Madras High Court
C.Venkatesh vs M/S.Vel Beds on 18 August, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2010
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(NPD).Nos.889 and 890 of 2006
1. C.Venkatesh
2. M.V.Vivekanand
3. Vidya Balachander .... Petitioners in both the petitions
vs.
M/s.Vel Beds
rep.by its Partner Kandasami
Coimbatore ... Respondent in CRP NPD
No.889 of 2006
1. M/s.Tip Top Southern Bonanza
rep.by its partner Mr.Md.Kasim
2. B.Md.Kasim
3. Mrs.Rahmath Kasim
4. M/s.Vel Beds rep.by its
partner S.Kandasamy
5. S.Kandasamy
6. P.A.Shanmugam ... Respondents in CRP NPD.
No.890 of 2006
PRAYER:
Civil revision petitions filed against the common judgment and decrees dated 19.12.2005 passed by the learned Principal Subordinate Judge, (Rent Control Appellate Authority), Coimbatore, in R.C.A.Nos.70 and 71 of 2005 in confirming the fair and decreetal order dated 05.04.2005 passed by the learned District Munsif (Rent Controller), Coimbatore in RCOP Nos.102 and 111 of 2003.
For Petitioners : Mr.AR.L.Sundaresan, Senior counsel
in both the for M/s.AL.Gandhimathi
petitions
For Respondent : Mr.M.Md.Ibrahim Ali
in CRP NPD No.
889 of 2006 and
for RR4 to 6 in
CRP NPD No.890
of 2006
For R1 to R3 : No appearance
in CRP NPD No.
890 of 2006
COMMON ORDER
Animadverting upon the common judgment and decrees dated 19.12.2005 passed by the learned Principal Subordinate Judge, (Rent Control Appellate Authority), Coimbatore, in R.C.A.Nos.70 and 71 of 2005 in confirming the fair and decreetal orders dated 05.04.2005 passed by the learned District Munsif (Rent Controller), Coimbatore in RCOP Nos.102 and 111 of 2003, these two civil revision petitions are focussed by the landlords.
2. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these two revision petitions would run thus:
(i) The revision petitioners/landlords filed the RCOP No.111 of 2003 seeking eviction of the respondents/tenants, initially on the grounds of sub-letting and change of user by invoking Sections 10(2)(ii)(a) and 10(2)(ii)(b) of the Tamil Nadu Buildings Lease and Rent Control Act (hereinafter referred to as the 'Act' for short) and subsequently got the RCOP amended by incorporating the additional two grounds, viz., default in payment of rent and act of waste by invoking Sections 10(2)(i), and 10(2)(iii) of the Act. The matter was contested.
(ii) Whereas the respondents/tenants filed the RCOP No.102 of 2003 under Section 8(5) of the Act seeking permission to deposit the rent in court.
(iii) During the joint enquiry, on the side of the revision petitioners/landlords, P.Ws.1 to 3 were examined and Exs.P1 to P30 were marked. On the side of the respondents/tenants, R.Ws.1 and 2 were examined and Exs.R1 to R12 were marked and the Court documents Exs.C1 and C2 also were marked.
(iv) Ultimately, the Rent controller allowed the RCOP No.102 of 2003 filed by the tenants for deposit of rent in court and dismissed the RCOP No.111 of 2003 filed by the landlords rejecting all the grounds.
(v) Aggrieved by the orders of the Rent Controller, the landlords preferred appeals in RCA.Nos.70 and 71 of 2005, for nothing but to be dismissed.
(vi) Being aggrieved by and dissatisfied with the orders of both the courts below, these two revisions have been filed by the landlords more on less on similar grounds.
3. Heard both sides.
4. The learned senior counsel for the revision petitioners, placing reliance on the grounds of revision would develop his arguments, the warp and woof of them would run thus:
(i) Both the courts below fell into error in ignoring the factum of the premises having been sub-let by the original partners, viz.,B.Md.Kassim and Mrs.Rahmath Kasim (R2 and R3 herein) in favour of two persons viz., Kandasamy and Shanmugam (R5 and R6 herein). Even as per Ex.R7, a sum of Rs.20 lakhs was paid by the said Kandasamy and Shanmugam in favour of the original partners, which demonstrates that they sold their business in favour of the aforesaid two persons and thereby it tantamounts to sub-letting the demised premises. But both the courts below failed to address themselves to the relevant facts and apply the correct proposition of law and accordingly, their findings are perverse.
(ii) The tenant himself invoked Section 8(5) of the Act and sought permission to deposit the rent. Whereupon , the Rent Controller ordered that petition with a direction that a sum of Rs.35,125/- per month should be paid, taking into account the subsequent development to the effect that the landlords filed the RCOP for fixation of rent and in that the Rent Controller fixed the fair rent in a sum of Rs.35,125/- per month. In fact as against such fixation of fair rent, appeal was filed only by the landlords for enhancement of the rent fixed by the Rent Controller. In the meantime, the tenants accepted the fixation of fair rent i.e.,Rs.35,125/- fixed as fair rent per month and for about 10 months, they were also depositing the same in court. Subsequently, they once again committed default in paying the rent and that they were not even regular in paying the sum of Rs.8,000/- per month as earlier agreed between the parties.
(iii) As such, there were ups and downs in the quantum of rent paid by them in addition to they being irregular in making payment of the same and it clearly amounted to willful default. But the courts below failed to take into account those features and committed error in holding as though there was no willful default in paying rent by the tenants. The Appellate authority assumed as though there were huge advance amounts available with the landlords and that consequently, no default in payment of rent could be attributed as against the tenants. Without giving any calculation as to how much alleged amount of advance was adjusted towards arrears of rent etc. and that too in the absence of when there were no pleadings relating to advance and adjustment of advance, the appellate authority decided erroneously the appeal.
(iv) Even though the partnership was earlier doing admittedly the business in fancy goods, subsequently, they unauthorizedly switched over to doing business in pillows and beds and that amounts to change in user warranting interference of this court.
(v) But the Rent Controller and the Appellate Authority in their findings, felt that there was no change in user.
(vi) The tenants also unauthorizedly and highhandedly removed the very stair case to the mezzanine floor in the demised premises and it was a gross act of waste, which lowered the value as well as the utility of the building. But the courts below simply held as though removal of the stair case in no way lowered the value of the building or dwarfed the utility of the building. As such, the findings of both the courts below are totally against the well established principles of law.
(vii) The learned senior counsel for the landlords also would submit that even pending litigation the rents were not paid regularly and that would exemplify the conduct of the tenant in committing default in payment of rent.
Accordingly, the learned senior counsel for the landlords would pray for allowing both these revisions.
5. Per contra, in an attempt to torpedo and pulverise the arguments/contentions as put forth on the side of the landlords, the learned counsel for the respondents/tenants would advance his arguments, which could tersely and briefly be set out thus:
(a) It is an admitted fact that the landlords even though very much relied on the original lease agreement, which emerged between the landlords and the tenants, they had not chosen to file the same before the court and mark it due to the obvious reasons that had they produced the original lease agreement then that would have exposed the landlords.
(b) It is an admitted fact that the landlords and the tenant viz., the original partnership under the name and style M/s.Tip Top Southern Bonanza agreed that the tenant could change it partners and the only requirement was that the landlords should be put on notice of such change and no prior permission or consent is contemplated under the lease agreement. When such is the position, mere change in the constitution of the partnership by new partners entering into the partnership and the old partners retiring, would not amount to sub-letting. Mere payment of Rs.20 lakhs by the new partners in favour of the old partners would not enure to the benefit of the landlords to argue that there was sale of the business itself .
(c )From 1976 onwards, the original partners viz., R2 and R3 started the business in fancy goods and they had been doing it for several decades and only in recognition of their good effort and by way of settling their accounts the said sum was paid and not by way of purchasing their business by the new partners. In such a case, the arguments as put forth on the side of the landlords are untenable.
