Madras High Court
Sri Jai Maruthi Traders vs D.Murugesan
Author: R.Subramanian
Bench: R.Subramanian
CRP. (NPD) No.3141 of 2018
CMP Nos.18054/18 & 8133/20
and CRP (NPD) Nos.2968 & 2984 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
10.11.2020 23.11.2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP. (NPD) No.3141 of 2018
CMP Nos.18054/18 & 8133/20
and CRP (NPD) Nos.2968 & 2984 of 2019
CRP 3141 of 2018
1. Sri Jai Maruthi Traders,
a firm rep. By its partner
M.Balaji
2. K.Mathiyazhagan
3. M.Prabhu
4. M.Balaji
5. M.Muralidharan .. Petitioners in CRP 3141/2018
Vs.
1. D.Murugesan
2. D.Thanikachalam
3. A.Ranganayaki
4. D.A.Karthikeyan .. Respondents in CRP 3141/18
http://www.judis.nic.in
1/34
CRP. (NPD) No.3141 of 2018
CMP Nos.18054/18 & 8133/20
and CRP (NPD) Nos.2968 & 2984 of 2019
PRAYER: Civil Revision Petitions filed under Section 25 of Tamil Nadu
Buildings (Lease & Rent Control) Act, 1960, praying to set aside the judgment
and decree dated 25.07.2018 in RCA.No.1 of 2015 on the file of Principal
Subordinate Court, Erode and partly allowed the judgment and decree in RCOP
No.6 of 2013 dated 14.02.2014 on the first Additional District Munsif Court,
Erode.
For Petitioners : Mr.R.Rajarajan
For Respondents : Mr.N.L.Rajah, Senior Counsel
for M/s.S.Rohini Ravikumar
CRP Nos.2968 & 2984 of 2019
1. D.Murugesan
2. D.Thanikachalam
3. A.Ranganayaki
4. D.A.Karthikeyan .. Petitioners in CRP 2968 & 2984/19
Vs.
M.Madheswari (Died)
1. Sri Jai Maruthi Traders,
a firm rep. By its partner
M.Balaji
2. K.Mathiyazhagan
http://www.judis.nic.in
2/34
CRP. (NPD) No.3141 of 2018
CMP Nos.18054/18 & 8133/20
and CRP (NPD) Nos.2968 & 2984 of 2019
3. M.Prabhu
4. M.Balaji
5. M.Muralidharan .. Respondents in CRP 2968 & 2984/19
PRAYER in CRP 2968/2018: Civil Revision Petitions filed under Section 25 of
Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, praying to set aside
the judgment and decree dated 25.07.2018 made in Cross Objection No.1 of
2015 in RCA No.1 of 2015 on the file of Principal Subordinate Court/Rent
Control Appellate Authority, Erode confirming the judgment and decree dated
14.02.2014 made in RCOP No.6 of 2013 on the file of the I Additional District
Munsif Court, Erode.
PRAYER in CRP 2984/2018: Civil Revision Petitions filed under Section 25 of
Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, praying to set aside
the judgment and decree dated 25.07.2018 made in RCA No.1 of 2015 on the
file of the Principal Subordinate Court/Rent Control Appellate Authority, Erode
partly allowed the judgment and decree dated 14.02.2014 made in RCOP No.6
of 2013 on the file of the I Additional District Munsif Court, Erode.
For Petitioners : Mr.N.L.Rajah, Senior Counsel
for M/s.S.Rohini Ravikumar
in CRP 2968 & 2984/19
For Respondents : Mr.R.Rajarajan
in CRP 2968 & 2984/19
http://www.judis.nic.in
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CRP. (NPD) No.3141 of 2018
CMP Nos.18054/18 & 8133/20
and CRP (NPD) Nos.2968 & 2984 of 2019
COMMON ORDER
This matter is taken up for hearing through Video-Conferencing. These three Revisions arise out of RCOP No.6 of 2013 launched by the landlords under the provisions of the Tamil Nadu Building (Lease and Rent Control) Act, 1960.
