A. Duraiswami v. A. Arumugam

Tenant in R.C.O.P No. 17 of 1990, on the file of Rent Controller, Tiruppur, is the revision petitioner.

2. Eviction was sought by respondent herein on the ground that the revision petitioner has committed wilful default in payment of rent for a period of eight months at the rate of Rs. 700/- per mensem. There was a further averment that the tenant has sub-let the building without the written consent of the landlord and that he has also committed acts of waste which have reduced the value and utility of the building permanently.

3. The said allegations were seriously opposed by the revision petitioner. In his counter statement, he further said that he is not the real tenant, but his brother Kondappan is doing business under the name and style of ‘A.K.N Textiles’, and he is not liable to pay rent much less arrears of rent. He further denied having sub-let the building. Regarding the allegations of waste, it was further contended that he has not done any act which has affected the utility of the building and, therefore, eviction cannot be allowed.

4. Rent Controller, as per order dated 13-11-1991, held that the revision petitioner is liable to be evicted on two grounds, namely, (1) wilful default in payment of rent and (2) acts of waste. The ground of sub-lease was found as not substantiated by the Rent Controller.

5. The matter was taken in appeal by the tenant in R.C.A No. 1 of 1992, on the file of Appellate Authority (Sub Judge, Tiruppur). Before the Appellate Authority, the landlord did not canvass the correctness of the finding against him in so far as the ground of eviction of unauthorised sub-letting. The Appellate Authority confirmed the other two findings and also confirmed the order of eviction.

6. The legality and propriety of the orders of the Authorities below are challenged in this Revision.

7. I will first take into consideration the contention put forward by learned counsel for the tenant, whether the landlord has substantiated his case that the tenant is liable to be evicted on the ground of acts of waste.

8. Before going into the evidence in this case, the averments in the petition may be extracted. In paragraph 5 of the eviction petition, it is said thus:—

“The petitioner submits the Respondent has recently damaged the Sarapalakais doors in front of the shop injuring the petitioner's building-shop. He has no authority or business to do so. Committing such acts of waste without the consent of the landlord petitioner impairing the utility and value of this property, he is liable to be evicted under Sec. 10(2)(iii) of Act 18/1960.”

9. The said allegation is denied in paragraph 6 of the counter statement.

10. In chief-examination, this is the only sentence that has been elicited from the petitioner.

He has no case in the chief-examination that by substituting the existing door with a wider one, the value and utility of the building has been affected. In the cross-examination, it is stated thus:—

11. This is the only evidence regarding the alleged waste. The counter petitioner got himself examined as R.W 1. He admitted that he has put up a new door, but at the same time, he has not damaged the building. It is only for the safety of his business that he has done so.

12. Learned Rent Controller was of the view that if a new door is put up, naturally, portions of wall will have to be demolished and then alone the door could be inserted. In that way, the building is damaged. Therefore, to that extent, the utility of the building is also affected. The Appellate Authority also took the same view.

13. According to me, the said finding of the Authorities below has no legal basis. Section 10(2)(iii) says ‘that the tenant has committed or caused to be committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building’.

14. In J.T 1988 (4) S.C 46 (Sh, Om Pal v. Sh. Anand Swarup), their Lordships considered the meaning considered the meaning of the words “as are likely to impair materially the value or utility of the building” under the East Punjab Urban Rent Restriction Act, 1949. The principle enunciated by this Court in the decision reported in AIR 1952 Mad. 181 = (1951) 64 L.W 1013 (Govindaswamy Naidu v. Pushpalammal), and also other cases were considered in that case. Argument advanced by learned counsel before that Court is extracted in paragraph 6 of the judgment, and in paragraph 8, their Lordship held thus:—

“Though these decisions construed the words ‘materially alter’ we are of the view that the reasoning adopted for construing those words would logically be attracted for construing the words “materially impaired” with which we are concerned”.

The decision which their Lordships took into consideration was AIR 1952 Mad. 181 = 64 L.W 1013 (supra) wherein it was held thus:—

“Every act of waste by the tenant will not entitle the landlord to obtain an order or eviction under the provisions of Section 7 (Madras Buildings Lease and Rent Control Act), 1946. It cannot be laid down as a rule of law that a demolition of a wall in a building must necessarily be deemed to be an act of waste which is likely to impair materially the value or the utility of the building.”