(d) Even though admittedly, the learned senior counsel for the landlords might try to project as though there was default in payment of rent by the tenants, there is nothing to display and demonstrate that there was wilful default in paying the earlier agreed rent of Rs.8,000/- per month.
(e) During the pendency of the RCOP No.111 of 2003, even though the additional ground of willful default was got incorporated by the landlords, actually there was no wilful default at all. In fact, in the typed set of papers, the calculation details relating to payment of rent into court do not reflect the true picture and there are also mistakes in it. However, the tenants did not commit any default at all in paying the rents anterior to the filing of the RCOP. After the fixation of fair rent by the Rent Controller, the tenants no doubt accepted the fair rent fixed in a sum of Rs.35,125/- per month and for about 10 months they paid the said fair rent also. But it was the landlords who preferred RCA for enhancement and ultimately, the appellate authority set aside the order of the Rent Controller and remitted the matter back to him and thereafter the tenant stopped paying the higher rent of Rs.35,125/- per month.
(f) As against the order of the Appellate authority in that RCA a separate revision in CRP NPD No.888 of 2006 was filed and in that this court set aside the order of the Appellate authority and remitted the matter back to him for considering it by himself afresh. Hence, in such a case, the very non-payment of rent in this process cannot be construed as willful default at all. Both the courts below taking into consideration the pros and cons of the matter, held that there was no willful default.
(g) The appellate authority taking into account the evidentiary aspect of the matter held that huge amount was available with the landlords towards advance and in such a case, it would not lie in the mouth of the landlords to raise their accusative finger as though there was willful default. As such, the finding of the Appellate authority that there was no willful default warrants no interference.
(h) Regarding change of user is concerned, the original agreement which the landlords suppressed would clearly contemplate that the tenants were permitted to use the premises for conducting business and there was no restriction at all. In such a case, any business, which is not illegal can be undertaken by the tenants.
(i) Here, originally, the tenant M/s.Tip Top Southern Bonanza was carrying on business in fancy goods and subsequently, they switched over to the business of selling pillows and beds, which are not at all in any way injurious to the premises or contrary to the terms and conditions of the lease agreement and as such the findings given by both the courts below warrants, no interference.
(j) Regarding the plea of act of waste is concerned, both the courts below placing reliance on the oral and the documentary evidence clearly held that mere removal of the stair case and that too, which was in a dilapidated condition, would not amount to causing loss in the value of the building or lessening the utility of the building and accordingly the said findings of the courts below also warrant no interference by this court.
(k) The power of the revisional court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act is limited and unless there is any perversity or illegality in passing the orders by the courts below, the question of interfering in the revision would not arise.
Accordingly, the learned counsel for the tenants pray for dismissal of both the revisions.
6. The point for consideration is as to whether there is any perversity or illegality in the findings given by the courts below that there was no sub-letting; that there was no willful default; that there was no change of user and that there was no act of waste on the part of the tenants, warranting interference by this court in these revisions?
IN RE SUB-LETTING:
7. Regarding the plea of sub-letting is concerned, at the outset itself, I would like to point out that indubitably and indisputably, the landlords agreed that there could be change in constitution of the partnership but the only requirement was that the landlords should be put on notice about such change. In this case, the learned counsel for the tenants inviting the attention of this court to the documentary evidence, without any fear of contradiction, would convincingly and correctly point out that whenever there was change in the constitution of the partnership, the landlords were put on notice and the landlords also recognised the same and there is no question of sub-letting would arise. However, the learned senior counsel for the landlords would submit that the alleged re-constitution of the partnership is nothing but a ruse to camouflage and conceal the actual sale of the business by the original two partners in favour of the alleged two new partners viz., Shanmugam and Kandasamy.
8. The learned senior counsel for the landlords would invite the attention of this court to Ex.R7, the retirement deed of M/s.Tip Top Southern Plaza and the relevant portion is extracted here under for ready reference:
"6. The parties of the First part have received a sum of Rs.20,00,000/- (rupees twenty lakhs only) from the parties of the second part in liew of their retirement from the firm in full and final settlement of goodwill, in the said partnership asset. Consideration of good will is being paid vide State Bank of India, City Branch, Coimbatore vide Bankers cheque No.750493 and 750492 dated 24.03.2003 for Rs.17,00,000 & Rs.3,00,000/- drawn in favour of B.Mohamed Kasim and S.Rahmathunnisa respectively."
(emphasis supplied) Placing reliance on the aforesaid excerpt the learned senior counsel for the landlords would develop his argument to the effect that the very clause would display and demonstrate that the original partners received a sum of Rs.20 lakhs not by way of getting their dues payable after settlement of accounts but only towards goodwill and that evinces and expatiates that they sold the good will of their business to those two newly inducted persons and it tantamounts to sub-letting the premises.
9. Whereas the learned counsel for the tenants would submit that from 1976 onwards the original partners were doing the business and only in token of honouring their commitment to the business such amount was paid and that was also by way of settling the dues in their favour and not by way of purchasing the goodwill from them.
10. The distinction sought to be made by the learned counsel for the tenants is one between tweedledum and tweedledee, between six of the one and half a dozen of the other and not the one between chalk and cheese. If really the original partners had wanted to induct new partners and retire, then accounts should have been taken as on the date of their retirement and in token of settling their dues payable to the old partners, such amount should have been paid to them. But the wordings as extracted supra would display and convey that they virtually sold their goodwill in favour of their new partners.
11. Trite the proposition of law is that a retiring partner is not entitled to any consideration towards the goodwill of their business because the concept of inducting new partners and proceeding with the partnership would connote and denote that the good will would be automatically used by the new partners in conducting the business. But if the retiring partners are getting quid pro quo for their good will then it would amount to retiring partners selling their business in favour of the new partners.
12. Accordingly, if viewed it amounts to sub-letting and it is not a case of mere change of the constitution of the partnership as per the agreed terms of the lease. As such, the courts below fell into error in not taking into account the niceties of law involved in this case and simply held as though the original two partners retired after inducting the two new partners, viz., Shanmugam and Kandasamy.
13. In my considered opinion, the findings arrived at by the courts below without taking into account the law and applying to the existing facts would amount to nothing but perversity and illegality, warranting interference by this court in these revisions.
14. I would like to fumigate my mind with the following two decisions of the Honourable Apex Court relating to the revisional power of the High Court under Section 25 of the Act.
(i) JT 2000 (SUPPL.3) SC 83 D.RADHAKRISHNAN AND ANOTHER VS. M.LOORDUSWAMY & OTHERS, certain excerpts from it would run thus:
"5. The requirement of Section 14(1)(b) of the Act for the purpose of demolition and reconstruction has been considered and dealt with elaborately by a constitution Bench of this Court in the case of Vijay Singh & Ors. v. Vijayalakshmi Ammal (JT 1996(9) SC 408 = (1996) 6 SCC 475). The only question that arises for our consideration is, whether the findings arrived at by the Rent Controller and affirmed by the appellate authority, could have been interfered with by the High Court in exercise of revisional jurisdiction under Section 25 of the Act. Though the power of revision of the High Court under Section 25 cannot be held to be similar to the power of civil court under Section 115 C.P.C.,but at the same time, the same cannot be held to be conferring appellate power on the High Court. The High Court is only required to examine and satisfy, whether the procedure followed by the forum below is regular or not and whether there has been any illegality or impropriety of the decisions arrived at.
6. . . . . . While exercising revisional jurisdiction, to find out illegality with the findings or illegality of any procedure, it was not open to reappreciate the evidence, in the light of the object of the Act. In that view of the matter, we set aside the impugned order of the High Court and affirm the decision of the Rent Controller as affirmed by the appellate authority. Respondent No.1 is granted six months' time to deliver the vacant possession of the premises to the landlord subject to the usual undertaking being filed in this Court within four weeks from today. The appeals stand disposed of accordingly."
(ii) 2001(2) CTC 95 VALLAMPATI KALAVATHI V. VAJI ISMAI, certain excerpts from it would run thus:
"11. . . . The finding recorded by the High Court in the revisional proceedings amounts to taking a view different from those recorded by the Forums below on the evidence available on the record. Was this permissible within the purview of the revisional power vested in the High Court under Section 22 of the Act? The said section reads as follows:
"22. Revision: (1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.