2. The landlords claimed eviction on five different grounds viz. Wilful Default under Section 10(2)(i), Subletting under Section 10(2)(ii)(a), Acts of Waste under Section 10 (2) (iii), Different User under Section 10(2)(ii)(b) and Owners Occupation under Section 10(3)(a)(iii). The demised premises is a non residential premises situate in the ground floor of a multi storried building situate at R.K.V. Road, Erode. The lease was for running a grocery shop in the name and style of “Sri Jai Maruthi Traders”. The parties had entered into a written lease agreement providing for a lease for a period of 11 months between 20.02.2012 and 19.01.2013.
3. The landlords issued a notice on 19.10.2012 complaining that the tenant has committed willful default apart from subletting the premises. It was http://www.judis.nic.in 4/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 also stated that the tenant has changed the user of the building contrary to the terms of the lease document. The landlords further contended that the demised premises is required for the own occupation of the fourth petitioner, who intends commencing a business in textiles in the demised premises.
4. The tenants sent a reply denying the allegations contained therein on 26.10.2012 and followed it up with a suit for a bare injunction restraining the landlords from evicting them except under due process of law. The landlords also lodged the police complaint on 25.12.2012, claiming that the tenants had damaged the flooring of the building by removing the existing marble flooring and laying it with tiles. The petition for eviction was filed soon thereafter on 18.02.2013.
5. Though five grounds of eviction were urged by the landlords, the learned Rent Controller rejected the plea relating to willful default and subletting. The other three grounds, viz. the commission of Acts of Waste, User of the premises for a different purpose and a claim of the fourth petitioner for own occupation were accepted by the learned Rent controller. An order of eviction was passed on the above grounds. Aggrieved the tenants preferred an http://www.judis.nic.in 5/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 Appeal in RCA No.1 of 2015 challenging the order of eviction. As against the rejection of the other two grounds, the landlords filed a Cross objection which was also numbered as Cross RCA No.1 of 2015.
6. The Appellate Authority by a common judgment confirmed the findings of the Rent Controller with reference to user of the building for a different purpose and qwners occupation. The Appellate Authority, however, rejected the claim of the landlords on the ground of Acts of Waste. The net result was that the eviction order passed by the Rent Controller was affirmed on two grounds. It is against the said order of the Appellate Authority, the tenants have come up with CRP No.3141 of 2018 and the landlords have come up with CRP Nos.2968 and 2984 of 2019.
7. Before entering upon the merits of the controversy between the parties, I must point out that the procedure adopted by the Appellate Authority in numbering the Appeals filed by the landlords as Cross RCAs is unknown to law. It is settled position of law that the Tamil Nadu Building (Lease and Rent Control) Act, 1960, is a self contained Court and the procedure applicable to ordinary Civil Suits under the Code of Civil Procedure cannot be applied to the http://www.judis.nic.in 6/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 proceedings under the said Act. It is also settled law that the landlords can file a single eviction petition on various grounds enumerated under section 10 or Section 14 of the Act.
8. As regards Appeal, Section 23 of the Act provides for an Appeal against the order of the Rent Controller. If the Rent Controller is to reject some of the grounds and order eviction on some of the grounds, the tenants or the landlords can prefer independent appeals against the decision made and there cannot be a Cross Appeal or a Cross Objection in the Appeal filed either by the landlords or by the tenants. Similarly three Civil Revision Petitions have been filed against the common order of the Appellate Authority made in RCA No.1 of 2015 and the Cross RCA No.1 of 2015. This procedure is also unknown to law.
9. The tenants have filed a single Revision Petition against the order of eviction on two grounds. They are entitled to maintain a single Appeal. The landlords have filed two Revision Petitions, one against the decree in RCA No.1 of 2015, wherein the claim for eviction on the ground of Acts of Waste was rejected and the other against the decree in Cross RCA No.1 of 2015, http://www.judis.nic.in 7/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 wherein the judgment of the learned Rent Controller rejecting the claim for eviction on the grounds of willful default and subletting was confirmed. Where there are number of grounds for eviction and a single Rent Control Original Petition is filed and an order of eviction is made on 2 or 3 grounds, the tenants can challenge the order by filing one Single Appeal and the landlords, who have lost their claim for eviction on certain grounds can urge those grounds before the Appellate Authority without filing a separate Appeal or a Cross Appeal.
