M. Nagarajan alias M.A. Nagaraja Pillai vs R. Selvaraj and R. Murugan

S. Sardar Zackria Hussain, J.—The revision petitioner is the landlord who filed the Rent Control Original Petition for eviction of the tenant

from the petition non-residential premises on the ground of wilful default in payment of rent, that the petition non-residential premises is used for a

purpose other than for which it was leased and that the petition non-residential premises is required for demolition and reconstruction.

Since the tenant died after the disposal of the Rent Control Original Petition, the respondents herein came on record in his place.

The Rent Controller considering the evidence let in by the landlord as P.W.1 and Exs.A-1 to 3 and the evidence adduced on the side of the

tenant as R.W.1 and one Appavu as R.W.2 and Exs.C-1 and C-2 the report and the plan filed by the advocate-commissioner, recorded finding

that the petition premises which was let out only for non-residential purpose, was used for a purpose other than it was leased, viz., residential

purpose also and that the tenant has not committed wilful default in payment of rent for the months from January, 1986 to July 1986. The Rent

Controller also recorded finding that the requirement of the petition non-residential premises for demolition and reconstruction is not bona fide.

Therefore, the Rent Controller ordered eviction only on the ground that the petition non-residential premises is used for a purpose other than for

which it was leased. However, in the appeal in R.C.A. No. 61 of 1994 filed by the respondents herein against the eviction order on the ground that

the petition non-residential premises is used for a purpose other than for which it was leased, the Rent Control Appellate Authority on finding that

the petition premises was leased for both residential and non-residential purpose, set aside the order of eviction, ordered on the ground that the

petition premises is used for a purpose other than for which it was leased. Though it was not subject matter of the Rent Control Appeal in R.C.A.

No. 61 of 1994, the Rent Control Appellate Authority also recorded finding that the tenant has not committed wilful default in payment of rent by

the landlord for the months of January 1986 to July 1986 and that the requirement of the petition non-residential premises for demolition and

reconstruction is not bona fide. Hence the landlord has preferred this Civil Revision Petition.

The Rent Control Original Petition was filed that the petition non-residential premises was leased by the revision petitioner to the tenant late

Narayanasamy for the purpose of running a tea stall and the same has been used by the tenant for residential purpose also for himself and also by

his brother''s son.

Previously, the landlord filed H.R.C.O.P. No. 511 of 1977 to evict the tenant on the ground of wilful default in payment of rent and though he

was successful in that petition and also in the Appeal in H.R.C. C.M.A. No. 62 of 1981 filed by the tenant, which was dismissed, the landlord lost

the case in this Court in C.R.P. No. 5121 of 1982 filed by the tenant, which was allowed on 12.9.1985.

Though the petition in R.C.O.P. No. 223 of 1986 was filed seeking to evict the tenant on the ground of wilful default in payment of rent for the

months of January to July, 1986, that the petition non-residential premises is used for a purpose other than for which it was leased and that the

petition non-residential premises which is situated in Alanganathapuram Road, Trichirappalli Town, is required bona fide for demolition and

reconstruction, the eviction was ordered only on the ground that the petition non-residential premises is used for a purpose other than for which it

was leased, which order of eviction was set aside in the appeal in R.C.A. No. 61 of 1994 before the Rent Control Appellate Authority. There is

no appeal by the landlord against the rejection of eviction on the ground of wilful default in payment of rent for the months of January to July, 1986

and that the petition premises is bona fide required for demolition and reconstruction. Therefore, the only point that arose in this Civil Revision

Petition is as to whether, the tenant used the petition non-residential premises for a purpose other than for which it was leased.

The petition non-residential premises is situated in Alanganathapuram Road, Trichirappalli Town bearing door No.2, viz., the shop. The learned

counsel for the revision petitioner/landlord has contended that it was admitted by the tenant in the previous H.R.C.O.P. No. 511 of 1977 and in

the Civil Revision Petition No.5121 of 1982 that he was carrying on tea stall in the petition non-residential premises as well in the H.R.C. C.M.A.

No. 62 of 1981 filed against the eviction order in H.R.C.O.P. No. 511 of 1977. Inasmuch as the tenant has admitted in his evidence that the

petition premises is being used for residential purpose also, as such, the petition non-residential premises is used for a purpose other than for which

it was leased, viz., for residential purpose also, the tenant is to be evicted from the petition non-residential premises on that ground. The learned

counsel for the revision petitioner has relied on the decision in B.M.A. Najira Begum Vs. A.M.S. Kassim, , in which this Court has held:-

Tamil Nadu Buildings (Lease and Rent Control) Act, Section 10-(2)(ii)(b) - Eviction of tenant on the ground of different user. Tenant had not

denied that the tenancy is for a specific purpose, namely business in plastic-wares only. It is clear that tenant is carrying on business in cut piece

cloth which is different. Tenant had not established written consent from the landlady. Order of eviction will follow as he is definitely guilty of

putting the building for different user.

