K KRISHNA NAIR Vs. VALLIAMMAL

JUDGEMENT

(1.) The facts of this case are briefly these: The petitioner is living in a house in Madras City formerly owned by one Baggiammal, wife of one Babu Mudaliar, from whom the respondent has subsequently bought it for residential-purposes. The respondent got an order from the Additional Rent Controller, Madras, on 6 September, 1947, directing the petitioner to vacate and hand over possession of the premises to her on or before 31 October, 1947. Before the Additional Rent Controller the petitioner had contended that a portion of the house was used by him for non-residential purposes, viz., for making appalams, or pappadams, and that, therefore, the Additional Rent Controller could not order eviction under the Act since the respondent wanted the house only for residential purposes. The Additional Rent Controller has remarked as follows in the course of his order: Further, a premises is residential or not residential according to the main purpose for which it was taken. It is not the respondent's case that he took the premises or portion of it for making appalams. Respondent admits that even the portion of the house used for making appalams is used as sleeping apartments during the night. A portion of a lawyer's or doctor's residential house used for professional work cannot be treated separately as non-residential premises. For the above reasons, I am unable to accept the respondent's contention that a portion of the house is non-residential and confine this application to the remaining portion. The petitioner took the matter in appeal to the Small Causes Court, Madras. The Second Judge of the Small Causes Court, who heard the appeal, disbelieved the petitioner's contention that a portion of the house was used for non-residential purposes, and dismissed the appeal. Hence this petition.

(2.) At the outset, the learned Counsel for the respondent urged that a revision petition would not lie to this Court since the "authority" which heard the appeal, viz., the Small Causes Court, is not a "Court" subordinate to this Court when deciding appeals against orders of the House Rent Controller. The learned Counsel for the petitioner relied on the rulings in National Telephone Co., Ltd. V/s. Postmaster General 1913 H.L. 545, the Municipal Corporation of Rangoon V/s. M.A. Shakur (1925) I.L.R. 3 Rang. 560 at 576 (F.B.) and Kiron Chandra V/s. Kalidas Chatterjee , for the proposition that if a statute or rule names a "Court" as an "authority" the usual appeals and revisions lying to the High Court from that Court will lie. I agree, as in this case, the second Judge of the Small Causes Court did not act as a persona designata but as a Judge of the Small Causes Court, and as a part of the Small Causes Court. So, this petition will lie. The learned Counsel for the petitioner raised three main contentions. The first was that the rule making the Small Causes Court itself the "authority" to hear appeals against the orders of the House Rent Controller, instead of the Chief Judge of the Small Causes Court, as formerly was ultra vires, since a Court can never be an "authority." I cannot agree. A Court can certainly be an "authority" though every "authority" need not be a Court. It is commonly stated that the High Court is the highest authority in the Province in Judicial matters. There is no inherent absurdity or incorrectness about this expression. I have not been referred to any rulings by the learned Counsel for the petitioner in support of this startling proposition. Indeed, the very rulings relied on by him for showing that a revision petition would lie to this Court are to cases where a Court is named as the "authority."

(3.) The next contention was that both the Courts erred in ordering eviction, since the premises were used by the petitioner for non-residential purposes, and were required by the respondent for residential purposes, and that the lower appellate Court erred in not referring to the affidavit filed by the former owner's husband stating that the premises were taken by the petitioner on rent only for non-residential purposes, and for making appalams and not for residential purposes at all. I cannot agree. The observations in the order of the trial Court already quoted, show that it was not the petitioner's case that he had taken the premises for non-residential purposes. The petitioner himself had only contended that he was using a portion of the premises for making appalams and not the entire premises. He had admitted that he and the members of his family were living in that house and sleeping even in the rooms where the appalams were made when they were not actually being made. So, the affidavit, filed in the lower appellate Court by the former owner's husband, who had absolutely nothing to lose by filing such an affidavit, was in flat contradiction to the petitioner's own contentions in his written statement and before the trial Court and deserves no credence. I am therefore of opinion that the premises were only taken and used for "residential purposes" though a portion of the premises was undoubtedly used for making appalams when people were not sleeping there, and were used for sleeping purposes when appalams were not made. I consider that, in such cases, the primary purpose for which the building is let our or used should be the determining factor. A lawyer may use a room of his house for giving legal advice to his clients; an astrologer may use a room of his house for giving predictions; a barber may use a room of his house for shaving his clients; but such use of a room will never make a house itself one used for "non-residential purposes." In this case, the difficulty has become greater because the rooms used for the making appalams were also used for sleeping by the members of the family all of whom were not proved to be engaged in the appalam industry. So, the analogy of a doctor and nurses sleeping in a clinic, cited by the learned Counsel for the petitioner, will not apply. The last contention was that the petitioner had not been served with a proper notice to quit, and, so should not be evicted till he is served with a proper notice and given sufficient time to quit, especially as he and his family will suffer hardship if turned out at once. I do not find this objection in the revision petition; nor can I go into it here. The respondent however agrees to give a month's time from to-day to the petitioner to peacefully vacate the house.