10. This Court had upheld such a procedure in Shelat Brothers vs. Lodd Narendradas, reported in 1986 (1) MLJ 16. Hon’ble Mr.Justice V.Ratnam, as he then was, had held as follows:
“Even in a case where the relief of eviction is asked for cumulatively on several grounds and the landlords succeeds in obtaining an order for eviction on one of several grounds, it has been held by a serious of decision of this Court as well as the others that it would be open to the landlords without filing an independent Appeal to support an order for http://www.judis.nic.in 8/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 eviction secured by him on grounds which have been found against him either by the Rent Controller or by the Appellate Authority.” The said judgment was followed by this Court in Athimoolam v. Arokianathan, reported in 1993 (1) LW 663. The above stated position of law, in my considered opinion, would squarely apply to the facts of the present case and it was wholly unnecessary for the landlords to have been filed either the Cross Appeals before the Appellate Authority or the Revision Petitions under Section 25 in this Court.
11. Adverting to the merits of the case on hand, the case of the landlords for eviction on various grounds was as follows:
Wilful Default under Section 10(2)(i):
i. It was claimed that the rent is payable on or before 3rd day of every succeeding English Calender month, as per the terms of the Lease Document. It was also claimed that the tenants were irregular in payment of rent and used to pay the rent only in the third or fourth week of the succeeding English Calender month and therefore, the http://www.judis.nic.in 9/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 tenants have committed Willful Default.
ii. Both the Rent Controller as well as the Appellate Authority have rejected the claim of the landlords on the ground of Willful Default. It is not even the plea of the landlords that the tenants is in arrears for over a period of two months.
iii. A reading of Section 10(2)(i) of the Act, would reveal that a mere default does not offer a ground for eviction under the said provision. Courts have held that in order to be slapped with an order of eviction under Section 10(2)(i) of the Act, the tenants must be shown to have been demonstrated supine indifference in payment of rent. iv. In the case of hand, it is not even the case of the landlords that the tenants have not paid the rent for a substantially long period or that they had been defaulting in payment of rent regularly. The only complaint of the landlords seems to be that the tenants do not adhere to the time stipulated under the agreement that by itself will not constitute willful default in payment of rent. Therefore, I do not find any illegality or irregularity in the conclusions of the Authorities that the tenants are not guilty of willful default in payment of rent. http://www.judis.nic.in 10/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019
12. Subletting under Section 10(2)(ii)(a):
i. The next ground that has been rejected by the Authorities concurrently is subletting, as regards subletting is concerned the plea of the landlords is that the first respondent in the Rent Control Original Petition Mrs.M.Madheswari, had transferred her right in favour of a partnership firm, shown as the second respondent, of which the respondents 1 and 3 to 5 are the partners. According to the landlords, the formation of a partnership firm and the transfer of the lease hold right to the firm came to light only upon the filing of the suit in OS No.514 of 2012. ii. The said claim of the landlords was resisted by the tenants contending that there was no transfer of right, the respondents 3 to 6 are respectively the husband and sons of the first respondent. There were taken as the partners only for convenience of the business and there was no transfer of the lease hold rights in favour of the second respondent. It was further contended that there was no transfer of the possession and the second respondent or respondents 3 to 5 were not put in exclusive possession of the premises, since the first respondent who entered into the lease agreement was also part of the business, the claim for subletting is http://www.judis.nic.in 11/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 wholly unfounded.
iii. The Authorities concurred with the contentions of the tenants in this regard and concluded that since the the first respondent has not parted with the exclusive possession of the property and she continuous to retain control over the demised premises, there was no subletting. A perusal of the reasoning given as well as certain vital admissions in the evidence of P.W.1, examined on the side of the landlords, would show that the fact that the first respondent is actively taking part in the business has been admitted by P.W.1. In the light of the said evidence, I do not think that the Authorities can be faulted for coming to the conclusion that there was no subletting.
