V.V. Kamat, J.
1. These three revision applications are preferred by three tenants of the same landlord under the provisions of Section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 challenging their eviction from the respective suit premises in their possession as tenants.
2. The one question which is involved in these three petitions is common to all the three petitions, but the third Petition, namely Civil Revision application No. 627/89 raises for itself only, one more question about the willful default on the part of the tenant in payment of rent. The first question will be taken up for consideration and consequent decision, in the first instance, and would naturally dispose all the three applications as regards the said question and the remaining part of the Judgment with regard to the question of willful default would dispose of the last of the revision application being Civil revision application 627/89.
3. The fact necessary for the purpose of consideration of the question are in narrow compass and can be stated as follows:-
These three applications have been preferred by the landlord before the Rent Controller to ask for the possession of non-residential premises for a residential purpose. The contents of the applications are more than clear. The counsel for the parties beyond urging that such an application for possession of the non-residential premises for residential purpose can only be made under the provisions if Section 15 Sub-section (3)(a)(iii) of the Hyderabad Rent Act, have not relied upon any other provision of the Act for the said purpose. In these applications it has been averred by the landlord that he has obtained permission from the Municipal Council, to convert them into residential use and such a permission has been granted. However, one thing is common to all these three petitions that these are applications made under the provisions of Section 15, specifically stated above for possession of non-residential premises for a residential purpose.
4. Section 15(3)(a)(iii) for the purposes of consideration of the question involved reads as follows:-
3. (a) – A landlord may subject to the provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the house –
(i) …
(ii) …
(iii) In case it is a non-residential house, if the landlord is not occupying for purpose of a business which he is carrying on, a non-residential house in the city, town or village concerned which is his own or to the possession of which he is entitled.
On reading of this provision, it spells out three and only three requirements to be complied with, namely:-
1. That is in regard to a non-residential house.
2. The landlord is not occupying for the purpose of a business, which he is carrying on a non-residential house in the city, town or village.
3. That such non-residential house must be his own or he should be entitled to the possession of such non-residential house.
5. Thus the reading of the section requires satisfaction of the Court with regard to the three aspects. On bare reading of the section the purpose is clear that the landlord can ask for possession of a non-residential premises for a non-residential purpose and it is for this reason only that the Court is required to satisfy itself that he does not own any non-residential premises in the city, town or village and further that he is not entitled to the possession of such non-residential house. These are the only aspects which are necessary to be considered, as required by the provisions of the section in question.
6. This plain and simple meaning of the statutory interpretation becomes more evident with a look at with the other clauses of the section. For example said Clause (i) necessitates the consideration of the requirement of the landlord for his own occupation. Similarly, Sub-section (iii) also makes the consideration of the requirement as the mandatory requirement of the section for the personal occupation of the landlord. More so, in the pattern, Clause (iv) further requires, for the purposes of repairs the bona/fide requirement of the landlord as a necessary consideration. Sub-section (3) which is under consideration if seen in the light of internal comparative survey of other provisions of the said section would also support the conclusion that a non-residential premises can be sought for by the landlord for only an identical purpose and it is for this reason that the section does not require any other consideration than the fact that the landlord is already doing the business and that he has no other premises of a non-residential character. The normal considerations with regard to other situation as I have seen clearly are conspicuous by their absence in this sub-section under consideration.
7. This aspect also further can be seen and appreciated with a look at other provisions of the Hyderabad Rent Act. The provisions of Section 15(2)(ii)(b) prohibits the change of user as it is called In common parlance. Similarly, the provisions of Section 16 of the Act, also prevent conversion of a residential premises into a non-residential premises without the permission of the Controller. With advantage the third situation also can be seen in regard to landlord, who by reason of being in occupation only of a part of a house, whether residential or non-residential would have to make an application to the Controller, in case he requires possession from a tenant occupying the whole or any part of the remaining house if he requires additional accommodation for residential purposes or for business purposes on satisfying the Court.
8. These three situations would also give a character of continuity contemplated by the provisions of the Act, both with regard to non-residential premises and also residential premises, with a difference that residential premises with reference to the element of continuity have been sought to be controlled more rigorously. At any rate, the intention of the legislature is apparent to keep the character of the user of the premises in continuance either way.
