Tmt Janagavalli v. R. Baskaran — 1998 DIGILAW 864 (MAD)

Judgment :- 1. This revision has been preferred by the petitioner being aggrieved by the judgment and decree dated 22.12.1997 made in M.A. No. 17/1997 on the file of the Principal District Judge (Rent Control Appellate Authority) in confirming the order of eviction dated 24.06.1997 made in HRCOP No. 9/1996 on the file of the Rent Controller at Pondicherry. The above revision has been preferred under Section 25 of the Pondicherry Buildings (Lease and Rent Control) Act of 1969 as amended by Act 18 of 1980 (hereinafter referred to as the Act) by the tenant being aggrieved by the order of eviction passed against him. The parties to the proceedings will be referred to as arrayed before the Rent Controller for the purpose of convenience. 2. The respondent-landlord instituted HRCOP 9/96 on the file of the Rent Controller Pondicherry under Section 10(2)(ii)(b) of the said Act seeking an order of eviction on the ground that the tenant used the tenanted premises for the purpose other than for which is was leased out. The application was resisted by the tenant/respondent contending that the tenant is using the tenanted premises only for residence, that the respondent/tenant is employed in the Central Government, that no business is carried on in the tenanted premises, that there is no conversion of the premises, that the pial portion which is available just 4 ft. 4 ft. out of which there is a Thinnai measuring 11/4 ft. 4 ft and that no portion of the premises has been used for the purpose of vending or as a bunk shop. Incidentally, the tenant had denied all the other averments in the eviction petition as a matter of routine. Before the Rent Controller, the petitioner/landlord had marked Exhibits A1 to A7 and had examined P.Ws. 1 and 2. T he respondent/tenant had marked Exs.B.1 to B.6 and had examined her father as R.W.1. The Rent Controller had framed the only point for determination which reads thus: “Whether the respondent has used the premises other than the purpose for which it has been leased out? If so, whether the petitioner is entitled for an order of eviction against the respondent on that ground.” This point has been answered in favour of the petitioner/landlord and against the tenant. The order of eviction has been passed only on that score. If so, whether the petitioner is entitled for an order of eviction against the respondent on that ground.” This point has been answered in favour of the petitioner/landlord and against the tenant. The order of eviction has been passed only on that score. The respondent/tenant preferred an appeal before the Principal District Judge (Rent Controller) under Section 23(1) of the said Act. The Appellate Authority had framed three points for consideration and ultimately dismissed the appeal by its judgment dated 22.12.1997 confirming the order of eviction passed by the Rent Controller. Being aggrieved, the respondent/tenant has filed the present revision petition. 3. The petitioner/landlord has lodged the caveat. With the consent of the learned counsel for either sides, the main revision itself is taken up for final disposal. As there is some controversy with respect to the nature of the photographs produced and other documents moved, this Court sent for original records from the Rent Controller and the same have also been received through a Special Messenger today (24.06.1998). This Court has perused the Exhibits and also has considered the evidence recorded by the Rent Controller. 4. In this revision, the learned counsel for the petitioner contended that no portion of the premises has been used for the purpose of running the bunk shop, that there has been no conversion of any portion of the tenanted premises, that Exs, A5 and A6 photographs taken surreptitiously would not clinchingly prove the alleged conversion, that none has spoken to with regard to the preparation of the eatables inside the house, that the documents in particular Exs. AS and A6 would not show the respondent or her father conducting a bunk shop business in the pial portion and that at any rate even assuming without admitting, merely because the pial portion measuring about 3 ft. 3 ft is used for keeping the cool drinks bottles, being negligible area when compared to the portion let out, no order of eviction could be passed on that score. 5. Per contra, Mr. T.R. Rajaraman, learned counsel for the respondent/landlord pointed out that the two authorities below have concurrently found that the tenant is using the building for non-residential purpose i.e., for running a bunk shop as seen from Exs. A5 and A6 and hence no interference is called for as the two authorities below have accepted the evidence of P.Ws, 1 and 2. A5 and A6 and hence no interference is called for as the two authorities below have accepted the evidence of P.Ws, 1 and 2. The learned counsel also contended that the tenant bad denied the title of the landlord and as such on that score, there could be an order of eviction though the petition has not been filed on the ground of denial of title nor an order of eviction has been passed either by the Rent Controller or by the Appellate Authority on the ground of denial of title by the tenant. 