Their Lordships also followed the decisions in AIR 1956 Nagpur 60 (Smt. Savitri Devi v. U.S Bajpai) and J.T 1987 SC 199 = 1989-1-L.W. 470 (Om Prakash v. Amar Singh & others) wherein it was held thus:—

“A landlord, in order to be entitled to the grant of permission to terminate the tenancy, is required not only to prove an act of waste on the part of the tenant but also to prove that the said act is likely to impair materially the value or the utility of the house.”

15. In 1989 RCJ 733 (G. Natarajan v. P. Thandavarayan), it was held thus:—

“Drilling of a hole to let out smoke by the tenant who had taken the building for hoteliering business and removal of a portion of parapet wall for temporarily accommodating the hotel employees housed in the adjacent building cannot be said to be acts which would impair the utility of the building or its value.”

16. In 1977 (1) RCJ 752 (Shri Anup Chand & others v. Shri Trilok Singh), it was held thus:—

“Mere construction of a false roof which is only wooden or the setting of a wooden stair or making alterations which may result in changing the character or nature of the premises.”

And, finally, after considering the above decisions, their Lordships held thus (in para 9):—

“In the light of these decisions, if we examine the present case we find that the Rent Controller and the Appellate Authority as well as the High Court have obviously failed to construe Section 13(2)(iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant. As has been repeatedly pointed out in several decisions it is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract Sec. 13(2)(iii), the construction 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. It was pointed out in Om Prakash v. Amar Singh (1987) (1) SCC 458 at 463) that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word “materially altered the accommodation” and as such the construction of a chabutra, almirah, opening of window or closing a veranda by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. It would therefore follow that when a construction is alleged to materially impair the value or utility of a building, the construction value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial or monetary point of view or from the utilitarian aspect of the building.”

17. In A.L.R 1988 S.C 293 (Brijendra Nath v. Harsh Wardhan), a similar question came for consideration. After following the earlier decisions of the Supreme ‘Court, it was held in that case that unless it is proved that it has materially affected the value and utility of the building, the landlord will not get a cause of action.

18. In 1995 Supp. (3) SCC 459 Pratap Narain v. District Judge), it was a case where structural alterations were made by the tenant without written consent of the landlord. Landlord contended that the changes so made have diminished the value of the building. In paragraph 4 of the judgment, their Lordships have held thus:—

“… A persual of clause (c) of sub-section (2) of Section 20 of Act 13 of 1972 (U.P Urban Buildings Regn. .. Act) would indicate that a suit for eviction is maintainable only if the tenant is found to have made any structural changes without the consent of the landlord and that such changes resulted in diminishing the value of the building. Therefore, even if it is held that the structural changes were made by the appellant without the consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building. ..”

19. In 1994-2-L.W. 611 (Kailashchand Jain & 2 others v. Mohamed Kasim), in paragraph 11 of the judgment, it has been has been held thus:—

“Under S. 10(2)(iii) eviction could be ordered where 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. In construing this provision as early as in R. Govindaswami Naidu v. G. Pushpalammal (AIR 1952 Madras 181 = 64 L.W 1013) a Division Bench of this Court has pointed out that every act of waste by the tenant will hot entitle the landlord to obtain an order of eviction under the provisions of S. 7 of Madras Buildings (Lease and Rent Control) Act 15 of 1946. A finding whether the impugned construction necessarily be deemed to be an act of waste which is likely to impair materially the value or utility of the building must be based upon the particular facts as emerged from the evidence that is adduced in the case. Where there was almost complete absence of material relevant to the determination of this main question, except the evidence of the landlady's husband who said that the act of the tenant would impair materially the value or utility of the building but did not choose to say how and why, held, it is difficult to hold that the demolition of the wall in that case has resulted in impairing the value of utility of the building. In Natarajan v. Thandavarayan (82 L.W 208 = 1969-II-M.I.J 19) Ramaprasada Rao, J. (as he then was) has held that while considering the content of S. 10(2)(iii) of the Act it is necessary that certain objective standards have to be set, before a tribunal or Court engaged in the adjudication of rights of parties decisively concluded that the act complained of is or has to be characterised as one impairing materially the value or utility of the building. Here rendering of subjective opinion may not be of any avail unless such opinion is backed by expert evidence. What is contemplated in the Section is the lowering of the economic value of the building and not a possible mental inconvenience suffered subjectively by the landlord on a prima facie examination of the building. Unless there is clinching evidence to satisfy the conscience of the Court that the acts complained of have caused damage to the building or its utility, it would be in the region of wild speculation to conclude that the necessary ingredients or the sine qua non of the section have been satisfied. His Lordship took the view that drilling a hole 3 “in diameter in the terraced portion of a building (leased for running a hotel) to let out smoke, and removal of a portion of the parapet wall on the terrace were not acts of waste which in any wise could be said to impair materially the value or utility of the building. The same learned Judge has held in Mesdames Tara Moolgaukar v. T. Raja Mohan Rao (1979 II M.L.J 504 = 92 L.W 341) that the using a garage as a room it could not be said that the tenant had committed acts of waste. In the absence of any evidence to show that by such use the utility of the building had been materially impaired, it could not equally be said that the tenant had committed any acts of waste which would come within the mischief or meaning of S. 10(2)(iii) of the Act.”

