Kerala High Court
Venkita Pathi Naidu vs Sethu Udayar And Ors. on 20 August, 1973
Equivalent citations: AIR 1974 KERALA 132, 1974 KER LT 610 1973 KER LJ 855, 1973 KER LJ 855
JUDGMENT Subramonian Poti, J.
1. The first defendant in a suit for recovery of possession with arrears of rent is the appellant in this appeal. The plaintiff sought to recover 3 items of properties, which, according to him had been entrusted to the defendants under an oral arrangement entered into on 17th September, 1955 whereunder Rs. 162/- was agreed to be payable as rent, Rs. 100/-being rent of Item 1 and Rs. 62/- being rent of Items 2 and 3 and whereunder the defendants also agreed to surrender the property on demand. The plaint mentions default of payment of rent and the plaintiff seeks a decree for rent for the period from 17-10-1958. For rent up to 17-10-1958 a decree had already been obtained. This was in O. S. 73 of 1958 on the file of the Subordinate Judge, Palghat. In that suit the first defendant had denied the rental arrangement but it had been found. The plaintiff claimed in the present suit, in the alternative, a decree for damages for use and occupation of the plaintiff's premises. There is also an allegation in the plaint that due to want of proper care and timely maintenance one of the buildings had fallen into ruins, and had practically collapsed. On this account the claim is made for damages to the extent of Rs. 30,000/-. A notice was issued to the first defendant on 31-7-1961, Exhibit B7 whereupon the first defendant in his reply disowned any liability for payment of rent as he disclaimed to be in possession.
2. According to the first defendant he was not liable either for payment of rent or for damages. He admitted that he was conducting a match factory in the plaint item No. 1 but, according to him, the premises were taken on rent from the plaintiff by the second defendant. He would sav that on account of his relationship with the second defendant having become strained he had to stop the functioning of the factory from February 1958. He further alleged that on 17-5-1958 he went to the factory premises and entrusted to the plaintiff the entire machinery belonging to him under a list and the plaintiff is said to have taken over the premises to his possession on that date and continued in possession ever since so that the first defendant cannot be made liable either for rent after that date or for damages. It is said that the plaintiff allowed the second defendant to remove the machinery entrusted to the plaintiff's care and the suit itself was filed in collusion with the second defendant with whom the first defendant had fallen out.
3. Necessarily, therefore, the questions that the court had to decide on these pleadings of the parties were, whether the 1st defendant was liable to answer for the rent and if so. what was the period for which he was so liable and secondly, the liability of the first defendant to answer for damages for the loss of the building. The Court below did not accept the case of the first defendant that the property had been surrendered bv him on 17th May 1958. But, all the same, the Court found that he had taken up an attitude ever since the earlier suit that he was not in possession and possession was with the plaintiff himself and while so, the building fell down and therefore at any rate there was no question of the first defendant being made liable for the rent after the date the building collapsed. Since there was no evidence as to the date on which the building fell down the date of Exhibit. B7 notice by the plaintiff in which this was mentioned was taken to be the date and consequently, liability for rent was found to extend UP to that date. On the question of damages, the Court held that the plaintiff was entitled to a decree but that should be limited to what was found by the Commissioner, as the amount required for restoring the building to its original condition. That sum was Rs. 12,050/-, The decree was limited to this sum.
4. By this appeal the first defendant complains against the decree for rent for the period subsequent to 17th May 1958. He also complains against the decree for damages awarded against him. There is a cross-obiection at the instance of the plaintiff wherein a claim is made that the rent ought not to have been limited for the period up to 17th July 1961 as has been done bv the Court below. There is also a contention that the Court below was wrong in limiting the damages to Rs. 12,050/- and it should have additionally allowed a sum of Rs. 3,912-73.
