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Madras High Court · body

2001 DIGILAW 1069 (MAD)

S. Loganathan v. V. S. Rangasamy

2001-09-13

V.BAKTHAVATSALU

body2001
ORDER: The tenant in the R.C.O.P. is the revision petitioner herein. The respondent herein filed R.C.O.P. for eviction of the revision petitioner. 2. The case of the landlord/ petitioner is as follows: The first respondent in the O.P. has taken on lease the petition mentioned property on 1.4.1989 for running business on a monthly rent of Rs.1,200. Subsequently, the rent was enhanced to Rs.2,000 and now the monthly rent is Rs.2,000 payable on the first of every English Calendar month. The tenant and the landlord entered into a lease deed on 1.4.1989, 6.3.1990 and 27.8.1992. The second respondent in the O.P. is the sub-tenant under the first respondent. Originally the first respondent was doing lottery agency business in the petition mentioned property under the name and style of “Kalaimani Lottery Agency” and subsequently, in the year 1990, he changed the name and style of business and doing business under the name and style of “Suriya Lottery Agency”. After 27.8.1992, the first respondent closed his lottery business and is doing bakery business in the petition mentioned property under the name and style of “Indu Biscuit Bakery”. After the expiry of the said lease period, the first respondent continued under the same terms and conditions of the lease deed dated 27.8.1992 for running the same business. The first respondent failed to pay rent for the month of April, May and June, 1998. The arrears of rent is Rs.6,000. In spite of repeating demands the fist respondent has not paid the rent. The default committed by the first respondent is wilful and supine indifferences. The first respondent without the oral consent of the landlords has sub-let a portion of the building to the second respondent and he is doing Audio Cassette business under the name and style of “Roja Audio Centre”. The second respondent is also running a tea shop in the petition mentioned property without the written consent of the petitioner. The first respondent having taken the building for doing bakery business is now using the building for different purpose. The first respondent is running a Cool Drink stall in the petition mentioned property without the oral and written consent of the landlord. The petitioner is also carrying on gingelly oil business. He is manufacturing gingelly oil and the trade mark of this oil is “Gandhimathi Mark Gingelly Oil”. He is manufacturing and doing wholesale business at park Road, Erode. The first respondent is running a Cool Drink stall in the petition mentioned property without the oral and written consent of the landlord. The petitioner is also carrying on gingelly oil business. He is manufacturing gingelly oil and the trade mark of this oil is “Gandhimathi Mark Gingelly Oil”. He is manufacturing and doing wholesale business at park Road, Erode. The building at Park Road, Erode is lacking in accommodation to accommodate the petitioner for retail oil business. In view of the lack of accommodation, the petitioner is not able to expand the retail oil business. Therefore, the petitioner requires the petition mentioned property for personal use and occupation. The petitioner requires the building for bona fide requirement for his personal occupation to carry on oil business in retail. The petitioner requested the first respondent to surrender possession of the building for his own occupation. As the respondent refused to vacate the building, this petition is filed for eviction. 3. The case of the first respondent is follows: The respondent has not committed any wilful default as alleged by the petitioner. He was paying the rent regularly and obtaining receipts. The receipts are issued by the clerk of the petitioner. In the month of April, 1998, the said clerk did not come and receive the rent. Subsequently, the respondent has sent the rent by money order on 6.6.1998 for the month of April and May, 1998, which was refused. After such refusal, the respondent has been paying the rent directly to the petitioner’s counsel. After such refusal, the respondent has been paying the rent directly to the petitioner’s counsel. Therefore, the respondent has not committed any wilful default. The lease deed was entered into between the petitioner and this respondent on 27.8.1992. On the expiry of the said lease term, the petitioner and the respondent entered into an oral lease, as per which the monthly rent was increased at that time and the petitioner agreed that the respondent could carry on any business in the premises so long as it is a legal one. There was no restriction between the petitioner and the respondent in regard to the nature of the business to be carried on in the premises. There has been no different user of the demised premises. This respondent has not put the property to different use as alleged by the petitioner. There was no restriction between the petitioner and the respondent in regard to the nature of the business to be carried on in the premises. There has been no different user of the demised premises. This respondent has not put the property to different use as alleged by the petitioner. The second respondent is the brother of this respondent. He looks after the business of the first respondent whenever this respondent is absent. No part of the property has been sub-leased to the second respondent. The alleged requirement of the property by the petitioner for his business is mala fide. Just before filing of the R.C.O.P. a building belonging to the petitioner, which is situate behind the petition mentioned property, fell vacant. If really the requirement of the petitioner is bona fide, he should have occupied the same. Therefore, the alleged requirement for personal use is not true. The respondent has paid a sum of Rs.1,00,000 as advance. The petitioner sought for increase in rent through his clerk at Rs.5,000 per month. This respondent was not willing to play for such increase and therefore, the petitioner, who has a grouse against this respondent, has come forward with this application. 