2) The costs of and incident to all proceedings, before the High Court under sub-section (1), shall be in its discretion."
12. As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expression 'legality', 'regularity' or 'propriety' are undoubtedly wider than mere correction of jurisdictional error. But even such regional power cannot be exercised to upset the concurrent findings of fact recorded by the Forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the material."
15. A mere poring over and perusal of the above excerpts, including the whole judgments would amply make the point clear that even though this Court, while exercising its jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act is having more revisional powers than the revisional powers under Article 227 of the Constitution of India or under Section 115 of the C.P.C. yet it cannot assume the role of an appellate Court, which is the last Court of facts. Unless there is perversity or gross illegality, the question of interfering in revision under Section 25 of the Act would not arise.
16. Here my discussion supra would demonstrate and display that there was total non-application of the correct provision of law relating to sub-letting in analysing and interpreting the evidence and that alone warranted interference.
IN RE WILLFUL DEFAULT IN PAYING RENT:
17. In respect of the willful default is concerned, the learned senior counsel for the landlords inviting the attention of this court to the additional typed set of papers at page Nos.129 to 131 would develop his argument that from 16.06.2003 onwards, the tenants deposited rent at the rate of Rs.8000/- per month and from 23.02.2005 onwards the tenants started depositing the fair rent fixed in a sum of Rs.35,125/- per month and as such for 10 months, they were paying the enhanced rate of Rs.35,125/- per month and from 14.09.2006 onwards once again the tenants reverted back to the old rate of rent at Rs.8000/- per month in depositing the rent.
18. The learned counsel for the tenants as set out supra would reiterate his point by pointing out that because of the order passed by the appellate court in setting aside the fixation of fair rent by the Rent Controller, there were some apparent inconsistency in paying the rent and in fact it would not amount to willful default.
19. At once I would agree with the learned counsel for the tenants that there was upsetting of the decision of the rent controller by the appellate authority, relating to fixation of fair rent. But this is a singularly singular case, in which the tenants after the rent controller fixed the fair rent in a sum of Rs.35,125/-, candidly and clearly, supinely and categorically stated that they were ready and willing to pay the said rent fixed by the rent controller and they also did not opt to prefer appeal. However, it is the landlords who preferred the appeal for getting enhanced the fair rent fixed. When such is the position the tenants should have paid the arrears of enhanced rent of Rs.35,125/- per month calculating the past arrears with effect from 2000 onwards, so to say, the year in which the RCOP for enhancement of rent was filed.
20. Indubitably and indisputably, admittedly and unarguably, the tenants in this case did not choose to pay the said arrears of rent calculating the monthly rent at the rate of Rs.35,125/- per month and for that absolutely there is no iota or shred, shard or miniscule, jot or scintilla extent of explanation forthcoming from the side of the tenants as to what actuated and galvanized the tenants not to calculate the arrears at the rate of Rs.35,125/- per month from 2000 onwards and deposit the same into court. Further more, even from the date of fixation of fair rent the entire arrears till the disposal of the RCA was not paid by the tenants, let alone the other arrears.
21. As such, I could see considerable force in the submission made by the learned senior counsel for the landlords that there was willful default on the part of the tenants in paying rent. The matter would have been different had the tenants also preferred appeal before the appellate authority disputing the fixation of fair rent.
22. Trite the proposition of law is that unless finality is achieved in the process of fixing fair rent the landlord cannot raise his accusative finger as against the tenant that the tenant committed default in paying the fair rent fixed by the Rent Controller. But here, to the risk of repetition and pleonasm, but without being tautologous, I would like to point out that peculiarly the tenants themselves came forward with a plea that they agreed to pay the fair rent fixed by the rent controller, but only for 10 months as stated supra they paid such fair rent. Even though ever since 2000, till the appeal was disposed of in the year 2005, a period of almost five year and more was involved, yet actually the rent paid at the rate of Rs.35,125/- per month was only for 10 months and as such, that would constitute willful default on the part of the tenants.
23. The learned counsel for the tenants would submit that consequent upon the appellate authority having setting aside the order of the Rent controller in fixing the fair rent, everything got obliterated and the question of calculating the rent at any point of time at the rate of Rs.35,125/- per month would not arise at all. However, subsequently, this court in CRP NPD No.888 of 2006 set aside the order of the appellate authority and remitted the matter back to the appellate authority itself to consider the correctness of the fixation of fair rent instead of sending it back to the Rent Controller.
24. No doubt, the non payment of the fair rent at Rs.35,125/- per month after the order in the RCA, cannot be found fault with by the landlords. But the point is that up to the disposal of the RCA by the Appellate authority, there were willful default in payment of fair rent and that would not automatically get obliterated in the facts and circumstances of this case. Further more, the learned senior counsel for the landlords also invited the attention of this court to the oral and documentary evidence and highlighted and spotlighted correctly and convincingly the fact that the tenants were not regular in making payment of even that sum of Rs.8000/- per month, during the pendency of the proceedings from the year 2003 onwards and that is also borne by documentary evidence.
25. The contention of the landlords is that there were no pleadings relating to advance.
26. At this juncture, I recollect and call up the maxim- Judicis est judicare secundum allegata et probata It is the duty of a judge to decide according to facts alleged and proved.
27. However, the said maxim is not, with rigor, applicable to the proceedings under the Rent Control Act, even though it is applicable to ordinary civil proceedings. However, there should be at least some averments, which would act as a bed rock for either of the parties in the rent control proceedings to adduce evidence.
28. Here, in the counter filed by the tenants, there was no reference to payment of advance to the landlords. However, the learned counsel for the tenants would submit that in the course of evidence, the court was informed about the payment of advance. However, the learned senior counsel for the landlords would submit that even in the evidence, no such facts are found exemplified, but the appellate authority some how simply referred to advance amounts etc.
29. In para No.21 of the judgment of the appellate authority, the appellate authority held that a sum of Rs.25,000/-; Rs.50,000/- ; plus Rs.4 lakhs were all paid by the tenants to the landlords with the understanding that, it should be adjusted at the rate of Rs.1000/- or Rs.2,000/- as the case may be from the rent. The appellate authority also went to the extent of pointing out that the said sum of Rs.4 lakhs was treated as paid by the tenants to the landlords in view of the former having spent the amount for improving the demised premises etc. There should have been pleading regarding those vital facts. Even otherwise, there is nothing to indicate that those advance amounts if adjusted towards huge arrears from the year 2000 onwards, that would nullify the plea of willful default. The huge arrears, if calculated from the year 2000 onwards, then the said advance amount of Rs.4,75,000/- would be a mere pittance. The appellate authority also in the same para would quantify the alleged availability of advance with the landlords only in a sum of Rs.1,20,000/-, and not even in a sum of Rs.4,75,000/-.
30. I am at a loss to understand as in which manner the calculation was made or what methodology was adopted by the appellate authority in adjusting the alleged advance amount with the arrears in arriving at the conclusion that there was no willful default in payment of rent.
31. The rent controller's finding relating to the plea of willful default once again fails to carry conviction with this court for the reason that the rent controller did not address himself to the relevant law as well as the fact. As such, both the courts below without recollecting and applying the appropriate provision of law as set out supra has applied the law and misdirected themselves, which amount to perversity and illegality, warranting interference in this revision.
32. I would like to fumigate my mind with the following decision of the Hon'ble Apex Court reported (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS relating to the concept 'Willful default.' 8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained the disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find the conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter.
9. In S.Sundaram Pillai v. V.r.Pattabiraman this Court had occasion to consider the word 'wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26) 21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:
'Wilful' deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.
'Wilful default' Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
22. In other words, 'wilful default' would mean a deliberate and intentional default knowing fully well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p.268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:
'wilful' intentional; not incidental or involuntary;
- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
p.296 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:
governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.
24.The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus:
to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.
