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2005 DIGILAW 1312 (MAD)

Subramaniapuram Recreation Club v. M. Devarayan

2005-08-09

M.THANIKACHALAM

body2005
Judgment : 1. The tenant, who suffered an order of eviction, at the hands of both the Courts below, concurrently, on the complaint made by the landlord that the tenant has committed or caused to be committed acts of waste, as contemplated under Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act), is the revision petitioner. 2. The respondent, claiming as the owner of the petition mentioned property, having purchased the same from its original owner, as per the sale deed dated 27.5.1965 and alleging that the same is in the occupation of the respondent in the R.C.O.P., as tenant, and that he had committed acts of waste, has filed the petition for the eviction of the tenant, which was opposed. 3. In the counter, the revision petitioner, more or less pleading ignorance prior to his assuming office of the Recreation Club, opposed the application on the grounds that the petition, as such, is not maintainable, that even assuming that the constructions on the building by the revision petitioner are true, they may not amount to ‘acts of waste, materially impairing the value or utility of the building’, and therefore, on this ground, no eviction order could be passed. 4. The Rent Controller, after recording the evidence and evaluating the same, as well as considering the defence raised that the tenancy was also, in a way, disputed, came to the conclusion that there is landlord and tenant relationship between the petitioner and the respondent in the R.C.O.P. and that the act done by the tenant amounts to an ‘act of waste’ and in this view, ordered eviction on the basis of a decision of this Court also, as per the order dated 28.9.2001, which came to be challenged before the Appellate Authority in R.C.A. No. 13 of 2001. 5. The Appellate Authority also, framing proper points for determination, came to the conclusion that the documents available, amply proved the fact that there was landlord and tenant relationship between the parties and the constructions made by the tenant, without the written consent of the landlord, would amount to ‘acts of waste’. Thus, concluding, the Appellate Authority has confirmed the eviction order passed by the Rent Controller, which is under challenge in this revision. 6. Heard both. 7. Mr. VR. Thus, concluding, the Appellate Authority has confirmed the eviction order passed by the Rent Controller, which is under challenge in this revision. 6. Heard both. 7. Mr. VR. Shanmuganathan, learned counsel for the revision petitioner, submitted that the respondent herein is not the owner of the petition mentioned property and that there is no landlord and tenant relationship between the parties and in this view, the petition, for eviction, itself, is not maintainable. It is the further submission of the learned counsel that even assuming that there existed a jural relationship, as that of a landlord and tenant, even as per the evidence of P.W.1, there is no question of ‘acts of waste, amounting to deteriorating the value of the building or impairing the value of the building and its utility’, as contemplated under Section 10(2)(iii) of the Act and therefore, the eviction order passed by the Courts below, concurrently, is against, the evidence available on record, which should be construed as perver se and in this view, certainly, the interference of this Court is a must, for setting aside the eviction order. 8. In response to the above submissions, Mr. M. Mariappan, learned counsel appearing for the respondent, would contend that it is too late for the revision petitioner to contend that there is no jural relationship, such as landlord and tenant; between the parties, because of the overwhelming documents produced before the Court, on which basis a finding has been recorded and that the acts of waste should be viewed only from the landlord’s view and not from the view point of the tenant and if viewed, even t he constructions put up by the tenant should amount to acts of waste, which were properly considered by the Courts below, followed by eviction order, which does not warrant any interference, whereas it should receive the seal of approval of this Court. 9. As rightly submitted by the learned counsel for the respondent, the submission of the learned counsel for the revision petitioner that the respondent herein is not the owner of the property and there is no landlord and tenant, relationship between the parties, appears to be baseless, against the materials available on record, that too, in the absence of any pleadings, questioning the title of the landlord, claiming right in favour of the respondent. 10. 