Madras High Court
S.P. Sabapathi Pillai vs M. Durga on 19 March, 1994
Equivalent citations: AIR1995MAD13, AIR 1995 MADRAS 13, (1995) 2 RENCJ 617 (1995) 1 RENCR 252, (1995) 1 RENCR 252
Author: Pratap Singh
Bench: Pratap Singh
ORDER
1. This Civil Revision Petition is directed against the order passed in R.C.A. 332/92 on the file of Appellate Authority (IV Judge, Court of Small Causes, Madras), in which the learned Appellate Authority had allowed the appeal and set aside the order in RCOP. 1462/88 passed by the Rent Controller (XVI Judge, Court of Small Causes, Madras) and thereby had allowed the petition.
2. Short facts are :
The respondent has filed RCOP. No. 1462/88 against the petitioner for eviction under Section 10(2)(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (which I shall hereafter refer to as 'the Act'). The allegations in it are briefly as follows:--
The respondent is a tenant of the petitioner in respect of non-residential building bearing Door No. 9/1, Srinivasa Road, T. Nagar for the purpose of running a hotal on a monthly rent of Rs. 400/-. The respondent was carrying the hotel business under the name and style of "Vijayalakshmi Tiffin Centre". In the second week of April, 1988, after her return from Vijayawada, the petitioner was surprised to find the business of cool drinks bar in the demised premises. Without the written consent of the petitioner, the respondent has put the premises for a purpose other than that for which it was let out. Hence he is liable to be evicted.
3. The respondent has resisted the claim on the following grounds:--
The tenancy is admitted. The respondent denies that the purpose of letting and user is for running a hotel only. The letting was for non-residential user of the premises. The tenancy commenced even during the life time of Mukundala Narayana, since dead. The tenancy commenced in or about 1976. The portion taken for tenancy is the hall, an adjoining kitchen and the rear portion of No. 78. Mukundala Narayana treated it as two tenancies viz., the tenancy in respect of the hall and the adjoining kitchen as one in favour of the respondent and that of the rest of the portion in favour of the respondent's wife, Nagammal. The receipt dt. 29-9-76, mentions only about-the letting out as a shop viz., for non-residential user and the letting out by him to the respondent is not for the purpose of running only a hotel business. With the permission of Mukundala Narayana, the respondent got separate line for electric supply for the said portions. Since then, he is carrying on his hotel business under the name and style of "Vijayalakshmi Tiffin Centre." and also a pan shop, selling Aerated water, biscuits and other things.
4. On the oral direction of Mukundala Narayana, the rent for the hall and kitchen was being paid to the petitioner. After the death of Mukundala Narayana, the respondent has been a tenant under the petitioner only in respect of the hall bequeathed to her under the Will executed by Mukundala Narayana. The tenancy is continuing. The petitioner filed RCOP. NO. 2714/84 under Section 14(1)(b) of the Act. It was dismissed as she withdrew the same. Now she has come forward with this petition for eviction on the ground of different under. Since the petitioner and other claimants arc fighting over their rights, the drawing of water from the well in the portion of property now owned by the other wife of Mukundala Narayana is denied to the petitioners. The respondent is not a in a position to continue the hotel business. He enlarged his business, a pan shop and fancy goods, retaining the hotel portion for resuming his hotel business, as and when he gets the water connection. The respondent denies that any business of cool drink bar is carried on in the premises. Even under the terms of tenancy, with Mukundala Narayana, he is entitled to use it for any business and not for the purpose of hotel only. Hence dismissal of this petition is prayed for.
5. After enquiry, the learned Rent Controller had dismissed the petition. On appeal, the Appellate Authority, after hearing both sides, had allowed the appeal. Aggrieved by the same, the respondent in the trial court has come forward with this revision Petition.