4. Before the Rent Controller, the landlord has been examined as P.W.1 and the respondents in the O.P. are examined as R.Ws.1 and 2. On the side of the petitioner/ landlord Exs.P-1 to P-6 were marked and on the side of the tenant/ respondents, Exs.R-1 to R-6 were marked. The Commissioner’s report and plant were marked as Exs.C-1 and C-2. 5. On a consideration of oral and documentary evidence, the learned Rent Controller allowed the petition on all the grounds and ordered for eviction and the said order of the Rent Controller has been confirmed by the Appellate Authority in R.C.A.No.13 of 2000, dated 22.12.2000. Aggrieved by the above decisions, the tenant/ first respondent has come forward with this revision. 6. When this Court issued notice of motion, the landlord entered appearance and opposed the admission of C.R.P. Therefore, the arguments of the revision petitioner and landlord are heard on the merits of the case. 7. The following contentions are raised by the tenant/ revision petitioner in this revision: The Courts below committed error in holding that the tenant has committed wilful default. 7. The following contentions are raised by the tenant/ revision petitioner in this revision: The Courts below committed error in holding that the tenant has committed wilful default. The Courts below failed to take note of the fact that the tenant has sent the rent by moneyorder and that it was refused by the landlord. The fact that the tenant sent the rent by money order and the fact that the landlord received the entire amount in the first hearing of the Court will show that there was no wilful default on the part of the tenant. The articles found by the Commissioner in the petition mentioned property were included in the original business of bakery and the landlord was fully aware of all these things for quite number of years before filling the eviction petition and therefore, the Courts below committed error in holding that the petitioner is running business different from one that he entered into under the tenancy agreement. There is no evidence to show that the first respondent/ tenant has sub-let a portion of the building to the second respondent. The tea stall was kept outside the petition mentioned property. No bakery shop was let out or put in possession of the second respondent. The Courts below failed to note that all the landlord own other buildings in the locality and that he has also let out another building, which is situate behind the petition mentioned building and as such, the Courts below ought to have held that the requirements of the petition mentioned building for personal use and occupation by the petitioner/ landlord is not bona fide. 8. 8. On the other hand, learned counsel for the landlord/ respondent contended that having regard to the specific recitals in the lease deed that the petition mentioned property should not be used for any other purpose other than for which it was leased, the findings of the Courts below that the tenant is guilty of utilising the demised property for different user cannot be said to be vitiated by any infirmity and that the landlord is doing only wholesale business and as such, his requirement of the petition mentioned property for doing retail business is bona fide and that the tenant cannot dictate the landlord as to which property he should take possession and that though the tenant has pleaded oral arrangement in the counter, the same is not substantiated and that the Courts below are justified, on consideration of the Commissioner’s report, in holding that the property was used for different purpose and that it was let out to the second respondent. 9. Learned counsel for the landlord, who is respondent in this revision, inter alia contended that the concurrent findings of the Rent Controller and Appellate Authority which are based on appreciation of oral and documentary evidence, cannot be upset in the revision and that the evidence cannot be reappreciated by the revisional Court. It is also contended that the revisional Court cannot sit as a Appellate Court and canvass the findings rendered by the Courts below and that the contentions raised by the tenant are not sufficient to interfere with the findings of the Courts below under Sec.25 of the Rent Control Act. In support of the same, learned counsel relies upon number of decisions. 10. In Lakshmidas Ved v. Parag Mawani, (2000)2 M.L.J. 456 , this Court has held that the scope of the revision is only mere superintendence and not re-hearing the appeal. This Court in a decision reported in Rookshana Nazir v. U.M.D.Shaukathulla, (1998)3 C.T.C. 687 has held that the concurrent findings of authority, which are based on oral and documentary evidence, is not liable to be interfered with under Sec.25 of the Act. A similar view is also taken by this Court in a decision reported in Dr.Senthilnathan v. Rajalakshmi, (2000)3 M.L.J. 40 . 11. A similar view is also taken by this Court in a decision reported in Dr.Senthilnathan v. Rajalakshmi, (2000)3 M.L.J. 40 . 