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2014 DIGILAW 72 (MAD)

A. M. P. Revathi v. Subashchandran

2014-01-09

K.KALYANASUNDARAM

body2014
JUDGMENT 1. This Civil Revision Petition is directed against the judgment and decree dated 14.10.2008 passed by the Subordinate Judge, Nagapattinam in R.C.A. No.46 of 2007, reversing the judgment and decree dated 24.07.2007, passed by the District Munsif, Nagapattinam, in R.C.O.P. No.13 of 2005. 2. The petitioner is the landlady. She filed the eviction petition, in R.C.O.P. No.13 of 2005, before the Rent Controller, on the grounds of 'own use and occupation', 'act of waste' and 'different user'. The case of the petitioner is that the tenant was inducted in the petition premises, on 04.02.1993, on a monthly rent of Rs.700/-, and subsequently, the rent was increased periodically and the rent in the year 2005 was Rs.1,800/-; that the tenant had taken the petition premises for residential purpose, but, subsequently converted the premises for non-residential purpose, without her permission; that the tenant altered the petition premises, which caused impairment to the value of the building and that she requires the building for her personal occupation. 3. The tenant filed his counter contending that he had taken the petition premises for residential as well as non-residential purpose and from the year 1993, he was using one portion of the premises for office purpose, as per the lease agreement. So, it will not amount to different user. When he had taken the petition premises for lease, the building was in a damaged condition. So, with the permission and knowledge of the landlady, he had made alterations. Those alterations are only improvements to the building and they will not amount to causing impairment of the value of the building and the requirement of the building for own use and occupation is not bonafide. Hence, he prayed for dismissal of the eviction petition. 4. Before the Rent Controller, the landlady examined her Power Agent as PW1, and also marked Exs.P1 to P3. The tenant examined himself as RW1 and marked Exs.R1 to R5. 5. The Rent Controller having found that the landlady was residing at Hongkong and her husband also employed in a Bank at Hongkong and further, she is owning a building at Anna Nagar, Chennai, held that the requirement of the building by the landlady for her own use and occupation, is not bonafide. However, the Rent Controller allowed the eviction petition on the grounds of 'act of waste' and 'different user'. 6. However, the Rent Controller allowed the eviction petition on the grounds of 'act of waste' and 'different user'. 6. Aggrieved by the said judgment and decree, the tenant had filed an appeal, in R.C.A. No.46 of 2007, before the Rent Control Appellate Authority (Sub Court), Nagapattinam, who allowed the appeal holding that though the landlady proved that the building was converted for non-residential purpose, since the tenant has been using the premises for non-residential purpose from the year 1995 and the same has not been objected to by the landlady all along, she is not entitled for eviction on the ground of 'different user'. With regard to the ground of 'act of waste', the Appellate Authority held that it is the duty of the landlady to prove that the tenant had committed acts of waste, so as to impair the value or utility of the building. Since the landlady did not produce any evidence to prove the act of waste, she is not entitled for eviction on that ground also. Challenging the judgment and decree of the Rent Control Appellate Authority, the present revision petition is filed. 7. Heard Mr.R.Muthukumarasamy, learned senior counsel for the petitioner and Mr.Srinath Sridevan, learned counsel for the respondent and perused the records. 8. The learned senior counsel for the petitioner submitted that the petitioner's husband, who was working in Hongkong, has now resigned his job and he is doing business. Admittedly, the landlady is not occupying any residential building at Nagapattinam, where her parents were residing. The landlady intends to shift her residence to her parents' place. The requirement of the petition premises, for her own occupation, cannot be rejected on the ground that the landlady is now residing at Hongkong and she owns a house in Chennai. 9. The learned Senior counsel for the petitioner further submitted that though the tenant has contested the petition on the ground that there is another lease deed exists between himself and the landlady in and by which he was permitted to use the petition premises, for non-residential purpose, but, in his evidence, he has categorically admitted that Ex.P2 is the only lease agreement and there is no other agreement. Therefore, the learned Senior counsel submitted that Ex.P2 is the only lease agreement between the landlady and the tenant, which stipulates that the petition premises can be used only for residential purpose and the tenant shall not make any repair, without the written permission of the landlady. In view of the said terms and conditions in the lease agreement, the tenant is not entitled to use the premises for non-residential purpose or make alterations, without the written permission of the landlady. 