25. In Black's Law Dictionary (Fourth edn.) at p.1773 the word 'wilful' has been defined thus:
'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.
The word 'reckless as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'
26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.
33. My mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court relating to willful default:
(i) (2003) 1 SCC 123, [E.Palanisamy v. Palanisamy (D) by LRs and others], certain excerpts from it would run thus:
"4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.
5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M. Bhaskar v. J. Venkatarama Naidu 2.
6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal1 held: (SCC p. 249, para 8) 8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months.
7. Again in M. Bhaskar v. Venkatarama Naidu2 with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
(ii) (2005) 7 SCC 211 [Atma Ram v. Shakuntala Rani], an excerpt from it would run thus:
"23. It was then faintly submitted before us that the High Court ought not to have exercised its revisional jurisdiction under Article 227 of the Constitution in view of the fact that the two courts below had concurrently found in favour of the appellant. The submission is misconceived. This is not a case where the High Court interfered with concurrent findings of fact. The High Court interfered because there was a serious error of law committed by the courts below and as a consequence thereof they failed to exercise jurisdiction vested in them by law. The exercise of revisional jurisdiction in a case of this nature cannot be faulted."
A mere poring over and perusal of the aforesaid decisions would clearly enable this court to arrive at the conclusion that the conduct of the tenant in paying rent by fits and starts, would amount only to willful default.
34. At one point of time, it appears on the side of the tenants, a plea was taken as though after fixation of fair rent by the rent controller, there was no demand for payment of fair rent from the landlords to the tenants and whereby the plea of willful default could not be pressed into service by the landlords.
35. I am at a loss to understand as to whether any such proposition of law exists to the effect that after fixation of fair rent by the rent controller, there should be specific demand by the landlord to the tenant for payment of fair rent and even thereafter if there is any default, then only it would amount to default.
36. A fortiori, the findings given by the courts below that there was no willful default warrants interference and I hold that there was default in payment of rents by the tenants.
IN RE CHANGE OF USER:
37. Regarding change of user is concerned, the learned counsel for the landlords would submit that the tenants were not justified in switching over from doing business in fancy goods to one that of selling beds and pillows. Whereas the learned counsel for the tenants would fittingly and convincingly explain and expound that when there is no embargo in the agreement between the landlords and the tenants that latter should not do any other business apart from a specific business, the question of invoking the plea of change of user would not arise.
38. I would like to agree with the submission made by the learned counsel for the tenants that mere switching over from doing the business in fancy goods to one that of selling beds and pillows would not amount to change of user and that too in the absence of any negative covenant in the agreement that the tenants shall not do any business other than the specified business in the agreement.
39. I recollect and call up the following decisions relating to the Change of User.
(i) 2000 MADRAS LAW JOURNAL REPORTS 158 MUTHU THEVAR V. S.INDIRANI AND ANOTHER-certain excerpts from it would run thus:
"17. So far as the present case is concerned, it is quite evident that the premises was leased out only for running a petty shop. In common parlance, a petty shop is a place meant for sale of small and sundry items and introducing a xerox machine cannot in any manner, be termed as an item that is being sold or transacted by a petty shopkeeper. It may be true on the part of the petitioner(tenant) that the might have installed the xerox machine in such a manner as not to cause any damage or loss to be occasioned to the landlords on account of the new introduction and that is the parameter that is to be considered when the question of different user of the premises by the tenant is to be decided for the tenant.
18. Considering the proposition arrived at in the judgment reported in K.Panchavarnammal v. E.Saraswathiammal, (1996)2 M.L.J.252: (1996)2 C.T.C.98, which is more relevant to the facts of the case in hand and the subject matter of different user as well remarked by the learned counsel for the respondents, it squarely applies to the facts of the present case in hand and in such event, it has to be held that by introduction of the xerox copiers machine into the premises, which was rented out for the purpose of running a petty shop would definitely amount to making use of the premises for the purpose other than for which it was rented out in favour of the tenant. Hence, the only question of different user that is to be answered in this case is that the premises has been used for purpose other than for which it was rented out. No other valid or tangible reason has been shown either for irregular or improper procedures adopted or denial of opportunity, violation of natural justice, etc., was established on the part of the revision petitioner, so as to warrant interference by this revisional Court. Hence, in the above circumstances, this Court is left with no option but to confirm the findings rendered by both the Rent Controller and appellate authority in a concurrent manner." (emphasis supplied)
(ii) (2005) 139 PLR 509 JAGDISH CHAND V. SURINDERH KUMAR, certain excerpts from it would run thus:
"9. The findings on the change of user are that there is no machinery installed in the demised shop. The tenant-respondent has, however, started selling stationery items like note-books instead of cloth. Even when the benefit of the judgments of the Supreme Court in Rana Vi Bhushan Singh v. Rati Ram, 1969 Unreported Judgments (SC)86 and Rai Chand Jain v. M.Chandra Kanta Khosla, 1991(1) S.C.C.422 is granted to the landlord-petitioner of reading lease-deed for a collateral purpose under Section 49 of 1908 Act, still the change of user for cloth merchant to stationery merchant would not be such a change of user as to require written consent of the landlord-petitioner. The nature of the user of premises continues to the same and instead of cloth, the tenant-respondent has started selling the stationery items the present time of fast changing work, switching over from one business to another without harming the nature of use of the premises has to be considered permissible without being by the mischief of Section 12(2)(ii)(b) of the Act. In Gurdial Batra's case (supra) it has been observed by the Supreme Court that some prejudice must be shown to have been caused to the interest of the landlord which is the rationale of Section 13(2)(ii)(b) of the Act.
10. When the principles laid down in Gurdial Batra's case (supra) and Atul Castings Ltd., (supra) are applied to the facts of the present case, then it becomes evident that no prejudice caused to the interest of the landlord-petitioner because some wooden shelves could be used for stocking the cloth where the tenant-respondent might have stocked the stationery items. Such a liberal approach would advance the object of the provision. It was because of such approach that in Gurdial Batra's case (Supra) sale of television along with the cycles rickshaw repair, when the rent note did not prohibit any other business was considered permissible. Therefore, there is no scope for interfering with the concurrent findings recorded by both the Courts below.
11. In the case of Jagdish Lal (Supra) on which reliance has been placed by learned counsel the landlord-petitioner, it has been observed that if a new business started by the tenant in premises let out to him was allied business or a business which as ancillary to the business, then it would not amount to change of user. It has further been observed that it is enough for the tenant to argue that nature of the building has continued to be commercial matter to which changed use it has been put. In that case, the change was from gen merchant, ready-made and cloth merchant to the setting up of a restaurant for serving tea cold-drinks and it was found in those circumstances that it would be covered by the mischief Section 13(2)(ii)(b) of the Act. It is evident that there was prejudice caused to the landlord because making tea, serving the same would result into activities which are harmful to tenanted premises resulting prejudice to the interest of the landlord. However, in present case, the change of user is from cloth merchant to stationery. Therefore, it cannot be said that there is such a drastic change in the nature of business so as to conclude prejudice is caused to the landlord-petitioner the tenant-respondent is to be ejected."