9. This has to be considered also in the light of one of the important salient objects of the Act that is to prevent unreasonable eviction of the tenants therefrom and it is in the aid of keeping this object of the enactment that there are several checks and balances introduced in the Act in the nature of an order of the Court or in the nature of prior permission of the Controller.
10. Thus on reading of the provision, in comparison with the other provisions the application by a landlord of a non-residential premises for possession for a residential purpose, could not be contemplated to be one under the provisions of Section 15, Sub-section (3)(a)(iii) of the Hyderabad Rent Act.
11. With advantage, though, not for a direct purpose but by way of a help in the nature of an aid to interpretation a reference can be made to the Judgement of Supreme Court in the case of Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir wherein the highest Court of the land while considering the provisions of Section 13(1)(g) of the Bombay Rent Act, wherein the landlord sought possession of the suit premises for bona fide personal requirement of residential premises for non-residential purposes. The Supreme Court, in regard to this, relying upon the provisions of Section 25 of the Bombay Rent Act, which makes such user by the tenant of the residential premises into a non-residential one as penal, has observed that such an order would be a self-defeating decree because whereas, the decree would be passed on the requirement for a non-residential purpose, the premises would not be used for such a purpose, save on pain of prosecution. The Supreme Court, in view of the fact that for the purpose for which the possession was sought was a purpose for which the premises cannot be used save on pain of penal consequence declined to confirm the order of eviction. In the process of reasoning the Supreme Court has observed in para 6 of the Judgement that the Courts ought not to construe a statute in a manner which will encourage the breach of any of its provisions and must certainly, a decree ought not to be passed which if owner will attract penal consequence. Although, no penal consequences are attached to the conversation of residential premises into non-residential premises, under this Act, the spirit and intention of the Rent Control Legislation in question is no doubt more than crystal clear that such a change of user either way is not the intention of the Legislature. Had it been so, one would have found iii Clause (iii) under consideration certain indications in regard thereto. The very fact that the clause under consideration requires limited items for consideration as stated above, leads to no other conclusion that the question relates to only obtaining possession for similar purposes.
12. Again with advantage a reference can be made to the decision of this Court in the case of Shantabai alias Jadhvabai w/o Keshrimal Kabra v. Modanalal s/o Mansukhlal Kabra and Anr. 1977 I.L.R. Bom. 1334 wherein the Division Bench of this Court has observed that all Clause (iii) of Sub-section (3)(a) of Section 15 of the Act requires is that the landlord must not be occupying for the purpose of his business any other non-residential premises in the same town either as owner or on rent and that the landlord is carrying on some business in presenting for which he does not have any accommodation by way of non-residential premises available in his own right. In the said Judgement this Court has referred to the earlier single Judge’s Judgement in the case of Madanlal Ranglal Daga v. Gurunath Laxman Patange, 70 Bom LR 578 and has specifically held it to be erroneous, the learned single Judge of this Court (at page 580 of the said report) for facilitating interpretation had considered as necessary some additional words in aid in the said clause and the Division Bench observed that it was not possible to read the said clause otherwise. This was in the context of the consideration of the question as to whether the possession can be asked for continuing the same business which was being carried on by the landlord prior to the institution of the application and it was held that it need not be the same business. Suffice it to say that this Court also confines the requirement of Clause (iii) only to three situations and no further as observed by me hereinbefore. If this is the position then the logical conclusion is that the application in question is not maintainable under Section 15(3)(a)(iii) of the Hyderabad Rent Act because such an application is not contemplated under the provisions of the said section in regard to the residential premises. Once this view is reached the necessary conclusion is that initial applications were not maintainable in law.
13. Mr. Deshpande, in this connection relied upon the authority in the case of Chintapalli Achaiah v. P. Gopala Krishna Reddy with reference to the interpretation and preamble to the statute namely Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 to urge that the preamble to the said Act is similar to the preamble to the Hyderabad Rent Act. He urged that if the meaning is not consistent or complete the intention or purpose of the legislation can as well be gathered from the provisions of the Act. He contended that equal weight has to be given to all parts of Act, including they reamble. This is what I have done, and therefore, this decision cannot be of any support for the submissions of the learned Counsel.
14. In the view I am taking with regard to the interpretation of the said section it is unnecessary and also irrelevant to consider the other submissions on merits from the Judgment of the lower Courts. The lower Courts have said from provisions of Section 16 of the said Act, that the said Act does not prohibit conversion of non-residential into residential. It is unnecessary to consider this submission for the reasons stated above.
