Appeal No 756 of 1965
Appeal by special leave from the judgment and order dated April 9 1965 of the Mysore High Court in Civil Revision Petition No 1044 of 1962
section K Venkatarangaiengar G L Sanghi J B Dadachanji O C Mathur and Ravinder Narain for the appellant
Mirle N Lakshminaraynappa O P Malhotra section section Khanduja Ganpat Rai for the respondent
869 The Judgment of the Court was delivered by Sikri J
This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No 1044 of 1962 filed under section 17 of the Mysore House Rent and Accommodation Control Act 1951 Mysore Act 30 of 1951hereinafter referred to as the Act whereby the High Court set aside the order passed by the III Additional District Judge Bangalore
The III Additional Judge had set aside the order of  the First Munsiff Bangalore who had directed the eviction of the tenant from the premises in dispute
The appellant before us Padmanabha Setty hereinafter referred to as the tenant was the tenant of a non residential premises No 281 Old Tharagupet Bangalore City  be tenant had installed some machinery in the premises
The respondent K P Papiah Setty is the landlord
He had purchased the premises for his own use and occupation namely for the purpose of shifting his business which hewas carrying on in a rented building to the premises in dispute
The landlord tiled an application under s83aii of theAct for the eviction of the tenant on the ground that he required the premises in dispute for his own use and occupation
It is not necessary to give the other allegations made in the application as both the First Munsiff Bangalore and the III Additional District Judge Bangalore have found that the landlord required the premises for his bonafide use and occupation namely for shifting his business from the rented premises to the premises in dispute
The III Additional District Judge however held that under section 83aii the landlord was not entitled to possession of the premises in dispute unless and until he was prepared to vacate the shops in which he was trading at the time
This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in section G Narayanappa and Bros vs A N Narasimhiah1
The landlord then filed a revision petition under section 17 of the Act and the High Court following the decision in section G Naravanappa and Bros vs A N Narasimhiah1 set aside the order of the Additional District Judge
The tenant having obtained special leave the matter is now before us
Two points are raised before us 1 that the construction put upon section 83a ii of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V Thanappa Chetty vs Arcot Govindaswami Naicker2 is correct and 2 that the High Court was not right in setting aside the order of the Additional District Judge in a revision under section 1 7 of the Act
1 2 AIR 1952 Mad
870 The Act was passed to regulate the letting of residential and non residential houses and to control the rents of such houses and to prevent unreasonable eviction of tenants therefrom in the State of Mysore
The word tenant is defined as follows in sub section
9 of section 2 of the Act  tenant  means any person by whom or on whose account rent is payable for a house and includes the surviving spouse or any son or daughter of a deceased tenant who had been living with the tenant in the house as a member of the tenant s family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour but does not include a person placed in occupation of a house by its tenant or a person to whom the collection of rents or fees in a public market cart stand or slaughter house or of rents for shops has been farmed out or leased by a local authority
 There is no doubt that the definition of the word tenant is wider than the ordinary meaning of the word and includes a person continuing in possession after the termination of the tenancy in his favour
Section 4 deals with the determination of fair rent and section 5 with lawful increase of or addition to or reduction in fair rent
Section 6 prohibits the landlord from claiming or receiving anything in excess of fair rent or agreed rent
Section 7 deals with issue of receipts for rent
Sections 7A and 7 B deal with the right of tenant to deposit rent in certain cases and time for deposit and savings
Section 7 C deals with eviction of tenant in occupation of a house under an allotment order
Section 8 deals with eviction of tenants and provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of s7 C or of this section
Sub section 2 provides the circumstances in which a landlord would be entitled to seek eviction of a tenant in possession
For instance a landlord is entitled to evict a tenant if the tenant has not tendered or paid the rent due by him in respect of the premises within the time fixed in the agreement of tenancy with the landlord on in the absence of any such agreement by the last day of the month next following that for which the rent is payable if he has transferred his right under the lease or sublet the entire premises or any portion thereof or used the premises for the purpose other than that for which they were leased or if the tenant has committed such acts of waste as are likely to impair materially the value or utility of the house or if the tenant has without the landlord s consent in writing erected on the house or any portion thereof any permanent  structure or if the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to nuisance or annoyance to the adjoining or neighbouring occupiers 871 or has been using the house or allowing the house to be used for immoral or illegal purposes or that the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated or that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period of three months immediately preceding the date of application or that the tenant after the commencement of the Act has built acquired vacant possession of or been allotted a suitable house
We have set out these conditions in detail because it would be relevant to consider whether in view of these conditions a tenant can be said to have a right to possession of the premises of which he is a tenant
Then we come to sub section
3 a which reads as follows 3a A landlord may subject to the provisions of clause d apply to the court for an order directing the tenant to put the landlord in possession of the house iin case it is a residential building if the landlord requires it for his own occupation or for the occupation of a member of his family and if he or such member as the case may be is not occupying a residential building of his own in the city town or village concerned iiin case it is a non residential building if the landlord requires it for a business which he or a member of his family is carrying on and if for the purposes of the said business is not in occupation of a non residential building which is owned by or to the possession of which the landlord or such member as the case may be is entitled whether under this Act or otherwise
 It is not necessary to set out the Explanation or the first proviso but the second proviso is relevant and runs thus Provided further that where a landlord has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this clause he shall not be entitled to apply again under this clause iifor possession of another non residential building of his own for himself or for the same member of his family in case he has obtained possession of a nonresidential building The Madras High Court held in V Thannappa Chetty vs Arcot Govindaswami Naicker 1 that the tenant under the Madras 1 AIR 1952 Mad
553 at p 554 555
872 Buildings Lease and Rent Control Act Madras Act 15 of 1946 had a right to possession unless and until he was evicted under the provisions of the Madras Act and therefore the landlord would not be entitled to possession of a non residential building if he was in possession of another non residential building as a tenant for in such a case he would be entitled to possession of those premises
The reasoning of Subba Rao J then a Judge of the High Court of Madras was as follows It will therefore be seen that the relationship between the landlord and tenant even in cases in which such relationship terminated under the provisions of the Transfer of Property Act continues su bject to the provisions of the Act
The rights of the tenants as well as the landlord are defined
The tenant tinder the Act has a right to possession unless and until he is evicted under the provisions of the Act
Under the provisions of the Act a landlord will not be entitled to the possession of his non residential buildings if he obtains an order for eviction against another tenant in respect of another non residential building or if he is in possession of another non residential building as a tenant for in either case he is entitled to possession of that premises
The words used in the section viz to the possession of which he is entitled are wide and I do not see any reason why the latter category should be excluded from the express words used which in their ordinary meaning take in that class It was argued that a statutory immunity is different from a right to possession
But in my view a statutory immunity is not inconsistent with a right to possession
The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisions of the Act
 The Mysore High Court dissented from this decision of the Madras High Court and the reasoning of Ahmed Ali Khan J in section G Narayanappa and Bros vs A N Narasimhiah1 is as under After a careful consideration of the arguments advanced before me I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord s claim to evict him cannot be described as a right to possession but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai Khushrao vs Bai Jerbai 2
It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses 11962 Mys
LJ76 2 A I R 128
873 sion and that such immunity may itself create a right
The right to immunity from eviction involves a negative element in it
In other words it restricts the right of possession of the landlord
Hence it cannot be construed to have an effect of creating a right of possession to a tenant
Though the statutory immunity from eviction may not be consistent with the right to possession the fact remains in view of the inherent element involved in both the rights that the immuni ty from eviction cannot be equated to the right to possession
Therefore with great respect I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in section 83 aii of the Mysore House Rent and Accommodation Control Act as taken in the Madras ruling cited above
 In our opinion with great respect to Subba Rao J Ahmed Ali Khan J arrived at the correct conclusion
A tenant who can be evicted under the conditions prescribed in section 82 of the Act cannot be said in our view to be entitled to the possession of the premises of which he is a tenant
No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises
Section 83aii deals with two types of cases first where the landlord is in occupation of a non residential building which is owned by him and secondly a non residential building of which he is in occupation not as a landlord but otherwise
The object of the Act is to prevent unreasonable evictions of tenants
Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in section 82 is satisfied and over one of which he has no control
For instance the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance or annoyance or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house
If any of these conditions is proved he is liable to be evicted
In our view in the context the words entitled to possession have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him
In conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in section G Narayanappa and Bros vs A N Narasimhiah1 1 M12Sup
CI166 10 874 There is no force in the second point raised by the learned counsel of the tenant
It is true that the jurisdiction of a High Court under provisions similar to section 1 7 of the Act is limited but we cannot say that the High Court was wrong in holding that the Additional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge
It may be that this decision was not pointed out to the Additional District Judge but we cannot in exercise of our jurisdiction under article 136 of the Constitution say that the High Court should not have set aside the order of the Additional District Judge on this ground
In the result the appeal fails and is dismissed with costs
The tenant is granted two months  time from today to vacate and deliver possession of the premises in dispute to the landlord
Appeal dismissed


Summary:
The appellant and the respondent were the tenant and landlord respectively of the non residential premises in dispute
The respondent s application under section 83aii of the Mysore House Rent and Accommodation Control Act 1951 for eviction of the appellant on the ground that the respondent required the premises for the purpose of shifting his business which he was carrying on in a rented building was ordered but the order was set aside by the appellate court
The High Court in revision set aside the appellate order and restored the order of eviction
In appeal to this Court it was contended that  i since the respondent was within the meaning of section 83aii entitled to possession of the building in his occupation he had no right to ask for the appellant s eviction and ii the High Court should not have interfered in revision under section 17 of the Act
HELD i The High Court was right in ordering the eviction of the appellant from the premises
The respondent who was in occupation of a building as a tenant and over which he had no absolute right of possession but only a right to remainin possession till one of the conditions in section 82 is satisfied
could notbe said to be entitled to possession of that building
Those words aremore akin to the right of possession which an owner has in respect ofa building owned and occupied by him
873 F G iiIn not following the decision of the High Court in Narayanappa vs Narasimhiah  the appellate court acted with material irregularity and so the High Court could set aside the appellate order in revision
874 B Thanappa Chetty vs Govindaswami Naicker AIR 1952 Mad
553 overruled