6. It is true that the Rent Controller as well as the Appellate Authority have accepted, the evidence of P.Ws. 1 and 2 and have reported a finding that the pial portion measuring about 3ft. width and 4 ft. depth has been used as a place for vending eatables and soft drinks, though no finding has been rendered that the tenant has located a bunk shop. In the light of the finding, Mr. T.R. Rajaraman, learned counsel for the petitioner/landlord vehemently contends that no interference is called for as the evidence of P.W.2 that the tenant is occupying the adjacent portion deposed that the portion of the tenanted premises has been used for the purpose other than the purpose for which it has been let out. 7. The power of revision which this Court has to exercise is provided for under section 25 of the Pondicherry Buildings (Lease and Rent Control) Act. The Apex Court has held that the power of revision is exhaustive and the Court could interfere in a revision preferred under Section 25 of the said Act, if on the facts, the authorities below have not applied the provisions of law correctly as provided in the Act or acted with illegality or irregularity. In other words, the exercise of revisibnal jurisdiction by this Court is not limited as provided under Section 115 of the C.P.C. 8. With respect to one of the incidental contentions raised by Mr. T.R. Rajaraman, learned counsel for the petitioner/landlord that an order of eviction could be sustained on the ground of denial of title. In other words, the exercise of revisibnal jurisdiction by this Court is not limited as provided under Section 115 of the C.P.C. 8. With respect to one of the incidental contentions raised by Mr. T.R. Rajaraman, learned counsel for the petitioner/landlord that an order of eviction could be sustained on the ground of denial of title. This Court is not in a position to sustain such contention for the reason that even after filing of the counter by the respondent/tenant before the Rent Controller, no such ground has been urged before the Rent Controller nor an order of eviction has been passed on that ground by the Appellate Authority. A perusal of the counter filed by the respondent/tenant would show, that there has been some contradictions, but this Court is unable to read that the respondent/tenant had denied the title of the landlord, much less deliberately. In fact in the witness stand, R.W.I had admitted that there has been a rent agreement between the petitioner/landlord and the respondent/tenant and that the respondent has been paying the rent regularly in respect of the suit premises. As already pointed out in the counter filed by the respondent/tenant, the respondent/tenant has chosen to deny each and every one of the averments and it is nothing but a misconception. It has been admitted by R.W.I that the respondent is a tenant under the petitioner and as such it cannot be said that the respondent/tenant had denied the title of the landlord. The Appellate Court though had considered this aspect, had given a finding that the landlord is the owner and the petitioner had admitted the tenancy as well as the payment of rent. R.W.I has admitted the status of respondent as tenant in respect of the suit premises. Though a point was sought to be made on the ground that the documents including the electricity connection stand in the name of a different person, the sum and substance of the respondents objection in my considered view has to be confined only to the ground of eviction and it cannot be said that the respondent had wilfully or deliberately denied the title of the landlord/petitioner. Mr. T.R. Rajaraman, learned counsel relied upon the decision of this Court reported in 1988 T.L.NJ. 85 in support of his contention that the denial of title could be taken up at any point of time including revision. Mr. T.R. Rajaraman, learned counsel relied upon the decision of this Court reported in 1988 T.L.NJ. 85 in support of his contention that the denial of title could be taken up at any point of time including revision. The learned counsel for the revision petitioner has no quarrel over the proposition laid down by this Court in 1988 T.L.NJ. 85 but hastens to add the tenant had not denied the title either in the counter or in the witness stand and in fact there has been admission of the landlords title with regard to the suit premises. In the circumstances, this Court is unable to sustain the plea of Mr. T.R. Rajaraman that there should be an order of eviction on the ground of denial of title, could be sustained. 