Determination of the character of the building for being residential or non-residential.

This revision is directed against the order passed in R.C. A.No.428 of 1991, which in turn arose out of the order passed in R.C.O.P.No.2861 of 1986. The tenant is the revision petitioner. The landlord filed the petition for eviction against the tenant underSec.l0(3)(A)(i)oftheTamilNaduBuildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973 and Act 1 of 1980 (hereinafter referred to as the Act). According to the landlord the petition premises was let out for residential purpose on a monthly rent of Rs.2,500 with maintenance charges at the rate of Rs. 1,000 per month. The petitioner is employed in the Indian Oil Corporation at Bombay. The mother and the son of the petitioner are residing in a rented premises. The landlord is not having any other premises of his own in the city of Madras. Hence, he required the petition premises under Sec. 10(3)(a)(i) of the Act.

2. In the counter filed by the tenant, the tenant accepted the tenancy. But according to the tenant the petition premises was used both for residential and non-residential purposes and predominantly for non-residential purposes. Therefore, according to the tenant the landlord cannot ask the petition premises for residential purpose under Sec. 10(3)(a)(i) of the Act.

3. The petitioner examined himself as P.W.I and Mr.Kharche examined himself as R.W.1. The landlord filed 21 documents and the tenant filed 11 documents. The Commissioner’s report and the plans were marked as Exs.C-1 to C-6. Considering the facts arising in this case in the light of the report and plans filed by the Commissioner, the Rent Controller came to the conclusion that there is bona fide on the part of the landlord in requiring the petition premises under Sec.l0(3)(a)(i) of the Act, and accordingly ordered eviction. On appeal, the Rent Control Appellate Authority confirmed the order passed by the Rent Controller. It is against this order, the tenant is in revision before this Court.

4. When this revision came-up before this Court for admission notice of motion was ordered and the notice was served on the Respondent, who entered appearance through his counsel. Learned counsel appearing for the tenant/ petitioner submitted as under:

The petition premises not only belongs to the respondent herein, but also to his brother. Consent from the co-owner was obtained and filed only at a later stage of the proceedings. Therefore when the petition for eviction was filed there was no consent from the co-owner. In the petition for eviction, there is no mention about the authority of the landlord to file the present petition. It is not correct to state that the ground floor and the first floor portions are nearly equal in size. The Rent Control Appellate Authority was not correct in stating that the ground floor and the first floor portions admeasure 1836.44 sq.ft. each. The actual measurement of the ground floor is 1836 44. sq.ft. plus 615.84 sq.ft. aggregating to 2452.28 sq.ft. as against 1834.94 sq.ft. less unbuilt area on the first floor measuring 386.56sq.ft. amounting to 1448.38sq.ft. Therefore, the non-residential portion is larger than the residential portion by 69.31 %. Hence the dominant purpose was non-residential. Therefore the decision rendered in the case of Moinuddin v. Rukmani, A.I.R. 1972 Mad. 263, would not be applicable to the facts of this case. All the correspondence between the landlord and the tenant would go to show that the tenant was described as a proprietary concern of architect. Therefore the premises was let out for the purpose of running the above said concern. Even though a small portion was being used as residence of the proprietor, the Rent Control Appellate Authority was not correct in adding unbuilt area in the first floor to the built-up area for coming to the conclusion that the first floor portion and the ground floor portion are equal in size. The appellate authority erred in excluding the out-house from the calculation of the ground floor ar