10. It is an admitted position, as submitted before me, that the petition mentioned property originally belonged to one Periyanayagai Achi. In the premises, in the name and style of Subramaniapuram Recreation Club, a Club is functioning, which is represented by its President. When the landlord has stated that he had purchased the property from the original owner, it is for the respondent in the R.C.O.P. to deny the same, in view of the admitted position that the suit property originally belonged to Periyanayagai Achi, then claiming title in themselves, under the process known to law. A feeble attempt was made by Mr. VR. Shanmughanathan, to submit that Periyanayagai Achi, being the Member of the Club, had gifted the property to the Club, for which there is no semblance of evidence including absence of pleadings. Therefore, it is futile, at this stage, to contend that the revision petitioner is the owner of the property, on the basis of the gift by the original owner. If really there had been a gift by the original owner, nothing would have prevented the Club to plead the same in the counter, based upon the records. On the other hand, in the counter, as said above, the petitioner was put to strict proof, regarding the averments made in the petition, and no alternate case is made out, as far as ownership and tenancy are concerned. Assuming, as per the counter, that the Club was paying tax that will not take away the right of the original owner, when it is made out that the Club was inducted into possession or permitted to occupy the property, as tenant. 11. The sale deed in favour of the respondent herein viz. Ex.P-1 and the letters sent on behalf of the Recreation Club, as evidenced by Exs.P-2, P-3, P-5 and P-6 coupled with payment of rent by the revision petitioner in the Savings Bank account of the respondent herein, in the UCO Bank, as evidenced by Exs.P-4, P-7 and P-12 to P-19 and the letters sent by landlord as evidenced from Exs.P.8 and P.9, as well as the rental receipts issued by the landlord viz. Exs.P-10 and P-11, would suggest that there was landlord and tenant relationship between the parties and the same alone continues even after 1968, since it is not the case of the revision petitioner that after 1968, there was any change in the relationship of the parties as landlord and tenant. 12. The wholesale denial of the above documents by the tenant appears to be perverse, probably, aimed to disown the relationship, which cannot be accepted. When there was no dispute between the parties in the years 1965, 1966 and 1967, the then Secretary or President of the Club addressed the letter to the landlord informing the payment of rent in the UCO Bank and the UCO bank also, in turn, addressed the account holder about the credit of the rent, which are all unassailable evidence, proving the relationship of parties. Considering the above facts, established by documents, both the Courts below have, concurrently, recorded a finding, based on facts, that there exists landlord and tenant relationship between the parties, which cannot denied, at this stage. Thus, concluding, the revision petitioner is the tenant and the respondent herein is the landlord, it should be seen whether the tenant is liable to be evicted on the ground of acts of waste. 13. Section 10(2)(iii) of the Act empowers a landlord to seek the eviction of the tenant, ‘if the tenant has committed or caused to be committed such acts of waste, as are likely to impair materially the value or utility of the building’. This ground alone is projected to ‘send out the tenant from the premises, though it is stated, rent also has not been paid, for so many years, since eviction is not as such on the ground of wilful default, it is unnecessary for the Court to go into that matter, though the Courts below have strained on this issue also, unnecessarily. 14. It is for the landlord to prove that the acts, if any, committed or caused to be committed by the tenant, amounts to acts of waste. Mere acts of waste, alone, is not the ground to throw the tenant from the premises and the acts of waste must have the effect of impairing materially the value or the utility of the building and therefore, the second limb of the Section is very relevant and important to order eviction. Mere acts of waste, alone, is not the ground to throw the tenant from the premises and the acts of waste must have the effect of impairing materially the value or the utility of the building and therefore, the second limb of the Section is very relevant and important to order eviction. Unless that part is fully satisfied, such as by the acts committed by the tenant, the value of the building is materially reduced or the utility of the building is likely to impair, ordering eviction, may not be legally sound. 15. To prove the ‘acts of waste’, a Commissioner was appointed to inspect the premises, who has also filed a report, which is relied on. In addition, P.W.1 was examined. The Commissioner has stated about the availability of buildings, old and new, including new structures commenced, thereby showing the tenant has committed some act, at least constructing buildings in the vacant site available in the demised premised. 