Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 3869 (MAD)

S. S. Samath Ali v. U. Chenniah

2011-09-05

K.MOHAN RAM

body2011
Judgment :- 1. The petitioner in the above Civil Revision Petition is a tenant under the respondent herein in respect of the portion of the building bearing Door No.106/37 Pulianthope High Road, Pulianthope, Chennai – 600 012. The respondent herein filed RCOP No.2157 of 2005 before the Rent Controller / learned XIII Judge, Court of Small Causes, Chennai, under Section 10 (2) (i) and 10 (2) (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, Act 18 of 1960 as amended by Act 23 of 73 and Act 1 of 1980 (hereinafter referred to as "the Act") seeking eviction of the petitioner on the ground that he had committed wilful default in the payment of rents and putting the tenanted premises to different user. 2. The petition was contested by the petitioner herein contending that he had not committed default in the payment of rents and even, according to the respondent / landlord, the tenant had disconnected the telephone connection and he had got written consent from the landlord for obtaining the telephone connection and to run a PCO. 3. Before the Rent Controller, on the side of the respondent / landlord, he was examined as P.W.1 and Exs.P-1 to P-13 were marked and on the side of the petitioner / tenant, the tenant was examined as R.W.1 and Exs.R-1 and R-2 were marked. The leaned Rent Controller, on a consideration of the entire evidence on record, both oral and documentary, rejected the prayer of the landlord seeking eviction for wilful default in the payment of rents by holding that there is no default in the payment of rents, but however, the Eviction Petition was allowed on the ground that the tenant had put the tenanted premises to different user. Being aggrieved by that, the petitioner preferred an appeal before the appellate authority in RCA No.770 of 2006. The learned Appellate Authority / VIII Judge, Court of Small Causes, Chennai, dismissed the appeal and confirmed the order of eviction. Being aggrieved by that, the tenant has filed the above Civil Revision Petition. 4. Heard the learned counsel on either side. 5. The learned Appellate Authority / VIII Judge, Court of Small Causes, Chennai, dismissed the appeal and confirmed the order of eviction. Being aggrieved by that, the tenant has filed the above Civil Revision Petition. 4. Heard the learned counsel on either side. 5. Learned counsel for the petitioner submitted that it is the specific case of the respondent / landlord that the shop was taken by the tenant for running a betulnut shop, but he obtained a PCO telephone connection from Chennai Telephones by forging the signature of the respondent and a complaint was lodged before the Police and during enquiry, he escaped from the Police Station and thereafter, the petitioner disconnected the PCO facility; when that was the specific case of the landlord and when admittedly the PCO connection was disconnected even before the filing of the RCOP, there was no cause of action for the landlord to file a petition seeking eviction on the ground that the tenant had put the tenanted premises for different user. He further submitted that though it has been alleged in the petition that the signature of the landlord was forged to obtain the PCO connection as the same had not been established by acceptable evidence, both the authorities below have rejected the said contention. By referring to the language used in Section 10 (2) (ii) of the Act, the learned counsel submitted that even if the tenant had put the premises to different user and unless the different user continues atleast till the date of the eviction petition, the petition is not maintainable and as admittedly, in this case, the telephone connection had been disconnected even before the filing of the eviction petition, there is no cause of action for the landlord to file the eviction petition. He further submitted that even assuming that there was cause of action for filing the petition, it cannot be contended that the PCO connection obtained by the tenant will amount to a different user as admittedly he was running a betulnut business also and the PCO telephone connection is not occupying a substantial portion of the premises let out to the tenant; the portion occupied by the PCO is only a trivial part of the premises let out and therefore it will not amount to putting the premises to different user. He further submitted that the existence of the PCO would not prejudice the landlord in any way and therefore the authorities below erred in ordering eviction on this ground. In support of his said contentions, the learned counsel based reliance on the following decisions:- i. 1970 (2) Supreme Court Cases 290 (M.K.P.CHETTIAR v. A.P.PILLAI); ii. 1958 MLJ 617 (GOPAL STORES v. ARUNACHALA NAICKER); iii. AIR 1989 SC 1841 (GURDIAL PATRA v. RAJKUMAR JAIN). 6. Countering the said submissions, the learned counsel for the landlord / respondent submitted that when admittedly the tenant had obtained PCO telephone connection and changed the user of the tenanted premises without the consent of the landlord and thus had violated clause (3) of the tenancy agreement, which is marked as Ex.P-3, itself will establish the fact that the tenant had put the tenanted premises to different user; the fact that the PCO connection was subsequently disconnected and that too even before filing of the Rent Control Petition will not relieve the tenant from the liability to be evicted from the premises. He further submitted that the existence of the PCO telephone connection attracts number of public to come to the premises which will affect the tenanted premises and thus the landlord's interest is prejudiced. He further submitted that a reading of the provisions contained in Section 10 (2) (ii) of the Act does not contemplate that the telephone connection should occupy a substantial portion of the building; whether it occupies a substantial portion or even a trivial part of the tenanted premises, it will amount to putting the tenanted premises to different user. He further submitted that both the authorities below have carefully considered the entire evidence on record and rightly applied the correct principles of law and therefore the orders does not warrant any interference. 7. I have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record. 