6. Mr. R. Subramanian, the learned counsel appearing for the petitioner, would submit that from the beginning, apart from hotel business, there was a small petty shop also that at any rate there was no different user of the property and the appellate authority was wrong in holding so. Per contra, Mr. G. Subramanian, the learned Senior Counsel appearing for the respondent, would submit that the hotel is no longer there that the present user is definitely for a different user and the Appellate Authority was correct in holding that the tenant used it for a purpose different than the purpose for which it was let out and the order of eviction passed by the appellate authority is perfectly in order.
7. I have carefully considered the submissions made by the learned counsels. For the purpose of convenience, I shall refer to the parties, as they were arrayed in the trial court. The definite case set forth in the petition is that the premises was let out to the tenant for the purpose of running a hotel and that the tenant was carrying on hotel business under the name and style of "Vijayalakshmi Tiffin Centre". It is her definite case that in April, 1988, when she returned from Vijayawada, she was surpirscd to find the business of cool drink bar in the premises and then the tenant had put the premises for the purpose other than that for which it was let out and therefore liable to be evicted. The case set out by the tenant in his counter is that the letting out was for non-residential user of the premises. So far this tenancy is concerned, the demised premises is the hall and the adjoining kitchen. That has been stated in Para 4 of the Counter. Then he has stated that the receipt dated 29-9-76. mentioned only about the letting out as a shop viz., for non-residential user and the letting out was not for the purpose of running only a hotel business. It is also stated that the respondent has been carrying on the hotel business under the name and style of Vijayalakshmi Tiffin Centre' and also a pan shop, selling aerated water, biscuits and other things. So we have to see whether letting out was only for hotel business or for non-residential user; and that the hotel as well as the pan shop was there right from the beginning. The petitioner as P.W. 1, has stated that from 1977 to 1983, the respondent was running a hotel and that in 1983, he sought her permission to run an arrack shop that she gave permission for 11 months that again in 1984, he again sought permission for running arrack shop and she did not agree for the same and so from 1984, he was running the hotel till April, 1988 and then he started the business of cool drinks and betelnut shop in the demised premises. The respondent, who figured as R.W. 1, would admit in cross examination that initially he took the demised premises and two other portions on lease from Mukundala Narayana and that in the portion belonging to the petitioner, he had been selling eatables. He would admit that the petition mentioned portion is having a measurement of 35' x 13'. He would also admit that at the beginning in the very premises, he prepared tiffin and was selling it by placing tables in front of that portion. It was also elicited from him that even during the lifetime of Mukundala Narayana he was running a hotel and he was running the tiffin centre till 1987. He would admit that only during a period of one year, the arrack shop was in the premises. For that, P.W. 1. had given permission, as has been staled by her. From the above admission, it would be clear lhat right from the beginning, he was running only hotel business in the petition mentioned premises up to 1987.
8. Regarding the present position it was elicited from him that in the portion belonging to the petitioner with an extent of 35' x 13' he is conducting the beielnut shop. He would also admit that even now the board with name Vijayalakshmi Tiffin Centre' is there; but he is not selling any tiffin; but he is selling betelnut, Cigarettee and soft drinks. He would also admit that he is selling soap, comb, hair oil etc., He would also state that in 1987. the petitioner gave premission for doing business in these articles. These answers given by him would imply that he was not doing business in these articles prior to it. Otherwise, the occasion for getting a permission for selling these articles would not arise at all. It is also pertinent to note that in the counter filed by him, he had not put forth any case that he got permission from the petitioner to sell these articles.