10. Learned Senior counsel further submitted that the tenant in his counter specifically contended that he had taken the petition premises for residential and non-residential purpose, which stand is against the terms of agreement Ex.P2. The tenant admits that he is using one portion of the petition premises for non-residential purpose, but, his contention that there is another agreement, which allows him to use the building for non-residential purpose, was not proved by him. Thereby, the landlady, through PW1 and the evidence of the tenant, proved that the tenant uses the premises, in violation of the lease agreement and hence, she is entitled for eviction on the ground of different user. 11. The learned Senior counsel would further submit that the tenant himself admitted that he had spent more than Rs.3,00,000/- for altering and repairing the building. The tenant has also marked Ex.R1 series and Ex.R2 to show that he had spent more than Rs.3,00,000/- for that purpose. When the tenant himself admits in his counter as well as in his evidence that he had made alterations, the onus is on the tenant to prove that he made alterations with the permission/consent of the landlady. In the Rent Control Act, there is no waiver or acquiescence for the act of the tenant and therefore, whenever the landlady comes to know about the act of waste by the tenant or for different user, she is entitled to seek eviction on those grounds. Learned senior counsel submitted that the act of waste has to be seen from the point of view of the landlady. In support of his contention, the learned senior counsel relied upon the judgment of this Court in M.Salem vs Josephine Mary (2004 (1) CTC page 29). 12. Learned senior counsel submitted that the act of waste has to be seen from the point of view of the landlady. In support of his contention, the learned senior counsel relied upon the judgment of this Court in M.Salem vs Josephine Mary (2004 (1) CTC page 29). 12. Per contra, Mr.Srinath Sridevan, learned counsel for the respondent submitted that the Rent Controller has held that the requirement of the petition premises by the landlady, for personal occupation, was not bonafide, but the landlady did not file appeal challenging the said finding. Learned counsel submitted that to prove the act of waste, the landlady did not produce any evidence and she did not also seek for appointment of an Advocate Commissioner to prove the damages caused to the demised premises. The tenant had spent more than Rs.3,00,000/- and made improvements to the petition premises, which cannot be termed as damage, caused by the tenant nor the said act impaired the value of the building. The tenant had produced his ration card Ex.R3, issued for the period 1998 to 2003, and also voter I.D. Card Ex.R4, to prove that he has been residing in the petition premises. But, the Rent Controller had taken adverse inference holding that the tenant did not produce the current ration card and Voter ID card for the year 2004-2005, to prove that he is residing in the petition premises. Learned counsel further submitted that the findings of the Rent Controller were not based on evidence, but on assumptions and presumptions. So, the order passed by the Rent Controller is not sustainable in law. 13. Learned counsel further submitted that the tenant is a wholesale dealer for consumer products; that since 1988 he is running the business in the name and style of Sri Bagavathi Agencies, and he was residing and carrying on business between the year 1988 and 1993, at Dharmapuram, Mada Street, and that in the year 1993, he had taken the premises for residential and for business purpose. Admittedly, the tenant has been doing business from the year 1995; the landlady was also his neighbour all along, but, she has not objected to the use of the building for non-residential purpose and therefore, she is not entitled for eviction on the ground of different user. 14. Admittedly, the tenant has been doing business from the year 1995; the landlady was also his neighbour all along, but, she has not objected to the use of the building for non-residential purpose and therefore, she is not entitled for eviction on the ground of different user. 14. In view of the rival contentions raised by the learned counsel on both sides, at the first instance, I would like to analyze the judgments emerged under Section 10(2)(ii)(b) of the Act and the materials available on record. 15. In 1997 (1) Law Weekly 250 (Mrs.Sucharita Gunasekaran vs. Sudhir Ram Chand and another) the tenant had taken the premises for residential purpose, but he used the same as administrative office. The landlady laid a petition to evict the tenant, on the ground of conversion of building for non-residential purpose. In those facts, this Court has held that the landlady is entitled for eviction on the ground of conversion of residential building into a non-residential building. 