(iii) CDJ 2005 SC 675 HARI RAO V. N.GOVINDACHARI AND OTHERS , certain excerpts from it would run thus:
"7. Learned counsel for the landlord placed considerable reliance on the decision in M. Arul Jothi v. Lajja Bal1. That case also arose under Section 10(2)(ii)(b) of the Act. The transaction between the parties was governed by a lease deed. The tenant covenanted that the premises, shall be used by the tenant only for carrying on his own business and the tenant shall not carry on any other business than the abovesaid business (emphasis in original) (SCC pp. 730-31, para 10). The business intended was dealing in radios, cycles, fans, clocks and steel furniture. Subsequently, the tenant also started a trade in provisions (spices and dals, etc.). The landlord sought eviction and the courts below ordered eviction under Section 10(2)(ii)(b) of the Act. The tenant had appealed to this Court. This Court referred to the earlier decisions of this Court including the one in M.K. Palaniappa Chettiar v. A. Pennuswami Pillai2. It also referred to Section 108(o) of the Transfer of Property Act. This Court distinguished the various decisions brought to its notice under other sister enactments and took the view that the covenant in the rent deed not to use the premises for any purpose, other than the one referred to in the rent deed, brought the user by the tenant within the mischief of Section 10(2)(ii)(b) of the Act and, therefore, the order for eviction was justified. With respect, as we see it, Their Lordships rested their decision on the existence of the negative covenant in the lease deed and on the view that a breach of that covenant would attract Section 10(2)(ii)(b) of the Act, and make the user one coming within the mischief of that provision. In this case, as observed, there is no covenant as the one involved in Arul Jothi case1. In M.K. Palaniappa Chettiar v. A. Pennuswami Pillai2 the tenant, while continuing the business for which the building was taken on rent, was using a negligible portion of the building for the purpose of cooking. This Court held that the High Court was in error in reversing the decision of the Rent Controller and the Appellate Authority to the effect that no ground for eviction under Section 10(2)(ii)(b) of the Act was made out. This Court dismissed the petition for eviction. In Mohan Lal v. Jai Bhagwan3 this Court, interpreting the corresponding provision in the Haryana Urban (Control of Rent and Eviction) Act, 1973, held that when a tenant who had taken a building on lease for the purpose of running a business in liquor, converted the business into that of general merchandise, in the absence of a negative covenant, the user did not amount to user for a purpose other than that for which the building was leased. The same position was adopted in Gurdial Batra v. Raj Kumar Jain4 where the premises were let out for repairing business and the tenant along with the repairing business, also carried on sale of television sets for a while. This Court held that there was no change of user which would attract the liability for eviction under the corresponding provision of the East-Punjab Urban Rent Restriction Act, 1949. It was clearly stated that the concept of injury to the premises which forms the foundation of Section 108(o) of the Transfer of Property Act is the main basis for a provision similar to the one in Section 10(2)(ii)(b) of the Act. We think that the case on hand is governed by the principles recognised in the latter decisions and the ratio of the decision in Arul Jothi1 has no application in the absence of a negative covenant as the one obtaining in that case. Dashrath Baburao Sangale v. Kashimath Bhaskar Data5 was a case where the premises were taken on rent for sugarcane crushing with the help of an ox and for the shop thereof and the tenant was to get constructed a temporary shed of tin-sheet for that purpose. The tenant started a cloth business in the premises. The courts below found that this was a user for a purpose other than that for which the premises were leased and this Court found no ground to interfere. This decision only reaffirms the position that everything would depend on the terms of the letting and the facts of the case. Obviously, the cloth business started, had no connection with crushing of sugarcane. The decision in Ram Gopal v. Jai Narain6 shows that the user by the tenant of a building taken on rent for the purpose of running a shop (commercial), for a manufacturing purpose, would entail his eviction on the ground of change of user. The tenant, in that case, installed an atta chakki and an oil kolhu in the shop. The case on hand is not one of that nature. In other words, in the present case, there was no change of user, from non-residential to residential or from business to manufacturing or industrial. As emphasised already, there was also no negative covenant as was available in Arul Jothi case1. In such a situation, we are satisfied that the High Court was clearly in error in interfering with the decision of the Appellate Authority that there was no change of user in the case on hand attracting Section 10(2)(ii)(b) of the Act. Merely because a tenant, who has taken a building for the purpose of running a trade, alters the commodity in which he was trading when he took the building on lease or trades in other commodities also, he could not be held to be using the premises for a purpose other than the purpose for which it was let. The purpose has to be understood, as the purpose of trade and in the absence of a covenant barring the using of it for any other trade, it will be open to the tenant to use the premises for expanding his trade or even for taking up other lines of trade as befits a prudent trader.
8. It is true that this Court has held in Malpe Vishwanath Acharya v. State of Maharashtra7 that the rent control legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to the disadvantage of the landlord. But that does not mean that the rent control legislation should not be approached as a beneficial piece of legislation and with the recognition that reasonable protection to the tenant is one of the objects of that legislation. While construing a provision of law imposing a liability for eviction, like Section 10(2)(ii)(b) of the Act, one must see whether there has been such a change of user of the premises as to make it alien to the purpose for which the building was let and deny eviction when the basic activity remains the same and there is only a variation in the manner or mode of carrying on of that activity. Therefore, the interpretation placed on Section 10(2)(ii)(b) of the Act by the High Court in the decision under appeal and in some other decisions of that Court referred to in the orders of the Rent Controller and the High Court, has to be held to be not warranted or justified. The order of eviction passed by the High Court under Section 10(2)(ii)(b) of the Act has, therefore, to be reversed.
9. In support of his claim for eviction under Section 10(2)(iii) of the Act, what the landlord pleaded was that his tenant had put up new signboards and fixed two additional racks by drilling holes in the wall and in the beam and had taken an independent electricity connection for which holes have been drilled in the floor and the wall, and all this amounted to commission of acts of waste as are likely to impair materially the value and utility of the building. He also pleaded that the tenant had damaged the building while converting the shop for selling readymade dresses. He had installed additional showcases on the walls of the building by making holes therein. He had increased the consumption of electricity by fixing up more lights and fans. He had increased the electricity load, causing constant blowing out of the fuse in the building and causing damage to the electricity service connection to the whole building and the entire building could catch fire at any moment. He also put up a big nameboard outside, damaging the building and had also drawn heavy electrical lines and taken service connection to the nameboard, with a heavy load of electricity. The tenant admitted the putting up of signboards and the fixing up of racks but he denied that he had caused any damage. Whatever he had done was with the consent of the landlord and the claim put forward by the landlord was only an attempt to gain the sympathy of the Court. The Engineer PW 2 noted that new racks were fixed by making holes in floor, walls and also in the beams. Two new massive signboards were fixed in the front and side. Holes were made in the parapet wall of the first floor and angle irons supporting the signboards were fixed. The parapet wall was only 2" thick and it could not take the weight of the huge signboards and the parapet wall could collapse at any time. New electricity connection has been given by making holes in the foundation and the wall in front and a new meter board had been fixed. This report of PW 2 was not sought to be corroborated by any other material to show that there was any danger because of the taking of a new electricity connection or by the increase in load. It is true that for the purpose of his trade, the tenant fixed new racks by making holes in the floor, the walls and in the beams. But, in the absence of any other material, it cannot be said to be the commission of acts of waste as are likely to impair materially the value and utility of the building. We must say that there is hardly any evidence on the side of the landlord to show that there was material impairment, either in the value or the utility of the building by the acts of the tenant. The mere fixing of signboards outside the shop by taking support from the parapet wall, cannot be considered to be an act of waste which is likely to impair materially the value or utility of the building. The report of the Engineer PW 2 merely asserts that the parapet wall will collapse at any time. There is no supporting evidence in respect of that assertion. Ext. B-1 letter of the landlord giving permission to the tenant to fix boards, cannot also be ignored in this context. Moreover, when a trade is carried on in a premises, that too in an important locality of a city, it is obvious that the tenant would have to fix signboards outside, to attract customers.