13. Different User under Section 10(2)(ii)(b):
i. The third ground of eviction, which found favour with the Rent Controller and the Appellate Authority, is different user. The claim of the landlords on this ground is that the lease document prohibits carrying on any other business in the demised premises without the written consent of the landlords. According to the landlords, the tenants, who was carrying on business in grocery and garlic in the petition premises, has http://www.judis.nic.in 12/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 now started business in gold covering jewels, cosmetics and other fancy items. This according to the landlords would render the tenants liable for eviction on the ground that the tenants have used the premises for a different purpose than the purpose of the letting. ii. This claim of the landlords was resisted by the tenants contending that there is no question of the tenants using the premises for a different purpose. The tenants would claim that since both the purposes are non residential, the tenants cannot be held guilty of using the premises for a different purpose. It was also contended that though the lease document contains a prohibition, the said prohibition has to be read in the light of the provisions of the Act as well as the other Clauses of the Lease Deed. Therefore, according to the tenants, there is no question of the tenants converting the user of the premises. The tenants would also further plead that unless the very purpose of the tenancy is changed no order of eviction could be made under Section 10(2)(ii)(b) of the Act. iii. It must be pointed out that the tenants have admitted that there is a change in the business carried on by the tenants. Both the Authorities have concluded that the tenants are guilty of using the premises for other purposes than for which it was let. Assailing the orders of the eviction http://www.judis.nic.in 13/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 passed by the Authorities under Section 10(2)(ii)(b), Mr.Rajarajan, learned counsel appearing for the petitioners/tenants in CRP No.3141 of 2018 would vehemently contend that the provisions of the Act will have to be beneficially interpreted. Therefore, unless it is shown that there is a change in the very purpose of the letting, there cannot be an order of eviction under Section 10(2)(ii)(b) of the Act. iv. The learned counsel would also invite my attention to the judgment of the Hon’ble Supreme Court in Hari Rao v. N.Govindachari and Others, reported in (2005) 7 SCC 643, wherein the Hon’ble Supreme Court has pointed out that 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 Tamil Nadu Building (Lease and Rent Control) Act. He would also further contend that unless there is a positive prohibition in the Lease Deed change of the business that is carried on in the premises will not render the tenants liable for eviction on the ground of different user under Section 10(2)(ii)(b) of the Act.
v. Mr.Rajarajan, would draw my attention to the following observations of the Hon’ble Supreme Court :
http://www.judis.nic.in 14/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 “When the lease is granted for the purpose of a trade in the absence of any covenant in the contract between the parties prohibiting a user different from the particular one mentioned in the Lease Deed, the tenants would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises.” and contend that mere conversion of the business from one of grocery to a fancy store cannot and will not amount to different user. vi. Contending contra Mr.N.L.Rajah, learned Senior Counsel appearing for the respondent/landlords would submit that in Hari Rao ‘s case, it was not shown that there was a positive prohibition restraining the tenants from carrying on a different business. The Hon’ble Supreme Court nowhere concluded that the change of user in order to attract the rigour of Section 10(2)(ii)(b) must be the very purpose of the letting, i.e., from residential to nonresidential or vice versa. Mr.N.L.Rajah, learned Senior counsel would further point out that when the Rent Agreement specifically provided that the tenants shall not carry on any other business without the written consent of the landlords and if it is shown http://www.judis.nic.in 15/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 that the tenants are carrying on a business other than the one permitted under the lease agreement, the same would offer a ground for the landlords to seek eviction of the tenants under Section 10(2)(ii)(b). v. In support of his submissions, Mr.N.L.Rajah, learned Senior Counsel would rely upon the judgment of the Hon’ble Supreme Court in M.Arul Jothi and another v. Lajja Bal (deceased) and another, reported in 2000 (I) CTC 687, wherein the Hon’ble Supreme Court on an interpretation of the Clauses found in the agreement on hand held that user of the premises which was let out for doing business in Radios, Cycles, Fans and Steel Furniture for the purposes of doing business in provisions Chillies, dhal, etc., would amount to different user rendering the tenants liable for eviction under Section 10(2)(ii)(b) of the Act.
vii. Mr.N.L.Rajah would also draw my attention to the judgment of Hon’ble Mr. Justice R.Balasubramanian, in B.M.A.Nijira Begum v. A.M.S. Kassim, reported in 2000 (IV) CTC 474, wherein, the learned Judge concluded that the action of the tenant in starting a completely new business in the tenanted premises without the written consent of the landlords would render him liable for eviction under Section 10(2)(ii)(b) of the Act. He would also invite my attention to the judgment of the http://www.judis.nic.in 16/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 Hon’ble Supreme Court in Jagdish Lal v. Parmanand, reported in 2000 (5) SCC 44, wherein, switching of the business to restaurant and cool drinks from general merchant, ready made and cloth merchants was held to amount to a different user rendering the tenant liable for eviction on the said ground.
