P. Damodaram vs K. Loganatha Chettiar and another

Ramaswami, J.—This is a Civil Revision Petition filed against the concurrent orders of the learned House Rent Controller and the appellate

Additional Judge of the Court of Small Causes directing the eviction of the Revision Petitioner under S. 7(2)(iii), Madras Buildings (Lease and Rent

Control) Act.

The facts are: The respondents Loganatha Chettiar and Shanmugham Chettiar are the landlords and P. Damodaram, the Revision Petitioner, is

the tenant of premises No. 320, Wallatax Road, Park Town, Madras. The respondent has been the tenant of these premises for 24 years and is

running a hotel under the name & style of ""Neo Kerala National Hotel"" therein. The monthly rent is Rs. 127-8-0. The landlords sought to evict this

tenant from these premises on the ground that without their previous consent in writing he constructed a masonry overhead tank with a heavy

dead-weight on the open terraced roof without providing proper support and has also illegally constructed a shelter close to the said tank on the

open terraced roof and has started without the previous consent of the landlords cutting out the cement flooring at the main hall for putting up walls

of brick in the first floor of the said premises which is an old one for the purpose of providing three living rooms with a corridor passage giving

access to the said rooms with the result that the crosswalls of die said room come directly above the thin joists below carrying the terraced flooring

and that by reason of these acts the value and utility of the premises have been materially impaired.

The case for the tenant was that these acts do not constitute acts of waste, that they only constituted improvements and that, in any event, he was

prepared to abide by the instructions of the landlords for the removal of anything that might have been put up. There has been an inspection of the

premises by the Rent Controller and qualified Engineers. The parties concentrated upon the overhead tank for proving & disproving their

respective contentions entitling and disentitling the tenant''s eviction under S. 7(2)(iii) of the Act.

Both the Rent Controller and the appellate Judge came to the conclusion that the construction of the overhead tank constituted an act of waste as

was likely to impair materially the utility of the building and furnished a good ground for eviction under S. 7(2)(iii). It is against this concurrent

finding of fact and the order of eviction that the present Civil Revision Petition has been filed.

In Woodfall''s law of Landlord and Tenant (24th Edn.) (Sweet and Maxwell Ltd.) p. 733, what constituted waste has been clearly set out as

follows:

Waste (vastum) is defined to be a spoil or destruction to houses, gardens, trees, or other corporeal hereditaments, to the injury of the reversion of

inheritance, and it has two divisions of great practical importance, voluntary waste and permissive waste.

Voluntary waste is actual or commissive, as by pulling down houses, or altering their structure - the kind of damage which is sometimes provided

against by express stipulation not to convert a house into a shop, etc. Permissive waste is a matter of negligence and omission only, as by suffering

buildings to fall or rot for want of necessary reparations; the kind of damage which, where the contract of tenancy is in writing, is almost invariably

provided against by express agreement to repair.

It is not waste to omit to perform a covenant to put the demised premises into such repair as A B had previously put them into. The action for

waste can only lie for that which would be waste, if there were no stipulation respecting it: - ''Jones v. Hill'', (1817) 7 Taunt 392 at p. 396 (A).

In addition to these two great divisions of waste, it is desirable to distinguish ''meliorating waste'' and ''equitable waste''.

Meliorating or ameliorating waste is such voluntary waste as improves the demised premises, as where a tenant puts a new front to his house:

in respect of such waste, it seems that unless substantial damages be proved, the tenant will not be interfered with by injunction. Where a lease was

for 999 years, of which about 900 were unexpired, an injunction to restrain meliorating waste was refused, but if there had been a negative

covenant the Court would have had apparently no discretion to withhold an injunction: -''McEacharn v. Colton'', 1902 AC 104 (B).

It appears too that if the landlord sue, and the jury give nominal damages only, the tenant is entitled to have judgment entered for himself, as was

held in a case where the tenant converted three closes into garden ground and built upon them, and the jury assessed the damages at a farthing for

each close: - ''Harrow School v. Alderton, (1800) 2 Bos & P 86 (C).

Equitable waste consists in acts of gross damage, usually the cutting down ornamental timber by a tenant ''without impeachment of waste'', and is

so termed because before the Judicature Act only a Court of equity took cognizance of it. It is now within the cognizance of any branch of the

Supreme Court, and by S. 135, Law of Property Act, 1925, an equitable interest for life does not confer upon the tenant for life any right to

commit equitable waste unless an intention to confer such right expressly appears by the instrument creating the equitable interest.

As it can generally be committed by tenants for life only, contracts of tenancy between a landlord and a tenant being never made without

impeachment of waste, it is only necessary to mention it here for the purpose of pointing the distinction.

What acts are waste in regard to buildings'' can be summarized as follows:

In buildings: (1) Voluntary. - Pulling down a house, even though it be rebuilt afterwards, - ''Smith v. Carter'', (1888) 18 Bear 78 (D), or altering its

internal construction to the injury of the lessor''s reversion, - young v. Spencer'', (1829) 10 B & C 145 (E), as by turning two rooms into one or a

half into one, or a hall into a stable, is waste. So also is building a new house where there was none before, provided it be injurious to the

inheritance; for the mere erection of buildings which improve the value of the land is not waste, and ""a fortiori'' if the lease itself shows that the

erection of buildings was contemplated by the parties: - ''Jones v. Chappall'', (1875) 20 Eq 539 (F).

In the same way it is waste to pull down or remove any part of a house, as the windows, doors, wainscot, benches, furnaces, or other such fixtures

annexed to the house either by the landlord or tenant: -''Buckland v. Butter-field (1820) 2B &B 54 (G). But structural alterations which do not

injure the reversion, and which do not change the nature of the thing demised, regard being had to the user of the premises permissible under the

lease, do not constitute wasted which (it has been said is always a question of degree - ''Hyman v. Rose'', (1912) AC 623 (H).

