Madras High Court
Pattaya Alias Kuppuswami Naidu And Ors. vs Rangaswamy Gounder And Ors. on 17 December, 1997
Equivalent citations: (1998)3MLJ546, 1998 A I H C 3066, (1998) 3 MAD LJ 546, (1998) 2 MAD LW 779, (1999) 1 RENCJ 198, (1998) 2 RENCR 275, (1999) 1 RENTLR 109
ORDER K. Govindarajan, J.
1. The landlords aggrieved against the order passed by the learned appellate authority, dismissing the eviction petition, have filed the above revision.
2. The landlord filed R.C.O.P. No. 5 of 1982 on the file of the learned Rent Control/District Munsif, Palani for evicting the tenants under Sections 10(2)(ii)(a), 10(2)(iii), 14(1)(b)and 10(3)(a)of the Act 18 of 1960 as amended. The tenants contested the same by filing respective counters. The Rent Controller in his order dated 29.12.1987 accepting the case of the landlords on all the grounds ordered eviction. Aggrieved against the same, the second respondent in the R.C.O.P., filed appeal in R.C.A. No. 2 of 1987 on the file of the appellate authority, Dindigul. The appellate authority accepting the case of the tenant reversed the findings of the Rent Controller, and consequently set aside the order of eviction. Aggrieved against the same, the landlords/petitioners have filed the above revision.
3. The properties in question originally belonged to one G.D. Narendra, who leased out the same to the respondents 1 to 3 in the R.C.O.P. under a registered lease deed dated 12.5.1970 for a period of five years commencing from 1.6.1970 on a monthly rent of Rs. 100. The landlords have purchased the properties under three sale deeds dated 10.9.1979, 11.9.1979 and 11.9.1979. The respondents 12 to 17 in the R.C.O.P. are the legai representatives of the deceased third respondent K. Armugha Chettiar.
4. According to the landlords, the tenants demolished the main compound wall of the building and have constructed shops and sublet the same to the respondents 4 to 11 in the R.C.O.P. without any written consent from them. So, according to them such constructions and subletting are unauthorised and so the tenants are liable to be evicted. In reply to the same, the tenants have stated in the counter that on the basis of the terms and conditions of the lease deed dated 12.5.1970, they have been authorised to enjoy the property as they like either to use the premises as boarding and lodging or by converting the same into shopping complex, and, as the vacant site also forms part of the properties, they can use the same as they like. On that basis it was alleged in the counter that only with the consent of the landlords, they put up the superstructure in the front portion of the vacant site. With respect to subletting they sought to rely on the permission given in the lease deed dated 12.5.1970 by the then landlord. They have also relied on an unregistered agreement executed by the power agent of the then landlord to submit that all such constructions and subletting have been recognised and approved in the said lease deed.
5. To appreciate case, it is necessary to extract the relevant conditions from the said lease deed which are as follows.
6. But, objecting to the reliance placed on Ex.B-6 unregistered document in favour of the tenants extending the lease, the learned senior counsel appearing for the petitioners has submitted that Ex.B-6 is an unregistered document and the genuineness of the same has not been proved. It is further submitted that, if at all, it can be used only for the collateral purpose. But, since the learned senior counsel appearing for the first respondent has not relied on Ex.B-6 to substantiate his argument, I am not deciding about the admissibility or genuineness of the said document.
7. According to the learned senior counsel, the tenants were given liberty only to use the premises as boarding and lodging, or as shopping complex in the main building, and they have not been authorised to construct any building in the vacant site available in the properties in question, and, on the other hand, they have been prohibited from making any alteration in the main building. On that basis, the learned senior counsel appearing for the petitioners has submitted that the construction of shops in the vacant site and leasing out the same to other persons amount to unauthorised subletting and so the tenants are liable to be evicted from the premises.