(Emphasis supplied)

20. The Kerala Buildings (Lease and Rent Control) Act, 1965 is also similarly worded as that of the Tamil Nadu Rent Control Act. There, Section 11(4)(ii) of the (Kerala Rent Control) Act says:—

“A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building—

(ii) if the tenant used the building in such a manner as to destroy or reduce its value or utility materially and permanently.”

21. While construing the above Section, in 1988 (1) K.L.T 86 (Shanmugam v. Rao Saheb), K.T Thomas, J., as he then was, held in paragraph 6, thus:—

“To attract Clause (ii) of sub-s. (4) of S. 11 of the Act, proof of mere reduction or even destruction of utility of value would not be sufficient. The words “materially and permanently” have much importance in the context because the legislature was not inclined to allow a tenant to be dislodged from the building on proof of even destruction of utility or value of the building. Almost a similar expression is used in S. 108 Clause (e) of the Transfer of Property Act that when the property is leased is destroyed or “substantially and permanently” rendered unfit, due to the wrongful act of the tenant, the lease becomes void. Courts have held that the damage caused must be so great as to involve reasonably sizable expense to rectify the damage. While dealing with the expression “materially altered the accommodation or is likely substantially to involve reasonably sizable expense to rectify the damage. While dealing with the expression “materially altered the accommodation or is likely substantially to diminish its value” in S. 3 of the U.P (Temporary) Control of Rent and Eviction Act, 1947 the Supreme Court observed in Man Mohan Das v. Bishun Das (AIR 1967 S.C 643) that it would depend upon facts and circumstances in each case. The expression “materially and permanently” in Clause (ii) of sub-rule (4) of the Act would certainly indicate that a landlord cannot get an order of eviction on that ground by mere proof of minor destruction, or alteration, even if it results in marginal reduction of value or utility. As the expression was used conjunctively, the legislature has indicated that even material alterations of a temporary nature would not help the landlord in getting an order of eviction. The destruction on reduction of utility or value of the building must be of a reasonably substantial magnitude.”

22. From a reading of the above decisions, it is clear that every act of the tenant is not considered as an act of waste. The landlord must prove that the user is in such a nature that it has affected its value or utility permanently. The Rent Control Act is a self-contained Code in so far as grounds of eviction are concerned. But, in regard to certain matters for which there is no provision under the Rent Control Act, the ordinary law under the Transfer of Property Act applies. Under Sec. 108 of the Transfer of Property Act, a tenant is entitled to make use of the property as a man of ordinary prudence. A lease is a transfer of immovable property for enjoyment. If the lease is for the purpose of doing a business, naturally the tenant is entitled to make use of the same and necessary convenience also could be made. But, while doing such acts, no material alteration which could affect the structure should be made.