Waste too, which ensues from the act of God (e.g., caused by tempest) is excusable; and accidental damage or destruction in building caused by

using them in a reasonable and proper manner having regard to their character & the purposes for which it was intended they should be used, does

not constitute waste. - ''Manchester Bondel Warehouse Co. v. Carr'', (1880) 5 CPD 507 (I); - ''Saner v. Bilton'', (1878) 7 Ch D 815 (J).

The lessee often covenants expressly not to erect any buildings or make any alterations in the premises without the licence of the lessor. A

covenant in a lease of trade premises not to make without such licence any ""alteration"" to them applies only to alterations which affect the form or

structure of the demised buildings, and cannot operate to prevent the tenant from doing acts (e.g., affixing a large clock to the exterior of the wall

by means of bolts driven into it) which, if not absolutely essential to the carrying on of his business, are usual and convenient for its proper and

reasonable conduct: - ''Bickmore v. Dimmer'', (1903) 1 Ch 15S (K):

So a covenant by a lessee not to make or permit to be made any alteration in the elevation of the demised buildings, or in the architectural

decoration thereof, refers only to alterations in the fabric and not to those merely in appearance caused by temporary advertisements and frame

works which can be removed at any time, leaving the structure the same as before:-''Joseph v. London County Council'', (1914) 111 LT 276 (L).

On the other hand, a covenant in the lease of a dwelling house not to ""make any alteration in tire arrangements or appearance"" of the house applies

not merely to alteration in its exterior, but extends to the structural changes necessary within the house in order to convert it into flats for the

occupation of separate tenants: - ''Day v. Waldron'', (1919) 88 LJ KB 937 (M).

Where a lessee who had covenanted not to sub-let or assign without the lessor''s previous consent in writing, such consent not to be unreasonably

withheld further undertook not ""without the like-consent"" to make any alteration or addition to the demised premises, it was held, as a question of

construction, that both limbs of the sub-letting clause relating to consent were incorporated into the covenant as to alterations, and that it would

therefore be a good answer for the lessee to show that consent to the alterations was withheld unreasonably; - ''Cartwright v. Russell'', (1912) 56

Sol Jo 467 (N).

(2) Permissive. - Suffering a house to be uncovered, or to remain uncovered after the roof has been removed by tempest, whereby the timbers

become rotten, or allowing the walls to decay for want of paint or plaster, is permissive waste, but if the house be uncovered at the commencement

of the tenancy, it is not waste if it be suffered to decay (See Foa: The Relationship of Landlord and Tenant sixth Edition pages 329-330, R. B.

Andhyarujana The Principles of Rent Control Ch. XVIII - waste as a ground for eviction; B. B. Das Gupta Rent Control Acts and Orders, pp 38

and 149).

In short, though changing die nature of the demised premises is technically waste, yet this is not so if the change has been expressly sanctioned

by the lesser ;and the mere change is not waste unless it is in fact injurious to the inheritance, either by diminishing the value of the estate, or by

increasing the burden upon it, or by impairing the evidence of title. At any rate, in the case of acts which may be technically waste but in fact

improve the inheritance-acts, as they are termed, of meliorating waste - the court will not interfere to restrain them by injunction; nor will they be a

ground of forfeiture under a proviso for re-entry on commission of waste; nor, in general, can damages be recovered in respect of them.

But apparently a substantial alteration in the character of the demised premises will be treated as waste and restrained by injunction,

notwithstanding that the value will be thereby increased, and the lessee is not entitled to pull down a house and build another which the lessor

dislikes; or to convert a dwelling-house into a shop; and a breach of an express covenant against making alterations or erecting new buildings will

be enforced by injunction.

In general the covenant will be construed so-as only to forbid alterations which would affect the form or structure of the building. (See the catena

of decisions cited in Hill and Redmans Law of Landlord and Tenant, Tenth Edn. (Butterworth 6 Co.) Part I, S. 4 - Waste pp. 170-175; especially

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''Darcy (Lord) v. Askwith'', (1618) Hob 234 (O); -''West Ham Central Charity Board v. East London Water Works Co.'', (1900) 1 Ch 624 (P).

To sum up, to constitute voluntary waste by destruction of the premises, the destruction must be wilful or negligent; it is not waste if the premises

are destroyed in the course of reasonable user, and any user is reasonable if it is for a purpose for which die property was intended to be used,

and if the mode and extent of the user is apparently proper, having regard to the nature of the property and what the tenant knows of it, and, in the

case of business premises, to what, as circumstances an ordinary business man, he ought to know of it.

It is not every act of waste on the part of the tenant which will entitle the landlord to obtain an order of eviction and what should be the nature and

extent of the waste will depend on the circumstances of each case: -

R. Govindaswami Naidu Vs. G. Pushpalammal and Another, . The principle is that a lessee is bound to take care of the demised premises as a

man of ordinary prudence would under similar circumstances take of his own property (Principle underlying S. 151, Indian Contract Act).

Bearing these principles in mind, if we examine the facts of this case, it is found that the tenant without the knowledge of the landlords

deliberately overloaded the floor which he knew was not in a condition to bear die additional weight and constructed the overhead tank in such a

manner as to prove dangerous to the safety of the building and thereby committed a waste within the meaning of S. 7(2)(iii) . Madras Building

(Lease and Rent Control) Act: '' (1880) 5 CPD 507 (I); '' (1878). 7 Ch D 815 (J), and - ''Koelgler v. Yule'', 5 Beng LR 401 (R). In the result,

this Civil Revision Petition is dismissed with costs. One month''s time given for vacating finally.