This civil revision petition is directed against the judgment and decree dated 26.3.1996 made in R.C.A.No.38 of 1995 by the Rent Control Appellate Authority and Subordinate Judge, Nagapattinam, thereby confirming the fair and decretal order dated 28.4.1995 made in R.C.O.P.No.2 of 1993 by the Rent Controller and District Munsif, Tiruthuraipoondi.
2. To trade the history of the case, the rent control original petition has been filed by the landlords for eviction of the tenant on four grounds, viz., (i) for wilful default under Sec. 10(2)(i); (ii) for different user under Sec. 10(2)(ii)(b); (iii) for act of waste under Sec.10(2)(iii); and (iv) for demolition and reconstruction under Sec.14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the Act ).
3. The Rent Controller on enquiry dismissed the petition on three grounds viz., wilful default, act of waste and demolition and reconstruction, but has allowed the petition on the other sole ground of different user of the premises by the tenant and has ordered eviction. That against the said order of allowing the petition on ground of different user, the tenant has preferred an Appeal in R.C.A.No.38 of 1995, the appellate authority dismissed the said appeal and hence, it is the tenant, who has come forward to file the above civil revision petition on grounds, such as, (i) that the courts below ought to have seen that the landlords have not established the ground of different user, especially when there is no allegation that the tenant is using the premises for purposes other than the business for which the tenancy was created; (ii) that the courts below ought to have seen that according to R.W.2, the premises was let out as petty shop and there was no specific agreement between the parties as to what business the tenant has to run in the shop. In the absence of any specific mention of the type of business, the findings rendered by the courts below are perverse; (ii) that the courts below have erred in not considering that the tenant has not converted the premises from nonresidential to residential, and as such, operating of the xerox machine, would in no way mean treating the premises for different user; (iv) that the courts below ought to have seen that even for operating the xerox machine, the tenant has obtained prior permission from the landlord though it is unwarranted in the circumstances of the case. With the above and such other grounds, the revision petitioner would pray for setting aside both the orders passed by the Rent Controller and the appellate authority.
4. During enquiry before the Rent Controller, the second respondent herein besides examining himself as P.W.I on the part of the petitioners for oral evidence, would also mark 8 documents as Exs.A-1 to A-8 for documentary evidence. Likewise, on the part respondents, Muthuthevar, who is the respondent/tenant besides examining himself as R.W.I, would mark 7 documents as Exs.B-1 to B-7 for documentary evidence. Besides these, five documents would also be marked as court documents including the commissioner's report, the rough sketch and the photographs numbering 3, all dated 18.4.1995 as Exs.C-1 to C-5.
5. With the above evidence placed on record and in appreciation of the same, the Rent Controller would ultimately arrive at the conclusion to dismiss the petition on the other three grounds and to allow the same on the only ground of different user of the premises by the tenant, testifying the validity of which, the tenant had gone on appeal before the appellate authority and there too, the order of the Rent Controller having been confirmed consequently dismissing the appeal, the tenant has now come forward to file the above revision on such grounds, as mentioned supra.
6. During arguments, the learned counsel appearing for the petitioner would contend that the only question now arises for consideration is whether the premises has been used for different purposes by the tenant; that the petitioner took the premises for lease on 2.10.1981 from the respondents father Sankaranpillai; that in October, 1981, he installed a xerox machine; that originally the rent was Rs.60 and it came to be enhanced to Rs.70 from October, 1984 and subsequently to Rs.100 from October, 1986, that which the petitioner was promptly paying; that the respondents father died during 1991 and after his death, the respondents continued to receive the rents upto 1993 that is till the R.C.O.R was filed..
7. The learned counsel would further contend that there is no change of purpose regarding the introduction of the xerox machine into the shop; that Sec.10(2)(ii)(b) of the Act is not at all attracted, since the building is not used for the purpose other than for which it was leased; that by introducing the xerox machine, the same business has been slightly improved and the same cannot be taken as user of the building for a purpose other than that for which it was leased; that the purpose for which the premises was leased out in favour of the petitioner is meaning thereby for using it as shop and for trade purposes; that the utility of the premises is not altered by installing the xerox machine. Therefore, different user as meant under Sec. 10(2)(ii)(b) of the Act does not arise in this case at all and the question of seeking permission also does not arise; that to keep the xerox machine, no alteration was made in the premises, nor any act of waste committed; that in the absence of such inconvenience or loss or alteration to the building, the ground of different user cannot at all arise.
8. In this context, the learned counsel appearing for the petitioner would cite a judgment delivered in Gurdial Batra v. Raj Kumar Jain , J. T. (1989)3 S.C. 96 wherein it is held as follows:
The use to which the premises was intended to be put was running of a cycle and rickshaw repairing shop that the appellant had conti nued the business of repairing of cycles and rickshaws but side by side had for a period of about seven months been selling televisions in the premises but he stopped the same as it was not viable. According to the Controller, this did not constitute user for a purpose other than than for which the premises was leased and he accordingly rejected the petition. The appellate authority at the landlords instance held that the statutory condition was satisfied and granted eviction. The High Court when moved by the tenant declined to interfere . The short question that arises for consideration is whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased. . The landlord has accepted the position that in the rent note it was not written that the respondent would not do any business in the shop. On these facts it has now to be decided as to whether the premises has been used for a purpose other than that for which it had been leased.
