Bhogilal M. Davay vs S.R. Subramania Iyer

Ramaswami, J.—This is a civil revision petition filed against the order of the Rent Controller, Madras, in H. R. C. No..2365 of 1951 and

confirmed by the Judge of the Court of Small Causes, Madras, in H. R. A. No. 541 of 1951.

The facts of this case can be easily followed if we take on hand the blue-print annexed to this judgment for reference.

The premises No. 6, Samudra Mudali Street, P. T. Madras, belongs to the Tawker Charities. The petitioner before us Bhogilal M. Davey has

been occupying a major portion of the premises while the respondent S. R. Subramania Aiyar has been occupying a room in the back portion of

the premises. The Managing Trustee of the charities applied to the High Court for sanction to grant a lease to the petitioner of the entire premises

for a period of thirty years. The High Court by its order permitted the grant of the lease to the petitioner for a period of 25 years on his investing a

sum of Rs. 8756 for effecting improvements to the premises under the supervision of the Trustee and on his agreeing to pay a monthly rent of Rs.

On 24-2-1951, the Managing Trustee accordingly executed the lease deed Ex. P-2 in favour of the petitioner herein, in which it was provided

that the appellant was to spend no less than Rs. 8000 within a period of one year for the improvement of this building.

The last covenant in the lease was that the existing lease on the property shall be deemed to be determined as and from the date of Ex. P-2 and the

petitioner himself should take all such steps as may be necessary and permissible in law to evict the tenant in the back portion of the premises. On

25-2-1951 the Managing Trustee gave notice to the respondent calling upon him to attorn to the petitioner as a direct tenant from 1-3-51. The

respondent has been called upon to vacate the portion by the end of March 1051 both by the Managing trustee as well as by the petitioner. The

respondent has refused to vacate and also, instead of paying the rents to the petitioner, has been sending money orders to the Managing trustee

which have been refused and what is more he has been preparing and selling Iddlis in that portion. It is common ground that the portion occupied

by this respondent is dilapidated and has got to be reconstructed and in fact the reconstruction of which was the motivating factor for the Trust to

give a long term lease to the petitioner.

Therefore, this petitioner has been seeking the eviction of this respondent on four grounds, viz. (1) that the petitioner is a landlord within the

meaning of Section 2 of the Madras Buildings (Lease and Rent Control) Act; (2) that this landlord petitioner requires this petition-disputed portion

for his own occupation; (3) that the respondent tenant failed to pay or tender rent from 1-3-1951 and has committed wilful default; and (4) that the

tenant has been guilty of using the building for a purpose other than for which it was leased viz., instead of using it as a residence he has been using

it for preparing Iddlis and vending them.

Both the Courts below, though for differing reasons, rejected the application for eviction and hence this civil revision petition.

In revision I am of opinion that both the lower Courts were not justified in refusing the eviction of this respondent and here are my reasons.

''Point 1'': The first point to be considered is whether the petitioner is a landlord within the meaning of Section 2 of the Act as he alleges or is not

a landlord as alleged by the respondent. I need not point out that if the former is the case we can proceed with this petition and if the latter is the

case the petition has to be rejected outright. It is quite true that till the High Court approved the proposal of the Managing Trustee to lease out the

entire property for 25 years to the petitioner, the respondent was the lessee of a small portion and the petitioner was the lessee of the rest of the

premises in question. Both of them were monthly leases terminable under the Transfer of Property Act by 15 days'' notice ending with the month of

tenancy. On the execution of the lease deed Ex. P-2, the Managing Trustee who was the lessor of the petitioner as well as too respondent, has

transferred part of his interest in the property for a period of 25 years; There can be no dispute that a lease can be a transfer of part of the interest

in the property as contemplated under Section. 109 of the Transfer of Property Act. ''Parbhuram v. Teckchand'', AIR 1919 Lah 31 (A). Thereon

the transferee gets all the rights of the transferor as to the severatale part so transferred: -- ''Kannayan v. Alikutti'', AIR 1920 Mad 333 (B) Thus,

after the execution of the lease, the Managing Trustee has no right to collect rents from any tenant who may be occupying portions of the premises.

That right has devolved upon the petitioner. In other words, the petitioner has become possessed of the right to collect rent from the respondent.

Section 2(3) of the Act defines a ""landlord"" as including the person who is receiving or is entitled to receive the rent of a building, whether on his

own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who

would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. This definition will certainly take in the petitioner

within the meaning of a landlord and he is, therefore, entitled to apply undar Section 7(3) of the Act.

