Madras High Court
Dhavamani vs Radhkrishnan Chettiar on 10 February, 2004
Equivalent citations: (2004)1MLJ705
ORDER S. Sardar Zackria Hussain, J.
1. The unsuccessful landlord before the learned Rent Control Appellate Authority who got an order of eviction before the learned Rent Controller on the grounds of wilful default in payment of rent from May 1995 till the date of filing of the Rent Control Original Petition, that the petition premises has been used for a purpose other than for which it was leased and that the requirement of the petition premises for additional accommodation is bona fide.
2. The landlord filed Rent Control Original Petition under Section 10(2)(i), 10(2)(ii)(b) and 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as "the Act") that the respondent is the tenant of the petition non-residential premises bearing door No.20, Ramamada Street, Kaspa Thiruthuraipoondi Town from the year 1970 on a monthly rent of Rs.30/- and the rent was enhanced subsequently and the rent payable at the time of filing of the said petition is Rs.300/- per month in which the respondent was carrying on tea shop. In September, 1982, the respondent shifted his business and was running cycle company, vegetables, fruits and sarpath (rh;gj;) business and also bakery and lottery ticket business though the landlord did not give consent. The rent sent for the month of May, 1995 was refused and returned by the landlord, since he did not give his consent for the respondent to run the bakery in the petition shop. The respondent has been carrying on business in the name of "Rusi bakery". The respondent caused lawyer notice on 3.7.1995 to name the bank to which the revision petitioner did not reply. The respondent has not been paying the rent from May, 1995 onwards and as such committed default wilfully in payment of rent. The respondent also filed O.S.No.241 of 1995 in District Munsif Court, Thiruthuraipoondi for permanent injunction that his possession should not be disturbed. The interim injunction obtained in I.A.No.1136 of 1995 in that suit was vacated. The advocate-commissioner appointed in I.A.No.1137 of 1995, inspected the petition shop and filed report mentioning the business carried on by the respondent, as such, it is clear that the respondent used the petition premises for a purpose other than for which it was leased. The revision petitioner residing with his family consisting of his wife, five daughters and son and the entrance to the house was through the petition shop. The house, in which the revision petitioner is living with his family, is not sufficient and the petition shop, which is situated in the same building, is of asbestos cement sheet roof and the house, in which the revision petitioner residing, is R.C.C. terraced building. The western mother wall of the petition shop is the wall for the kitchen of the revision petitioner's house and if an entrance is constructed in the above wall, the revision petitioner can use the petition shop for residential purpose of his family. The respondent is owning a tea shop near bus stand, besides site for construction of shops near new bus stand. The respondent also owning 4 shops in the ground floor and four room on the upstairs portion of R.C.C. building within town limit in the road leading to Muthupet.
3. The petition was resisted by filing counter admitting the tenancy and the quantum of rent at Rs.300/- per month at the time of filing of the petition. It is also admitted that the respondent is the younger brother of the revision petitioner's mother and that he was assisting her sister in the business run by her and that he entered as a tenant in the year 1968 under his sister. Further, it is denied that the petition shop was originally residential portion of the house in which the revision petitioner is residing with his family. It is further stated that the respondent was carrying on business in the sale of tea and coffee for about 15 years and then shifted his business by carrying on business in the sale of fruits in one portion and petty shop in another portion which was not objected to by the revision petitioner, by obtaining licence. Thereafter, he was running cycle company and then in sale of fruits and vegetables and then in sale of lottery tickets which was not objected to by the revision petitioner. The rent sent by money order for the month of May, 1995 was refused and returned by the revision petitioner and so, the respondent caused lawyer notice on 3.7.1995 to name the bank to which the revision petitioner did not reply. The rent sent on 17.7.1995 by money order for the months of May and June, 1995, was also refused. Thereafter, the respondent filed petition in R.C.O.P.No.4 of 1996 under Section 8(5) of the Act and he has filed lodgment schedule periodically to deposit the rent in the petition, since no order was passed, the rent could not be deposited. The respondent is carrying on bakery business in the petition shop. It is denied that the respondent is delaying though admitted to vacate the petition premises. The petition shop is of asbestos sheet roof building and the house of the revision petitioner is of R.C.C. terraced building and as such, they are different buildings and therefore, the revision petitioner cannot seek the petition shop for additional accommodation. The revision petitioner was carrying on tailoring shop in the name of "Jothees Tailor" and by making suitable alteration in the house by demolishing the entrance in Ramamada Street. The revision petitioner also extended the shop in which he was carrying on business in Thiruvarur Road by annexing the same with the portion of his house and let out the same to one "Padma Fancy Store" by obtaining heavy advance amount. Further, he has also put up four shops and the upstairs portion in Ramamada Street and let out to four persons. Hence, the requirement sought for on the ground of additional accommodation is not correct. The petition shop is situated near the bus stand and that in that area the respondent does not own any property. It is further stated that if he is evicted from the petition shop, much hardship would be caused to him, in that it would be difficult for him to collect the loan amount due.