viii. A perusal of the above judgments including the judgment in Hari Rao‘s case, relied upon by Mr.Rajarajan, learned counsel appearing for the tenants, would show that the provisions of Section 10(2)(ii)(b) would apply even in a case where there is a change in the business and it is not restricted to cases where the very purpose of the tenancy is changed. The only condition that was pointed out in Hari Rao ‘s case, is that unless there is a specific prohibition in the terms of the lease between the parties a mere change in the business alone would not attract the rigour of Section 10(2)(ii)(b) of the Act. Both the Courts below, upon a reading of the terms of the lease, have come to the conclusion that the lease deed does contain a prohibition and in the light of such prohibition, the abandonment of the business in grocery and garlic by the tenants and commencement of business in fancy items and gold covering jewelery would amount to different user of the premises. Therefore, it is just and http://www.judis.nic.in 17/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 necessary that the terms of the lease are considered before concluding on the correctness or otherwise of the findings of the Authorities constituted under the enactment. The lease deed dated 20.02.2012 has been produced and marked as Ex.P1. The execution of the lease deed is admitted by the parties.
ix. The following Clauses of the Lease Deed would be germane for our purposes:
“moapw; fz;l brhj;Jf;fspy; jiuj;jsj;ij Vw;fdnt 5 yf;fkpl;lth; 1 Kjy; 4 tiu yf;fkpl;lth;fsplk; fle;j 14/01/2006-e; njjpapy; khj thliff;F bgw;W “_ b$a;khUjp onulh;!;” vd;w bgahpy; kspif kw;Wk; g{z;L tpahghuk;
bra;J tUfpwhh;fs;/
(emphasis supplied)
● 9: nkw;go thlif fhyj;jpy; 5 yf;fkpl;lth;
thlif fl;olj;jpy; cg;g[. Xl;ly; kw;Wk;
kJghd bjhHpy; bra;af;TlhJ/
● 15: ek;kpy; 5 yf;fkpl;lth; thlif fl;olj;jpy; ,ju bjhHpy; bra;tjhf ,Ue;jhy; ek;kpy; 1 http://www.judis.nic.in 18/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 Kjy; 4 tiu yf;fkpl;lth;fspd; vGj;J K:ykhd mDkjp bgw;w gpwnf bra;a ntz;oaJ/ nkny brhd;d khw;w';fisj; jtpu fl;olj;jpy; ek;kpy; 5 yf;fkpll; th; ek;kpy; 1 Kjy; 4 tiu yf;fkpll; th;fspd; vGj;J K:ykhf mDkjpapd;wp ntW khw;w';fis bra;af;TlhJ/ ,e;j c&uj;jpw;F tpnuhjkhf ek;kpy; 5 yf;fkpl;lth; bray;gl;lhy; ,g;gj;jpuj;jpd;
thlif bfLt[f;Fs; ek;kpy; 1 Kjy; 4 tiu yf;fkpl;lth;fs; rl;lg;go fhyp bra;a eltof;if vLf;f chpika[z;L/ mjdhy;
Vw;gLk; nrjhuk; kw;Wk; vy;yh bryt[fisa[k[ ;
ml;thd;!; bjhifapy; gpoj;Jf; bfhz;L ek;kpy; 1 Kjy; 4 tiu yf;fkpl;lth;fs; kPjp Jifia 5 yf;fkpl;ltUf;F brYj;j ntz;oaJ/ (emphasis supplied) x. The moot point is, as to whether, a reading of the above Clauses of the Lease Deed would spell out a negative covenant as contemplated in Hari Rao ‘s case. The preamble portion which is extracted above recites the http://www.judis.nic.in 19/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 business that is being carried on by the tenants, viz., business in grocery and garlic. Clause 9 imposes a total prohibition on carrying on business in salt, restaurant and alcohol. Clause 15 provides that any other business can be carried on only with the written consent of the landlords. According to Mr.Rajarajan, a combined reading of Clause 9 and Clause 15 would show that there is no covenant imposing a prohibition upon the tenants from using the premises for some other business or trading in totally different articles.