''Point 2'': The question is whether this landlord who is occupying only a part of the residential building can apply to the Controller for an order

directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof on the ground

that he requires additional accommodation. The proviso to Sub-section (c) to Section 7 (3) states

provided that, in the case of an application under Clause (c), the Controller shall reject the application if he is satisfied that the hardship which may

be caused to the tenant by granting it will outweigh the advantage to the landlord.

The only test prescribed by the Act is whether the claim of the landlord for additional accommodation required is bona fide. In other similar Acts

more or less similar terms are used via., ""reasonably required"" in the English Act, 1920 Section 5(1) (d); Act of 1933 -- Section 3 (1), Sen. I, para

(h); Bombay Act contains ""Reasonably and bona fide required"", Assam, C. P. and Delhi Acts contain ""Bona fide required""; Bihar and Orissa Acts

contain ""reasonably and in good faith""; East Punjab Acts docs not speak of ""bona fide"" or otherwise, while U. P. Act does not provide for eviction

of tenant on grounds of own requirements. In -- Sami Ayyangar and Others Vs. Venkatramana Ayyangar and Another, , I have discussed the

entire case law on the subject and I have pointed out that, the term ""bona fide requires"" connotes something more than a desire to have something

and much less than absolute necessity. There can be no doubt, however, that the landlord must have a genuine present need of the building for his

occupation: See -- Basant Lal Saha Vs. P.C. Chakarvarty, , Bhulan Singh and Others Vs. Ganendra Kumar Roy Chowdhury, , Raja Sreenath

Roy and Others Vs. Secretary of State for India in Council and Others, ; -- ''Mahomed Moosa v. Goolam Rassool'', AIR 1924 Rang 64 (G);--

Kundanmal Dowlatram Vs. Lakhmichand Chhogmal, ; -- Rustomji Dinshaw Billimoria Vs. Dosibai Rustomji Master, ; -- Vithaldas Bhagvandas

Vs. Nagubai M. Joshi, ; --''Atmaram Babaji v. Narayan Arjun Dere'', AIR 1921 Bom 109 (K); -- ''Nippon Menkwa v. P. Port-lock'', AIR 1322

Bom 70 (L); -- ''Nowroji Hormasji v. Srinivas Prabhu'', AIR 1922 Born 222 (M). The question of bona fides is a question of fact.

Then in determining whether it is reasonable to make an order for possession the Court is entitled to and is bound to take into consideratior every

circumstance that may affect the interest of the landlord or that of the tenant including financial hardship which would be inflicted on the tenant if an

order for possession were made: -- Williamson v. Pallant'', 1924 2 K. B. 173 (N). In doing so the Court should take into account the hardship to

all who might be affected by the grant or refusal of an order for possession--relatives, dependants, lodgers, guests etc. and should weigh such

hardship with due regard to the status of persons affected: -- ''Harte v. Frampton'', 1947 2 All. E. R. 604 (O). The reasonableness of requirement

is a question of fact to be determined as at the date of hearing: -- ''Harcourt v. Lowe'',. (1919) 35 TLR 255 (P). It is for the tenant to prove that

hardship on the tenant would be so great that an order for possession ought not to be granted : -- ''Robinson v. Donovan'', 1946 2 All ER 73l (Q).

I need not also add in this connection that a landlord is not bound to live in a rented house with all the uncertainty of tenure -- ''AIR 1931 Bom 34

(I)'', or be kept out of his house if he wants the same for his own use --''Bhagwandas Maganlal v. Kaiklmshru Adarji'', AIR 1921 Bom 212 (R),

and he should be allowed a reasonable measure of latitude to decide how much space he requires -- ''AIR 1922 Bom 222 (M)''.

In the instant case, the landlord has shown that by reason of his status, the number of members in his family, and the nature of his business he

requires this additional accommodation and in fact this is genuine is seen by the fact that he has been prepared to sink a lot of money on a 25

years'' lease. It cannot be stated that on the balance of advantages and disadvantages, greater hardship would be caused to this tenant respondent.

The respondent apparently wants to continue in this portion not on account of its value to him as a residence but only for the purpose of converting

it into a small hotel. The tenant has not in any way discharged the onus which lies on him to prove that the hardship on him would be so great that

an order for eviction ought not to bo made. I may incidentally point out that so far as the Trust is concerned it is absolutely imperative that this

portion should be reconstructed as otherwise it is common ground that it is in such an advanced dilapidated condition that this Trust would stand to

lose considerably. The petitioner has therefore made out a case for additional accommodation.