These are days of fierce competition and unless the premises are made attractive by lighting and other means, a trader would not be in a position to attract customers or survive in the trade. Therefore, the acts of the tenant established, are merely acts which are consistent with the needs of the tenant who has taken the premises on rent for the purpose of a trade in leather goods and shoes and in furtherance of the prospects of that trade. The fixing of racks inside the premises even by drilling holes in the walls or beams cannot be said to be acts which are themselves acts of waste as are likely to impair materially the value and utility of the building. Broadly, a structural alteration however slight, should be involved to attract Section 10(2)(iii) of the Act. In fact, we see hardly any pleading or evidence in this case which would justify a conclusion that the acts of the tenant amount to such acts of waste as are likely to impair materially the value and utility of the building. In G. Arunachalam v. Thondarperienambi8 dealing with the same provision, this Court held that the fixing of rolling shutters by the tenant in place of the wooden plank of the front door by itself did not amount to a structural alteration that impaired the value of the building and no eviction could be ordered under Section 10(2)(iii) of the Act. Of course, in that case, there was also a report by an Engineer that the structural alteration made for fixing the rolling shutter, did not impair the value of the building. In the context of the Kerala statute which spoke of impairment in the value or utility of the building materially and permanently, this Court has recently held in G. Reghunathan v. K.V. Varghese that the fixing up of a rolling shutter and doing of the allied acts referred to in that decision, would not amount to user that materially and permanently impairs the value or utility of the building. The Act here only speaks of acts of waste as are likely to impair materially the value and utility of the building. The impairment need not be permanent. But even then, it appears to us that it must really be a material impairment in the value or utility of the building. In British Motor Car Co. v. Madan Lal Saggi10 this Court considered the aspect of material alteration or damage in the context of Section 13(2)(iii) of the East-Punjab Urban Rent Restriction Act, 1949. In the lease deed in that case, there was a covenant that the lessee will not make any addition or alteration or change in the building during the period of the tenancy. This Court referred to Om Prakash v. Amar Singh11, Om Pal v. Anand Swarup, Waryam Singh v. Baldev Singh13, Gurbachan Singh v. Shivalak Rubber Industries14, and Vipin Kumar v. Roshan Lal Anand and held: (SCC p. 11, para 12) When the construction is alleged to have materially impaired the value and utility of the premises, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. There is hardly any material in the present case on the basis of which the Court could come to the conclusion that the act of the tenant here has amounted to commission of such acts of waste as are likely to impair materially the value and utility of the building. The Rent Controller and the High Court have not properly applied their minds to the relevant aspects in the context of the statute and have acted without jurisdiction in passing an order of eviction under Section 10(2)(iii) of the Act. The Appellate Authority was justified in denying an order of eviction to the landlord on this ground."
(iv) 1970(2) SUPREME COURT CASES 290 M.K.PALANIAPPA CHETTIAR AND ANOTHER VS. A.PENNUSWAI PILLAI, certain excerpts from it would run thus:
"4. Even on the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional court acting under Section 25(l)(b)(ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant that, even if the lease was for trade purposes only and a part of the building had been used for residence, it did not amount to use in contravention of the terms of the lease. In taking this view, the High Court lost sight of the fact that, in this case, the landlord came as the applicant for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that by substantial part of the building was being used for a purpose different for 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.
5. Some other grounds were also urged on behalf of the tenant, but we need not deal with them in view of the fact that the tenant succeeds for the two reasons mentioned above. The appeal is allowed, the judgment of the High Court is set aside, and the decision of the lower courts is affirmed. The appellants would be entitled to their costs from the respondent.
(v) T.L.N.J.-1990-122- T.M.RAMASWAMY GOUNDER VS. RANGANAYAKI, certain excerpts from it would run thus:
"Learned counsel for the petitioner(tenant) submitted that no doubt the petitioner has obtained the demised premises for non-residential purpose. Since the purpose was not specified at the time when the premises was taken on lease, it is open to him to carry on any business in the demised premises, provided that such carrying on business is not injurious to the demised premises. The approach of the learned appellate authority in fixing the burden on the petitioner to prove the purpose of tenancy is not correct. The onus is on the respondent to prove the purpose for which the premise was let out. He further submitted that the respondent/landlady in her evidence admitted that there was a written lease agreement and while so the non production of such written agreement could be taken as one of the circumstances to show that no specific purpose, for which the lease was taken, was indicated.
. . . . . . . .
. . . . . . .
On consideration of the aforesaid facts, I am of the opinion that it is for the respondent herein to establish that the demised premises was let out only for the purpose of carrying on the textile business and not for any other business. The non-production of the lease deed on the part of the respondent is fatal to her case. It is the case of the petitioner that he had taken the premises on lease for nonresidential purposes. Since no specific purpose was indicated, it is open to the petitioner to carry on any business of his choice. In view of the decisions, referred to above, it is for the landlady o establish that the demised premises was let out only for textile business and no for any other purpose. In the instant case, the respondent has not discharged her burden to establish that the demised premises was let out for the purpose of carrying on textile business. In view of the decision reported in AIR 1989 S.C.1841 even assuming that the petitioner carried on the business of arrack in the demised premises, as long as the interest of the landlady is not prejudiced a small change in the user would not be actionable. In the light of the views expressed by the Supreme Court in the decisions, referred to above, I am of the opinion that the use of the premises for arrack shop did not constitute a change of user within the meaning of Sec.10(2)(ii)(b) of the Act so as to give a cause of action to the respondent to seek eviction of the petitioner/tenant."
A mere perusal of those decisions would clearly highlight the fact that mere technical change in use of the premises would not attract eviction. There should be substantial change in the user of the building. As such, in this case, the plea of change of user is a misconceived one and accordingly, both the courts below correctly held that there was no change of user, warranting no interference in these revisions.
IN RE ACT OF WASTE:
40. Regarding act of waste is concerned, I would like to reproduce here under the relevant provision of Section 10 (2) (iii) and it is also just and proper to refer to the decisions cited on both sides.
" Section 10(2) (iii) : A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied -
(i) ............
(ii) ............
(iii) that the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building."
41. The learned senior counsel for the landlords cited the following decisions rendered by this court.
"1. 1982-MLJ 376 (Sha Nirbhayala Bahadurmal vs. Krishna Rao M.Nikan)
6. Learned counsel for the tenant argued that these alterations or constructions have not impaired the value or the utility of the building and therefore, cannot constitute waste. I am unable to differ from the conclusions of the lower courts on this aspect. It is not open to a tenant to reconstruct or remodel the building leased out to him without the written consent of the landlord and it is not as if that these admitted acts done by the tenant are mere minor alterations or repair works. They are in the nature of re-modelling and reconstruction to suit the personal requirement of the tenant, who had converted a stainless steel shop into a textile show-room. He should not have ventured on reconstructions and alterations without the approval of the landlord. Changing the nature of the demised premises tantamounts to technical waste and the demolition or removal of the doors and shutters, pillars, etc., are undoubtedly willful and reckless on the part of the tenant. It is not as if the removal of these portions was caused in the course of reasonable user and it is certainly prejudicial to the interests of the landlord, in that the tenant has made indiscriminate alterations and additions. In my opinion,this also amounts to doing of an act which affects the utility of the building, though the tenant might have added to the value of the building by putting up a better appearance. In this view of the matter, the findings of the courts below that the tenant should be held to have committed 'acts of waste' coming under the definition have to be upheld. The tenant has obviously made these unauthorised constructions at his own risk and therefore, exposed himself for eviction under this ground. Hence, the findings of the courts below on this ground are confirmed.
2. 1992-2-LW-779 (Pattaya alias Kuppusami Naidu and two others vs. Rangasamy Gounder and 12 others)
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, R.R.V.S.SL.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 prejudically 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 S.10(2) (iii) of the Act. It is only a harmful act which is contemplated under S.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 above said 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 not 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 another v. Shivalak Rubber Industries and others (1996 (2) SCC 651), 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) (iii) 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.A1.
3. 1998-II MLJ 399 (Mohammed Arif and others vs. K.P.R.Jafarullah)
12. In Shanmugam v. C.Kannabiran and another (1996) 2 L.W.322, S.S.Subramani, J., has held as follows:
"The other ground of eviction is 'acts of waste' alleged to have been committed by the revision petitioner. Admittedly, some changes have been made by the tenant. He may plead that the changes that have been made have not impaired the utility of the building. He may also contend that what he has done has only added to its value. In this case, the evidence that has been let in is that he has put up a sun-shade, dug holes in the floor and has effected changes for making it convenient to run a watch repairing shop. Even if it is contended that it is only temporary, a big hall has now been converted into small rooms and made use of for different purpose. While considering as to how far these changes have impaired materially the utility and value of the building, the same has to be judged and determined from the point of view of the landlord, and not that of the tenant".