11. In the decision reported in Pappathiammal v. Nachammal, (2001)1 C.T.C. 160 , this Court has held that the High Court exercising revisional jurisdiction cannot appreciate the evidence and record findings contrary to those of lower Courts if the finding of the lower Court is supported by material. In another decision reported in South India Corporation Agencies Limited v. Chandrakanth C.Badani, (1998)1 C.T.C. 674 , this Court has held that unless there is perversity in the matter of appreciation of evidence by authorities, the revisional Court will not interfere with the concurrent findings. In the decision reported in Vasantha Leela v. N.Vadivelu Chettiar, (1998)3 C.T.C. 467 , this Court has held that concurrent findings that requirement of landlord is bona fide cannot be disturbed in the revision. Regarding the finding on the question of wilful default, this Court in the decision reported in Sivathanu Pillai v. Subramaniam, (1999)3 M.L.J. 130 has held that when the authorities have rendered a concurrent finding on the question of wilful default in the payment of rent, the said finding cannot be interfered in the revision. 12. In another decision reported in Raju v. Gilford Hilkish, (1984)2 M.L.J. 121 , this Court following the decision of the Apex Court reported in Hasmat Bai v. Raghunath Prasad, (1981)3 S.C.C. 103 has held thus: “It has been held by the Supreme Court in Hasmat Bai v. Raghunath Prasad, that the finding of facts ignoring incontrovertible admitted position which would non-suit the plaintiff, if upheld, would be travesty of justice. Hence, interference by the Revisional Court is justified.” 13. It cannot be disputed that if the findings of the Courts below, on facts and appreciation of the evidence, are vitiated by perversity and if the findings are given ignoring certain vital admissions of the parties, the revisional Court is empowered to interfere with the said findings. In this case, the Rent Controller has accepted the grounds set out by the landlord for evicting the tenant. The landlord has filed the petition on four grounds namely, (i) Wilful default; (ii) Sub-lease; (iii) Different user; (iv) Own occupation. The findings of the Rent Controller on all the above aspects are confirmed by the Appellate authority. 14. In this case, the Rent Controller has accepted the grounds set out by the landlord for evicting the tenant. The landlord has filed the petition on four grounds namely, (i) Wilful default; (ii) Sub-lease; (iii) Different user; (iv) Own occupation. The findings of the Rent Controller on all the above aspects are confirmed by the Appellate authority. 14. As regards the first ground i.e., wilful default, learned counsel for the revision petitioner/ tenant contended that the Courts below failed to note that the tenant did not pay the rent only for three months and that the entire arrears were paid into Court in the first hearing of the case and that the above conduct of the tenant was not properly appreciated by the Courts below and that in any tent, the above default cannot be termed as a wilful default. I see there is considerable force in the above contention of the revision petitioner. The memo filed by the landlord dated 13.7.1998 will show that the landlord received Rs.6,000 which represent the rent for the month of April, May and June, 1998. The R.C.O.P. was filed into Court on 6.7.1998. In the counter, it is alleged by the tenant that the receipts are issued by the clerk of the petitioner and that in the month of April, 1998 the said clerk did not come and receive the rent and that therefore, he has sent the rent by money order on 6.6.1998 for the month of April and May and that it was refused. To substantiate the same, the tenant has also filed the money order receipt under Ex.R-2. Ex.R.2 will show that the rent amounting to Rs.4,000 was tendered for April and May, by M.O. It is stated in the above receipt that the tenant could not contact the landlord for tendering the amount. The above receipt will show that even in the month of June, rent payable for the month of April and May was sent by money order. It is admitted by P.W.1, the landlord, in evidence that till the month of March, 1998, the tenant was regularly paying the rent. But he denies the suggestion that he refused to receive the rent. It is admitted by P.W.1, the landlord, in evidence that till the month of March, 1998, the tenant was regularly paying the rent. But he denies the suggestion that he refused to receive the rent. The rent receipts filed by the tenant under Exs.B-3 to B-6 will show that rent was not paid on the first of every month as agreed in the rental agreement entered into between the landlord and the tenant. The above receipts will show that the tenant has paid the rent on different dates. The Rent Controller has held that the tenant was not in the habit of tendering the rent regularly to the landlord. When the landlord himself was issued receipts on different dates, though it is stipulated in the rental agreement that the rent has to be paid on the first of every succeeding month, the Rent Controller is not justified in holding that the tenant was not in the habit of paying the rent regularly within time. 15. It is, further, seen that the tenant issued notice under Ex.P-4 directing the landlord to specify the bank for depositing the rent. The above notice is dated 1.7.1998 i.e., prior to the filing of R.C.O.P. The conduct of the tenant in sending two months rent by money order before the date of filing the R.C.O.P. and issuing notice to the landlord directing him to specify the name of the Bank to enable the tenant to deposit the rent, will only show that the tenant has not committed any wilful default in payment of rent. In any event, the above delay and conduct of the tenant will not amount to wilful default much less supine indifference. The Rent Controller has not properly adverted to the above aspect of the case and therefore, I have no hesitation in holding that the finding of the Rent Controller, which is confirmed by the Appellate authority, that the revision petitioner has committed wilful default is based on misreading of the evidence. 