8. The learned senior counsel appearing for the tenants, relying on the recitals in the lease deed Ex.A-1, dated 12.5.1970, extracted supra, has submitted that they had constructed the shops in the front portion of the vacant site, only as permitted by the landlords, in the said lease deed, wherein it is specifically stated that the tenants can deal with the property as they like without making any alteration in the main building The word " " mentioned in the said lease deed, includes vacant land also, as the vacant land has been included in the schedule to the lease deed. So, it cannot be said that such constructions are unauthorised. Even according to the evidence of P.W.1, the tenants can carry on boarding and lodging as they like and also they can put up shops for leasing out the same as stated under Ex.A-1, He has also further stated in his evidence that as per Ex.A-1 the tenants can deal with the shops as they like. Moreover, the said document has specifically stated that the tenants can use the schedule mentioned properties as they like, which includes the vacant site also. There is no prohibition for construction of shops in the vacant site, though there is a specific provision made in the lease deed for alteration of the main building. The abovesaid facts would support the case of the tenants. Moreover, the lease was renewed by the landlord, which is also not disputed. Further, no objection had been raised with respect to the said constructions, made by the landlord, R.W.3, power agent of the original owner was examined to prove the intention of the then landlord. But the petitioners have not examined anybody to prove contra. In Ex. A-1 itself, as admitted, by P.W.1, the tenants have been authorised to sublet the properties. So, the appellate authority is correct in rejecting the case of the landlord, seeking eviction under Section 10(2)(ii)(a) of the Act.
9. It is the further case of the landlords that they want to demolish some portion of the premises for the purpose of construction of new building and they had applied for permission from the municipality. But, in view of the dispute between the parties, the approval of the plan by the municipality is kept in abeyance. But according to the tenants, as stated in the counter, the said requirement is not bona fide one, and it is only to get rid of the tenants. It is stated in the counter that the seller of the property is only a life estate holder, and the legal heirs of the original owner had given notice to the landlords, and so they cannot demolish the premises as claimed by the petitioners; though the petitioners have come forward with the plea that they require the premises for demolition and reconstruction, it is admitted in the evidence of P.W.2 that they have not even submitted the plan to the concerned authority. Moreover, P.W.1 does not even know as to what portion the landlords are going to demolish and for what purpose. So, the appellate authority is correct in holding that the cumulative effect of the averments in the petition in R.C.O.P. and the evidence would show that the requirement of the landlords of the premises in this regard cannot be construed as bona fide one. The landlords have not proved that the premises required demolition and reconstruction. The Rent Controller accepted the case of the landlords only on the basis that the premises is 60 years old one. He has not tested the alleged requirement of the landlords with respect to their bona fide intention. So, the findings of the appellate authority cannot be construed as erroneous or perverse. It is based on evidence available on record.
10. According to the landlords, as stated in the R.C.O.P., they want to occupy the premises after necessary demolition and reconstruction for the purpose of running the boarding and lodging and for using as residence of the second petitioner in any convenient portion of the same. Since the requirement of the landlords of the premises for demolition and reconstruction has been rejected, this ground also has to be rejected consequently. 11. The only remaining ground is whether the tenants had committed acts of waste as alleged by the landlords. According to the landlords, the tenants had demolished the kitchen portion situate in the backside of the main building and converted the same into latrine and bath room. In answer to the same, the tenants, in the counter, have stated that they have not demolished the kitchen portion of the main premises as stated in the R.C.O.P. and a separate kitchen is built by them and the latrine and bath room were additionally provided in the existing kitchen portion which is the sine qua non for running the boarding and lodging, as there were no latrine and bath room previously. According to the tenants, without latrine and bath room they cannot run the boarding and lodging for which purpose the premises has been leased out. The Rent Controller while dealing with the same, found that R.W.1 has admitted in his evidence that they have altered the kitchen portion as latrine and bath room. But it is the case of the tenants in their evidence that the alteration has been ratified under lease deed marked as Ex.B-6. The learned Counsel appearing for the tenants has submitted that though the tenants did not alter the kitchen portion which forms part of the main premises, the kitchen is located separately and that therefore they are not prohibited from altering the said kitchen portion into latrine and bath room. Unfortunately, to prove the case before the Rent Controller the tenants have not taken any steps to appoint Commissioner and no evidence is available before the court to come to the conclusion that the kitchen portion that has been altered is situated separately and not form part of the main building. But, R.W.1 in his evidence has stated as follows.
