Moinuddin Khan Sahib vs Rukmani Ammal on 19 January, 1972
The petition premises not only belongs to the respondent herein, but also to his brother. Consent from the co-owner was obtained and filed only at a later stage of the proceedings. Therefore when the petition for eviction was filed there was no consent from the co-owner. In the petition for eviction, there is no mention about the authority of the landlord to file the present petition. It is not correct to state that the ground floor and the first floor portions are nearly equal in size. The Rent Control Appellate Authority was not correct in stating that the ground floor and the first floor portions admeasure 1836.44 sq.ft. each. The actual measurement of the ground floor is 1836 44. sq.ft. plus615.84 sq.ft. aggregating to 2452.28 sq.ft. as against 1834.94sq.ft. less un built area on the first floor measuring 386.56 sq.ft. amounting to 1448.38 sq.ft. Therefore, the non-residential portion is larger than the residential portion by 69.31%. Hence the dominant purpose was non-residential. Therefore the decision rendered in the case of Moinuddin v. Rukmani , would not be applicable to the facts of this case. All the correspondence between the landlord and the tenant would go to show that the tenant was described as a proprietary concern of architect. Therefore the premises was let out for the purpose of running the abovesaid concern. Even though a small portion was being used as residence of the proprietor, the Rent Control Appellate Authority was not correct in adding un built area in the first floor to the built-up area for coming to the conclusion that the first floor portion and the ground floor portion are equal in size. The appellate authority erred in excluding the out-house from the calculation of the ground floor area. There was no mention about the second floor anywhere in the order passed by the authorities below. The report filed by the Commissioner would go to show that the hall in the out-house is being used as electrical engineering room. The front room is used as store room and the rear room is used as drawing room. Even in the lease deed the tenant is described as a proprietary concern. The landlord did not really require the petition premises for his own use and the occupation as alleged. He is seeking eviction either for getting higher rent or for selling the petition premises. It was, therefore, pleaded that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(i) of the Act. Ultimately, it was submitted that the order of eviction passed by the authorities below under Section 10(3)(a)(i) of the Act is unsustainable.