16. The Rent Controller has not properly adverted to the above aspect of the case and therefore, I have no hesitation in holding that the finding of the Rent Controller, which is confirmed by the Appellate authority, that the revision petitioner has committed wilful default is based on misreading of the evidence. 16. Learned counsel for the revision petitioner also relies upon a decision of this Court reported in Tamil Nadu Motors v. N.Lakshmi, (1999)3 L.W. 284 , wherein it is held thus: “To arrive at a finding that the tenant is in wilful default, the mere fact that the tenant is in arrears of rent would not be enough and the Court has to consider whether there has been intentional violation of a clear obligation to pay the rent” The Supreme Court had also occasion to consider a similar plea in the case reported in M/s.Chordia Automobiles v. Moosa, (2000)2 M.L.J. 108. In the above decision, the Supreme Court has held thus: “Further, the conduct of the appellant throughout in the past was not that of the defaulter or irregular payer of rent. Thus all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter”. Even though the payment of rent into Court after filing R.C.O.P. is not relevant in deciding the question of wilful default, the conduct of the tenant in tendering two months rent by money order, even in the month of June, 1998, will establish the case of the tenant that he has not committed wilful default. If the principles of law laid down in the above decisions are considered alongwith the admitted facts in this case, it would practically negative the contention of the landlord that the revision petitioner has committed wilful default in payment of rent. Hence, I hold that the findings of the Courts below that the tenant has committed wilful default are liable to be set aside. 17. The landlord has also filed petition under Sec.10(3)(a)(iii) of the Act. Under the above Section, the landlord may apply to the controller for order of eviction if the landlord or any member of his family is not occupying for purpose of business which he or any member of the family is carrying on in non-residential building in a City, Town or Village. Under the above Section, the landlord may apply to the controller for order of eviction if the landlord or any member of his family is not occupying for purpose of business which he or any member of the family is carrying on in non-residential building in a City, Town or Village. The landlord has stated in the petition that he is carrying on gingelly oil business and that he is manufacturing gingelly oil and that he is manufacturing and doing wholesale oil business and that as the said building is lacking to accommodate the petitioner for retail business, he requires the petition mentioned building for personal use and occupation. It is the case of the tenant that the landlord owns other buildings and that his requirement of this building for doing retail business is not bona fide and that the Rent Controller failed to consider the above aspect of the case. The Rent Controller has held that the petitioner owns an Oil Mill at a distance of 400 feet away from the petition mentioned building and that therefore, the requirement of petition mentioned building for doing retail business is bona fide and that the landlord is not in possession of any other building. The Rent Controller has also observed that it is not open to the tenant to dictate the landlord as to which property he should take possession for doing business and that it is not established by the tenant that the landlord is in possession of the other vacant building for personal occupation. The above findings of the Rent Controller are assailed by the revision petitioner on several grounds. 18. It is contended on behalf of the landlord that it is for the landlord to choose a particular building for doing or expanding business and that at present, the landlord has no other vacant building for doing retail business and that therefore, it has to be held that the requirements of the landlord is bona fide. On a perusal of the pleadings and evidence of the landlord/P.W.1, it is clearly established that the requirement of the landlord of the petition mentioned building for expanding his oil business is not bona fide. Learned counsel for the landlord as well as tenant relies upon number of decisions on this aspect of the case. The question as to what is the bona fide requirement has drawn the attention of several Courts. Learned counsel for the landlord as well as tenant relies upon number of decisions on this aspect of the case. The question as to what is the bona fide requirement has drawn the attention of several Courts. 19. Learned counsel for the revision petitioner relies upon a decision of the Apex Court reported in D.Devaji v. K.Sudarashana Rao, (1994)1 S.C.C. (Supp.) 729. In the above decision, it is held thus: "Under Sec.10(3)(a)(iii) of the A.P.Act the landlord is required to prove his bona fide requirement of the non-residential building to carry on or commence a business. The object of the Act is to enable the landlord to recover possession of his non-residential building in occupation of a tenant, if his requirement is bona fide for the purpose of the business which he is carrying on or which he bona fide proposes to commence. If landlord is in possession of a non-residential building in the city, town or village and he requires another non-residential building for expansion of his business or to establish another business or needs additional accommodation of a non-residential building in the same city, town or village, Sec.10(3)(a)(iii) creates an embargo. The bar under Sec.10 against securing eviction of the tenant of such non-residential building is absolute. The suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord are not relevant". In the decision reported in Solai Nadar v. A.T.A.V. Guruswami Nadar and Co., (1969)1 M.L.J. 629 , the word "requirement" is explained