The appellate authority appreciating the evidence found that the tenants have altered the kitchen portion as bath room/toilet. The stand taken by the tenants in this regard is that they were entitled to construct bath room and toilet for the purpose of running the boarding and lodging as per the said lease deed. But we have to see, by such alteration, whether they have committed any facts of waste in the main premises, contrary to the condition stipulated in the said lease deed. It is the specific case of the landlords that the kitchen portion forms part of the premises. Even as found by the appellate authority, the tenants have altered the kitchen portion. In the absence of any evidence to accept the case of the tenants that the kitchen is located separately, and that has been altered as bath room and latrine, this Court has to accept the case of the landlords. Moreover, in the counter filed by the tenants, it is stated that they have not demolished the kitchen portion of the backside of the main building and they have separately constructed latrine and bath room in the existing kitchen. That itself shows that the tenants have altered the portion of the main premises.
12. The learned senior counsel appearing for the tenants has submitted that putting up latrine and bath room cannot be construed as acts of waste as the same will not impair the value and utility of the building. On the other hand the same will increase the value and utility of the premises. In support of his submission, the learned senior counsel has relied on the decision in Dinakaran v. Chinna Kuppuswami 99 L. W. 678, wherein the learned Judge has held as follows.
On plain reading of the above provision, it may be seen that what is envisaged is committing of acts of waste which are likely to impair materially the value or utility of the building. In other words, the act of the tenant must be such as would prejudicially affect the interests of the landlord by either lowering the value of the building or by reducing its utilitarian value for being let out for the same purpose for which it has been let out, or for allied purpose. Therefore, it goes without saying that every act of a tenant, even if it is not permitted by the landlord, will not amount to an act of waste, as contemplated under Section 10(2)(iii) of the Act. It is only a harmful act which is contemplated under Section 10(2)(iii) of the Act, namely, an act of waste which impairs materially or affects adversely the value or utility of the building.
In the abovesaid case, the tenant had replaced the worn out roof, with new roof and had replaced the mud walls and wooden pillars into brick walls and brick pillars. So, the authorities had held that the same cannot be a ground to hold that the tenant had committed acts of waste. But in this case contrary to the specific restriction in the lease deed Ex.A-1, the tenants have altered the structure in the kitchen portion and put up bath room and latrine which cannot be said that the same will hot impair the value and utility of the premises. So, the decision cited by the learned senior counsel will not support the case of the tenants. It has been held by courts that turning two rooms into one or a hall into a stable; building a new house where there was none before, pulling down a house even though it be rebuilt afterwards, are acts of waste. The Appellate Authority is not correct in holding that merely because the tenants had converted the kitchen into bath room and lavatory, the utility and value of the building has not been affected. As held by the Apex Court in Shri Gurbachand Sing and Anr. v. Shivalak Rubber Industries and Ors. (1996)2 S.C.C. 615, that has to be judged and determined from the point of view of the landlord. As submitted on behalf of the landlords, such alteration would affect the utility of the premises. In view of the above, the alteration made by the tenants in the kitchen portion cannot be construed other than the act of waste as contemplated under Section 10(2)(ii) of the Act.
13. The appellate authority, merely on the basis that the tenants have been permitted to run boarding and lodging, has decided that they are entitled to put up bath room and latrine in the kitchen portion, such an approach cannot be sustained in law, in spite of the specific restriction contained in the lease deed Ex.A-1.
14. In view of the above, though I am confirming the order of the appellate authority on the grounds under Sections 10(2)(ii)(a) and 14(1)(b) and 10(3)(a) of the Act, the order of the appellate authority, for the reasons stated above, cannot be sustained, with respect to grounds under Section 10(2)(iii) of the Act. So, the order of eviction passed by the Rent Controller, under Section 10(2)(iii) of the Act is restored. Accordingly, this revision is allowed. No costs.