4. Before the Rent controller, the revision petitioner examined himself and one Gnanasekaran as P.W.2 and marked Exs.A-1 to A-17 and the respondent examined himself as R.W.1 and marked Exs.B-1 to B-17. The learned Rent Controller considering such evidence let in on either side, found that the respondent has committed willful default in payment of rent as claimed by the landlord, that the respondent used the petition shop for a purpose other than for which it was leased and that the requirement of the petition shop for additional accommodation is bona fide and therefore on all the three grounds, ordered eviction. The learned Rent Control Appellate Authority in the appeal set aside the findings of the learned Rent Controller and on that basis, dismissed the Rent Control Original Petition by allowing the appeal. The judgment is under challenge in this Civil Revision Petition.
5. The learned counsel for the revision petitioner argued that though the rent sent for the month of May, 1995 was refused by the landlord, and also not furnished particulars naming the bank for deposit of the amount by replying the notice sent by the tenant, the respondent did not take steps immediately for depositing the rent in the Court as contemplated under the Act and it is only after filing of the Rent Control Original Petition No.3 of 1996 on 31.1.1996 claiming rental arrears from May, 1995, the tenant filed the petition R.C.O.P.No.4 of 1996 under Section 8(5) of the Act on 28.2.1996 seeking to deposit the rental arrears of Rs.2,100/- and as such, the respondent herein committed default willfully in payment of rent. As regards the claim of the landlord that the respondent used the petition premises for a purpose other than for which it was leased, the learned counsel for the revision petitioner pointed out that it is admitted by the respondent/tenant in the counter as well in his evidence that he was changing the business periodically and that finally he is carrying on business in bakery without obtaining prior permission of the landlord and as such, the tenant is to be evicted on that ground. As regards the additional accommodation, the learned counsel for the revision petitioner contended that inasmuch as the petition shop and the house of the revision petitioner are situated in the same building and if the western mother wall of the shop is removed then the petition shop can be annexed with the house of the revision petitioner and can be put to residential purpose of the revision petitioner and his family consisting of his wife and five daughters and son. In this regard, the learned counsel also pointed out paragraph 15 of the counter, in which, the respondent has admitted that the landlord reduced the area of occupation in the house and as such, the requirement of the petition shop for additional accommodation is bona fide. As regards the relative hardship, the learned counsel for the revision petitioner also pointed out that inasmuch as the respondent owns a shop, if he is evicted from the petition shop, no hardship would be caused to him whereas if the additional accommodation is not ordered, great hardship would be caused to the revision petitioner, who is living in the house of the same building with his wife, five daughters and son without sufficient space. The learned counsel for the revision petitioner also relied on the decision reported in 2000-2 Law Weekly 699 (T.Gopalsamy and another - v. - R.Ranganathan and others), in which, this Court has observed:-
"Even in cases where deposit is made under Section 8(5) of the Act, law stipulates that the rent will have to be deposited as and when it becomes due. So far as respondents are concerned, when they invoked provisions of Section 8(5) of the Act, deposit in lump cannot absolve them of their liability to be evicted on the ground of default in payment of rent.
When landlord refuses to receive rent and also does not name the bank, and even refuses to receive money order, tenant is enabled to deposit rent in Court and Court receives the amount on behalf of landlord. Court when acting as agent of landlord and deposit is made, is treated as payment to landlord himself. The court can be called as an agent only when the conditions are satisfied. Tenant is also deemed to be absolved from all the liabilities when he satisfies all the conditions. Any deposit made not complying with Section 8(5) of the Act and deposits made in courts where litigations are not pending, cannot be treated as valid deposit."