9. Mr. R. Subramanian. would draw my attention to the answer elicited from P.W. 1, that she does not know for what put pose her husband let out the premises and that would show that she does not know about the purpose for which it was let out and her case that it was let out only for hotel business, cannol be accepted This answer cannot be laken by itself. It has to be considered along with the other evidence available in this case. The admissions which I have pointed out made by the respondent would go to show that only hotel business was there in the premises right from the beginning up to 1987, Mr. R. subramanian,, would also rely UPOn the answer elicited from her that betelnut shop was there in 1983 at the time when it was let out for arrack shop. So far as that period is concerned, it was done with the prior permission of the petitioner. She has admitted that in 1983, when he put up the betelnut shop, she did not object to it. Evidently because she gave permission to the arrack shop, she did not object to it. That answer would not help the respondent. Ex. Rl, is the letter given by the petitioner to the respondent, permitting him to sub-let the portion to any one to carry on the business in arrack. During that period, it was under the occupation of the subtenant. The evidence which I have pointed out above would show that the premises was let out for hotel business and il had been used as such till 1988 by which time it was used for a different user viz., selling of cool drinks and betelnut. There is no consent obtained from the petitioner for using for the said purpose, leave alone the written consent.
10. In Kannappa Nadar v. Krishna-swamy Pillai, 1981 1 MLJ 19 (sic), Justice Ratnam (as he then was), held that in the absence of any permission in writing from the landlord, the question whether the landlord will be precluded from seeking an order for eviction on the ground of acquiescence was considered in T.O.S. Abdul Khader v. G.H. Rao, (1964) 77 LW 503, and it has been held therein that any kind of acquiescence by the landlord of estoppel by his conduct cannot be a substitute for the plain requirement of the statute about a written consent and in the absence of such writien consent, the landlord is entitled to evict a tenant for having used the building for a purpose other than the one for which it was leased out.
11. In Sant Ram v. Rajinder Lal, , the facts are :
A Harijan Cobbler, was a lessee of a small portion of a shop in Simla. The lease deed disclosed no purpose. The landlord, respondent, filed a petition for eviction on the ground lhat the premises were being used for a purpose other than the one for which they were let out. The tenant, on some days cooked his food and stayed at night in the arear portion of the shop. It was held that il could not be held that the purpose was exclusively commercial and incompatible with any residential use, even of a portion. The legal inference to be drawn from a lease deed was conditioned by the prevailing circumstances. The intention of the parties from which the purpose of the lease was spelled out was to be garnered from the social milieu. It was further held that a different 'purpose' in the context is not minor variations but majuscule in mode of enjoyment. This was not a case of a man switching over to a canteen business or closing down the cobbler shop and converting the place into a residential accommodation. Mr. R. Subramanian, would submit, on the strength of the above ruling, that in the above case even stay and cooking food in the premises was not held to be of a different user and so in the instance case, it is, to be construed that there was no different user. I am unable to accept this submission for the reason that the facts in the above case are totally different from the facts of this case. In the instant case, on facts, I have found that the entire premises is now occupied by the petty shop, selling the various articles mentioned supra; whereas originally the entire premises was used only for hotel business and now there is no fotel business at all. Mr. R. Subramanian, would further rely upon Gurdial Batra v. Raj Kumar, . In that case, the premises was let out for running of a cycle and rickshaw repairing shop. Sale of televisions was also carried on temporarily in the premises along with repair business. It was held that small change of user not actionable when interest of landlord is not prejudiced and it was not change of user. In this case, the sale of televisions was carried on temporarily. Secondly, it was done along with the repair business, for which it was taken. Those two elements are absent in the instant case. In Mohan Lal v. Jai Bhagwan, , the eviction was sought on the ground of different user. Originally the premises was used for liquor vending. Since the lincence was not renewed, he had discontinued that business and had to start the business of general merchandise. According to the tenant, the purpose of the user still remains commercial and that in the rent note, there was no clause prohibiting the appellant to change to any other business in the shop in dispute. It was held that the change of user would not cause any mischief or detriment or impairment to the shop in question and in one sense it could be called, an allied business, in the expanding concept of departmental stores and that there was no change of user in that | case. In the instant case before me, I am unable to hold that the present purpose for which it was used can be called an allied business.
12. My discussion above would go to show that the finding of the lower appellate court is that the tenant is using the premises for a purpose other than that for which it was leased, is correct and I find no ground to interfere with the same. Consequently this revision fails and shall stand dismissed. The petitioner is given four months time to vacate the premises.
13. Petition dismissed.