9. As regards the ground of conversion, namely the user of the premises for the purpose other than the one for which it has been let out, the two authorities have taken the view that there has been a conversion asd according to their findings, in the front pial portion the respondent is running a shop. This requires elaborate consideration in my view as the findings of the two authorities below cannot be sustained. The relevant portion of the averments set out in the eviction petition reads thus: “The petitioner further submits that the respondent also directed not to sublet the portion of the house leased out to her to any other person without the written consent of the petitioner. While so the respondent without the consent of the petitioner was running a bunk shop in the front portion i.e., in the verandah of the house for the past six months and doing the above said business in the house rented out to her with the help of her father and same is contrary to their terms and conditions of the l ease. 3. The petitioner further submits that the respondent also converted the demised premises for the preparation of some food stuffs for selling purposed and the above business was carried out in the hall of demised premises and the said business was carried on by the respondent with the help of her mother. 3. The petitioner further submits that the respondent also converted the demised premises for the preparation of some food stuffs for selling purposed and the above business was carried out in the hall of demised premises and the said business was carried on by the respondent with the help of her mother. The petitioner further submits that by using the house for non-residential purposes and due to the excess smoke from the fire wood in the hall of the house the damage caused to the house has materially impaired the value or the utility of the premises leased out to the respondent. 4. The petitioner further submits that inspite of the repeated demands made by the petitioner the respondent has not chosen to close down the business and continue the same till date thereby doing the act contrary to the terms and conditions of the oral tenancy.” 10. The respondent has filed a counter denying the entirety of the averment contained in the eviction petition and also contended that the respondent/tenant is employed in the Central Government, and that she is not carrying on business as sought to be made out. The allegation is that for the past six months the respondent is doing business in the verandah of the house rented out to her with the help of her father which is contradictory to the terms and conditions of the lease. She has also alleged that the demised premises is being used for the preparation of some food stuff and the above business was carried out in the hall of the demised premises and that the said business was carried on by the respondent with the help of her mother. There averments had been denied by the respondent/tenant. 11. It has to be pointed out that neither the P.W.1 nor P.W.2 had deposed about the preparation of eatables in the tenanted premises. No witness has been examined to show that any of the portion of the hall or kitchen had been used for the purpose of preparation of food stuff nor P.Ws. 1 and 2 have deposed that the tenant or her father or her mother is preparing food stuffs and selling the same in the hall of the demised premises. No witness has been examined to show that any of the portion of the hall or kitchen had been used for the purpose of preparation of food stuff nor P.Ws. 1 and 2 have deposed that the tenant or her father or her mother is preparing food stuffs and selling the same in the hall of the demised premises. Having come out with a specific case that the tenants father and mother have been preparing the food stuffs for sale and that they have been using the hall for the purpose of sale, the said specific case has been given a go-by and the landlord bad confined himself to the plea of running of a bunk shop on the pial portion. Thus on a consideration of the evidence of P.Ws. 1 and 2 as well as on the pleadings, this Court holds that no portion of the demised premises (other than the pial portion) was being used by the respondent/tenant for the purpose other than the one for which it was let out. In this respect, no evidence at all had been adduced nor any suggestion was put to R.W.1. Exs. A5 and A6 are the photographs and this would not show either the respondent/tenant or her father or her mother selling any soft drinks or eatables from the pial portion. It could be seen from Exs. A5 and A6 that the soft drink bottles are kept in the Thinnai which abuts the tea shop which is under the occupation of P.W.2. On the basis of the Exhibits mentioned above, the two authorities below have assumed that the respondent/tenant had been carrying on a bunk shop business through her father. The evidence of P.W.2 which is stated to be an independent witness according to the two authorities below had been accepted. In my view P.W.2 cannot be said to be an independent witness as he is a tenant under the very same landlord and carrying on a tea shop business. No independent material has been placed to show that the tenant or her father or her mother had been conducting a bunk shop on the front pial portion. 