The other decision relied on by the learned counsel for the revision petitioner is Kuthalingam - v. - Jahir Hussain reported in 1997 M.L.J. 496, in which it is held:-
"It is not for the tenant to dictate terms and to say that the portion now asked for additional accommodation is inadequate or insufficient for the purpose of carrying on business or for living purpose."
6. The learned counsel for the respondent strenuously argued that inasmuch as the revision petitioner refused to receive the rent sent by money order for the month of May, 1995 as well the rent sent for the months of May and June, 1995 and also refused to name the bank by replying the notice caused by the respondent, by filing petition R.C.O.P.No.4 of 1996 under Section 8(5) of the Act the tenant has deposited the same in the said petition and as such, there has been no default much-less willful default in payment of rent as claimed for the month of May, 1995 and that even before filing counter in the R.C.O.P.No.3 of 1996, the respondent/tenant filed petition R.C.O.P.No.4 of 1996 under Section 8(5) of the Act for depositing the rent of Rs.2,100/- as early as on 26.2.1996. As regards the different user, it is argued for the respondent that there was no agreement when the respondent entered as a tenant under the revision petitioner's mother, who is the sister of the respondent, that he should carry on business in tea shop only. It is also argued that the respondent was carrying on business in the sale of tea and coffee for about 15 years and then shifted his business by carrying on business in the sale of fruits in one portion and petty shop in another portion which was not objected to by the revision petitioner. Thereafter, he was running cycle company and then in sale of fruits and vegetables and then in sale of lottery tickets which was not objected to by the revision petitioner. At the time of filing of the Rent Control Original Petition, the respondent was carrying on business in the name of "Rusi Bakery" and as such the eviction sought for on that ground is not justifiable. As regards the additional accommodation, the learned counsel for the respondent/tenant contended that the petition shop and the house of the revision petitioner in which he is residing with his family are situated in different building and therefore, the revision petitioner cannot seek the petition shop for additional accommodation for the purpose of residential use by annexing the same with his house. The learned counsel also relied on the decision reported in 1990 T.L.N.J. 122 (T.M.Ramaswamy Gounder - v. - Ranganayaki) wherein this Court held:-
"Tamil Nadu Buildings (Lease and Rent Control) Act, Section 10(2)(i(b) - eviction petition on ground of - demised premises for non-residential premises purpose - case of tenant purpose not specified - onus on the landlord to prove the purpose for which premises was let out."
The other decision relied on by the learned counsel for the respondent is Hindustan Petroleum Corporation Limited, Bombay - v. - Saravanan reported in 1997-II M.L.J. 33 in which it is held:-
"For Section 10(3)(c) to be applicable, the structure or building must be occupied by both landlord and tenant. It is the occupation by both landlord and tenant in one structure that is contemplated under Section 10(3)(c). It is not the ownership of the building that matters. Even if the landlord happens to be the owner of two adjoining buildings, that will not come under section 10(3)(c)."
7. The respondent is maternal-uncle of the revision petitioner and it is admitted that he became a tenant under the revision petitioner's mother and the rent payable at the time of filing of the Rent Control Original Petition was Rs.300/- per month. It is also not in dispute that the rent sent by money order for the month of May and June, 1995 was refused. Hence, the respondent caused lawyer notice under Ex.A-13 on 3.7.1995 requesting to name the bank with the account number of the revision petitioner, so that, monthly rent can be deposited every month in the said account by the respondent. The respondent filed O.S.No.241 of 1995 as can be seen from Ex.A-1, a plaint copy, in that suit, that he filed that suit on 8.8.1995 for permanent injunction that his possession as tenant should not be disturbed. The respondent filed R.C.O.P.No.4 of 1996 on 26.2.1996 under Section 8(5) of the Act seeking for depositing the rent including the rental arrears of Rs.2,100/- payable for the months of May 1995 to November, 1995 and also seeking permission to deposit the future rent as can be seen in Ex.A-9. It is stated that since no order was passed by the Rent Controller permitting to deposit the rental arrears as well the future rent, the rental amount was not deposited by the tenant. The revision petitioner filed R.C.O.P.No.3 of 1996 subject matter of this Civil Revision Petition on 29.1.1996 in which the respondent filed counter on 5.7.1996. Despite the fact the respondent filed R.C.O.P.No.4 of 1996 under Section 8(5) of the Act seeking deposit of the rent into Court, viz., rental arrears to the tune of Rs.2,100/- for the months of May to November, 1995 and also future rents, admittedly no amount was deposited in the said petition, since it was not ordered by the Rent Controller in the lodgment schedule for depositing the rent. Therefore, it is clear that the respondent did not deposit the rental arrears for the months of May, 1995 to November, 1995 as sought for by the revision petitioner, in the R.C.O.P.No.4 of 1996 filed under Section 8(5) of the Act as well the future rents. As such, it is clear that the respondent has committed default in payment of rent which is willful, in that there have been supine indifference and callousness on his part in non-depositing the rent every month in the said R.C.O.P.No.4 of 1996.