xi. Contending contra, Mr.N.L.Rajah, learned Senior Counsel appearing for the landlords would submit that the test is whether the tenant is at his own free will to trade in whatever commodities he likes in the premises or is he prevented from trading in other commodities without the written consent of the landlords. Mr.N.L.Rajah, would submit that even a combined reading of the Clauses 9 and 15 would not lead to the result as suggested by the learned counsel for the petitioner. While the business that is being carried on is specifically stated in the preamble to the document, Clause 9 imposes a total prohibition on certain businesses. Clause 15 enables the tenants to trade in other articles with the written consent of the landlords. Therefore, according to Mr.N.L.Rajah, Clause 9 http://www.judis.nic.in 20/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 imposes a total prohibition and under Clause 15 the tenants covenants not to carry on any other business without the written consent of the landlords.
xii. The sum and substance of the submission of Mr.N.L.Rajah, is that Clause 15 would satisfy the requirement of a covenant prohibiting a user different from a particular one mentioned in the Lease Deed. Mr.N.L.Rajah, would also draw my attention to the judgment in Hari Rao ‘s case, which is greatly relied upon by Mr.Rajarajan, to point out the Hon’ble Supreme Court has held that whether there is a different user or a change in the user of the premises would depend on the facts of the each and every case and the same cannot be put in a straight jacket formula. Inviting my attention to the following observations of the Hon’ble Supreme Court:
“When the lease is granted for the purpose of the trade in the absence of any covenant in the contract between the parties prohibiting the user different from the particular one mentioned in the lease deed, the tenants would be entitled to carry on any trade in the premises consistent with the http://www.judis.nic.in 21/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 location and the nature of the premises.” Mr.N.L.Rajah laying considerable emphasis on the words “in the absence of any covenant in the contract between the parties prohibiting the user different from the particular one mentioned in the lease deed” would contend that in the light of the prohibition contained in Ex.P1, the tenants having admitted the change in the nature of the business and the articles traded by them have rendered themselves liable for eviction under Section 10(2)(ii)(b).
xiii. I have considered the submissions of the learned counsels on either side. I am unable to subscribe to the argument of the learned counsel appearing for the petitioners when he says that there is no prohibition in Ex.P1 restraining the tenants from changing the nature of the business or the goods traded. A combined reading of Clauses 9 and 15 would show that the tenant is not entitled to change the business. While Clause 9 contains a total prohibition in respect of trading in salt, restaurant and alcohol, Clause 15 only enables the tenants trade in other goods with the written permission of the landlords. The opening sentence of Clause 15 of the Lease Document particularly states that if the tenants wishes to carry on any other business in the premises, they could do so only after http://www.judis.nic.in 22/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 obtaining the written consent of the landlords. The last sentence of said Clause 15 reads that the tenants will render themselves liable for eviction, if any of the conditions set out in Clause 15 are breached. Clause 15 does not only imposes an obligation on the part of the tenants, but also spells out the consequences of a breach of such obligation. In the light of such clear language, I am unable to subscribe to the contention of Mr.Rajarajan that it is not a total prohibition or that there is no covenant restraining the tenants from changing the nature of the business or the commodity traded.
Xiv. Both the authorities have on an appreciation of the contents of the document and the admitted factual position that there is a change in the nature of the business and the articles now traded are not either akin to or similar to ones that were permitted to be traded under the Lease Deed have reached the conclusion that the tenants have changed the user of the buildings. Once such a conclusion is reached, I do not think the orders of eviction on the ground of different user could be disturbed. In fact the Hon’ble Supreme Court had on an interpretation of Section 10(2)(ii)(b) of the Tamil Nadu Building (Lease and Rent Control) Act, in M.Arul Jothi ‘s case held that a change in the products traded would amount to http://www.judis.nic.in 23/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 change of user within the meaning of Section 10(2)(ii)(b) of the enactment. I am therefore of the considered opinion that the findings of the Authorities that the tenants is guilty of breach of Section 10(2)(ii)(b) of the Act cannot be disturbed.
