ORDER
S. Dasaradharama Reddy, J.
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 bona fide 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 v. Lambu Indira Bai, 1987 (2) ALT 504 and dismissed the eviction petition without going into the question of bona fide requirement. On appeal, the appellate court held that the petitioner’s requirement for business purposes is bona fide. 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 outset 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 v. P. Govindaswamy, . 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 Mahuli case, 1987 (2) ALT 504 does not come in the way of the petitioner, In that case, there were two portions of the premises let out one exclusively or 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. Sanyal v. Gian Chand, the learned single Judge held.
“There is no provision under the Rent Control Act for eviction based upon bona fide personal requirement in respect of premises let out for mixed purpose of residential and non residential. The Rent Control Act bearing a slant towards the protection of the tenants against unreasonable evictions provided sufficient safeguards to the landlords for eviction and otherwise. The bona fide personal requirement is founded upon the legitimate necessity of the landlord and in the event of composite lease the landlord is deprived of the remedy under the Rent Control Act.
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The Rent Control Act having profusely provided for eviction in the case of residential or non-residential premises appears to have overlooked the provisions for eviction in respect of premises let out for mixed purpose. The ingredients for eviction for residential and non-residential are distinct and separate though there are certain similar features and in the absence of any provision for eviction in respect of premises bearing composite lease it is not possible to lead Section 10(3)(a) with a provision for eviction in respect of premises having composite lease and such interpretation is blessed by Supreme Court while considering the analogous provisions under the Ajmer Rent Control Act”
4. In Miss S. Sanyal case (3 supra), which decision was applied by the learned single Judge, the tenant was occupying the premises part of which was used for Girls school and rest of which for residential purposes. Eviction petition was filed by the landlord on the ground of requirement of the house for his residence. The High Court of Punjab, splitting the composite lease, granted eviction in respect of portion used by the tenant for residential purpose. The Supreme Court reversed the decision of High Court and held that the contract being single and indivisible, in the absence of a statutory provision to that effect, it is not open to the court to divide it into two contracts – one of letting for residential purpose and the other for non-residential purposes and to grant relief limited to the portion of the premises which is being used for residential purpose. This decision has been subsequently explained by the Supreme Court in Firm Panjumal Daulatram v. Sakhi Gopal, arising under Madhya Pradesh Rent Control Act. Section 12(1)(e) and (f) of Madhya Pradesh Act is analogous to Section 10(3)(i) and (iii) of the A.P. Buildings (Lease, Rent and Eviction Control) Act (for short the Act) except that the word ‘building’ is used in the A.P. Act, while the word ‘purpose’ is used in the M.P. Act. In that case, the landlord leased out the premises for running cloth shop and also for residential purpose. The landlord filed eviction petition on the ground that he wanted to run medical store on the ground floor and to stay on the first floor with his wife. The tenant, relying on Sanyal case (3 supra) contended that the eviction petition is not maintainable and the contract cannot be split into two. Rejecting this contention, the Supreme Court held that there is no question of splitting up the contract and as the landlord has put forward dual requirement, Under Section 12(1)(e) and (f), the eviction petition is maintainable. Applying this decision, a learned single judge of this court in Yashpal Roy v. Gessulal Dinesh Kumar, held that when the lease is for composite purpose, it is always open to the landlord to seek eviction for the purpose of additional residential accommodation as well as for non-residential purpose and that he will be prevented from seeking to evict the tenant only on one requirement. In that case, the landlord was staying in a portion of the 1st floor of the double storeyed building and let out two rooms in the residential portion and one mulgi, in the ground floor. The landlord sought eviction of the tenant in the ground floor who was in occupation of two rooms and one mulgi, on the ground that he requires the portion occupied by the tenant for additional accommodation as he wants to shift to the ground floor and occupy residential rooms for his residential purpose and non-residential mulgi for the purpose of business in consultancy as geologist. Distinguishing the decision of Madhusudan Mahuli case (1 supra) and applying the decision of the Supreme Court in Firm Panjumal Daulatram (4 supra), the learned single Judge held that the eviction petition is maintainable.
5. Thus, in case of composite lease, the landlord can seek eviction from the residential portion and non-residential portion on the grounds permitted under the Act in respect of each portion. But he cannot seek eviction of any one of the portions only as it will amount to splitting of contract into two. Applying this to the facts of this case, the petitioner is seeking eviction of tenant on the ground that he requires both the portions for his business purposes. As far as the portion occupied by the tenant for business purpose is concerned, there is no difficulty in holding that the petitioner can ask for eviction on the ground that he requires it for business. Now the question remains whether the petitioner can seek eviction from residential portion for his business purpose. In Amtual Hafeez v. D. Mohammed Ibrahim, , I have held that the word ‘occupation’ used in Section 10(3)(a)(i) cannot be restricted to residential occupation but must be interpreted as such occupation as the structure admits of. In that decision I have held following the decision of the Division Bench in Pendyala Venkata Krishna Rao v. Dr. B. Seetharam, 1989 (3) ALT 284 = 1989 (2) APLJ 261:
“To sum up, residential building need not be let out for residential purpose only but can be let out for non-residential purpose if the structure of building permits of such use and continues to be residential building as long as it is not converted into non-residential building Under Section 18 of the Act. The words own occupation’ occurring in Section 10(3)(a)(i) have to be interpreted as including the type of occupation as the structure of residential premises admits of and cannot be restricted to residential occupation only. On the other hand/non-residential premises can be let out only for non-residential purpose and will always remain as non-residential premises and can never be treated as residential premises unless its structure is altered. Eviction from such premises can be sought only on the ground of requirement for business.
Applying the above principle to the instant case since the premises though residential can be used for business of sale of carpets without necessity of structural alterations and is not converted Under Section 18 of the Act as non-residential building, the landlord is entitled to claim eviction on the ground that he requires it for his own business. He is also entitled to eviction for the reason that his son wants to reside in the premises besides doing business”.
6. As the petitioner is claiming eviction of the two portions together and as the petitioner satisfies the ingredients in respect of each portion, the eviction petition is maintainable. The decision in Madhusudan Mahuli case (1 supra) is distinguishable since it is a case where landlord sought eviction of composite premises for residential purpose. It is well settled that eviction of non-residential building cannot be sought on the ground of residential occupation. As the lower appellate court found that the landlord requires the premises bona fide for business purposes, the petitioner is entitled to order of eviction.
7. The C.R.P. is accordingly allowed. No costs, However. FOUR MONTHS’ TIME is granted to the tenant to vacate the premises subject to payment of rents in time.