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Kulasekar Kumar v/s T. Masthanamma

    C.R.P. (NPD) No. 86 of 2021 & C.M.P.No. 776 of 2021

    Decided On, 03 June 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Petitioner: K.J. Parthasarathy, Advocate. For the Respondent: V.K. Sethukumar, Advocate.



Judgment Text

(Prayer: Civil Revision Petition filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, against the order and decretal order in R.C.A.No. 27 of 2017 by the Appellate Authority, VIII Small Causes Court, Chennai, dated 29.01.2020 partly confirming the order in R.C.O.P.No. 1449 of 2012 by the learned Rent Controller, XII Small Causes Court, Chennai, dated 07.11.2016.)

This Revision Petition has been filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, by the tenant in Shop No.2, situated at Old No. 44/2, New No.38/2, Venkatanarayana Road, T.Nagar, Chennai – 600 017, questioning the order and decreetal order dated 29.01.2020 in R.C.A.No. 27 of 2017 by the XIII Small Causes Court, Chennai / Rent Controller Appellate Authority, who confirmed the order dated 07.11.2016 in R.C.O.P.No. 1449 of 2012 by the XII Small Causes Court, Chennai/ Rent Controller.

2. R.C.O.P.No. 1449 of 2012 had been filed by the landlady T.Masthanamma against the tenant Kulasekar Kumar taking advantage of Sections 10(2)(i), 10(2)(ii)(b), and Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 seeking eviction of the tenant on the ground of willful default in the payment of rent, that the tenant had used the portion for purpose other than for which it was leased and for bona fide use and occupation.

3. In the petition, it had been stated that the respondent/tenant was in possession as a tenant on a monthly rent of Rs.17,000/- and the tenanted portion had been let out for carrying business in the nature of Photogrpahy, Video Coverage, Digital Mixing, VCD Conversion, NTC-PAL Conversion and such other allied items of the Photogrpahy only. It had been stated that at the time of inception of the tenancy, a sum of Rs.2,00,000/- (Rupees Two Lakhs only) had been paid towards security deposit. At the time of extension of the lease, the respondent/tenant requested to adjust the security deposit towards the monthly rent from December 2006. It had been claimed that after such adjustment, the rents again became due from August 2007 and since there was default in the payment of rent, eviction was sought on the ground of wilfull default in the payment of rent.

4. It had also been stated that in accordance with the tenancy agreement, the tenant was permitted to carry on business for the purpose of Photogrpahy, Video Coverage, Digital Mixing, VCD Conversion, NTC-PAL Conversion and such other allied items of the Photogrpahy only, but the tenant was actually carrying on the business as booking agent of AP Tourism Development Corporation. It was therefore stated that the respondent/tenant was liable to be evicted on the ground of putting the property to use for other purpose than for which it was let out.

5. It was further stated that the petitioner/landlady was in need of the petition premises for the bona fide requirement of her own son's own use and occupation to locate their business in the nature of finance, real estate and other businesses. It had been stated that the son does not have any other employment. It had been stated that at the time of extension of lease, this aspect was stated to the respondent/tenant and it was only because of that, the adjustment of security deposit was sought. It had been stated that the inconvenience caused to the respondent in vacating and handing over the vacant possession would not out weigh the inconvenience of the petitioner for locating the finance, real estate and other businesses of his son T.Ashok Kumar who is now carrying on the same business in his house. It had been further stated that she is not occupying any other non residential building in the Ground Floor. It had been further stated that she had also issued notice and thereafter the respondent/tenant took time to vacate. The petitioner filed R.C.O.P.No. 2050 of 2008 on the file of XII Small Cause Court, Chennai. Trial commenced. The petitioner's another son T.S.Nagesh Kumar was examined as PW-1. It was thereafter posted for cross examination of PW-1. The respondent protracted the proceedings. PW-1 was not able to appear before the Court and therefore an application was filed to eschew the evidence. That application was dismissed. Thereafter, the petitioner withdrew R.C.O.P.No. 2050 of 2008 with liberty to file a fresh petition on the grounds of wilfull default and owners' use and occupation.

6. It had been finally stated that eviction should be directed on the grounds of wilfull default in the payment of rent, on the ground of putting the property to use for purpose other than which it was leased out and for the necessity to use for own occupation.