12. The tenanted premises according to the landlord measures 29 feet, east to west and 56 ft. north to south on the western side and 52 ft. No independent material has been placed to show that the tenant or her father or her mother had been conducting a bunk shop on the front pial portion. 12. The tenanted premises according to the landlord measures 29 feet, east to west and 56 ft. north to south on the western side and 52 ft. north to south on the eastern side and in all it admeasures 1711 sft, which consists of a pial, a hall, a kitchen, etc., Admittedly, the front portion of the said premises on one side of the entrance to the respondents tenanted premises is under the occupation of P.W.2 who is running a tea shop and on the other side of the portion, a third party is running a barber sh op. After deducting the space which is occupied by the tea shop and the barber shop, the space which is available in between is hardly of the width of 4 feet and the depth of 4ft. Even in that small space of 4 ft. 4? ft. there is a Thinnai (elevated platform). Even the photographs do not show a bunk shop but it would show that some of the soft drink bottles are stored in the Thinnai. It cannot also be said from Exs. A5 and A6 that R.W.1 was vending cool drinks or eatables as no one is found standing in the centre of pial or verandah and carrying on the said business. The road on which the tenanted premises is located is a busy area and on one side there is a tea shop and on the other side there is a barber shop. Merely because some of the soft drink bottles are kept on the elevated platform it cannot be said that the respondent/tenant is carrying on business. The evidence of P.W.1 is also not specific. P.W.1 had deposed that the respondents father had been using the pial portion for the past six months prior to the filing of the Suit as a bunk shop and vending eatables. 13. Though the learned counsel for the revision petitioner vehemently contended that the tenant had not been carrying on business of vending eatables or soft drinks, per contre, the learned counsel for the landlord based on Exs. A5 and A6 stated that the pial portion is being used as a bunk shop. 13. Though the learned counsel for the revision petitioner vehemently contended that the tenant had not been carrying on business of vending eatables or soft drinks, per contre, the learned counsel for the landlord based on Exs. A5 and A6 stated that the pial portion is being used as a bunk shop. The two authorities below have assumed that the respondent/tenant had been using the pial portion as a bunk shop and had been conducting the business of vending eatables and soft drinks with the help of her father. Even assuming that the pial portion has been used for the purpose of vending soft drinks, the further question that remains to be considered is whether the same would entitle the landlord to secure an order of eviction? 14. In this respect, the learned counsel for the tenant placed reliance on the pronouncement of this Court reported in 1979 T.L.N.J. 168 and 1959 2 M.L.J. 240. The learned counsel also relied upon a decision of this Court reported in 1990 T.L.N.J. 122 and contended that the burden of proof is on the landlord. Admittedly in this case the premises has been let out only for the residential purpose. The portion which is used for carrying on the business is specified. There was a plea that the hall is being used for the purpose of stall and the kitchen is being used for preparing the eatables. But no evidence has been placed by the landlord and as such it has to be taken that except 16 sft of the pial portion, the remaining portion of 1695 sft is being used only for the residential purpose. In other words, excepting a negligible portion of 16 feet out of the total 1711 sft the remaining portion is used only for the residential purpose. 