thus: "The word ‘requirement’ is not equitable to a mere wish, convenience or whim of the landlord. An element of "must have" is inhered in it. A mere unbridled or arbitrary liking on the part of the landlord is not sufficient. The landlord is the sole arbitrator of his requirements". In V.V.Ramakrishnan v. T.R.Ananthanarayanan, 96 L.W. 130, this Court has held that bona fides preparation to commence a business would be enough. This High Court has also in the decision reported in Sankar v. Vijayan, (2001)1 M.L.J. 241 has held that the landlord who is running a different industrial unit in a different non-residential premises is not entitled to seek the eviction of the tenant. This High Court has also in the decision reported in Sankar v. Vijayan, (2001)1 M.L.J. 241 has held that the landlord who is running a different industrial unit in a different non-residential premises is not entitled to seek the eviction of the tenant. A Division Bench of this Court in the decision reported in Laswaran Chettiar v. K.Subbarayan, 83 L.W. 696, has held that if a landlord is in possession of a non-residential building of his own and for purposes of carrying on a business, then he cannot ask for another non-residential building of his own in the occupation of a tenant. The Apex Court in the decision reported in T.Sivasubramanian v. Kasinath Pujari, (1999)7 S.C.C. 275 has held that an eviction order cannot be passed by the rent controller unless he is satisfied that the requirement of the landlord is bona fide. The question whether the requirement of the landlord of the demised building for own use and occupation is bona fide or not would depend upon the facts and circumstances of each case. Bearing the principles of law laid down in the above decisions, the case of the landlord for eviction of the tenant on this ground has to be analysed. 20. The tenant has clearly stated in the counter that before filing the R.C.O.P. a building belonging to the petitioner, which is situate behind the petition mentioned properly fell vacant and that if really the requirement of the petitioner is bona fide, he should have occupied the same. P.W.1, the landlord, has stated in his evidence that he owns Gingelly oil mill at a distance of 400 feet away from the petition mentioned building and that the above building is not suitable for doing retail business and that therefore, he requires the petition mentioned building. The landlord has also filed licence Ex.P-6, dated 30.11.1990. The above document will show that licence was issued for wholesale business. P.W.1 has clearly admitted in his evidence that he owns a godown behind the petition mentioned building at a distance of 10 feet away from the petition mentioned building and that the above godown is situate in the street called "Venkatachalam Street" and that the above property measures 60 feet x 15 feet. P.W.1 has clearly admitted in his evidence that he owns a godown behind the petition mentioned building at a distance of 10 feet away from the petition mentioned building and that the above godown is situate in the street called "Venkatachalam Street" and that the above property measures 60 feet x 15 feet. He has stated that he let out the above building for rent after filing the R.C.O.P. But in the same evidence he has also stated that he let out the said building before filing the R.C.O.P. and that one Arumugham was using the said property as an oil godown. It is, thus, clear that the landlord owned another building for doing or expanding his business. Even though the above building fell vacant, the landlord did not take possession of the same for expanding his business. On the other hand, the above godown was let out on rent to one Arumugham. If really the petitioner/ landlord requires any non-residential building for doing retail business, he would not have let out the building, which is situate behind the petition mentioned building, to a third party. The above vital aspect of the case was not properly considered by the Rent Controller and the Appellate Authority. It is, thus, seen that even though the building suitable to do retail business was available, the landlord without taking possession of the same has left out the building to a third party before filing the R.C.O.P. He has not even pleaded in the petition as to why he left out the godown, which is situate behind the petition mentioned building, to a third party when it fell vacant. In the above circumstances, the findings of the Rent Controller that the tenant failed to prove that the landlord was in possession of another building for doing business cannot be sustained. The findings of the Rent Controller and Appellate Authority on the question of own occupation are vitiated by perversity. Therefore, I hold that the findings of the Courts below that the petition mentioned building is required for landlord’s own use and occupation are liable to be set aside. I hold that the tenant cannot be evicted on the above ground. 21. Therefore, I hold that the findings of the Courts below that the petition mentioned building is required for landlord’s own use and occupation are liable to be set aside. I hold that the tenant cannot be evicted on the above ground. 21. It is the case of the landlord that the tenant has sub-let a portion of the building to the second respondent and that the tenant having taken the shop for running a biscuit bakery, is now using the building for different purpose. On these two grounds also the petitioner/ landlord seeks for eviction of the tenant. The revision petitioner/ tenant denies that he sub-let the building and that he is using the property for different purpose. It is the case of the landlord that the tenant is running a cool drink stall in the property. R.W.1, the tenant, has stated that the second respondent, who is his brother, was looking after the business in his absence. R.W.2, the second respondent, denies that he is a sub-tenant of the first respondent. 