# M. PADMANABHA SETTY v. K. P. PAPIAH SETTY Marclz I I, I 966

- **Citation:** [1966] 3 S.C.R. 868
- **Court:** Supreme Court of India
- **Decided:** 1965-04-09
- **Case number:** Civil Revision Petition No. 1044 of 1962
- **Bench:** P. B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, J. C. Shah, S. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-padmanabha-setty-v-k-p-papiah-setty-marclz-i-i-i-966-3775
- **Pages:** 7

## Headnote

Mysore House Rent and Acco1nntodation Control A.er (30 of 1951),
s. 8(3) (a)(ii)-'"Elltitled to possession'", meaning of.
The appellant and the respon.dcnl were the tenant and landlord re"-
:pectively, of the non-residential premises in dispute.
The respondent's
upplication under s. 8(3)(a) (ii) of the Mysore House Rent and Accommodation Contnrol Act, 1951, for eviction of the appeUant on the ground
1hat the respondent required the prcmiscS for the purpose of shifting hi3
tbmusiness which he was carrying on in a rented building, was ordered,
but the order was set aside by the appellate court.
The High O>urt .in
revision set aside the appellate order ~nd restored the order ot eviction. ·
Ia appeal to this Court, it was
contended that :
(i) since
the rc.1pondent was, within the meaning of s. 8(3)(a)(ii). '"entitled to poosession" 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
re'wision under s. 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 build"ng as a tenant.
and over which he had no absolute right of possession but only a right
1:0 remain in possession till one of the conditions in s. 8(2) is satisfied.
could not be srud to be "entitled to possess'on" of that building.
Tho.•e
·,vords are more akin to the right of possession which an owner has in
respect of a building owned and occupied by him. [873 E-GJ
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(ii) In not following the decision of the High Court in Narayanappa v.
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Narasimhlali, [1962) Mys. L.J. 760, the appellate court acted with mateTial irregularity and so the High Court could set aside the appellate orcler
in revision. [874 BJ
Tfianappa Chetty v. Govindaswami Naicker, A.l.R. 1952 Mad. 553.
·overruled.
Crv!L APPELLATE JURISDICATION:
Civil Appeal No. 756 of
1%5.
G
•.
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Appeal by special leave from the judgmenf'and order dated
April 9, 1965 of tbe Mysore High Court in Civil Revision Petition
No. 1044 of 1962.
'4,
S. K. Venkatarangaiengar G. L. Sanghi, J. B.
Dadacl1anji,
·O. C. Mathur and Ravinder Narain, for the appellant. 1
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Mirle N. Lakshminaraynappa 0. P. Malhotra, S. S. Khm1d11ja
<llnd Ganpat Rai. for the respondant.
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PADMANABHA v. PAPIAH (Sikri, J.)
869>