7. Counter had been filed by the respondent denying the said statements. It had been stated that there had been no default in the payment of monthly rents and that the petitioner was not in the habit of issuing receipts. It was stated that a substantial sum was retained by the petitioner as advance. It was also stated that the premises was let out for business purposes only and the respondent was carrying on lawful business and therefore, it was not put to any other use. The averment that the portion was required for bona fide occupation was also denied and it was stated that the petitioner owns buildings in T.Nagar itself in Ramachandra Iyer Street, Chari Street, United India Colony etc., and was not entitled for any relief. It was stated that the earlier petition was dismissed as withdrawn and therefore, since liberty was not granted, the present petition should be dismissed.

8. The parties went to trial. On the side of the petitioner, three witnesses were examined including the son of the petitioner, T. Ashok Kumar as PW-1 and Exs. P-1 to P-134 were marked, including income tax returns and assessment orders years as Exs. P104 to P-124. The tenancy agreement was marked as Exhibit P-128 and P-129. On the side of the respondent, K.Kulasekara Kumar was examined as RW-1 and he marked Exs. R-1 and R-3.

9. By order dated 07.11.2016, the learned Rent Controller held that the respondent/petitioner had committed willful default in the payment of monthly rent and had also converted the business from what it was originally let out to another business and also held that the petitioner premises is required for the bona fide use and occupation of PW-1 T.Ashok Kumar and therefore directed eviction to the respondent/tenant.

10. An appeal was filed in R.C.A.No. 27 of 2017. That came up before the learned Rent Control Appellate Authority / VIII Court of Small Causes, Chennai and by Judgment and Order dated 29.01.2020, the learned Rent Control Appellate Authority, reversed the finding with respect to wilful default in payment of rent and held that the tenant had not committed wilful default in the payment of rent. With respect to requirement for owners' use and occupation, the learned Rent Control Appellate Authority affirmed the order of the Rent Controller and held that the respondent/tenant is liable to be evicted on the ground of own use and occupation. With respect to the ground of putting the business to some other purpose, again the order of the Rent Controller was upheld and eviction was ordered. In effect, eviction was directed on the grounds of requirement for owners' occupation and for putting the premises for different purpose for what it was leased out. During the Appeal, the respondent/tenant also marked Exs. R-3 to R-13 which are copies of demand drafts and postal receipts for forwarding the rents through post.

11. The present Revision Petition has therefore been filed by the tenant questioning eviction on the ground of putting the premises for different purpose and for eviction on the ground of requirement for owners' occupation.

12. Heard arguments advanced by Mr. K.J.Parthasarathy, learned counsel for the revision petitioner and Mr. V.K. Sethu Kumar, learned counsel for the respondent.

13. For the sake of convenience, the parties will be termed in the same nomenclature as they had been termed before the Rent Controller, namely, as petitioner/landlord and respondent/tenant. It must however be kept in mind that the respondent/tenant is the revision petitioner.

14. The petitioner/landlord had filed R.C.O.P.No. 1449 of 2012 seeking eviction of the respondent/tenant from premise bearing Shop No.2 at Old No. 44/2, New No.38/2, Venkatanarayana Road, T.Nagar, Chennai – 600 017. The petitioner was originally filed seeking eviction on three separate grounds, namely, for wilful default in payment of rent, for putting the premises for usage for a purpose for which it was not leased out and for requirement of the premise for owners' occupation.

15. By order dated 07.11.2016, the learned Rent Controller, XII Small Causes Court, Chennai had directed eviction on all the three grounds. Thereafter, the respondent/tenant filed R.C.A.No. 27 of 2017 and by Judgment and Order dated 29.01.2020, the learned Rent Control Appellate Authority reversed the finding in so far as the ground of wilful default in payment of rent was concerned. However, eviction had been confirmed with respect to putting the property to different use rather than for which it was let out, namely under Section 10(2)(ii)(b) of the Act and for owners occupation under Section 10(3)(a)(iii) of the Act.

16. The rental agreement had been marked as Ex.P-128 and P-129. It is dated 30.07.2005. The purpose for which Shop No.2, situated at Old No. 44/2, New No.38/2, Venkatanarayana Road, T.Nagar, Chennai – 600 017, had been leased out to the respondent/tenant for non residential purpose for running the business of Photogrpahy, Video Coverage, Digital Mixing, VCD Conversion, NTC-PAL Conversion and such other allied items of the Photogrpahy. It was stated that the premises shall not be used for gambling, liquour shop, restaurant, health massage or beauty parlour, lodging houses and soft or hot drinks shop.