22. The petitioner/ landlord has clearly set out the acts of using the petition mentioned building and sub-lease in paragraphs 4 and 5 of the petition. In paragraph 4 of the petition, it is clearly stated that without the consent of the landlord, the tenant has sub-let a portion of the building to the second respondent and that the second respondent is doing Audio Cassette business under the name and style of “Roja Audio Center” and that he is also running a tea shop and that the first respondent/ tenant has been running a cool drink stall in the said shop, contrary to the terms of the rent deed. But, in the counter, it is only stated that the second respondent looks after the business of the First respondent whenever the first respondent is absent and that no part of the property was sub-leased to the second respondent. But, in the counter, it is only stated that the second respondent looks after the business of the First respondent whenever the first respondent is absent and that no part of the property was sub-leased to the second respondent. It is further, alleged in paragraph 4 that after the expiry of the lease deed, the petitioner/respondent entered into an oral lease, as per which the monthly rent was enhanced and that the petitioner agreed that the respondent could carry on any business in the premises so long as it is a legal one and that there was no restriction between the petitioner and the respondent in regard to the nature of the business to be carried on in the premises. In the above paragraph, it is not denied that Audio cassette business under the name and style of “Roja Audio Centre” is being carried on in the said premises. The fact that the second respondent is running a tea shop in the petition mentioned property is also not denied in the counter. As the tenant has not denied that he is running a cool drink stall, it has to be held that the tenant was carrying on business in cool drinks in the said premises. But it is contended by the revision petitioner/ tenant that the above cool drink stall is only an allied business for bakery and that only to attract the customers, the tenant was playing the songs in audio cassettes and that the tea stall was installed only outside the petition mentioned premises and that therefore, the tenant is not liable to be evicted on the above grounds. On the other hand, learned counsel for the respondent/ landlord contended that though there is no direct evidence to prove that the first respondent has let out a portion to the second respondent, the same can be inferred from the admitted facts and that the report of the Commissioner would prove the case of the landlord that the portion of the premises is let out to the second respondent and that the tenant/ revision petitioner was using the petition mentioned property for different purpose. The evidence adduced by the parties, on both subleasing and different user have to be considered together, since all the business are being carried on in the petition mentioned premises. 23. The evidence adduced by the parties, on both subleasing and different user have to be considered together, since all the business are being carried on in the petition mentioned premises. 23. Learned counsel for the revision petitioner relies upon the decision reported in Resham Singh v. Raghbir Singh, (1999)7 S.C.C. 263 , wherein it is held that the respondents are brothers and that it is natural to allow his brother to look after the shop and this fact would not amount to sub-letting. In V.D.Murugesan v. Raj Mohammed, (1994)2 L.W. 667 , it is held that there is no pleadings that the alleged sub-tenant is in exclusive possession and that there is no evidence that the alleged sub-tenant pays any rent to the respondent. Learned counsel for the respondent/ landlord relies upon a decision of this Court reported in Syed Maqbul v. Thangavel Chettiar, (2000)2 M.L.J. 218, wherein it is held that the landlord can prove sub-lease only from the circumstances as it is a concealed between the tenant and the sub-lessee. In another decision reported in Malliga v. A.P.Kathija Beevi and others, (1998)1 M.L.J. 302 , this Court has held that it is for the tenant to prove the circumstances under which a stranger came into occupation. 24. Coming to the plea of the landlord that the petition mentioned building was used for different user, the counsel for the revision petitioner/ tenant relies upon the decision reported in Gurdial Batra v. Raj Kumar, A.I.R. 1989 S.C. 1841, it is held that premises were let out for running cycle/ rickshaw repair shop and that sale of televisions was also carried on temporarily alongwith the repair business and that small change of user is not actionable when interest of the landlord is not prejudiced. 25. In the decision reported in A.Gurusami v. Dr.(Mrs.) A.Jacob (died), (1998)2 M.L.J. 544 : (1998)2 C.T.C. 563 , this Court has held that mere desire to use non-residential premises for lottery business would not put tenant to use same only for lottery business and not any other business. It is seen from the facts of the case that there was no written instrument evidencing the specific purpose for which the contract was entered into between the parties. Learned counsel for the respondent/ landlord relies upon a decision reported in M.Arul Jothi v. S.Lajja Bal (deceased), (2000)1 C.T.C. 687. It is seen from the facts of the case that there was no written instrument evidencing the specific purpose for which the contract was entered into between the parties. Learned counsel for the respondent/ landlord relies upon a decision reported in M.Arul Jothi v. S.Lajja Bal (deceased), (2000)1 C.T.C. 687. The Apex Court has held that change of user of business by the tenant from radio, cycle, fan and steel furniture to grocery business is in contravention of specific term of agreement. Regarding the recitals found in the lease deed, the Court was observed thus: “In the present case there is specific clause which states” shall be used by the tenant only for ... carrying on his own business .... and the tenant shall not carry on any other business than the above said business“. By the use of the words ‘only’ with reference to the tenant doing business coupled with the last three lines, namely,” the tenant shall not carry on any other business than the abovesaid business “ clearly spells out the intend of the parties which restricts the user of the tenanted premises, only for the business which is stated therein and no other”. 