16. In A.Yuvaraj v. B.Rajeswari and another, reported in 1989 (1) MLJ 7 , the building was let out for residential purpose, but the same was used by the tenant for playing cards. It was proved by the landlord that the petition building was used for a purpose other than that for which it was let out. In such circumstances, this Court, in paragraph No.8, has held as follows: "8. The cumulative effect of the entire evidence on record on this aspect of the matter is that the petitioner had been using the premises for playing cards and consuming liquor. This is strengthened by the evidence of R.W.2 that the petitioner had been living in Erode for two or three months prior to give evidence, leaving his premises locked. In fact, when the petitioner was asked about his shifting to Erode, he stated that he was employed in Erode at that time, but he was going from the petition premises to his place of work. In view of the specific evidence of R.W.2, the version given by the petitioner cannot be accepted. Taking the fact that the petitioner is not in occupation of the house for the past few months, along with the findings of the Commissioner, it is clear that the petition building is being used for a purpose other than that for which it was let out. Taking the fact that the petitioner is not in occupation of the house for the past few months, along with the findings of the Commissioner, it is clear that the petition building is being used for a purpose other than that for which it was let out. The petitioner is clearly guilty of using the building for a different purpose and he is liable to be evicted under S.10(2)(ii)(b) of the Act. The orders of the Authorities below are therefore, confirmed on this ground." 17. In a similar case, in T.H.Mohammed Firdous and others v. Amichand and others, (2007) 2 MLJ 946 , the building was let out for residential purpose, but the tenant contested the case stating that he took the building for residential as well as non-residential purpose. The Rent Controller found that the building was leased out only for residential purpose and the tenant was using a portion of the building, for office purpose. In such circumstances, this Court, in paragraph No.29, has held as follows: "29. Different User: The premises was let out to the respondents for residential purpose. In his evidence, R.W.1 has admitted that at the time of inception of tenancy, he was in occupation of the demised premises for residential purpose. Subsequently, the respondents have converted the same for non-residential purpose by running the business in the name "Gandhi Trading Company" in No.22, Elephant Gate, Chennai and subsequently, shifted the business to the demised premises. When the building was let out for residential purpose, using the premises for money lending amount to premises being put to different user." 18. It is seen from the records that the tenant had taken the petition premises for lease under Ex.P2-Lease Agreement. The Lease Agreement stipulates that the tenant can use the petition premises only for residential purpose and without the written permission of the landlady, he should not make any alterations. The tenant had taken a specific stand in the counter that there is one another lease agreement, which permits him to use the premises for non-residential purpose. Indisputably, the tenant did not produce the lease agreement and on the other hand, in his evidence, he categorically admitted that Ex.P2 is the only lease agreement between himself and the landlady. When the lease agreement is only for residential purpose, the tenant is not entitled to convert the premises for non-residential purpose. Indisputably, the tenant did not produce the lease agreement and on the other hand, in his evidence, he categorically admitted that Ex.P2 is the only lease agreement between himself and the landlady. When the lease agreement is only for residential purpose, the tenant is not entitled to convert the premises for non-residential purpose. As per the evidence of the tenant, there is a name board as "Sri Bagavathy Agencies", in the petition premises and he has been using a portion of the premises for non-residential purpose. In view of the positive evidence, referred above, Exs.R3 and R4 viz. ration card and voter ID card, will not improve or help the case of the tenant. So, in the light of the judgments of this Court and the material evidence on record, I am of the view that the petitioner/ landlady is entitled for eviction on the ground of 'different user'. 19. As far as the ground of 'act of waste' is concerned, it is seen from the records that the tenant has produced Exs.R1 and R2 to substantiate his contention that he had made alterations to the petition premises and it was done only with the permission of the landlady. Ex.P2 Lease Agreement specifically stipulates that without the permission/consent of the landlady, the tenant shall not make any alterations. Hence, the tenant without the written consent of the landlady, is not entitled to make any alteration to the petition premises. Ex.R1 and Ex.R2 are only purchase receipts, which would show that the tenant purchased materials for making alterations to the building. But, the tenant did not produce any documentary evidence to prove his case that the landlady gave her consent, for making such alterations in the petition premises. 