14. Acts of Waste under Section 10(2)(iii):
i. The next ground on which eviction was sought for is that the tenants have committed act of waste, which have the effect of reducing materially the value and utility of the building. The plea of the landlords in this regard is that the tenants had on 25.12.2012 removed the marble flooring of the demised premises and replaced the same with tiles. This according to the landlords, amounted to an act of waste, which had the effect of materially affecting the value of the building and its utility. Though there was a total denial of commission of any acts of waste in the counter filed before the Rent Controller, at the time of trial, the tenants had admitted that the marble flooring was removed and replaced with tiles. The Advocate Commissioner appointed by the Court had also filed his Report, stating that the flooring was new. On 25.12.2012, the landlords had lodged a police complaint regarding the acts of waste http://www.judis.nic.in 24/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 committed by the tenants.
ii. The fact that the flooring was changed is admitted by R.W.1 in her evidence, wherein she had deposed as follows:
“/// kD brhj;jpy; 25/12/2012f;F gpd;dpl;L jiuapy; ily;!; nghlg;gl;lJ vd;why; Mkhk;/ chpikahsh; jzpfhryj;ij nfl;Lj;jhd; ily;!;
gjpj;njhk;/ chpikahsh;fis nfl;fhky; jiuia nrjg;g:Lj;jpajhf vd;kPJ 2k; kDjhuh; fhty;
Jiwapy; g[fhh; bfhLjjhh; vd;why; rhpjhd;/ mt;thW Vw;fdnt ,Ue;j jiuia bfhj;jp ily;!; gjpg;gjw;F kDjhuh;fsplk;
vGj;Jg;g{h;tkhd rk;kjk; bgw;nwdh vd;why;
,y;iy/” This evidence would prove beyond doubt that the tenants had removed the marble flooring of the demised premises and had replaced it with tiles. The report of the Commissioner also shows that the flooring has been changed. R.W.1, in her evidence has also further admitted that Ex.P7 is the photograph showing the change in the flooring. Therefore, the fact that the tenants had altered the flooring is admitted. The only http://www.judis.nic.in 25/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 question that should be decided is, as to whether, the said act would amount to an acts of waste, within the meaning of Section 10(2)(iii) of the Act.
iii. The Rent Controller found that this action of the tenants would render the tenants liable for eviction under Section 10(2)(iii) of the Act. The Appellate Authority, however, reversed the said findings and concluded that the action of the tenants in changing the floor would not amount to acts of waste. The learned Appellate Authority came to the said conclusion on the ground that the landlords has not made these averments in the pre-suit notice and therefore, the landlords have not established the claim made by them regarding acts of waste. iv. Mr.N.L.Rajah, learned Senior Counsel appearing for the landlords would contend that the Appellate Authority had failed to see that the very cause of action for acts of waste happened only after the issuance of the pre-suit notice, i.e. 25.12.2012. The pre-suit notice was issued on 19.10.2012. Therefore, the claim regarding acts of waste could not have been raised in the pre-suit notice. He would further point out that the Appellate Authority had not given any finding regarding the actual requirements of the Section, viz., the reduction in the material value and http://www.judis.nic.in 26/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 utility of the building because of the action of the tenants in changing the floor. Mr.N.L.Rajah, learned Senior Counsel would also invite my attention to the judgment of this Court in M.Salem v. Josephine Mary, reported in 2004 (1) CTC 29, wherein this Court had held that acts of the tenants in changing the flooring installing a bore well, fixing an electric motor pump set and construction of a drainage canal in the demised premises would amount to an acts of waste which will have the effect of impairing materially the value and the utility of the building as provided under Section 10 (2)(iii) of the Act.
v. The learned Rent Controller upon an appreciation of the evidence on record concluded that the tenants having admitted effecting changes in the building and having failed to prove that it was with the consent of the landlords is liable for eviction under Section 10(2)(iii) of the Act. While reversing the said findings as I have already pointed out, the learned Appellate Authority has not considered the relevant requirements of the Section. The learned Appellate Authority has gone on a wrong factual footing that the acts of waste complaint was prior to the issuance of the legal notice by the landlords on 19.10.2012. This wrong notion of the Appellate Authority, in my considered opinion, has clouded its http://www.judis.nic.in 27/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 conclusion and the Appellate Authority has misdirected itself in finding that the tenants are not guilty of commission of acts of waste. The fact that the flooring has been totally removed and replaced with tiles is admitted, the fact that the steps leading to the shop have been demolished and reconstructed is also admitted. As pointed out in the judgment in M.Salem v. Josephine Mary, reported in 2004 (1) CTC 29, whether an act would impair the utility or the value of the building has to be seen from the point of view of the landlords and not from the point of view of the tenants. While considering the effect of the said provision, this Court held as follows:
“15. While considering what is an act of waste, the Rent Control Authorities are not concerned with whether these alterations facilitate the tenants 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 http://www.judis.nic.in 28/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 should be seen from the point of view of the landlords. 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.” vi. In view of the law laid down and the evidence available on record, I am of the considered opinion, that the Appellate Authority was not right in reversing the findings of the Trial Court regarding the commission of acts of waste by the tenants. I am of the considered opinion that the landlords would be entitled to an order of eviction on the said ground also.