23. In 1985 K.L.T 551 (Viswanathan v. Porichu), a learned Judge of that High Court considered the right of a tenant. In that case, the question that came for consideration was, whether fitting a collapsible shutter on two pillars in the place of a rolling shutter amounted to material alteration. The learned Judge said that the same will not give a cause of action. In paragraph 8 of the judgment, it was held thus:—

“It has to be borne in mind that a lessee is a person to whom valuable rights in the property are transferred. This is implicit in the very definition of the term ‘lease’ as contained in S. 105 of the Transfer of Property Act. S. 108 of that enactment deals with the rights and liabilities of the lessor or lessee. Clause ‘o’ of that Section is particularly relevant in the present context. A user of the leased property as a person of ordinary prudence is a right of the tenant. The possession of the property itself vests with the tenant. He could, in relation to the lease premises, exercise such acts as a person of ordinary prudence, provided, however, that no material alteration is effected in the building by such acts. .. .. .. ..”

24. Taking into consideration the law so declared by the Supreme Court and also various High Courts, and also taking into consideration the wordings in the Statute, it is clear that unless the landlord establishes that the placing of a new door has impaired the value and utility of the building, he will not have any cause of action. I have already extracted the evidence of the landlord let in this case. He has not even stated in his deposition that the building has been damaged materially. Excepting that a door has been placed, no other evidence has been let in this case. The finding of the Authorities below that for placing the door, portions of the wall will have to be demolished and, therefore, diminition of value and utility can be presumed, cannot be accepted.

25. As held in 1994-2-L.W. 611 (supra), Court cannot base its decisions on conjectures and surmises. Even though the findings of the Authorities below are concurrent, since they are not based on any materials, I am constrained to set aside the same, and I do so.

26. But the landlord is entitled to succeed on the ground that the tenant has committed wilful default in payment of rent.

27. Before eviction petition was filed, landlord issued a notice. At that time seven months' rent was due. The fact that the rent was not paid for this period is not disputed. By the time the eviction petition was filed, one more month's rent became due, and that is why in the eviction petition, it was said that the tenant has not paid rent for eight months continuously. When this was alleged, the only answer stated in the counter was that the revision petitioner is not the tenant, and his brother Kondappan is making use of the building, and the rental arrangement between him and his landlord has not come into effect.

According to his case, he is not liable to pay rent. Of course, in another portion, he has further said that he has paid Rs. 25,000/- as advance at the time when the rental arrangement began. The landlord, while he was examined as P.W 1, said that he has not entered into any written arrangement, nor did he receive Rs. 25,000/- as advance. No attempt was made by the tenant to prove the written agreement alleged by him in his counter. It is his case that it is pursuant to a written agreement, a sum of Rs. 25,000/- was paid as advance. According to me, his case is inconsistent. One time he says that the rental arrangement entered into by him did not come into effect, and in another place he says that pursuant to the rental arrangement, he paid Rs. 25,000/-. Both the Authorities below found that the alleged payment of Rs. 25,000/- by way of advance is not proved. Before this Court, a Civil Miscellaneous Petition was filed to prove the so called written agreement and also to receive the same as additional evidence. No reason has been mentioned why the document was not filed before the Rent Controller. It is not his case that no opportunity was given to him by the Authorities below. In fact, this contention regarding payment of Rs. 25,000/- was not even urged before the Appellate Authority. It is a new case now put forward in Revision. Under the above circumstances, the request of learned counsel for the petitioner to receive additional evidence does not deserve any consideration and the same is rejected. Once the alleged payment of advance is not proved, and there is no other explanation for non-payment of rent, the finding of the Authorities below that the revision petitioner is only a wilful defaulter is only to be accepted. When he says that he is not the tenant and, therefore, he is not liable to pay rent, it follows that his intention was not to pay rent to the respondent (landlord). He intentionally refused to pay rent. That means, he is a deemed wilful defaulter.

28. The Authorities below have rightly held that the Revision Petitioner is liable to be evicted on that ground.

29. In the result, I hod that the Revision Petitioner is liable to be evicted on the ground that he is a wilful defaulter in paying Rent. Eviction claimed on the ground that the revision Petitioner has committed acts of waste so as to reduce the value and utility of the building, is found against the landlord. The Revision is dismissed with the above modification. There will be no order as to costs. C.M.P No. 14327 of 1992 (to receive additional evidence) is dismissed, for reasons stated already. CMP 14865 of 1994 (for direction) is dismissed consequent to the Order in the main C.R.P

KA/RR/VCS