## Text

M. PADMANABHA SETTY
v.
K. P. PAPIAH SETTY
Marclz I I, I 966
(P. B. GAJENDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. S!KRI, JJ.)
Mysore House Rent and Acco1nntodation Control A.er (30 of 1951),
s. 8(3) (a)(ii)-'"Elltitled to possession'", meaning of.
The appellant and the respon.dcnl were the tenant and landlord re"-
:pectively, of the non-residential premises in dispute.
The respondent's
upplication under s. 8(3)(a) (ii) of the Mysore House Rent and Accommodation Contnrol Act, 1951, for eviction of the appeUant on the ground
1hat the respondent required the prcmiscS for the purpose of shifting hi3
tbmusiness which he was carrying on in a rented building, was ordered,
but the order was set aside by the appellate court.
The High O>urt .in
revision set aside the appellate order ~nd restored the order ot eviction. ·
Ia appeal to this Court, it was
contended that :
(i) since
the rc.1pondent was, within the meaning of s. 8(3)(a)(ii). '"entitled to poosession" 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
re'wision under s. 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 build"ng as a tenant.
and over which he had no absolute right of possession but only a right
1:0 remain in possession till one of the conditions in s. 8(2) is satisfied.
could not be srud to be "entitled to possess'on" of that building.
Tho.•e
·,vords are more akin to the right of possession which an owner has in
respect of a building owned and occupied by him. [873 E-GJ
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(ii) In not following the decision of the High Court in Narayanappa v.
F
Narasimhlali, [1962) Mys. L.J. 760, the appellate court acted with mateTial irregularity and so the High Court could set aside the appellate orcler
in revision. [874 BJ
Tfianappa Chetty v. Govindaswami Naicker, A.l.R. 1952 Mad. 553.
·overruled.
Crv!L APPELLATE JURISDICATION:
Civil Appeal No. 756 of
1%5.
G
•.
•
Appeal by special leave from the judgmenf'and order dated
April 9, 1965 of tbe Mysore High Court in Civil Revision Petition
No. 1044 of 1962.
'4,
S. K. Venkatarangaiengar G. L. Sanghi, J. B.
Dadacl1anji,
·O. C. Mathur and Ravinder Narain, for the appellant. 1
·
H
Mirle N. Lakshminaraynappa 0. P. Malhotra, S. S. Khm1d11ja
<llnd Ganpat Rai. for the respondant.
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PADMANABHA v. PAPIAH (Sikri, J.)
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 s. 17 of the Mysore House Rent and
Accommodation Control Act, 1951
(Mysore Act 30 of 1951)-
hereinafter 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
ten.int 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. 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 m dispute for his own
use and occuption.
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
honafide use and occupation, namely, for shifting his business
from the rented premises to the premises in dispute. The Ill
Additional District Judge, however, held that under s. 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(' ). The landlord
then filed a revision petition under s. 17 of the Act, and the High
Court, following the decision in S. G. Narayanappa and Bros. v.
A. N. Narasimhiah( 1) 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 s. 8(3)(a) (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 Che tty v. Arcot Govindaswami Naicker(')
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
s.17 of the Act.
-- .
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(!) [1962) Mys. L. J. 76"l.
{:!)
A.T.R. 1952 Mad. 553.
870
SUPREME COURT REPORTS
[1966) 3 S.C.R.
The Act was passed to regulate the letting of residential and
A
non-residential houses and to control the rents of such houses and
to prevent
unreasonable eviction of tenants therefrom m the
State of Mysore. The word "tenant" is defined as follows in sub-s.
(9) of s. 2 of the Act:
" 'tenant' means any person by whom or on whose
account rent
is payable for a house and includes
the surv1vmg spouse or any son or <laughter 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 heen farmed out or leased by a local
authority."
There is no doubt that the definition of the word "tenant" 1s
wider than the ordinary meaning of the word and includes a person
rontinuing in possession after the termination of the tenancy in his
favour.
Section 4 deals with the determination of fair rent ands. 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 7 A 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 1n 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 s.7-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
-011 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 med the premises for the purpose other
than that for which they were leased; or if the tenant ha~ 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 hou,e or any portion thereof aRy
permanent structu;e; or if the tenant or any person residing with
the tenant has been guilty of such acts and conduct as amounts to
nuisance or annoyanc" to the adjoining or neighbouring occupiers
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PADMANABHA v. PAPIAH (Sikri, /.)
871
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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
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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.
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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-s. (3) (a) which reads as follows:
"(3)(a) 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 hoJJse-
(i) in 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 ifhe or such member, as the case
may be, is not occupying a residential building of his own
in the city, town or village concerned;
(ii) in 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-
(i) ..... .
(ii) for possession of another non-residential building
of his own, for himself or for the same member of his
family, in case he ha!i obtained possession of a nonresidential building."
The Madras High Court held in V. Thannappa Chetty v.
Arco/ Govindaswami Naicker (') that the tenant under the Madras
(I) A,I.R. 1952 Mad. 553 at p. 554-555.
8 .. ,
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SUPREME COURI REPORTS
(1966] 3 S<.R.
Buildings (le:isc and Rent Control) Act (Madra' 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-resi.dential building as a tenant,
for in such a case he would he entitled to possession of those
premises. The reasoning of Subba Rao. J., then a Judge of the
l·li!!h Court of !Vladras, was as follows:
"It will. therefore, he seen that the relationship hctwccn
the landlord and tenant even in cases in which such rc13tionship terminated under the provisions of the Transfer uf
Property Act. conlinues subject to the provisions of the
Act. The rights of the tenants as well as the landlord arc
defined. The tenant under 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 ohtains an order for eviction against another
tenant in respect of another non-residential building, or if
he is in possessi<>n of another non-residential building
as a tenant; for in either case he is entitled to possession of
that premises. 1 he 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 e\cluded
from the express words used which in their ordinaT\
meaning take in !hat class."
·
"It was argued that a statutory immunity is differenl
from a right to possession.
Hut 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 provisoins of the Ac1."
The Mysore High Court dissented from this decision of the
Madras High Court, and the reasoning of Ahmed Ali Khan. J ..
in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(') 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
Khushrdo v. 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-
(\) ·1196ifMy;:-(~ J 76:.i
12) A. I. R. l'l49 F. C. 1:!4 (l!!liJ.
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PADMANABHA v. PAPIAH (Sikri, /,)
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 immunity 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 s. 8(3) (a)(ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited
above."
873
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 «ir 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 S. G. Narayanappa and
Bros. v. A. N. Narasimhiah.(1)
(!) (1962) Mys. L.J. 760.
M12Sup.C.l./66-!0
874
SUPREME COURT REPORTS
(1966] 3 S.C.R.
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.
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.
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