In the background of the purpose of rent legislation and inasmuch as in the instant case, the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of Sec.13(2)(ii) (b) (Lord Diplock,J. in Duport Steels Ltd. v. Sirs , (1980)1 All E.R. 529.
On the above conclusion, the order of eviction was reversed. Moreover, this judgment has been followed in Ammasai Gounder v. Lakshmiammal , (1996)1 MLJ. 231.
9. The other judgment cited by the learned coun- sel is one delivered in T.M. Ramaswamy Gounder v. Ranganayaki T.M. Ramaswamy Gounder v. Ranganayaki T.M. Ramaswamy Gounder v. Ranganayaki , 1990 T.L.N.J 122 in which the learned Judge has followed the decision reported in M.K.Palaniappa Chettiar v. A.Ponnuswami Pillai M.K.Palaniappa Chettiar v. A.Ponnuswami Pillai M.K.Palaniappa Chettiar v. A.Ponnuswami Pillai , (1970)2 S.C.C. 290 at 293 wherein it is held as follows:
It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that 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.
In the above decision, the civil revision petition would be allowed setting aside both the orders passed by the authorities below in ordering eviction of the premises on ground of different user of the premises.
10. The last judgment cited by the learned counsel is one delivered in Gurusami, A. v. Dr.(Mrs.) A.Jacob Gurusami, A. v. Dr.(Mrs.) A.Jacob Gurusami, A. v. Dr.(Mrs.) A.Jacob , (1998)2 C.T.C. 25 Even in this judgment, following the already cited judgment delivered in Gurudial Batra v. Raj Kumar Jain Gurudial Batra v. Raj Kumar Jain Gurudial Batra v. Raj Kumar Jain , A.I.R. 1989 S.C. 1841 the learned single Judge of this Court would hold;
In this case there is no evidence on record to establish what is the detriment which the landlord has suffered on account of the change of user, assuming it exists. Under these circumstances, I am not in a position to agree with the finding of the Rent Controller and the appellate authority on the change of user given in favour of the landlady.
11. On the contrary, the learned counsel appearing for the respondents would contend that as per the counter, the petitioner has pointed out that he was going to run only a petty shop; that installing and doing of xerox copiers is not a petty shop business. The learned counsel would comment on the judgment reported in T.M.Ramaswamy Gounder v. Ranganayaki T.M.Ramaswamy Gounder v. Ranganayaki T.M.Ramaswamy Gounder v. Ranganayaki 1990 T.L.N.J. 122, that the onus of the landlord is to prove the purpose for which the premises was let out. It is admitted on the part of the petitioner that the purpose was different. In having come forward to admit that the premises was let out only for a petty shop and not for installing the xerox machine he would lay emphasis that though as per the above judgment, the onus to prove the purpose for which the premises was let out in spite of being on the landlord, since it is admitted on the part of the petitioner no proof need be necessary and it is well settled that admitted facts need not be proved.
12. Citing a judgment delivered in K.Panchavarnammal (Died) v. E.Saraswathiammal K.Panchavarnammal (Died) v. E.Saraswathiammal K.Panchavarnammal (Died) v. E.Saraswathiammal , (1996)2 MLJ. 252: (1996)2 C.T.C. 98 the learned counsel for the respondents would exhort that the derivation arrived at by the learned single Judge of this Court in the above case in para 14 squarely applies to the case of the respondent/landlords. I extract para 14 of the said judgment hereunder:
Even though the petitioner has not pleaded the purpose of letting, in view of the admission made by R. W. 1 that the building was let out only for pawnbroker's business, lack of pleadings has not prejudiced the tenants in any way. The further question is, whether the respondents herein have acquiesced to the change of user. Learned counsel for the petitioners submitted that Ex.B-1 is a rent receipt book wherein the petitioner (landlord) has signed as a token for receipt of rent, In that book, the name of the hotel is stated. The argument is that once the petitioner (landlord) came to know about the user, and thereafter, receives the rent without any protest, acquiescence should be presumed. I cannot accept this argument for two reasons. (1) The Rent Control Act provides that written consent has to be obtained-. When statute provides that written consent has to be obtained, the tenant cannot come forward with a contention that by conduct or silence on that part of the landlord, written consent should be inferred. Again, when the agreement itself is to make use of the building only as a place for pawnbroker's business, any violation by the tenant is at his risk. The landlord need not remind him as to the purpose for which he has let out the building every now and then. So, again, acquiescence is a plea of estoppel. If that be so, the tenant has to prove that on account of the representation by silence, she has acted to her detriment. She has no such case. (2) Even if the building is used for other purpose, the landlord is entitled to collect rent. Mere receipt of rent, which the landlord is entitled to, will not amount to consent, Because, whatever may be the purpose, rent is payable. Either way, the contention of the revision petitioner cannot stand. Learned counsel for the revision petitioners again submitted that unless the landlords are prejudiced by the change of user, they have no cause of action. According to me, the very change of user is prejudicial to the landlords. I do not think any further act is required on the part of the landlords to prove prejudice, especially when the statutory conditions are violated. I confirm the finding of the appellate authority that the tenants are making use of the building for a purpose other than the one for which it was let out. The tenants are liable to be evicted on that ground.