26. Learned counsel for the landlord relies upon a decision of this Court reported in Buhari Hotels and Hotels Private Limited v. Dr.L.Murugan, (2000)4 C.T.C. 678 . It is seen from the fact as of the above case that the property was let out originally for running a veterinary clinic and that the tenant subsequently, used the premises as a tailoring shop. On the above set of facts, this Court has held that two businesses are totally different and that there is no similarity between the two. In another case reported in B.M.A.Najira Gegum v. A.M.S.Kassim, (2000)4 C.T.C. 474 , it is seen that the building was let out for carrying on business in plastic ware and that subsequently, the tenant started business in cut piece cloth in a portion of the building. On the above set of facts, this Court has held that cut piece cloth business is neither ancillary or akin to business in plastic ware. On the above set of facts, this Court has held that cut piece cloth business is neither ancillary or akin to business in plastic ware. If the principles of law laid down in the above decisions are considered along with the admitted materials in this case, it would clearly establish the case of the landlord that the tenant was using the petition mentioned property for different purpose and that the second respondent was inducted in the property as a sub-lessee for doing tea stall business and audio cassette business etc. 27. For proper appreciation of the contentions of parties it would be useful to refer to the recitals found in the rent deed. It is not disputed that originally the tenant took the property for running a lottery agency under the name and style "Kalaimani Lottery Agency" and that subsequently, the above name was changed and the tenant was doing business under the name and style of ‘Suriya Lottery Agency". The rent deed, Ex.P-2, will show that the tenant and the first respondent entered into an agreement for the period covering from March, 1990 to January, 1991. It is recited in the above document that the tenant shall not do any other business in the above property and that the tenant shall not alter the building without the consent of the landlord. In the latest rent deed, which was entered into between the landlord and the tenant for the period covering from September, 1992 to March, 1993, it is recited that the tenant has agreed to carry on bakery business under the name "Indu Biscuit Bakery" on a monthly rent of Rs.1,300. It is specifically recited in the above document that the tenant shall not do any other business in the said property. It is further, recited that that tenant shall not make any alterations in the building without the consent of the landlord. A plain meaning of the recitals is the above documents will show that the tenant shall not do any other business except the business for which the building was demised to him. It is further, recited that that tenant shall not make any alterations in the building without the consent of the landlord. A plain meaning of the recitals is the above documents will show that the tenant shall not do any other business except the business for which the building was demised to him. Even though, there is no specific recital in the above document that the tenant shall not do any other business without obtaining the consent of the landlord, the recital that the tenant shall not make alterations in the building will show that the tenant cannot change the building for any other purpose without the consent of the landlord. Further, the recitals as to restrictions in the above document that the tenant shall not do any other business will place an embargo on the tenant for doing any business other than for which the property was demised. It is the case of the petitioner that on the same terms and conditions, the tenant was allowed to do business after the expiry of the above lease period. It is contended by the tenant that there is no restriction between the petitioner and the tenant with regard to the nature of the business. Further, the tenant has pleaded oral arrangement in the counter. It is alleged in paragraph 4 of the counter that the petitioner agreed that the respondent could carry on any other business in the property, so long as it is a legal one. It is, thus,seen that the tenant has come forward with the oral arrangement regarding the user of the property. But the same has not been substantiated by any other evidence. When there is a clear recital in the rent deed, under which the tenant took the property on lease, that he shall not carry on any other business in the premises, it is not open to the tenant now, in the absence of any other contract to contend that he is entitled to use the the property for doing other business. 