15. In view of the above, the acts of waste as found by the authorities below certainly be regarded as one involving material impairment of the premises affecting its strength and intrinsic work of the demised premises from the point of view of the respondent/landlord within the meaning of Sec.10(2)(iii) of the Act. The authorities below have come to the conclusion on the basis of evidence available on record that the tenants had committed acts of waste. Since it is based on evidence, I am not inclined to interfere with such finding especially by exercising the revisional jurisdiction.
4. (2000) 2 MLJ 527 (B.Ramesh vs. H.Nandeeswari)
20. From the above decisions it is clear that it is not every construction or alteration that would result in material impairment to the value or the utility of the building. It is also clear from the above decision that the act of tenant must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e., of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.
21. It is true that the burden of proof is on the landlord that the acts complained of has materially affected the utility or value of the building permanently or materially. If certain facts are proved, an inference could be drawn whether those acts have materially affected or whether acts complained of enables landlord to get eviction or not. It is also clear from the above decisions that if certain acts are proved to have been committed, even without any independent evidence, an inference could be drawn that the value or utility of the building has been materially affected.
25. Contention of the tenant that the roof was leaking and damaged building was given to him is also not proved and the circumstances also show that the contention is taken only for the purpose of this litigation. If at the time of taking building on rent, the building was damaged with leaking roof, under normal circumstances tenant would not have taken the building on rent. Only when he satisfies that building is sufficient for his case, building is taken by him. Under the guise of repair, he has now replaced major petition of the building which is not permitted under law.
5. 2001(4) CTC 710 (S.N.Vairavelu vs. P.Sundaram)
6. The learned counsel appearing for the revision petitioner contends contra by saying that such act will not amount to act of waste. The revision petitioner while he was examined as R.W.1 has admitted the fact of construction of a platform to a height of about one and half feet and also about the cutting of door and door frames for erection of such platform to a height of about one and half feet. Production of Ex.P-3 photo would also establish that fact. He would admit that he has not obtained the consent of the respondent herein in writing for cutting bottom of teak wood door to a height of about one and half feet along with teak wood door and door frames one either side. An attempt was made to establish that the consent of the respondent herein was given by being present at the time of cutting and removing of teak wood door at the bottom of the door to the extent mentioned above along with teak wood door frames. The said fact has not been pleaded in the counter filed by the revision petitioner. In the light of the said fact, the contention raised by the learned counsel for the respondent herein that the claim made by the revision petitioner about the presence of the respondent herein at the time of cutting and removing the bottom of the door and door frames on either side for erection of platform is to be held only an after thought and cannot be sustained. Fixing a teak wood door and door frames will cost considerably high and cutting to a height of one and half feet at the bottom of the door apart from cutting the door frames on either side without any support at the bottom of the door frames will certainly impair the value and utility of the building. Constructing a platform to a height of one and half feet in the main entrance of the premises let out to him will add fuel to the fire.
7. In Associated Traders & Engineers Ltd. v. Alamelu Ammal, 1984(1) MLJ 251, the learned Judge, Fakkir Mohammed, J., has held that making an opening in the wall dividing two rooms without the written consent of the landlady will certainly amount to act of waste since such opening will weaken the strength of the wall. In this case, if the platform constructed in the main entrance of the premises is removed, the teak wood door which was cut to an extent of one and half feet height at the bottom along with the bottom frame and door frames on either side without any support below, will not only weaken the construction put up at that place, but also will impair the value and utility of the premises. In Vipin Kumar v. Roshan Lal Anand and others, 1993(2) SCC 614, the Hon'ble Apex Court has held that material impairment has to be inferred from the proved facts from the point of view of the landlord and the burden of proof is on the tenant to establish that the act of waste committed by the tenant has not impaired materially the value and utility of the building and that such burden will be shifted on the landlord only if the burden is discharged by the tenant. In this case, there is absolutely no evidence on the side of the revision petitioner to establish that the act of waste committed by him has not impaired materially the value or utility of the building. If the decisions referred to above are taken into consideration, this court is of the opinion that the Rent Control Appellate Authority has come to a correct conclusion that the act of waste committed by the revision petitioner has impaired materially the value and utility of the building of the respondent herein. Therefore, there is no reason to interfere with such finding of the Rent Control Appellate Authority by this court.
6. 2004(1) CTC 29 (M.Salem vs. Josephine Mary)
14. In this case, the specific acts of waste have already been referred to in para 3, 4 and 5 of Ex.A2 dated 15.9.1997 and they include demolition of the floor, erection of a bore well inside the building, installation of an electric motor, damage to the front side, construction of a drainage canal, damage to the roof, installation of a zinc pipe, installation of a gas oven generating a high degree of heat damaging the building. Development of cracks all over the building is also mentioned. There is no denial of this in Ex.A9 dated 1.11.1997. They are repeated in the petition. There is no denial of this in the counter. The petitioner merely states "The respondent strongly denies that he damaged or caused waste to the schedule property. He had made alterations and improvements on the same for the betterment of his business. He did the same with the full awareness, consent and agreement of the petitioner. The petitioner being unable to get her means of unduly enhanced rent is denying all these facts to suit her ends. There was no act of waste or damage as claimed by the petitioner. In fact, the respondent has only increased the buildings strength. Hence, the petitioner must prove such tall allegations". But the evidence is that there was no consent to his alterations or modifications. It is also the case of the petitioner that the respondent knew very well the nature of his business and those acts were required to be done to the building so that he could carry on his business and therefore, such acts cannot be considered as acts of waste. This seems to be a wrong impression of what is an act of waste.
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 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 done 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 high-handed 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."
Whereas the learned counsel for the tenants would cite the decision of the Hon'ble Apex Court reported in 2005(7) SCC 643 (Hari Rao vs. N.Govindachari and others). An excerpt from it would run thus:
"9. In support of his claim for eviction under Section 10(2)(iii) of the Act, what the landlord pleaded was that his tenant had put up new signboards and fixed two additional racks by drilling holes in the wall and in the beam and had taken an independent electricity connection for which holes have been drilled in the floor and the wall, and all this amounted to commission of acts of waste as are likely to impair materially the value and utility of the building. He also pleaded that the tenant had damaged the building while converting the shop for selling readymade dresses. He had installed additional showcases on the walls of the building by making holes therein. He had increased the consumption of electricity by fixing up more lights and fans. He had increased the electricity load, causing constant blowing out of the fuse in the building and causing damage to the electricity service connection to the whole building and the entire building could catch fire at any moment. He also put up a big nameboard outside, damaging the building and had also drawn heavy electrical lines and taken service connection to the nameboard, with a heavy load of electricity. The tenant admitted the putting up of signboards and the fixing up of racks but he denied that he had caused any damage. Whatever he had done was with the consent of the landlord and the claim put forward by the landlord was only an attempt to gain the sympathy of the Court. The Engineer PW 2 noted that new racks were fixed by making holes in floor, walls and also in the beams. Two new massive signboards were fixed in the front and side. Holes were made in the parapet wall of the first floor and angle irons supporting the signboards were fixed. The parapet wall was only 2" thick and it could not take the weight of the huge signboards and the parapet wall could collapse at any time. New electricity connection has been given by making holes in the foundation and the wall in front and a new meter board had been fixed. This report of PW 2 was not sought to be corroborated by any other material to show that there was any danger because of the taking of a new electricity connection or by the increase in load. It is true that for the purpose of his trade, the tenant fixed new racks by making holes in the floor, the walls and in the beams. But, in the absence of any other material, it cannot be said to be the commission of acts of waste as are likely to impair materially the value and utility of the building. We must say that there is hardly any evidence on the side of the landlord to show that there was material impairment, either in the value or the utility of the building by the acts of the tenant. The mere fixing of signboards outside the shop by taking support from the parapet wall, cannot be considered to be an act of waste which is likely to impair materially the value or utility of the building. The report of the Engineer PW 2 merely asserts that the parapet wall will collapse at any time. There is no supporting evidence in respect of that assertion. Ext. B-1 letter of the landlord giving permission to the tenant to fix boards, cannot also be ignored in this context. Moreover, when a trade is carried on in a premises, that too in an important locality of a city, it is obvious that the tenant would have to fix signboards outside, to attract customers. These are days of fierce competition and unless the premises are made attractive by lighting and other means, a trader would not be in a position to attract customers or survive in the trade.