17. It is the contention of the petitioner/landlord that the respondent/tenant had however put the premise to use for purposes for which it had not been let out, namely, for carrying on business as booking agent of AP Tourism Development Corporation. The eviction on this ground had been upheld by both the Rent Controller and by the Rent Control Appellate Authority. It had been found that RW-1, had admitted that under the lease agreement Ex.P-128, P-129, the purpose for which the portion was let out was only for running business related to photography. He denied that it was used as a booking office for AP Tourism Development Corporation. However, in the counter, he had stated that it was used as booking office.

18. Mr. K.J. Parthasarathy, learned counsel for the respondent/tenant, drew attention of this Court to a Judgment of a learned Single Judge reported in 1996 (1) MLJ 231 [ Ammasai Gounder Vs. Lakshmiammal], wherein the learned Single Judge examined a case where it had been contended that the tenant should be evicted for using the premise for a purpose other than which it was leased. It had been contended by the landlord in that particular case that the lease was for the purpose of carrying on business in hotel and in disregard to the same, the tenant was doing business by running a lathe and obtaining three phase electricity connection. The learned Single Judge of this Court, however over ruled the findings given by both the Rent Controller and the Rent Control Appellate Authority and held as follows:-

“The very Act is meant to protect the interests of the tenants and while so doing, the Act also has engrafted certain provisions to safeguard the interests of the landlord from being unnecessarily exploited by the statutory protection accorded under the provisions of the Act. Sub-section (2) of Section 10 of the Act and particularly Clause (ii)(b) provides that without the consent of the landlord if the tenant has used building for a purpose other than that for which it was leased, he rendered himself liable for eviction. In my view, it requires to be considered strictly keeping in view the avowed object and purpose of the Act as a whole. Otherwise it will defeat the very object of the law and worth great hardship. Thus viewed, I am of the Opinion that unless it is specified with certainty the purpose of the lease and the change in the user by the lessee in contravention of such specified purpose, no restriction could be read into the agreement which would have the effect of imposing the tenant to a liability not warranted under the Act itself for eviction. The decisions of the learned single Judge of this Court to which reference has already been made would go to show that the learned Judges were concerned in those cases of a claim of change in the user in the teeth of a specific stipulation about the very purpose of the lease itself, unlike in the present case. Consequently, in my view no inspiration could be drawn by the learned Counsel for the respondent-landlord from the decisions in S.P. Sabapathi Pillai v. M. Durga and Kailashchand Jain v. Mohamed Karim (1995) 1 M.L.J. 67. At the same time, it is made clear that the agreement in question in this case cannot be said to have omitted to specify anything about the nature of the lease. Reference to the word must in my view be considered as having reference only to the broad classification, namely, whether the lease was for residential or non-residential purpose. What matters in a case of a claim like this is that the change in user must be change in the character of the user for which alone the building had been let out. In my view and in the light of the conclusion as above that the user for which it was let was only nonresidential without any further restriction, the authorities below could not have legitimately come to the conclusion that there had been a violation of See 10(2)(ii)(b) of the Act. In such cases, it is always open to the landlord to claim relief under Section 10(2)(iii) provided the requirements are satisfied. Consequently, the orders of the authorities below suffer from serious illegality and patent irregularity and therefore, are liable to be set aside. The revision is allowed and the orders of the authorities below are set aside. There will be no order as to costs.”

19. The learned Judge had however observed that though the change in the user by the tenant was in contravention to the specified purpose, there was restriction in the agreement from running the named businesses. Thus there must be a specific stipulation given in the lease itself. In that case, it had been observed that the premises was used only for non residential purposes and therefore, it cannot be held that the change of business could be a ground of eviction.

20. The learned counsel for the respondent/tenant also relied on 1998 (II) CTC 25 [ A.Gurusami Vs. Dr.(Mrs) A.Jacob and three others. In that case, evidence had not been adduced by the landlord to prove that only running a Lottery shop was permitted and more importantly, there was no evidence to show that detriment to the building had been caused by change of user. Again, the order of eviction had been interfered with. It had been further held that a change in user should necessarily result in some mischief and detriment to the premises let out.

21. The learned counsel for the respondent /tenant also relied on 2011 (1)(MWN (Civil) 493 [ C. Venkatesh and others Vs. Vel Beds, Rep. by its partner], wherein a learned Single Judge had observed as follows:-

“37. Regarding change of user is concerned, the learned counsel for the landlords would submit that the tenants were not justified in switching over from doing business in fancy goods to one that of selling beds and pillows. Whereas the learned counsel for the tenants would fittingly and convincingly explain and expound that when there is no embargo in the agreement between the landlords and the tenants that latter should not do any other business apart from a specific business, the question of invoking the plea of change of user would not arise.