28. The case of the landlord that the tenant is using the property for different purpose is also strengthened by the Commissioner’s report. The Commissioner inspected the property twice. When the commissioner visited the property on 6.7.1998, that visit was an ex parte visit. Later on 13.7.1998, the Commissioner again visited the property after giving notice to both. 28. The case of the landlord that the tenant is using the property for different purpose is also strengthened by the Commissioner’s report. The Commissioner inspected the property twice. When the commissioner visited the property on 6.7.1998, that visit was an ex parte visit. Later on 13.7.1998, the Commissioner again visited the property after giving notice to both. The Commissioner has stated that there is a Coco-Cola advertisement board wherein the words "Indu Cool Drinks" are inscribed. The Commissioner has also observed that there is a board with the words written as "Rooja Cassette Centre" and that at point ‘P’ there is another board with the words "Rooja Audio Centre". The Commissioner has also noted a table with a tea boiler and glass tumblers. At the time of his first visit, the Commissioner saw few customers drinking tea. The Commissioner has found show case containing bakery items and also a tea boiler. The Commissioner has also found 50 audio cassettes and a tape recorder. During the visit, the Commissioner saw the second accused present in the cashier table. But on the second visit, the tenant/ first respondent was present in the suit property. But the Commissioner has observed that the tea shop with boiler, tumblers etc. were removed from its original place i.e., from point ‘X’ and that only 8 audio cassettes were present in the rack and that the board is also removed. However, on the backside of the board, which was kept inside the store room, the Commissioner has noted the words “Roja Cassette Centre”. It is, thus, seen that when the Commissioner visited the property on the first occasion the Commissioner saw the user of the property for different purpose and he also noticed different name boards and also tea stall in the property. As already, stated the tenant has not denied in the counter that name boards and tea stall mentioned in the petition were not present in the premises. If the report of the Commissioner is considered along with the pleading as in the petition and the non-denial of the said fact in the counter, it will show that the petition mentioned property was utilised for different purpose other than the business for which the property was demised. 29. If the report of the Commissioner is considered along with the pleading as in the petition and the non-denial of the said fact in the counter, it will show that the petition mentioned property was utilised for different purpose other than the business for which the property was demised. 29. It is no doubt true that there is no direct evidence to prove that a portion of the property was let out to the second respondent on rent. As already stated, the fact that board “Rooja Audio Centre” and the name of the cool drink stall are found in the petition mentioned property, would establish the case of the landlord that the second respondent must have been doing other business in the said premises. We cannot expect the landlord to prove the concealed arrangement between the first respondent and the second respondent, who are said to be the brothers. 30. R.W.1, has admitted in his evidence that he took the property for doing business under the name “Indu Biscuit Bakery”. The oral arrangement pleaded by the tenant for doing other business is not substantiated by any other materials. The very fact that the Commissioner found customers taking tea during his visit, will only show that a portion of the property should have been let out for running the tea stall. The mere fact that the dte from which the portion of the property was let out to sub-tenant and the date from which the property was used for different purpose are not stated in the petition, will not falsify the version of the petitioner/ landlord and the Commissioner’s report. Even though the landlord had occasion to visit the property while going through the same street, he did not take action for evicting the tenant earlier. But the above fact will not disentitle the landlord from seeking eviction. I hold that the Rent Controller as well as the Appellate Authority have rendered a concurrent finding on the above aspect of the case. I hold that the landlord has established that the portion of the building was let out to the second respondent and the second respondent is a sub-tenant. It is also proved that the tenant contrary to the terms of the agreement, was using the property for different purpose. I hold that the landlord has established that the portion of the building was let out to the second respondent and the second respondent is a sub-tenant. It is also proved that the tenant contrary to the terms of the agreement, was using the property for different purpose. Therefore, I hold that the order of the Rent Controller and the Appellate Authority for evicting the tenant on the above grounds are not vitiated by any infirmity or perversity. Therefore, I hold that evicting even though the order of the Rent Controller for the tenant on other grounds is liable to be set aside the tenant is liable to be evicted on the ground of sub-letting and using the demised property for different user. I hold that there are no merits to admit the revision. 31. In the result, the civil revision petition is dismissed. No costs. The order of the Rent Controller, which is confirmed by the Appellate Authority, that the tenant is liable to be evicted on the grounds that the tenant has sub-let the property and that the tenant was using the property for different purposes are confirmed. Consequently, C.M.P.No.3803 of 2001 is closed. The revision petitioner/ tenant is granted three months time to vacate and deliver the property. The revision petitioner is directed to file an affidavit of undertaking to that effect within three weeks from today.