8. It is not in dispute that the findings of the authorities below, as far as wilful default is concerned, has obtained finality and the landlord has not question the said findings either before the authorities below or before this Court. The only question that arises for consideration in this Civil Revision Petition is as to whether the petitioner / tenant had put the tenanted premises to different user by installing a PCO telephone connection. The only question that arises for consideration in this Civil Revision Petition is as to whether the petitioner / tenant had put the tenanted premises to different user by installing a PCO telephone connection. As seen from paragraph 8 of the Eviction Petition, the PCO connection obtained by the tenant had been disconnected even before the RCOP was filed. Therefore the question that arises for consideration is as to whether the landlord had the cause of action to file the RCOP. 9. As pointed out above, the contention of the learned counsel for the petitioner / tenant is that since admittedly the PCO connection had been disconnected even before the filing of the RCOP, there was no cause of action for the landlord to initiate Eviction Proceedings, but on the contrary, the contention of the learned counsel for the respondent is that it is not necessary that the PCO connection should continue to be there in the tenanted premises till the filing of the RCOP. 10. It will be useful to refer to Section 10 (2) (2) of the Act, which reads as follows:- "10. Eviction of tenants. - ... (ii) that the tenant has after the 23rd October, 1945 without the written consent of the landlord - (a) transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so, or (b) used the building for the purpose other than that for which it was leased, or...." 11. Learned counsel for the petitioner submitted that the relevant words which are to be considered are "has sub-let". According to the learned counsel, the present perfect tense contemplates a completed event connected in some way with the present time. The words take within their sweep any sub-letting which was made in the past and has continued upto the present time. According to the learned counsel, since admittedly the PCO telephone connection had been disconnected and the same had not continued till the filing of the RCOP, there was no cause of action to file the petition under Section 10 (2) (ii) of the Act, but according to the learned counsel for the respondent, since Section 10 (2) (ii) (a) and (b) of the Act are penal provisions as they visit the violator with punishment of eviction, the same should be construed strictly. 12. 12. In the decision reported in 1980 (1) MLJ 218 (M.Yusuf Zulaika v. Abdul Khader) at page 222 it has been observed as follows:- "On the harmonious construction of the clauses all that is required is that subsequent to 23rd October 1945 the tenant should have sub-let to the premises without the written consent of the landlord. Once this requirement is satisfied, the tenant forfeits his protection and become liable to be evicted and the statute does not impose any further condition that the sub-letting must be continuing throughout the entire course of eviction petition." Therefore this Court is of the considered view that when the aforesaid provisions are penal in nature they should be construed strictly. In this case, admittedly, the tenant had obtained PCO connection without the consent of the landlord and has thus has violated clause-3 of the rental agreement, Ex.P-3, which clearly states that the tenant can only run the betulnet business and not other business and therefore the contention of the learned counsel for the petitioner that there was no cause of action for filing the petition cannot be countenanced. 13. The other question that remains to be considered is as to whether the installing of the PCO connection in the tenanted premises where the tenant is permitted to run the betulnut shop will amount to putting the tenanted premises to different user. In this context, it is relevant to refer to the decisions relied upon by the learned counsel for the petitioner. 14. In the decision reported in 1970 (2) SCC 290 (referred to supra) the question that arises for consideration was when the premises was letout for trade purpose only, but a small portion of it was found to be used for residential purpose as well, whether it will amount to breach of the terms of the lease and will amount to putting the premises to different user. While answering the said question the Hon'ble Supreme Court has held as follows:- "4. ... When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. ... When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had no justification to interfere." Thus it is clear that when admittedly a part of the premises, which was let out for non residential purpose, was used for residential purpose and that did not occupy a substantial part of the building, the Hon 'ble Apex Court has held that it will not amount to different user. In this case, admittedly, only a PCO connection had been obtained by the tenant which will occupy only a trivial part of the tenanted premises and not a substantial part of the tenanted premises and therefore the contention of the learned counsel for the petitioner is well founded and this Court is of the view that the installing of the PCO connection by the tenant will not amount to putting the tenanted premises to a different user. This aspect has not at all been considered by the authorities below. 15. Learned counsel for the petitioner also relied upon a decision of this Court reported in 1958 MLJ 617 (referred to supra). In that case, the premises was let out for selling betel leaves, but the tenant used the premises for selling crackers during Deepavali season and the landlord filed the Eviction petition and the question was as to whether it will amount to different user. The learned Judge held that so long as the purposes of the original tenancy is not changed by the user and there is no question of abandoning the old business and starting a new business, the mere fact of doing side business, during particular season, cannot be construed as putting the premises to a different user. Thus, in that case, the tenant was also using the premises for selling crackers during festival season and thus it was a seasonal business and only in that context, the learned Judge held that it will not amount to putting the premises to different user. The facts of that case are totally different from the facts of the present case and hence the said decision is not applicable to the facts of this case. The facts of that case are totally different from the facts of the present case and hence the said decision is not applicable to the facts of this case. 16. The other decision which was relied upon by the learned counsel for the petitioner is reported in AIR 1989 SC 1841 (referred to supra). In that decision, the premises was let out to the tenant for running a cycle and rickshaw repairing shop, but the tenant was also selling TV business side-by-side and therefore, as contended by the landlord, he has put the tenanted premises for different user. While considering the said question, on a consideration of the number of decisions, ultimately the Supreme Court was of the view that the carrying on the business of Television did not constitute any change of user so as to give a cause of action to the landlord to seek eviction of the tenant. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable. Relying on the said decision, the learned Judge has held that so long as the interest of the landlady is not prejudiced a small change in the user would not be actionable. In this case also, it is the admitted case of both the parties that the tenant, as agreed to in Ex.P-3, is still running betulnut shop, but had in addition obtained a PCO telephone connection and was running the same for sometime and thereafter got it disconnected. The said obtaining of PCO telephone connection will not in any way prejudice the interest of the landlord / the respondent herein and therefore the obtaining of the PCO telephone connection by the tenant will not be actionable. This aspect has also not been considered by both the authorities below. 17. For the aforesaid reasons, the eviction orders passed by the authorities below are set-aside and the Civil Revision Petition stand allowed. However, there will be no order as to costs. Consequently, the connected MPs are closed.