Madras High Court
T.M. Ramaswamy Gounder vs Ranganayaki on 8 March, 1990
Equivalent citations: (1990)1MLJ421
ORDER Govindasamy, J.
1. This Civil Revision Petition is directed against the Judgment dt.4-2-1984 in CMA.NO. 43 of 1983 on the file of the Court of the Appellate Authority (Subordinate- fudge) Karur, under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended (hereinafter referred to as the Act).
2. The revision petitioner is the tenant in respect of the premises bearing Door No. 12-K situate in Pugalur Road, Inam Karur Sub Registrar District and Karur Village, West Karur Registration District. The respondent herein instituted proceedings, viz., R.C.O.P.No. 23 of 1981 on the file of the Rent controller (Principal District Munsif) Karur, under Section 10(2) (ii) (b) of the Act for eviction on the ground that the Petitioner had taken the demised premises on lease on a monthly rental of Rs. 40 to run the handloom business known as "Revathi Textiles". Subsequently, the rent was increased to Rs. 120 p.m. with effect from 18-4-1981. The Petitioner later used the demised premises for a purpose other than that for which it was leased out, i.e., the respondent-landlady originally leased out the demised premises to run the handloom business, but without the consent and knowledge of the respondent, the Petitioner had located "Saminathapuram Arrack shop" in the property and consequently fought for eviction.
3. The Petitioner herein resisted the said application contending inter alia that it was not correct to state that the Petitioner herein had taken the demised premises on lease to run the handloom business known as "Revathi Textiles" and that the Petitioner has taken the demised premises on lease only as non-residential building to run any business as desired by him. The Petitioner further contended that the Petitioner did not carry on any business right from the inception of lease dated, 17-10-1969. At the time when the Petitioner had taken the demised premises on lease he did not decide the business which he was then intent to carry on. The Petitioner further contended that he was legally entitled to run any business of his choice and that the running of the arrack shop in the demised premises did not violate any contract or provision of lease, since there was no provision as alleged.
4. On consideration of the facts' and evidence or record, learned Rent Controller proceeded on the basis that in the reply notice issued by the Petitioner herein, he did not state that he, was entitled to carry on any business of his choice, that there was no document to show that the petitioner was entitled to carry on any business of his choice, that the Petitioner admitted that he was running "Revathi Textiles" in the premises prior to the arrack shop business, that the petitioner had not proved that he was entitled to use the premises for any business and that the Petitioner had also not proved the written consent given by the previous owner and consequently it was not possible to presume that the building was let out to carry on any business by the Petitioner. The, learned Rent Controller also proceeded that since the revision petitioner was running "Revathi Textiles in the demised premises and later admittedly was running an arrack shop business, which was entirely a different business and since the petitioner had not obtained the written consent of the respondent's predecessor he was liable for eviction. Finally, the learned Rent Controller allowed the Petition. Aggrieved by the said order, the Petitioner/tenant preferred an appeal C.M.A. No. 43 of 1983 on the file of the Subordinate Judge, Karur the Appellate Authority, under the Act. The appellate Authority proceeded on the basis that since there was no document to show that for what purpose the property was rented out to the Petitioner and since the Petitioner had been carrying on his handloom business under the name and style of "Revathi Textiles" in the demised premises till 1980, it could be easily presumed that the demised premises was let out only for the purpose of handloom business and that the Petitioner, taking advantage of the absence of the written agreement, was bold enough to state that he could do any business of his choice. While so doing, the appellate Authority observed that the burden was only on the Petitioner herein to show that he had obtained the written consent of the landlady and in the instant case he miserably failed to establish it; with the result the appellate authority dismissed the appeal and thereby confirmed the order of the learned Rent Controller. Aggrieved by the said judgment, the Petitioner herein has preferred this civil Revision Petition.
5. Mr. Kumar Rajaratnam, learned Counsel for the Petitioner, '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 premises 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. In support of the above contention, learned Counsel for the Petitioner brought to the notice of this Court that in her evidence P.W. 1 had admitted that there was a lease deed and from the non-production of the lease deed, One could infer that if such a lease deed is produced that would defeat the very case of the respondent. Learned Counsel for the Petitioner cited the decision M.K.P. Chettiar v. A.P. Pillai 1970 2 S.C.C. 291. The said decision is to the following effect:
It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fall irrespective of the plea taken by the tenant to resist the application.
Learned Counsel for the Petitioner also cited the decision reported in Conjal Electronic Industries By Its Partner v.A. Rajendran (1979) 2 M.L.J. S.N.5, for the proposition that if a landlord filed an application on the ground of conversion or complains about the user of the demised premises other than that for which it was let out, then it was incumbent upon him to establish notwithstanding the nature of the defence in any particular case by the tenant.
6. It is clear from the aforesaid decisions that the burden is on the part of the respondent to establish that the demised premises was let out specifically to carry on the business in textiles and not for any other purpose. In the instant case, the respondent herein has not established by discharging her onus that it was let out only for the purpose of textile business. The non-production of the written agreement is fatal to the case of the landlady.
7. Learned Counsel for the Petitioner also cited the decision reported in Mohal Lal v. Jai Bhagwan . That was a case where the shop was let out for carrying on business in English Liquor but the tenant had changed over to general merchandise business. The Supreme Court has taken the view that the change of user would not cause any mischief or detriment or impairment to the shop and it could also be called an allied business in expanding concept of departmental stores and consequently it did not attract the mischief of change of user. He further cited the decision reported in Gurdial Batra v. Raj Kumar , where the Supreme Court had an occasion to consider when there was a change of use of the demised premises, whether the same would attract the mischief of the provisions. The Supreme Court had also considered the question whether there was a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased. That was a case where the tenant had taken the premises for running of a cycle and rickshaw repairing shop. The tenant had admitted that he had commenced the business of selling televisions side by side in view of the slump in the cycle and rickshaw repairing business. The tenant had also accepted the position that he had not obtained the consent of the landlord when he started the TV business. The landlord had accepted the position that in the rent note it was not written that the tenant would not do any business in the shop in dispute except the cycle or rickshaws repairs. On these facts, the Supreme Court had considered the question whether the premises had been used for a purpose other than that for which it had been leased. On consideration of a number of decisions, ultimately the Supreme Court was of the view that the carrying on the business of Television did not constitute any change of user so as to give a cause of action to the landlord to seek eviction of the tenant. Ordinarily, as long as the interest of the landlord is not prejudicial, a small change in the user would not be actionable.
8. Mr. K. Sreekumaran Nair, learned Counsel for the respondent/landlady contended that the petitioner in fact carried on the business in textiles in the demised premises and that was accepted by the landlady and the authorities below found, on the basis of the evidence on record, that the demised premises was let out only for the purpose of textiles and as such no interference was called for. Learned Counsel for the respondent cited the decision reported in P.A.P. Chidambara Nadar v. C. Ganapathia Pillai 1981 T.L.N.J. 474. That was a case where the premises was let out to the tenant for the manufacture of Soda drinks and he used the building for storing soda water bottles and it was held that it would amount to different use and as such the tenant was liable to be evicted. That case is not applicable to the instant case, because in that case the lease was for a specific purpose; whereas in the instant case no specific purpose was specified when it was let out for non-residential purpose.
9. 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 non residential 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 to establish that the demised premises was let out only for the purpose of carrying on textile business. In view of the decision reported in Gurdial Batra v. Raj Kumar , 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 me use of the premises for arrack shop did not constitute a change of user within the meaning of Sections 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.
10. In the result, the civil revision petition is allowed, the order of the authorities below are set aside and the petition for eviction is dismissed. The parties are directed to bear their own costs throughout.