8. The advocate-commissioner appointed in O.S.No.241 of 1995 has filed his report under Ex.A-7 stating that when he inspected the petition shop on 8.8.1995, he found that the respondent herein was carrying on business in the sale of lottery tickets and the shop is of asbestos sheet roof. It is in evidence that the respondent carrying on business in bakery at the time when the Rent Control Original Petition was filed and that previously he was carrying on business of tea shop and then cycle shop. In fact, P.W.1 also admitted in his evidence that the petition shop could have been let out to the respondent by his mother to carry on any business. It is also admitted by him that for about 10 years, the respondent was carrying on tea shop and thereafter he was doing business by periodically changing the business and it was not objected to by the revision petitioner. Hence, in view of such business carried on by the respondent by periodically changing and which was not objected by the revision petitioner, it cannot be said that the respondent used the petition shop for a purpose other than for which it was leased.
9. As regards the additional accommodation, it is the evidence of P.W.1 that he is residing with his family in the upstairs portion and he leased the shops adjacent to the petition shop to some others and previously he was residing in the R.C.C. terraced building. It is also his evidence that he was residing in the back portion of "Padma Fancy Store" and also front portion and he leased the residential portion to "Padma Fancy Store". P.W.1 also admitted in his evidence that his father carried on oil business in the petition shop and his father died in 1959, thereafter, the shop was looked after by his mother who also died in 1976. The petition shop is the front portion of his house. It is stated by P.W.1 in his evidence that he is residing on the south of the petition shop along with his wife, two daughters and son and that if a wall is constructed to the petition shop, it can be annexed with the house of the revision petitioner.
10. The respondent as R.W.1 has stated in his evidence that the property on the south and west of the revision petitioner's house belonged to the revision petitioner and in the western side, the revision petitioner has been residing with his family. It is admitted that by demolishing the southern wall of the petition shop, and by making necessary alteration, the same can be annexed to the upstairs portion of the petitioner's house in which the revision petitioner is residing with his family. In view of such admission of the respondent, it is clear that if the southern wall of the petitioner's house which is the western mother wall of the petition shop is removed, the same can be annexed with the house in which, the revision petitioner is residing with his family in the upstairs portion consisting his wife, two daughters and his son at the time when he gave evidence. There is no evidence on the side of the revision petitioner with regard to the area occupied by him in the upstairs portion and as to how many rooms in the said portion, so as to say the said accommodation is not sufficient for his family consisting of his wife, two daughters and son at the time when he gave evidence. Therefore, it cannot be said that the requirement of the petition shop for additional accommodation for the purpose of annexing the petition shop with his house to use the same for residential purpose is bona fide, in that there is no evidence on the side of the revision petitioner about the availability of the space and rooms in the upstairs portion in which he is residing with his family, even assuming, it can be said that the petition shop can be annexed with his house by removing the wall as set out above. In that view, the requirement of the petition shop for additional accommodation cannot be said to be bona fide.
11. Therefore, the revision petitioner is entitled for eviction only on the ground of willful default in payment of rent as claimed and the eviction sought for on the grounds that the petition shop was used for a purpose other than for which it was leased and for additional accommodation is not justified.
12. In the result, the Civil Revision Petition is allowed ordering eviction only on the ground of willful default setting aside the judgment and decree dated 14.10.1998 made in R.C.A.No.6 of 1998 on the file of the learned Rent Control Appellate Authority, Nagapattinam.