20. At this juncture, it is worthwhile to refer to the judgment of this Court in M.Salem vs Josephine Mary reported in 2004 (1) CTC page 29, wherein this Court has held that in the absence of any evidence to show that the tenant had taken the permission of landlady, for making alterations, it is difficult to construe the provisions of the Act beneficially, in order to give protection to the tenant and the 'act of waste' should be seen from the point of view of the landlord. Paras 15 and 16 of the judgment are usefully extracted hereunder: "15. Paras 15 and 16 of the judgment are usefully extracted hereunder: "15. While considering what is an act of waste, the Rent Control Authorities are not concerned with whether these alterations facilitate the tenant to carry on his business more effectively. The only question is whether those modifications or alterations will damage the building and impair the material value and utility of the building and as held in M.Shanmugam v. C.Kannabiran and another, 1996 (2) LW 322 , it should be seen from the point of view of the landlord. Here, the petitioner admits that he has done all those acts. The acts by their very nature would certainly affect the building materially. The petitioner maintains that they are necessary for his business. This is irrelevant. The petitioner claims he had the respondent's consent. This is incorrect. According to the petitioner the above acts will improve the value of the building. It is not his view that is relevant. Originally, there was a single building which was divided into two viz., Door No.341 and 343. There is no dispute that the two premises are quite small and adjacent to each other and therefore, all the acts of waste will affect the entire building. In addition, there is evidence to show that the arches of Door No.341 was also removed. However, as regards this, learned counsel for the petitioner would submit that admittedly, the removal of the arch took place in 1992. Even if the removal of the arch is ignored, it is seen that the balcony of Door No.341 is damaged and as stated all the so called improvements will affect the utility of the both buildings. Therefore, it is clear that the act of of the petitioner have caused considerable damage to the building. 16. The petitioner seems to be under the impression that because he has taken the building on lease, it is open to him to deal with the premises as he pleased. In this case, evidence shows that each act has dome something permanent to the wall or the building. It is very difficult to accept that these are trivial in nature and can be ignored or that the alteration is minimal. As regards acquiescence, it is clear that the respondent had made it known to the petitioner that she has strong objection to the unilateral and highhanded action of the petitioner. It is very difficult to accept that these are trivial in nature and can be ignored or that the alteration is minimal. As regards acquiescence, it is clear that the respondent had made it known to the petitioner that she has strong objection to the unilateral and highhanded action of the petitioner. She has filed the suit. She has lodged a police complaint, she has again gone personally to the petition premises and objected to it only to receive verbal abuse. When the buildings are being damaged by the tenant on the ground that these acts are necessary for him to carry on his Fast Food business, when there is absolutely no evidence to show that he had taken the permission of landlady for doing these acts, it is difficult to construe the provisions of the Act beneficially in order to give him protection." (Emphasis supplied) 21. In view of the judgment referred to supra, the contention of the tenant that he had spent more than Rs.3,00,000/- for making improvements to the building and the same will not impair the value of the building, cannot be accepted. As per the lease agreement Ex.P2, the tenant cannot make any alteration, without the written permission of the landlord. The tenant, in violation of the lease agreement, made alterations. Therefore, I am of the view that the landlady is entitled for eviction of the tenant on the ground of 'act of waste.' 22. In the light of the emphatic pronouncements referred to supra, coupled with material evidence on record, this Court is satisfied that the landlady has made out a case for eviction of the tenant on the grounds of 'different user' and 'act of waste'. Since this Court is inclined to allow the petition on the aforesaid grounds, the other ground urged, viz. 'own use and occupation' need not be gone into. 23. The learned Rent Controller, on the basis of evidence, has rightly held that the tenant committed the 'act of waste' and converted the petition premises for non-residential purpose and ordered eviction on both the grounds. The learned Appellate Authority, without properly analyzing the evidence, reversed the well founded judgment of the Rent Controller, warranting interference in revision. 24. In fine, the judgment and decree dated 14.10.2008 passed in R.C.A. No.46 of 2007 are set aside and the Civil Revision Petition is allowed. No costs.