16. As per the description available in the petition, the Door Numbers are 5 and 18, which includes tiled house, and thatched house, within the stated boundaries, within the stated area. The landlord, as P.W.1, during the cross-examination has stated: Then, he says, Taking advantage of the above said evidence, Mr. VR. Shanmuganathan, the learned counsel for the revision petitioner, would contend that even as per the evidence of P.W.1, the value of the building is not impaired or the utility of the same is not affected and therefore, the eviction ordered by the Courts below, concurrently, invoking Section 10(2)(iii) of the Act, is erroneous. Taking the first part of the evidence given by P.W.1 alone, though the argument advanced by the learned counsel for the revision petitioner appears to be some what reasonable, then considering the latter portion of the evidence of P.W.1, as well as the settled, position of law on this point by the Supreme Court, it is impossible to accept the said submission, as such, thereby to set aside the eviction order. 17. In Tajudeen v. C.J. Veerabadra Chettiar and Another, 1996 TLNJ 99, this Court had taken the view, ‘removal of a partition wall, certainly, will not amount to acts of waste and on that ground eviction cannot be ordered’. 17. In Tajudeen v. C.J. Veerabadra Chettiar and Another, 1996 TLNJ 99, this Court had taken the view, ‘removal of a partition wall, certainly, will not amount to acts of waste and on that ground eviction cannot be ordered’. In A. Duraiswami v. A. Arumogam, 1997 (2) LW 346 , also, it is held by this Court that ‘for placing of a new door, unless proved it impaired the value and utility of the building, the tenant cannot, be evicted on the ground of acts of waste, as contemplated under Section 10(2)(iii) of the act.’ 18. The above two Rulings relied on by the learned counsel for the revision petitioner, may not lend any support in view of the decision rendered by the Apex Court, wherein it is stated, the impairing the value and utility of the building should be viewed from the point of landlord, not as alleged by the tenant. 19. In Gurbachan Singh and another v. Shivalak Rubber Industries and others, 1996 (2) SCC 626 , the Apex Court, while considering the meaning of Section 13(2)(iii) of the East Punjab Rent Restriction Act, 1949, and the words employed therein viz. ‘impair’, ‘impair materially’ and ‘value’, has held that ‘the same should be viewed from the point of view, of the landlord and not from the tenant’s angle’ and the relevant portion in paragraph 14 of the above judgment reads: “Thus, from the above-mentioned facts, it is clear that even if it is assumed that the tenant-respondents raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note Exs. A-l, then the rest of the construction, additions and alterations of the five shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is a relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. The nature of the construction is a relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case, the removal of the roof of the shops, partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2)(iii) of the Act. The High Court, therefore, fell in patent error in dismissing the revision in limine without going into the correct legal position involved in the case. Having regard to the facts and circumstances discussed above, we are of the firm view that this is a case which squarely falls within the mischief of the provisions contained in Section 13(2)(iii) of the Act which make the tenant-respondents liable for eviction from the demised premises.” 20. In the case involved in the above decision also, a triangular shed construction was put up, in addition to a brick staircase raising, in order to facilitate an access from the courtyard to the roof of the shed made over the demised land as a direct approach. By the above said construction, it could be said, the utility of the building is more than it was available. Despite the fact, the Apex Court has observed, the raising of the constructions and alteration of the shops and verandah in the shape of a permanent nature, will, certainly, amount to acts as have or likely to have impaired materially the value and utility of the premises let out to the tenant, which principle is squarely applicable to the facts of the case on hand also. 21. The Apex Court, once again, had the occasion to consider the materially impaired the value of the building available in Section 13(2)(iii) of the U.P. Urban Rent Restriction Act, 1949 in British Motor Car Co. v. Madan Lal Saggi (Dead) and Another, 2005 (1) SCC 8 : AIR 2005 SC 240 . 