5. We will first consider the liability of the first defendant to answer the claim for rent. Even in the earlier suit, O. S. 73 of 1958, he had disputed the averment of the plaintiff that he was a tenant. According to him the building was taken on rent by the second defendant, and therefore, he alone was liable to answer. It appears from the evidence that sometime after the commencement of working of the match factory in the leased premises, defendants 1 and 2 fell out and the functioning of the factory ceased. There was some proceeding between them before the Criminal Court in which the first defendant took up the stand that the second defendant had nothing to do with the business, that he had fraudulently removed the machinery and that he, the first defendant, was the tenant paying the rent. It appears that originally there was a rent deed taken by the plaintiff from the second defendant alone, but that was for item 1 only. But the case of the plaintiff that 1st defendant also was a tenant, was substantiated bv the stand taken by the first defendant in the criminal proceedings against the second defendant, and therefore in O. S. 73 of 1958 the Court found that the first defendant was also answerable as a tenant. Hence it is not open to the first defendant now to contend that the lease was not binding on him or that he was not liable as a lessee. It is also not open to him to contend that he had surrendered the lease on 17th May 1958 since the same contention was raised in the earlier suit and a decree was granted to the plaintiff for recovery of arrears of rent upto 17-10-1958. This was necessarily negativing the plea of surrender in May. Therefore, the Court below was right in holding that the first defendant's case of surrender set UP in this case must also be found against. We have necessarily to consider whether the case of the plaintiff in the cross-objection that the decree for rent must continue even after the date for which decree was granted by the Court below is sustainable. It is true that the first defendant had done whatever was in his power to make it clear that he was no longer in possession. Even in the written statement. Ex. A4 dated 24-2-1959 filed by the first defendant in the suit O. S. 73 of 1958 he had categorically stated that he had left the premises lock, stock, and barrel on May 1958 and the plaintiff had been put in possession. Of course, there was no independent evidence as to the plaintiff having been so put in possession. But the facts do indicate that the defendants had removed themselves from the premises and the machinery therein had also been removed sometime in 1958 itself. In our opinion, the plaintiff is right in saying that notwithstanding this there was no surrender. Mere abandonment by a tenant of his possession will not amount to surrender. The abandonment must also be accompanied by acceptance on the part of the landlord. Even subsequent acceptance would be sufficient. But the attitude taken bv the plaintiff was not one which would imply that he was accepting the surrender. Therefore notwithstanding the stand taken bv the defendants, there has been no surrender in May 1958 as has been pleaded. It is true that as a prudent landlord plaintiff could have taken possession at the time. But that is not to say he got possession of the property merely by reason of the fact that the first defendant asserted in Ext. A-4 that he was not in possession and possession had already been Siven over to the plaintiff. He would have been better advised to state that he was prepared to surrender possession and was so surrendering possession and if such surrender was possible at that time and he could have put the landlord in possession that would have operated to terminate the lease.
6. All the same it does not necessarily follow that the liability for rent must continue for all time. With regard to item 1 which, on the plaintiff's own showing he was prepared to treat separately from items 2 and 3, the building itself fell down later. In regard to item 1 there was nothing else to surrender thereafter. Bv that time the first defendant had also claimed that he was not in possession and disclaimed liability for that and therefore, nothing more had to be done so far as he was concerned. Therefore, we do not think that there is any justification for disturbing the decree of the Court below that liability for payment of rent must be limited to Ext. B-7 date. But in noticing the date a mistake has been committed. The decree has limited to rent up to 17th July 1961 but Ext. B-7 date is 31-7-1961. Possibly considering the tenancy as one from month to month the Court below considered that 17-6-1961 is the period upto which rent is payable. Once it has adopted Ext. B-7 date as the date when the building ceased to exist, necessarily the rent payable would be upto that date. This slight modification is necessary in this regard.
7. Now we come to the auestion of claim for damages. We must, at the outset, point out that the allegation in the plaint in this regard leaves much to be desired. When such a claim is made, one would expect the plaintiff to make proper averments as to how the loss was caused, what the part of the defendants therein was and how in law the defendants are sought to be made liable. The evidence on this matter is as scanty as the allegations are vague. It is stated by the plaintiff in the earlier suit evidenced by Ext. B-10 that he was not claiming anv damages at that time because the waste was not very material. He was deposing on 28-2-1961 and in the notice Ext. B-7 the complaint is made about the loss of the building. The suit is filed thereafter in 1962 and the relevant averment in the plaint is in paragraph 4 and it is stated:--
( Editor: The vernacular matter printed hereunder has been omitted).
One would have liked the plaintiff to mention how the building happened to fall and what particular duty of the first defendant he failed to perform so as to render himself answerable for the loss. There is no evidence in this case to indicate how this building happened to fall down. For the first defendant it is pointed out on the basis of the Commissioner's report Ext. C-l that the building itself was not constructed with strong and durable material and therefore, the loss was only due to natural wear and tear and not due to any voluntary waste committed by the first defendant or even any permissive waste.
8. The Court below has not properlv considered the question of the liability of a tenant to answer for waste. It has not even considered the nature of the tenancy. The mere fact that the building which is the subject of tenancy has fallen down does not. by itself, fasten the liability to answer for its value on the tenant. The liability of a tenant to answer for permissive waste must depend upon the nature of the tenancy itself. The tenancy in this case, it is contended bv the counsel for the plaintiff, is one from month to month. The terms of the tenancy averred in the plaint clearly indicate that the landlord had an option to terminate the tenancv at any time. The tenant was liable to surrender on demand. The question whether the rent was payable monthly or yearly is immaterial in considering whether a tenancy Is from year to year or from month to month. In a tenancv at will it is liable to termination at the option of the tenant or the landlord at their will. The illustration at page 645 of Mulla's "Transfer of Property" (5th Edition) based on the decision in Jivrai Gopal v. Atmaram Davaram (1890) ILR 14 Bom 319 is sufficient answer. The mere fact that the rental arrangement was one where the tenant had obligation to pav rent from month to month is not therefore sufficient to read the arrangement other than as a tenancy at will when it is very evident from the terms that the landlord could have terminated the lease at any time on mere demand.
