G. Natarajan vs P. Thandavarayan

T. Ramaprasada Rao, J.—The tenant is the petitioner. It is common ground that the petitioner secured the suit premises on lease for the

purpose of carrying on the business of hoteliering and the petitioner for the purposes of his trade was, in occupation of the property adjacent to the

suit premises as well. The landlord found that the tenant had drilled a hole 3"" in diameter in the terrace portion of the main building and also

removed a portion of the parapet wall on the terrace of the building to a length 2'' x 3'' or 3 1/2. Characterising such acts of the tenant as acts of

waste and also on the ground that the tenant committed wilful default in the payment of rent, the respondent filed an application under the Madras

Buildings (Lease and Rent Control) Act seeking for the eviction of the petitioner as tenant in the suit premises. Both the Rent Controller and the

Appellate Court found that there was no wilful default and the acts excerpted above cannot be characterised as acts of waste within the meaning of

Section 10 (2) (iii) of Act XVIII of 1960. The learned District Judge, '' however, on revision u/s 25 of the said Act, differed from the findings of

the tribunals and directed eviction of the tenant. Aggrieved against the said order, the present revision petition has been filed.

Arguing for the tenant, Mr. Balasubramaniam contends that the drilling of a hole in the terrace for the purpose of creating a second outlet for the

smoke which is obviously a necessary evil in hoteliering business, as well as the removal of a parapet wall to a height of 2'' or 2 1/2'' to enable his

employees housed in the adjacent building taken on lease by him to have ingress and egress to the hotel premises, are not acts of waste which in

any wise can be said to impair materially the value or utility of the building. As already stated the petitioner obtained a lease of the suit premises for

hoteliering business. Necessarily, he has to have kitchens inside the premises and the smoke emanating therefrom possibly had to be let out not

only through the then existing outlet but also through another, which he voluntarily annexed and imprinted into the building, so as to save the

building from smear and smoke. The Rent Controller and the appellate Court rightly came to the conclusion that the drilling of hole of the manner

complained of by the respondent cannot be said to be an act of waste within the meaning of the section quoted above. Even so the removal of a

portion of a parapet wall for temporarily accommodating his employees housed in the adjacent building cannot in any view be said to be one which

would impair the utility of the building or its value.

Mr. Raghavan, learned Counsel for the respondent, however would state that the drilling of the hole by itself might be a cause to let in rain water

and if such letting is continuous during the seasons the building is likely to be damaged. There is evidence in this case that the tenant had taken all

necessary precautions to prevent such undue inflow of rain water into the premises. It is also but natural to expect that a person installing a smoke

pipe primarily with the intention of letting out smoke from a kitchen would take the elementary precaution of avoiding rain water through that very

smoke pipe. This has been done in this case. Regarding the parapet wall, the cutting of a portion of the wall to a height of 2'' in the terrace and

cementing the base so that it could constitute a passage for persons to go in and come out through it cannot also by any process be considered to

be one which would impair the value or the utility of the building.

While considering the content of Section 10 (2) (iii) of Act XVIII of 1960, 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. Mere rendering of subjective opinion may not be of any avail unless such opinion is

backed by expert evidence. The landlord in this case did not examine any expert to prove that the drilling of a hole in the terrace or the cutting of a

portion of the parapet wall tantamounts to the building''s utility being impaired or its value being diminished. 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. That such is the intention of the Legislature has been held by a Division Bench of our High Court in R. Govindaswami

Naidu Vs. G. Pushpalammal and Another, , while considering a similar provision in the Madras Buildings (Lease and Rent Control) Act (XV of

1946) Rajamannar, C.J., speaking for the Bench, observed as follows:

It is obvious that every act of waste will not entitle the landlord to obtain an order of eviction under the provisions with which we are now

concerned. It is equally clear that it cannot be laid down as a rule of law that a demolition of any wall in a building must necessarily be deemed to

be an act of waste which is likely to impair materially the value or utility of the building.

No doubt, each case has to be decided on its own merits. In the instant case, unless there is clinching evidence to satisfy the conscience of the

Court that the act, 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 quo non of the section have been satisfied.

The learned District Judge, while reversing the considered findings of the Rent Controller and the appellate authority, observed that drilling of a

hole might have given a shock to the main building. Mr. V.V. Raghavan is not prepared to go to that extent, and rightly too. As regards the cutting

of the parapet wall to a height of 2'' or 31/2'', the conclusion was arrived at abruptly by the learned District Judge that it amounts to an act of

waste. I am unable to agree. The learned District Judge has therefore erred in transgressing the limits of and misinterpreting the content and purport

of Section 10 (2) (iii) of Act XVIII of 1960. In the circumstances of the instant case, I do not find any reason to hold that the building has been

damaged, its utility has been imparied or the value has been lessened by the impugned acts.

The order of the learned District Judge has therefore to be set aside and it is accordingly set aside and the civil revision is allowed. No costs.