13. It is a case on ground of user of the premises by the tenant other than the purpose
for which the premises was let out, Both the Rent Controller and the appellate authority as well have rendered a concurrent finding holding that the tenant has committed the fault of making use of the premises for the purpose other than for which it was rented out in his favour by the respondents/landlords. It is a case wherein no rental deed has been submitted before the court and only with the oral evidence adduced by parties and with the other available documentary evidence, decision has to be arrived at.
14. So far as the tenant is concerned, it is admitted that the premises was let out for running a petty shop and at a later stage, he started the business of a xerox copiers in the same premises by installing a xerox machine and would contend that the same cannot be termed as different user of the premises, since no alteration or addition or any damage has been caused to the premises in any manner and the originality is retained. It is the further case of the petitioner/ tenant that he obtained prior permission from the respondent/landlords for the introduction of the xerox machine and the same is oral. But the permission said to have been obtained by the tenant from the landlords would be stoutly denied by the landlords.
15. In these circumstances, it is up to the tenant to prove his contention that permission has been obtained and then only the xerox machine got introduced into the premises. Excepting for orally stating that he had obtained the permission no other valid or reliable evidence has been put forth much less in writing, Hence, based on the only oral evidence of the tenant especially when the same is denied by the landlords, this fact cannot be concluded to have been proved in evidence.
16. Considering the judgment supplied by the learned counsel for the petitioner reported in Gurdial Batra v. Raj Kumar Jain , J.T. (1989)3 S.C. 96.A.I.R 1989 S.C. 1841 it is very well in support of the tenant, since the introduction of a new item, that is Television in that case cannot be taken that the premises has been made use of for a different purpose. On the part of the tenant, it would further be argued that the Judgment reported in M.KPalaniappa Chettiar v. Ponnuswami Pillai M.KPalaniappa Chettiar v. Ponnuswami Pillai M.KPalaniappa Chettiar v. Ponnuswami Pillai , (1970)2 S.C.C. 290 would clearly go to show that it is for the landlord to establish, independently the plea of the tenant, that the tenants use was in breach of the terms of the lease.
17. So far as the present case is concerned, it is quite evident that the premises was leased out only for running a petty shop. In common parlance, a petty shop is a place meant for sale of small and sundry items and introducing a xerox machine cannot in any manner, be termed as an item that is being sold or transacted by a petty shopkeeper. It may be true on the part of the petitioner (tenant) that the might have installed the xerox machine in such a manner as not to cause any damage or loss to be occasioned to the landlords on account of the new introduction and that is the parameter that is to be considered when the question of different user of the premises by the tenant is to be decided for the tenant.
18. Considering the proposition arrived at in the judgment reported in K.Panchavarnammal v. E.Saraswathiammal K.Panchavarnammal v. E.Saraswathiammal K.Panchavarnammal v. E.Saraswathiammal , (1996)2 MLJ. 252: (1996)2 C.T.C. 98 which is more relevant to the facts of the case in hand and the subject matter of different user as well remarked by the learned counsel for the respondents, it squarely applies to the facts of the present case in hand and in such event, it has to be held that by introduction of the xerox copiers machine into the premises, which was rented out for the purpose of running a petty shop would definitely amount to making use of the premises for the purpose other than for which it was rented out in favour of the tenant. Hence the only question of different user that is to be answered in this case is that the premises has been used for purpose other than for which it was rented out. No other valid or tangible reason has been shown either for irregular or improper procedures adopted or denial of opportunity, violation of natural justice, etc., was established on the part of the revision petitioner, so as to warrant interference by this revisional court. Hence, in the above circumstances, this Court is left with no option but to confirm the findings rendered by both the Rent Controller and appellate authority in a concurrent manner.
19. In result, the above civil revision petition fails and the same is dismissed. The judgment and decree dated 26.3.1996 made in R.C.A.No.38 of 1995 by the Rent Control Appellate Authority and Subordinate Judge, Nagapattinam, thereby confirming the fair and decretal order dated 28.4.1995 made in R.C.O.P.No.2 of 1993 by the Rent Controller and District Munsif, Tiruthuraipoondi, is hereby confirmed.
20. However, a time of 6 months is granted for the petitioner/tenant to vacate and hand over vacant possession of the premises with the landlords/respondents.
21. Connected c.M.P. is dismissed. No costs.