MADHUSUDAN MAHULI Vs. L INDIRA BAI

JUDGEMENT

(1.) This revision petition at the instance of the tenant is under the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. The landlord filed the petition for eviction of the tenant from premises bearing door No. 824 in ward No. 25 on the ground of bana fide requirement for residential purpose. The plea of the tenant is that the tenancy from the inception is for residential as well as non-residential purposes and the petition for bona fide requirement for residential purposes/only is not maintainable and the bona fide requirement does not arise. The plea of the tenant is amplified by stating that the house bearing door No. 824 is exclusively used for clinic and the other portion bearing door No. 806 is used by the com-pounder in the clinic for residence. The Rent Controller held that the requirement for personal occupation by the landlord is not bona fide and the provisions of Rent Control Act are not applicable and further the premises bearing door No. 824 for which eviction is sought is a non-residential one. On appeal at the instance of the landlady the appellate authority held that the provisions of Rent Control Act are applicable in view of the decision of the Supreme Court in AIR 1984 SC 121 and the personal requirement for residence is maintainable even though the premises let out is non-residentiai- cum-residential and in this view set aside the order of the Rent Controller.

(2.) The learned counsel for the petitioner contended that where the premises it residential-cum-non-residential the petition for eviction for the purpose of residence alone is not maintainable and hence the petition should be dismissed on this ground. The learned counsel for the respondent seeking the sustain the judgment of the appellate court contended that the provisions of Rent Control Act do not prohibit the petition for eviction of a non-residential-cum-residential purposes on the ground of requirement of residential purpose and such lacuna cannot be deduced and in any event the let out premises is residential only.

(3.) The initial exercise is to identify the purpose for which the building is let out and the understanding between the parties as to use of the premises. The Rent Controller held that premises bearing door No. 824 is let out for non-residential purpose and the finding is not disturbed by the appellate court. It must be stated that the appellate court proceeded upon the facting that the premises is non-residential cum-residential. Ex. A-12 is the agreement of tenancy, dated 25-11-1966 and it is not in dispute that this agreement constitutes the foundation for tenancy relationship. Clause 2 with reference to the purpose of letting out is as follows : "(2) The tenant can reside and can have his dispensary in the house. In the first instance the tenant can carry on small alterations for the convenience of locating the dispensary within a sum not exceeding Rs. 2,000/- (two thousand only). On this amount interest shall be charged at 9% p.a. This amount will be advanced by the tenant". This clause does not admit of any doubt as to mixed purpose of dispensary and clinic and the equitable alterations for having dispensary are provided. The land-lady did not adduce any evidence to the effect that this deed is not acted upon. The learned counsel for the respondent contends that the initial portion in clause 2, 'the tenant can reside" should be considered as dominant purpose and the location of dispensary is optional and too subsidiary to be given any importance. I am unable to appreciate this approach. The expression "the tenant can reside and can have dispensary" clearly discloses that the residence and dispensary are put on the same par and the lease is for both the purposes and the domination of preceding purpose cannot be as spelt out. The lease is evidently for mixed purpose of residence as well as non-residential.