38. I would like to agree with the submission made by the learned counsel for the tenants that mere switching over from doing the business in fancy goods to one that of selling beds and pillows would not amount to change of user and that too in the absence of any negative covenant in the agreement that the tenants shall not do any business other than the specified business in the agreement.”

22. When examining the evidence in this case, it is seen that the petition premises had been originally let out for non residential purpose for running of business relating to photography. Admittedly, the respondent/tenant had converted the usage of the premises to run as business as booking agent for AP Tourism Development Corporation. The petitioner/landlord had not given any evidence to show that by such change in the user damage had been caused to the petition premises.

23. It is also seen in the lease deed, the premises was let out for non residential purpose. In view of the fact that the petitioner/landlord had not come with any specific evidence with respect to the detriment caused to the building by putting it to a different use for a different business, I hold that the eviction passed on this particular ground needs to be interfered and the findings of both the Courts are reversed.

24. The petitioner/landlord had also sought the petition premises for usage of her son PW-1 Ashok Kumar for carrying on business for real estate and related purposes. The learned counsel for the respondent/tenant found fault with the fact that the petitioner had not grazed the witness box but her son, Ashok Kumar was rather examined as PW-1. It was stated that he would not have any knowledge of any of the facts prior to the filing of the petition. I do not agree with this contention. The premises was required for the occupation of PW-1. He is the best witness to speak about the nature of requirement and the necessity for requirement. References made to the restrictions of a Power of Attorney Agent to tender evidence cannot be taken advantage in this particular case since PW-1 is the son of the landlord. The premises is required for his purpose for running real estate business. Naturally he is the best witness to speak about that particular ground relating to bona fide requirement for use and occupation. The evidence in this regard is quite comprehensive.

25. PW-1 during his cross examination was questioned on all the aspects relating to requirement of the premises for bona fide use and occupation. He was cross examined whether there were other premises owned by the landlord. He admitted that there were other premises but stated that this is the only premises which is in the ground floor and can be put for business use. He stated that the other premises which had been suggested to be owned by the landlord were a residential premises.

26. As correctly held by the learned Rent Controller and also by the Rent Control Appellate Authority, the respondent/tenant had not given any positive evidence with respect to the fact that the requirement is not bonafide. On the other hand, RW-1 had admitted during his cross examination that the landlord's son is not doing any work but doing some business.

27. I concur with the finding of both the Rent Controller and the Rent Control Appellate Authority that PW-1 is a competent person to tender evidence on behalf of the petitioner/landlord on the basis of Ex.P-

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1/ authorisation letter. He steps into the shoes of the landlord. He is not a power of attorney agent. The relationship is totally different. The premises is required for his occupation. It had been admitted by RW-1 that PW-1 is not doing any work but doing only business and that he had stated that he requires the premise for running real estate business. It had also been stated that there are no other premises wherein the ground floor portion can be sought for this purpose. 28. The learned counsel for the respondent/tenant however pointed out that two other portions had been vacated and subsequently, the petitioner/landlord had let them out for running a Coffee Shop and therefore claimed that there was no bona fide on the requirement of the petitioner/landlord. It cannot lie in the mouth of the respondent/tenant to dictate as to which portion the petitioner/landlord should use and put for business purpose. 29. In view of these facts, I hold that the finding of the Rent Control Appellate Authority that eviction is to be directed on the ground of bona fide occupation under Section 10(3)(a)(iii) of the Act will have to be confirmed and eviction is directed on that particular ground. 30. I would also add a caveat that the respondent/tenant can approach the Court for repossession by invoking Section 10(5)(a) of the Act in accordance with the stipulations therein. 31. Accordingly, this Civil Revision Petition is (i) partly allowed and the order dated 07.11.2016 in R.C.O.P.No. 1449 of 2012 and dated 29.01.2020 in R.C.A.No. 27 of 2017 are set aside in so far as eviction was ordered under Section 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended; (ii) partly dismissed and the orders dated 07.11.2016 in R.C.O.P.No. 1449 of 2012 and dated 29.01.2020 in R.C.A.No. 27 of 2017 are confirmed and eviction is directed under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended; (iii) Time to vacate is granted till 31.07.2021; (iv) No order as to costs; and (v) Connected Miscellaneous Petition is closed.
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