A. Duraiswami vs A. Arumugham

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

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 has reduced the value and utility of the building permanently.

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.

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.

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.

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

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.

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 u/s 10(2)(iii) of Act 18 of 1960.

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

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:

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.

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.

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 such acts of waste as are likely to impair materially the value or utility of the building.

In Sh. Om Pal v. Sh. Anand Swarup J.T. (1988) 4 S.C. 46, their Lordships 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 R. Govindaswami Naidu Vs. G. Pushpalammal and Another, and also other cases was 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 Lordships 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 R. Govindaswami Naidu Vs. G. Pushpalammal and Another, , wherein it was held

thus:

Every act of waste by the tenant will not entitle the landlord to obtain an order of 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 Smt. Savith Devi v. U.S. Bajpai AIR 1956 Nag. 60 and Om Prakash v. Amar Singh and Ors. J.T.

1987 S.C. 199 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.

In G. Natarajan v. T. Thandavarayan 1969 R.C.J. 733, 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.

In Shri Anup Chand and Ors. v. Shri Trilok Singh (1977) 1 R.C.J. 752, 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 Section 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 Vs. Amar Singh and Others, 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 verandah 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.

In Brijendra Nath Bhargava and Another Vs. Harsh Wardhan and Others, , 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.

In Pratap Narain v. District Judge (1995) 3 S.C.C. (Supp.) 459, 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 perusal of Clause (c) of Sub-section (2) of Section 20 of Act 13 of 1972 (U.P. Urban Buildings Regulation 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....

Kailashchand Jain and two Ors. v. Mohamed Kasim (1994) 2 L.W. 611 in paragraph 11 of the judgment, it has been held thus:

Under Section 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 Vs. G. Pushpalammal and

Another, , a Division Bench of this Court has pointed out that every act of waste by the tenant will not entitle the landlord to obtain an order of

eviction under the provisions of Section 7 of Madras Buildings (Lease and Rent Control) Act 15 of 1946. A finding whether the impugned

construction must necessarily be deemed to be an act of waste which is likely to impairmaterially 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 G. Natarajan Vs. P. Thandavarayan, , Ramaprasada Rao, J. (as he then was) has held

that while considering the content of Section 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 redering 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 and Others Vs. T. Raja Mohan Rao, , that by 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 user 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 Section 10(2)(iii) of the Act.

[Italics supplied]

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.

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

thus:

To attract Clause (ii) of Sub-section (4) of Section 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 Section 108,

Clause (e) of the Transfer of Property Act that when the property 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 Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 the Supreme Court observed in Babu

Manmohan Das Shah and Others Vs. Bishun Das, , 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 or reduction of utility or value of the building must be of a reasonably substantial magnitude.

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 of such a nature that it has affected its value or utility permanently. The Rent Control Act is a self-contained Code insofar 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. u/s 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 would

affect the structure should be made.

In Viswanathan v. Porichu 1985 K.L.T. 551, 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 Section 105 of the Transfer of Property Act. Section 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....

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 the 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 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, diminution of value and

utility can be presumed cannot be accepted.

As held in Kailashchand Jain v. Mohamed Kasim (1994) 2 L.W. 611 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.

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

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 etfect. 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 agreement, 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 not 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, be is a deemed wilful defaulter.

The authorities below have rightly held that the revision petitioner is liable to be evicted on that ground.

In the result, I hold 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. C.M.P. No. 14865 of 1994 (for direction) is dismissed consequent to the order in the main

C.R.P.