Therefore, the acts of the tenant established, are merely acts which are consistent with the needs of the tenant who has taken the premises on rent for the purpose of a trade in leather goods and shoes and in furtherance of the prospects of that trade. The fixing of racks inside the premises even by drilling holes in the walls or beams cannot be said to be acts which are themselves acts of waste as are likely to impair materially the value and utility of the building. Broadly, a structural alteration however slight, should be involved to attract Section 10(2)(iii) of the Act. In fact, we see hardly any pleading or evidence in this case which would justify a conclusion that the acts of the tenant amount to such acts of waste as are likely to impair materially the value and utility of the building. In G. Arunachalam v. Thondarperienambi8 dealing with the same provision, this Court held that the fixing of rolling shutters by the tenant in place of the wooden plank of the front door by itself did not amount to a structural alteration that impaired the value of the building and no eviction could be ordered under Section 10(2)(iii) of the Act. Of course, in that case, there was also a report by an Engineer that the structural alteration made for fixing the rolling shutter, did not impair the value of the building. In the context of the Kerala statute which spoke of impairment in the value or utility of the building materially and permanently, this Court has recently held in G. Reghunathan v. K.V. Varghese9 that the fixing up of a rolling shutter and doing of the allied acts referred to in that decision, would not amount to user that materially and permanently impairs the value or utility of the building. The Act here only speaks of acts of waste as are likely to impair materially the value and utility of the building. The impairment need not be permanent. But even then, it appears to us that it must really be a material impairment in the value or utility of the building. In British Motor Car Co. v. Madan Lal Saggi10 this Court considered the aspect of material alteration or damage in the context of Section 13(2)(iii) of the East-Punjab Urban Rent Restriction Act, 1949. In the lease deed in that case, there was a covenant that the lessee will not make any addition or alteration or change in the building during the period of the tenancy. This Court referred to Om Prakash v. Amar Singh11, Om Pal v. Anand Swarup12, Waryam Singh v. Baldev Singh13, Gurbachan Singh v. Shivalak Rubber Industries14, and Vipin Kumar v. Roshan Lal Anand15 and held: (SCC p.11, para 12) When the construction is alleged to have materially impaired the value and utility of the premises, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. There is hardly any material in the present case on the basis of which the Court could come to the conclusion that the act of the tenant here has amounted to commission of such acts of waste as are likely to impair materially the value and utility of the building. The Rent Controller and the High Court have not properly applied their minds to the relevant aspects in the context of the statute and have acted without jurisdiction in passing an order of eviction under Section 10(2)(iii) of the Act. The Appellate Authority was justified in denying an order of eviction to the landlord on this ground.
10. In these circumstances, we allow this appeal and setting aside the decision of the High Court restore that of the Appellate Authority. That would mean that the petition for eviction filed by the landlord would stand dismissed. In the circumstances of the case we make no order as to costs."
The learned counsel for the tenants also would cite two other decisions of the Hon'ble Apex Court reported in (1993) 2 SCC 614 (Vipin Kumar vs. Roshan Lal Anand and others) and (1996) 2 SCC 626 (Gurbachan Singh and another vs. Shivalak Rubber Industries and others).
A mere perusal of the aforesaid decisions would unambiguously and unequivocally highlight and spotlight the fact that the act of waste should be significant and not insignificant. The principle De minimis non curat lax The law does not care for, or take notice of, very small or trifling matters would be clearly applicable in a case where the waste is a minor one or it is due to wear and tear.
42. But here, the evidence adduced on the side of the landlords is so clinching that the tenants went to the extent of removing in toto the stair case comprised of concrete pillars with wooden steps. It so happened that a civil direction in O.S.No.433 of 2003 erupted at the instance of the landlords. During the pendency of the said suit, a Commissioner was got appointed who visited the suit property and during that time photographs were taken and the photographs were marked as Exs.P6 to P23 and the said Commissioner was examined as PW2 and through him the copy of his report filed in the suit was also marked as Ex.P3. It is not out of context to place here that such visit by the Commissioner was during the pendency of the RCOP itself but before getting the RCOP amended to include the ground of act of waste. In such a case, the said evidence of PW2 gains much prominence.
43. A mere perusal of PW3- the engineer's deposition coupled with the photographs and also the engineer's report Ex.P4 would all cumulatively evidence and expatiate that there was a good and stable stair case comprised of concrete structure with wooden steps and that was not at all in a dilapidated condition. In fact a mere look at the photographs would display and demonstrate that people were standing on the said stair case and I am at a loss to understand as to how the appellate authority in para No.23 could state that the stair case was in a dilapidated condition and it was removed as otherwise it would have endangered the life of the users etc.
44. As such, it appears that both the courts below have not even chosen to look into the oral and documentary evidence. Had they took care to peruse those documents as well as the oral evidence, they would not have arrived at a such perverse and illegal conclusion. In fact, they misapplied the law and they assumed and presumed that such removal of the stair case did not result in making the entire demised premises unfit for being used and on that ground they proceeded to discuss as though even after removal of the staircase, the premises is being used for better purpose.
45. A mere perusal of the cited judgments supra would exemplify and demonstrate that from the view point of the landlord, the act of waste should be viewed. No doubt, in this case, the tenants wanted more space for their textile business, which could be seen from the photographs and that the existence of the stair case, certainly caused hindrance to have more space in the ground floor to have their textile business. I hark back to the maxim "Sic utere tuo ut alienum non laedas" Common law maxim meaning that one should use his own property in such a manner as not to injure that of another. The exercise of right by the tenant should not affect the landlord's right.
46. The learned senior counsel for the landlords would convincingly argue that as on date admittedly there is no possibility of having access to the mezzanine floor at all as the entire stair case was removed illegally. As such if the premises is let out to a third party or if the landlords want to use the premises certainly, they would not have access to the mezzanine floor at all.
47. I am of the considered view that this case could be cited as a very good example for act of waste and if this act of waste is not to be treated as an act of waste, then nothing else can be termed as an act of waste. Both the courts below failed to take into account the aforesaid facts. In fact the appellate authority placed very much reliance on the engineer's report to the effect that according to the said Engineer, there is no crack in the wall or in the mezzanine floor, because of the removal of the stair case and that is de hors the issue and he misdirected himself and it is quite obvious and axiomatic that should not be the approach.
48. There is no such thing that after removal of the said stair case, there should be damage to the other structure in the building. Once there is unauthorized removal of sound and strong stair case and lessening of the utility and value of the building, then that itself is sufficient to attract the aforesaid provision of law relating to act of waste for ordering eviction. As such, the approach of both the courts below were grossly perverse and illegal in that aspect, warranting interference by this court in the revision.
49. In the result, I am of the view that the revisions have to be allowed on the aforesaid grounds discussed supra.
50. Accordingly, the civil revision petition No.890 of 2006 is allowed setting aside the orders of both the courts below and consequently the RCOP No.111 of 2003 is allowed on the following grounds of :-
(i) sub-letting
(ii)willful default in payment of rent and
(iii) act of waste and the ground of change of user is rejected.
51. Consequently, the CRP NPD No.889 of 2006 filed as against the dismissal of the RCA in confirming the order in RCOP No.102 of 2003 filed by the tenants under Section 8(5) of the Act is also allowed setting aside the order of both the courts below and the RCOP No.102 of 2003 shall stand dismissed. No costs.
vj2 18.08.2010 Index:Yes Internet:Yes To 1.The Principal Subordinate Judge, (Rent Control Appellate Authority), Coimbatore 2. The District Munsif (Rent Controller), Coimbatore G.RAJASURIA,J. vj2 CRP NPD Nos.889 and 890 of 2006 18.08.2010