15. Owners Occupation under Section 10(3)(a)(iii):
i. The landlords pleaded that the demised premises is required for the business of the fourth petitioner which he proposes to carry on in the http://www.judis.nic.in 29/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 building. It is also claimed that the fourth petitioner, who was employed in a Software Company has resigned his job only to enable him to carry on the business. Certain records relating to the resignation and relieving of the fourth petitioner were also produced as evidence of the bona fides of the fourth petitioner. The fourth petitioner has been examined as P.W.2 and he has filed a proof affidavit setting out the bona fides of his requirement and also produced documents showing that he has quit the job.
ii. I do not find that the evidence of P.W.2 in chief examination has been discredited in cross-examination in order to enable the Court to reject the claim on the ground of own use and occupation. Both the Authorities below have considered the evidence and have come to the conclusion that the requirements of Section 10(3)(a)(iii) of the Act have been satisfied. The Section requires that the need of the landlords should be bona fide and Courts have laid down the principles that are to be followed, while considering applications for eviction under Section 10(3)(a)(iii) of the Act. All that the landlords is required to show is that he/she intends starting the business of his/her own in the premises. The landlord must also show that he/she is possessed of sufficient financial http://www.judis.nic.in 30/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 capabilities to start the business. In the case on hand, the capability of the landlords is not denied. The only claim that is put forth is that the requirement is not bona fide, inasmuch as, the landlords have entered into lease deed on 20.02.2012 and the fourth petitioner had resigned from the job in April 2012 itself. Therefore, the need which was not there in February cannot all of a sudden arise in April 2012. iii. The Authorities under the Act, viz., the Rent Controller and the Appellate Authority had examined the evidence in this regard and had reached a conclusion that the landlords have established that the requirement is bona fide and the need is genuine. Unless it is shown that the findings are perverse, I do not think that concurrent findings can be interfered with in a Revision under Section 25 of the Act. I have also gone through the evidence independent of the findings of the Authorities. I find that there is enough and more material to support the conclusions reached by the Authorities in this regard and I therefore do not see any reason to interfere with the said conclusion.
16. For the foregoing reasons, the Civil Revision Petition filed by the tenants in CRP 3141 of 2018 will stand dismissed and the Civil Revision Petition filed by the landlords in CRP 2968 of 2019 against Cross RCA No.1 of http://www.judis.nic.in 31/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 2015 will stand dismissed. The Civil Revision Petition in CRP No.2984 of 2015 filed by the landlords against the order in RCA No.1 of 2015 will stand allowed and there will be an order of eviction on the ground of acts of waste also under Section 10(2)(iii) of the Act. In the circumstances there shall be no order as to costs. Consequently the connected miscellaneous petitions are closed.
17. Considering the fact that the tenants are carrying on business in the premises, the tenants will have time till 30th of June 2021 to vacate and handover the vacant possession of the premises to the landlords, on condition that the tenants file an affidavit undertaking to vacate by 30th June 2021, on or before 14.12.2020. If no affidavit is filed within the time granted, the landlords will be free to execute the decree, as if, no time has been granted for the tenants.
23.11.2020 jv Index: Yes Internet:Yes speaking order http://www.judis.nic.in 32/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 To
1. The Principal Subordinate Judge, Erode.
2. The I Additional District Munsif, Erode.
3. The Section Officer, V.R. Section, High Court of Madras, Chennai 600 104.
http://www.judis.nic.in 33/34 CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 R.SUBRAMANIAN,J.
jv Pre Delivery Order CRP. (NPD) No.3141 of 2018 CMP Nos.18054/18 & 8133/20 and CRP (NPD) Nos.2968 & 2984 of 2019 23.11.2020 http://www.judis.nic.in 34/34