21. The Apex Court, once again, had the occasion to consider the materially impaired the value of the building available in Section 13(2)(iii) of the U.P. Urban Rent Restriction Act, 1949 in British Motor Car Co. v. Madan Lal Saggi (Dead) and Another, 2005 (1) SCC 8 : AIR 2005 SC 240 . In the case involved in the above decision, the Rent Controller framed a point ‘whether the respondent has made additions and alterations, without the consent of the petitioner and has materially impaired the value of the utility of the building in question, and answering the issue in the affirmative, concluded that the constructions made were all of such nature, so as to materially impair the value and utility of the premises, which was confirmed by the Appellate Authority, which was confirmed once aga in by the High Court, which came to be challenged before the Apex Court. The Apex Court, considering the decision in Gurbachan Singh case and also the case in Vipin Kumar v. Roshanlal Anand, 1993 (2) SCC 614 , has held that the impairment of the value or utility of the building is to be seen from the point of the landlord and not of the tenant. Therefore, if the tenant had put up any new, construction, over the demised premises, without the consent of the, landlord, then that construction, though may be an addition to the existing building, should be viewed, whether an offending construction causing some disturbance regarding the utility of the demised premises and it cannot be said as a matter of course, sin ce buildings were put up in the demised premises, that will add to the value of the building and it will not come within the meaning of ‘impairing the value of the building or utility of the building’, as the case may be. 22. In this context, as rightly submitted by the learned counsel for the respondent, we have to see the definition of ‘building’ in the Act and how the utility of the demised premises is restricted by the acts of the tenant, from the point of view of the landlord. 22. In this context, as rightly submitted by the learned counsel for the respondent, we have to see the definition of ‘building’ in the Act and how the utility of the demised premises is restricted by the acts of the tenant, from the point of view of the landlord. Section 2(2) of the Act defines ‘building’ as.— “Any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes: (a) the garden, grounds and out-houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut, (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house” Thus, it is seen, under the Act, the building includes, the grounds, if any, appurtenant to such building also i.e. the vacant site available within the demised premises. If a tenant, had taken the building on lease, including the vacant site appurtenant thereto, and had put up a building in the vacant site, without the consent of the landlord, then, from the point of landlord’s view, it impaired materially the value or utility of the building viz. restricting or preventing the usage of the vacant site by the landlord, in future, according to his desire. Even if it is removed, it amounts to additional expenses, which is an act of waste from the point of landlord’s view. 23. In the case on hand, as reported by the Commissioner and as established by the oral evidence, new constructions were made in the vacant site, which was leased out to the tenant originally, and therefore, the same should be held as an act of waste from the point of landlord’s view, as declared by the Apex Court. 23. In the case on hand, as reported by the Commissioner and as established by the oral evidence, new constructions were made in the vacant site, which was leased out to the tenant originally, and therefore, the same should be held as an act of waste from the point of landlord’s view, as declared by the Apex Court. Therefore, only taking the oral evidence of P.W.1, who had said at the first instance, that there is no change in the value of the property, it is not possible to decide that there is no acts of waste ignoring the evidence given by P.W.1 that by the construction, he is affected, in the sense that there is acts of waste preventing the utility of the building, to his desire and this also should come within the meaning of Section 10(2)(iii) of the Act. The Courts below, though have not considered all the above facts in detail, in my considered opinion, have correctly landed in a correct conclusion, ordering eviction, which requires confirmation. 24. For the foregoing reasons, the Civil Revision Petition is not meritorious and it deserves only rejection. In the result, the civil revision petition is dismissed with costs. The judgment and decree dated 14.1.2003 rendered in R.C.A. No. 13 of 2001 by the Rent Control Appellate Authority- cum -the Subordinate Judge, Devakottai in confirming the order and decree dated 28.9.2001 made in R.C.O.P. No. 35 of 1998 by the Rent Controller and the District Munsif, Karaikudi is confirmed. Time for eviction is three months.