9. Even in a case where tenancy at will or for month to month or year to year is entered into and by reason of the rent restriction laws, such tenants are not liable to be evicted except under certain conditions, the tenancy, nevertheless, continues to be of the same character. It cannot be read as a tenancy for a term. As observed bv Somervell L. J.. in Warren v. Keen. (1954-1 QB 15 at p. 19):
"It is quite true that under the Rent Restriction Acts many tenants from week to week are enabled to remain in premises year after vear. and the landlord may find great difficulty in fulfilling the conditions which have to be fulfilled under those Acts if he is to get possession. But that does not to my mind, affect the question of what are the implications of a weekly tenancy".
10. We do not think that it has ever been doubted that a tenant at will was liable in law only for voluntary waste. Ever since the decision in the Countess of Shewsbury's case, (16001 5 Co Rep 13b this appears to have been well settled. Possibly in the case of a tenant at will the reason for being not made answerable for permissive waste is because of the option to terminate the tenancy on demand. The liability of tenants from year to year to answer for permissive waste has been the subject of discussion in a number of cases before the English Courts. Whatever might have been the earlier view, the view taken by the Court of Appeal in the decision in 1954 (I) QB 15 illustrates the position in England at the moment. Denning L. J. in the said decision said at page 20:--
"Apart from express contract. a tenant owes no duty to the landlord to keep the premises in repair. The only duty of the tenant is to use the premises in a husband like or what is the same thing, a tenant like manner". That case concerned the liability of a weekly tenant to reimburse his landlord for repair work done bv the landlord on the premises. It was urged for the tenant that he was not liable for permissive waste. Referring to this Denning L. J said:
"It (an action for permissive waste) has been held not to lie against a tenant at will, see the Countess of Shrewsbury's case, and in my opinion it does not lie against a weekly tenant."
In the same case Romer L. J. in the concurring judgment observed:--
"From the case I have mentioned I gather that, whatever may be the precise extent of the liability of a tenant from year to year, he is not liable for deterioration due to fair wear and tear and, if so, a fortiori, a weekly tenant is not so liable".
Somervell L. J. expressed himself in the same judgment as follows at page 19:--
"It seems to me clear that the damage here was due to decay of the walls, and there is no suggestion that that was due to any other cause than fair wear and tear. There is no suggestion that the tenant started knocking the walls about or anything of that sort, but in the course of time they had become cracked and presumably required repainting, because water wa.s seeping in through the cracks which had appeared. The same would appear to have applied to the wood of the window sills. That may have been due not onlv to age but also to the positive failure to have the external woodwork re-painted every three years; or whatever is the normal time. Those would be both matters which in my opinion could not on any construction come under this formula of keeping the building wind and water tight, having regard to the principles which are to be found in the cases with regard to the implied liability of a tenant from year to year."
11. Our attention has not been drawn to any decision of the Indian Courts holding a contrary view as to the obligation of a tenant at will. Even a tenant from year to year has merely a duty to treat the property in a tenant like manner. That of course, is the obligation of every tenant. But if the obligation is something more, such as to expend money to retain the building in proper shape, that must be founded upon some rule of law. In the case of a tenant at will we think it could be said as well settled that the obligation is onlv to ensure that his own conduct does not contribute to the deterioration of the tenant-ed premises.
12. It is in the above context that we have to consider how far there is justification to hold the first defendant answerable for damages. We have already pointed out the situation in which the first defendant was placed. He had disclaimed his liability for rent not only because he denied the rental arrange-ment but also because of his plea that he had surrendered the property. Whether actually there was surrender or not, the evidence in the case shows that the machinery was removed from the premises. This was brought to the notice of the landlord. The tenant made it plain that he was not in possession and he had no objection in the landlord taking possession. There was no impediment whatsoever in the plaintiff taking such possession. There is the further fact that, the deterioration of the building was subsequent to this and under such cir-cumstances we cannot, say that the first defendant failed to perform anv obliga-tion of his. We do not think that there was any obligation on his part as a tenant at will to do anything more to safeguard the property. We are left to speculate as to how the building fell down. Of course there is a bare statement in the evidence of the plaintiff that when the machinery was removed that left some pits in the property, water accumulated in the pits and the building fell down. This, if true, would be active waste and it is verv difficult to reconcile this case with the pleadings. There is also no evidence at all to support such a case. In these circumstances unless something more is shown we will be justified in finding that the building fell down possibly due to natural wear and tear. We are unable to fix the defendants with default in the performance of anv legal obligation. If someone had attended to necessary repairs as and when the process pf deterioration started possibly the building would not have fallen down. That of course is not the obligation of a tenant at will. The conduct of the plaintiff and the first defendant does not appear to justify calling upon the 1st defendant to answer for the value of the building. The result is, we allow the appeal to the extent of the decree granted to the plaintiff for recovery of damages of Rs. 12,050/- and dismiss the cross-objection seeking enhancement of the damages.
13. In the result, the appeal is allowed by vacating the decree for damages, and it is dismissed in other respects. The cross-objection is allow ed to the extent of decreeing rent up to the date 31-7-1961, and it is dismissed in other respects. In the circumstances of the case, both parties are directed to suffer costs in the appeal, and the cross-
objection.