15. In 1959 II M.L.J. 240 = 72 L.W. 519 in Jugraj Jain v. T.R. Ambikapathi Pillai, Mr. Justice Panchapakesa Ayyar, while considering the identical provision of the Madras Buildings (Lease and Rent Control) Act (25 of 1949) held where a premises was admittedly used only for residential purposes at the commencement of the tenancy, the natural inference is that it was let for such purpose only. Justice Panchapakesa Ayyar, while considering the identical provision of the Madras Buildings (Lease and Rent Control) Act (25 of 1949) held where a premises was admittedly used only for residential purposes at the commencement of the tenancy, the natural inference is that it was let for such purpose only. Even though a house is taken for purely residential purposes, some occupation and profit-making activities by the resident therein in a small portion unostentatiously and without running a shop or causing any nuisance are inevitable and permissible in these days of complex civilization. The learned Judge has also further held that when the premises let out for residential purposes is used either inadvertently or out of ignorance by the tenant for business purposes, which transgresses the limits of reasonableness, it will be equitable to give him an opportunity to rectify the error by removing his business to some other place before a stipulated time. 16. In 1979 T.L.NJ. 168 in L.D. Mehta v. J. Subramaniam, Ramaprasada Rao, CJ. (as he then was) had an occasion to consider an identical situation where the tenant had used a portion of the tenanted premises namely one room for storage of tin sheet, iron and zinc sheets when the tenancy is for residential and the ground floor consists of a number of rooms. The landlord filed a petition for eviction on the ground that the tenant had used the premises for a purpose other than that for which it was let out. In this context, the learned Chief Justice Ramaprasada Rao while analysing the case law held thus: “In so far as the second ground is concerned, the subjects is covered by an authority of this Court, Kailasam, J., as he then was in E.A.E. Kamal Pasha v. V.A. Tajuddin and others (1974 T.L.N.J. 10) was of the view that the user of a small portion of a big house for a purpose other than that for which it was let out would not squarely come within the mischief of Sec. 10(2)(ii)(b) of Act 18 of 1960. He relied upon certain observations made by the Supreme Court in M.K. Palaniappa Chettiar v. A. Ponnuswami Pillai (1970 1 S.C.W.R. 487). To the same effect was the conclusion of mine in another decision reported in Conjal Electronic Industries by its partners v. A. Rajendran and another (1970 II M.L.J. Short Notes-page 5). He relied upon certain observations made by the Supreme Court in M.K. Palaniappa Chettiar v. A. Ponnuswami Pillai (1970 1 S.C.W.R. 487). To the same effect was the conclusion of mine in another decision reported in Conjal Electronic Industries by its partners v. A. Rajendran and another (1970 II M.L.J. Short Notes-page 5). This Court said that if a landlord files an application on the ground of conversions or complains about the user of the demised premises other than that for which it was let out, then it is incumbent upon him to establish notwithstanding the nature of the defence in any particular case by the tenant, that such unauthorised user is substantial and the area in which such prohibited occupation is being carried on bears a substantial proportion to the totality of the area demised by the landlord to the tenant”. I am in respectful agreement with the law laid down by Ramaprasada Rao, C.J., in 1979 TX.NJ. 168. “Applying the said proposition of law laid down by Ramaprasada Rao, C.J., to the facts of the present case, this Court has to allow this revision petition as admittedly even accepting the case of the landlord that the pial portion measuring about 3 ft 4 ft alone has been used even according to P.W.1 and P.W.2 for the purpose of vending eatables and soft drinks which portion compared to the total extent of 1711 sft is negligible. Under these circumstances, it cannot be said that substantial portion of the tenancy premises has been used for the purpose other than the one for which it was let out. 17. Even accepting that the tenant/respondent had used the pial portion for vending of eatables the order of eviction passed by the two authorities below cannot be sustained as it is only a negligible portion of 16 sft when compared to the total extent of 1711 sft. of the tenanted premises. The two authorities below have lost sight of this legal position and have proceeded on the assumption that even using of a negligible portion in the present case 12-16 sft out of 1711 sft of residential portion would result in the tenant being thrown out on the ground that she had used the premises for the purpose other than the one for which it has been let out. 18. 18. For all the reasons stated above, the order of eviction passed by the Rent Controller as affirmed by the Appellate Authority are set aside, and the eviction petition HRCOP 9/96 on the file of the Rent Controller/District Munsif will stand dismissed. No costs. C.M.P.Na5059/98 is closed as unnecessary. The petitioner shall remove the soft drink bottles and forthwith stop the business, if any carried on the verandah portion.