The structure of a building should be given the predominence and not the user, and the mere user of a room in a residential building for non-residential purposes will not make the building as a whole a non-residential building.

1. Landlady who lost her case before the Appellate Authority, has come to this Court, challenging the legality and propriety of the judgment of the Appellate Authority.

2. Eviction petition was filed against the tenant on the ground that the building is required for the occupation of the landlady's daughter, Bhanumathi, who needs regular treatment and constant attention by her parents. The present space is insufficient to accommodate Bhanumathi and, therefore, the portion in the occupation of the tenant is required for the additional accommodation of the revision petitioner/landlady.

3. In defence, respondent contended that the building was let out to her for non-residential purpose. The present requirement of the landlady being residential, eviction cannot be ordered. At any rate, the claim is not bona fide.

4. Rent Controller, after taking evidence, came to the conclusion that the claim of the landlady is a genuine. He found that Bhanumathi, daughter of the landlady, is not having a building of her own, and she requires constant attention by her parents. He also found that even though the tenant is making use of the premises for non-residential purpose, since it is part of a residential building and also could be made use of for residential purpose, eviction could be ordered. It was found that the claim of the landlady was bona fide.

5. Rent Controller did not enter a finding as to the relative hardship of the parties. He ordered eviction.

6. Tenant preferred RCA No. 5 of 1996. Appellate Authority was of the view that if a building is let out for non-residential purpose, the landlord can demand eviction only if he requires the demised premises for non-residential purpose. In this case, since the landlady demands eviction only for the purpose of residential purpose, the claim cannot be sustained. It also came to the conclusion that the evidence regarding bona fides is also not sufficient to order eviction. It also came to the conclusion that the hardship of the tenant will outweigh the advantage of the landlady. The findings of the Appellate Authority are challenged in this revision.

7. Section 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads thus:-

"A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be."

On a reading of this Section, I do not think that the finding of the Appellate Authority could be accepted.

8. The Appellate Authority has held that the landlady is not entitled to get eviction on that portion of the building, since it has been let out for non-residential purpose. Impliedly the Authority has held that because the letting is for non-residential purpose, the building occupied by the tenant must be taken as a non-residential building. This, according to me, is not the correct approach. In such cases, what is a 'residential building' and what is 'non-residential building' has to be considered taking into account the nature of construction. The structure should be given the predominence and not the user. The user of the building is not the conclusive test to decide the nature of the building.

9. I had occasion to consider a similar question in The Manager, Deluxe Roadlines, etc. v. Jainullabudeen, 1998 (1) LW 95 wherein the entire case law on the point has been considered.

10. In Indira v. Vinayagam Chettiar , 1988 (2) L.W. 454 which is a case under the Pondicherry Buildings (Lease and Rent Control) Act, it was held thus:-

"... Whether a building is non-residential building or not will have to be determined on the structural characterstics of the building and the purpos