Point 3 : The lower appellate court has thoroughly examined this aspect of the case and come to the conclusion that the tenant has defaulted in

payment of rent to the petitioner landlord from 1-3-51. It rightly points out that after the execution of Ex. P. 2 the petitioner became the landlord

and the respondent became liable to pay the rent to the petitioner. His tender of the rent to the Managing Trustee is not proper tender. But the

lower appellate Court came to the conclusion that though default had been established from 1-3-51, it was not wilful. The reason given by the

lower appellate court does not commend itself to me. On a careful consideration of the facts, two things are fully established viz., that the tenant

respondent knew that the petitioner had become the landlord and secondly, that notwithstanding his being told to attorn to the petitioner he has

been wilfully defaulting to pay the rent to the petitioner and persisting in sending money orders to the Managing Trustee who has been

systematically refusing them.

The respondent wants to clothe this default with an air of reasonableness by saying that he was advised by a lawyer to do so. The lawyer who

gave such opinion has not materialised in flesh and blood and this is not surprising because no competent lawyer is likely to give any such advice.

Therefore, I have come to the conclusion that the default was wilful which is a legal term evidently used as a description and not as a definition. The

idea intended to be conveyed is that the default has occasioned by the exercise of volition or as a result of the non-exercise of will due to supine

indifference, although the defaulter knew or was in a position to know that loss or harm was likely to result. The word does not necessarily suggest

the idea of moral turpitude. The element of accident or inadvertence or honest error or judgment should also be eliminated. The default must be the

result of deliberation or intent or be the consequence of a reckless omission. Wilful default therefore is indicative of some misconduct in the

transaction of business or in the discharge of duty of omitting to do something either deliberately or by reckless disregard of the fact whether the

act or omission was or was not a breach of dutv; -- L. Hudson Vs. Official Liquidator of Dehra Dun Mossoorie Electric Tramway Co., . The

present case is an instance of wilful default. The term wilful has been the subject matter of several decisions under the U. P. Temporary Control of

Rent and Eviction Act III of 1947 (Sec. 3-A). Vide -- ''Badhey Mohan v. Har Naraindas''. AIR 1953 All 504 (T); -- Munshi Lal Vs. Balmukund

Singh, , Chotey Lal Vs. L. Chhakkilal alias Hari Shanker and Another, .

Point 4 : There can be no dispute that this respondent has been using the building for making and vending Iddlis though the portion had been let

out to him only for residential purposes. The respondent seeks to get over it by saying that the Managing Trustee agreed to his non-residential user

of this portion and that in fact he has been supplying the managing trustee himself with Iddlis and that in order to convert it into such non-residential

user, the rent was raised from Rs. 6 to Rs. 8 p. in. Beyond the ''ipse dixit'' of this respondent there is no corroborative evidence to substantiate this

non-residential user of the building with the consent of the Managing Trustee. It is significant that neither P. W. 1 nor P. W. 2 was cross-examined

about it. In addition, the evidence in this case shows that this respondent has been abusing and quarrelling and this Is admitted by the respondent

himself who, however, adds that the petitioner also abused his wife, which is not likely to be, taking into consideration the respective status of the

parties. It has always been held that such acts constitute nuisance.

It is interesting to find from the English decisions in how many ways a tenant can become a nuisance and cause annoyance. Some of these instances

are : Tenant''s systematic discourtesy to his neighbour, -- ''Shine v. Freedman'', 1926 EGD 376 (W), permitting the sink to become blocked and

overflow into the premises of another tenant -- ''Ferguson v. Butler'', 1918 2 SLT 228 (X), tenant''s persistent noisy abuse of the landlord as thief,

liar, murderer, whore -- ''Adamson v. Fraser'', 1944 61 Sh. Ct. Rep. 132 (Y). Indecent exposure or exhibition of one''s self, keeping brothel and

all other acts tending to public morals arc Instances of nuisance and annoyance. Other instances are running hospital or sanatorium for infectious

diseases -- ''Watson v. Lemingon College'', (1881) 25 SJ 30 (Z); -- ''Bramwell v. Lacy'', (1879) 10 Ch D 691 (Zl), Smoke or abnoxious vapour

-- ''Crump v. Lambert'', (1867) LR 3 Eq 409 (22); keeping wild animals -- ''Mckone v. Wood'', (1831) 33 RR 787 (Z3); -- ''Circus Inchbald v.

Rabinson'', (1SS9) LR 4 Ch 388 (Z4); -- ''Dancing-Jenkins V. Jackson, (1868) 40 Ch D 71 (Z5); Noisy hammering from workshop -- ''Scott v.

Firth'', (1864) 4 P & F 349 (Z6). Therefore, the petitioner has substantiated point 4.

In the result, the orders of the lower courts are hereby set aside and the petition for eviction is allowed and this revision petition is allowed with

costs.