15. On repeated enquiries I was told that such an application can only be considered as maintainable under the above said provision. Mr. Deshpande, learned Counsel for the respondent urged that this submission is being made for first time is an application under Section 26 of the Hyderabad Rent Act. No doubt, this is the position, but it relates to the very jurisdiction of the Court to entertain the application and to treat the application as maintainable in law and naturally it relates to the exercise of jurisdiction and therefore, there is no difficulty and legal impediment in considering this question of maintainability of the application for the first time in the revision application because it would be a case of exercise of jurisdiction not vested in the Courts below by virtue of the position that the application itself is not maintainable for these reasons. I hold that the three applications were not maintainable at law as applications under the provisions of Section 15(3)(a)(iii) of the Hyderabad Rent Act. Thus on this count the three revision applications are entitled to have success.
16. In the third revision application being No. 627/89 there is an additional ground of defaults on which the order of eviction has been passed by the Rent Controller and is confirmed in appeal by the District Judge, holding that non-payment of yearly rent of Rs. 400/- for the years 1979 and 1981 are defaults, namely willful defaults and therefore, the petitioner therein is liable to be evicted from the premises. It is on record that the petitioner is an old tenant. The material on record also does not show that except these two years, prior thereto and subsequent therefrom, there was any default alleged much less proved. It is also an admitted position that in between the two years of default, 1979 and 1981 there is a concurrent finding that for the year 1980 the payment has been made. The reasoning of the Rent Controller with regard to the years of defaults is that no receipts are produced for payment and, therefore, there is no evidence of payment. The appellate Court has endorsed this reasoning. In answer to the submissions it was contended by the tenant that the fact that there is payment proved with regard to the year 1980, and a further fact that with regard to the prior years and subsequent years there is no dispute about the payment and in addition thereto the case of the tenant being that he has paid and obtained receipt which having been lost could not be produced before the Court and for these three factors it was submitted that the Court should presume and rely upon the ordinary presumption of continuance of human conduct and it was on this basis, they contended that the tenant who is regular in payment all the years, the tenant who has paid for the year 1980 would not remain without payment for the disputed years. A careful perusal of the two impugned orders in this regard has made no difficult to appreciate the conclusion reached by the fact finding Courts that the defaults are the willful defaults. The finding as to the willful default is wholly without any basis and is such that from the facts proved as stated above it can never be a necessary inference that the Petitioner is a guilty of willful default. It is found that on the facts proved and established on record as stated above, even by any stretch of Imagination, it cannot be said that for non-payment, the manner in which it is sought to be held proved, was a result of the willful character of the default. Thus on record it is seen that non-payment is held proved only because the tenant has not been able to produce the receipts. Although, on the basis of previous and subsequent conduct as stated above the lower Courts were bound in law to raise a presumption in favour of payment. The said presumption is declined to be raised rather unjustifiably on the facts and circumstances of the case. The view that I have taken also finds support in the judgment of the Punjab and Haryana Court in the case of Agya Pal Singh v. Basant Kaur (1987) 2 R.C.R. 325 where the said High Court had also relied upon the normal presumption.
17. That the finding that the defaults are willful is a finding totally unsupported by the material on record and therefore, these being the errors of law apparent on the face of record, it is difficult, although, with the limitations of concurrent finding, to endorse that the Petitioner was a willful defaulter.
18. The lower Courts did not consider the provisions of the relief against forfeiture, mainly being rest content on the finding that the petitioner was the willful defaulter, perhaps logically right, the lower Courts did not consider the issue of forfeiture. The proviso to Section 15 Sub-section (2), in view of the finding recorded above, at once becomes applicable and the Court is bound to give a reasonable time, and accordingly I hereby direct and order the petitioner to pay and tender the rent to the landlord for the years 1979 and 1981 if not already deposited and I further order that he shall make payment of the rent, if not already made, both within a period of 15 days from today.
19. The result therefore, is that the three revision applications succeed.
20. Rules granted therein are made absolute. The orders eviction of the petitioners passed by the trial authority and confirmed by the appellate authority are hereby quashed and set aside. However, the petitioners therein are hereby directed to pay the costs of these applications to the respondent landlord.
