 1978

The dominant purpose test laid down in Dakshinamurthy v. Thulja Bai for determining whether a building is residential or non-residential is still good law and has not been overruled by subsequent Supreme Court decisions.

Cases Referred (2)

Judicial Analysis

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.M. Ismail, J.
V. Balakrishna Menon .....Appellant(s)
Versus
M.A.K. Govindan .....Respondent(s)
C.R.P. No. 2063 of 1977.
Decided On : 03 March 1978