Buildings structure to be given predominance and not its user.

Tenants in R.C.O.P. No.25 of 1992, on the file of District Munsif s Court, Erode - Rent Controller, are the revision petitioners.

2. Landlord who is the sole respondent in this revision sought eviction of the petitioners on the ground that the building is required for their own occupation, partly for residential and partly for non-residential purpose. It is the case of the landlord that he has no other building of his own for the purpose of doing business and also to reside, and it is a residential building that has been taken on rent by these revision petitioners, for using same for non-residential purpose.

3. Themain ground in the petition that was raised by the revision petitioners was that the petitioners cannot seek eviction of the building for residential as well as non-residential purpose, when the letting was for non-residential purpose alone. They also disputed that the building is a residential building.

4. The Rent Controller believed the evidence of the landlord and ordered eviction. He permitted the landlord to get possession holding that the building is required for residential as well as non-residential purpose.

5. The matter was taken in appeal before the Appellate Authority by the aggrieved tenants. The Appellate Authority found that the landlord is entitled to get possessior on the ground that the building is required bona fide for their residential purpose. The other ground was found against. But the eviction order was confirmed. It is the concurrent order that is challenged in this revision.

6. The only legal point urged by learned counsel for the revision petitioner is that when a building has been let out for non-residential purpose, eviction cannot be had for residential purpose. Learned counsel for the revision petitioner relied on a Full Bench decision of this Court reported in T.Dakshinamoorthy v. Thulja Bai and another, 1952 M.L.J. 390: A.I.R. 1952 Mad. 413 (KB) and contended that the said decision still holds good. Whether a building is residential or non-residential is to be considered from its user and not from the structure. Even if the structure is residential, if the building was let in for non-residential purpose, as per the definition of ‘building’ under the Rent Control Act, it becomes a non-residential building. Therefore, there is a statutory bar under Sec.10 (3)(a)(i) and (iii) of the Act, for getting possession of a building which does not satisfy the nature of the building.

7. As against the said contention, learned counsel for the respondent submitted that the Full Bench deci- sion of this Court, Referred to supra, is no longer good law in view of various decisions of the Supreme Court as well as this Court.

8. Learned counsel relied on the decision reported in Busching Schmitz Pvt. Ltd. v. P.T.Mehghani, (1977)2 S. C. C. 835, which was followed in S. P.Jain v. Krishna Mohan Gupta and others, (1987)1 S.C.C. 191. He further relied on the decision reported in P.Kesavan v. Ammukutty Amma, (1988)1 S.C.C. 202 and also on various decisions of this Court.

9. Indira v. Vinayagam Chettiar, (1988)2 L. W. 454 is a case under the Pondicherry Buildings (Lease and Rent Control) Act, decided by M.N.Chandurkar, C.J. In Shelat Brothers, M/s. v. Lodd Narendradas, (1988)2 L.W.8 (Short Notes) Ratnam, J., as he then was, has also considered a similar question.

10. In a very recent decision of this Court reported in Kovilpillai Nadar v. Tiresha Ammal, (1997)1 L.W. 585 also, a similar question was considered.

11. There are other decisions also on this point wherein their Lordships of the Supreme Court as well as this Court have held that to decide the nature of the building, the structure has to be given the predominance and not is user.

12. In S.PJain v. Krishna Mohan Gupta and others, (1987)1 S.C.C. 191, their Lordships said thus:

"Residential premises are not only plots which are let out for residential purposes nor do all kinds of structures where humans may manage to dwell are reside