KUZMINAYAKA MOTHILAL Vs. MOHD JAHIRUDDIN

JUDGEMENT

(1.) The petitioner is the landlord of the premises situated in a business locality at Parvatipuram Prior to his purchase, the respondent tenant took it on a monthly rent of Rs.140/- from the vendor in the year 1978 under Ex.A-2. As per the terms of the lease, the tenant can run the photo studio business and also reside in the premises. The landlord filed eviction petition in the year 1985 on the ground that he requires the premises for business purposes and that he has no other own building in the town. The main plea of the tenant in his counter is that the requirement is not bonafide and the eviction petition was filed to extract higher rent. The learned Rent Controller held that as the lease is composite for both residential and non-residential the eviction petition is not maintainable in view of the decision of this court in Dr. Madhusudan Mahuli vs. Lambu Indira Bai (1) 1987(2) ALT 504 and dismissed the eviction petition without going into the question of bonafide requirement. On appeal, the appellate court held that the petitioner's requirement for business purposes is bonafide. However, it held that the eviction petition is not maintainable as the lease is composite. Aggrieved by this the petitioner has come up with this revision.

(2.) Mr.C.Subba Rao, learned counsel for the petitioner contended at the out set that the maintainability of the eviction petition having not been raised by the tenant in the counter, the courts below erred in going into this question and relied on a decision of the single Judge of this Court in Ananta vs. P. Govinda Swamy (2) 1992 (1) ALT 46. This case is distinguishable since the plea of composite lease was not raised before the two courts below and in those circumstances it was held that the tenant had no right to raise the same for the first time in revision in this court. But in the instant case, though this objection about maintainability was not taken in the counter, both the parties argued on this ground in both the courts and hence this decision does not help the petitioner.

(3.) Now coming to the maintainability of the petition, the learned counsel Sri Subba Rao, contended that the decision in Dr. Madhusudan Mahudi case (1 supra) does not come in the way of the petitioner. In that case, there were two portions of the premises let out one exclusively for clinic and the other for residence of compounder. The landlord filed petition for eviction of the tenant from the portion used for clinic on the ground that he requires it for residential purpose. Holding that the petition is not maintainable and applying the decision of the Supreme Court in Miss S. Samyal vs. Gian Chand (3) AIR 1968 S.C.438, the learned single Judge held: