Case: M. Padmanabha Setty Vs. K. P. Papiah Setty

2. 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. The 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 he was carrying on in a rented building to the premises in dispute. The landlord filed an application under S. 8 (3) (a) (ii) of the Act 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 bona fide 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 8 (3) (a) (ii) 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 S. G. Narayanappa and Bros. v. A. N. Narasimhiah, 1962-40 Mys LJ 760. The landlord then filed a revision petition under S. 17 of the Act, and the High Court, following the decision in 1962-40 Mys LJ 760, set aside the order of the Additional District Judge. The tenant having obtained special leave, the matter is now before us.

Reasoning:
8. 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 S. 8 (2) 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 8 (3) (a) (ii) 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 S. 8 (2) 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 him9. 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 1962-40 Mys LJ 76010. 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 S. 17 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 Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.