The learned counsel for the respondents, who were brought on record as supplemental in view of the death of the tenant, contended that it has

not been proved by the landlord that the petition premises was let out only for non-residential purpose. In this regard, the learned counsel also

submitted that the report of the advocate-commissioner would clinchingly prove that the petition non-residential premises is also used for residential

purpose for very long, since it was let out to the tenant for residential and non-residential purposes.

The landlord filed H.R.C.O.P. No. 511 of 1977 to evict the tenant on the ground of wilful default in payment of rent for the months of October

1976 to September, 1977. It appears, eviction was ordered after contest. In the appeal in H.R.C. C.M.A. No. 62 of 1981, the tenant has filed

I.A. No. 102 of 1981 for stay and in the affidavit he has stated that he was having his shop in the petition premises bearing door No.2,

Alanganathapuram Road, Dharanallur, Trichy. It appears, the appeal also was dismissed and in the revision petition filed in this Court in C.R.P.

No. 5121 of 1982 by the tenant, the tenant was successful and the order of eviction on the ground of wilful default by the Rent Controller as

confirmed by the Rent Control Appellate Authority was set aside and the revision petition was allowed by this Court. In the counter filed in the said

H.R.C.O.P. No. 511 of 1977 marked as Ex.A-2, nowhere it is stated that the petition premises was let out both for residential and non-residential

purposes and in fact in the I.A. No. 102 of 1981 in H.R.C. C.M.A. No. 62 of 1981, the tenant had admitted that in the petition premises he had

been running only tea stall.

The landlord, P.W.1 in his evidence, has stated that even before the tenant came to the petition premises he was only running a tea stall. The

tenant did not obtain any written permission from him that the premises can be used for the residential purpose also. The tenant as R.W.1 has

stated in his evidence that he has been residing in the petition premises for about 55 years and the address in the family card is also mentioned as

that of the petition premises and previously he was carrying on tea stall by putting a table on the drainage in front of the petition premises and the

said tea stall is also not run for the past 4 to 5 years at the time of evidence. In the cross-examination he has stated that when he attorned the

tenancy to the revision petitioner herein he was having a tea stall. He has also admitted in his evidence that in the C.R.P. No. 5121 of 1982

preferred in this Court he has stated that he was running tea stall in the petition premises. He has further admitted in his cross-examination that in

the H.R.C. C.M.A. No. 62 of 1981 filed against the order in H.R.C.O.P. No. 511 of 1977 and in the C.R.P. No. 5121 of 1981 he has stated

that he secured the petition premises both for residential and non-residential purposes.

The advocate-commissioner filed his report Ex.C-1 along with plan Ex.C-2. In the report Ex.C-1 it is stated that the petition premises is a

terraced house consisting of the eastern front portion marked as A in the plan, western front portion marked as B in the plan and the hall portion

marked as C in the plan and also the portion marked as D is used as kitchen. On the western side of the kitchen a water tank is situated. It is

further stated that on the northern corner marked as the C portion, there is access goes to the upstairs portion which can be reached through steps.

The petition premises was inspected by the advocate commissioner on 9.4.1993. Therefore, it is clear from the report of the advocate-

commissioner and the plan and the evidence of the tenant as R.W.1 that he has been using the petition premises for residential purpose, despite the

fact as admitted by him in the appeal in H.R.C. C.M.A. No. 62 of 1981 and in the revision in C.R.P. No. 5121 of 1982 that he was carrying on a

tea stall and that when he attorned the tenancy to the revision petitioner he was having a tea stall in the petition premises. In the counter in

H.R.C.O.P. No. 511 of 1977 marked as Ex.A-2 he has not stated that the petition premises was let out both for the purpose of residential and

non-residential. As such, it is clear that the tenant has been using the petition premises for a purpose other than for which it was leased. Merely

because in the printed receipt Ex.B-1 it is stated as ""tPl;Lf;F"" (premises) which can only mean premises that the petition premises was leased both

for residential and non-residential purpose and not only for non-residential purpose for the purpose of carrying on tea stall. Admittedly when the

tenant attorned the tenancy to the revision petitioner herein he was carrying on tea stall in the petition premises. Since no proper finding was

recorded on factual aspect, the order of the Rent Control Appellate Authority that the petition premises was not used for a purpose other than it

was leased is to be set aside.

In the result, this Civil Revision Petition is allowed. The judgment and the decree dated 20.8.1999 made in R.C.A. No. 61 of 1994 on the file

of the Principal Sub Court, Trichy are set aside.