S. Azeem vs M. Natarajan

Srinivasan, J.—The tenant, who succeeded before the Rent Controller, but lost before the appellate authority, is the petitioner herein. The

landlord sought eviction on two grounds : (1) user of the building for a purpose different from the one for which it was leased, and (2) requirement

for demolition and reconstruction. The case of the landlord was that the building was leased out for non-residential purpose viz., furniture business.

But, the tenant, has used it for residential purpose without his consent. It was also the case of the landlord that the building required demolition and

he wanted to demolish the same and reconstruct. The tenant contested the proceeding and contended that the subject-matter of the lease was only

land and the building was constructed by him. It was also his case that the original purpose of the lease was to use the same for residential as well

as non-residential purposes. He also denied the bona fides of the landlord in requiring the building for demolition and reconstruction.

The Rent Controller found in favour of the tenant on all the issues and dismissed the petition. On appeal, the Appellate Authority held against the

landlord on the question of demolition and reconstruction, but found in favour of the landlord on the other issues and granted eviction. It is the said

order which is now questioned before me.

The main contention of learned Counsel for the petitioner is that the Appellate Authority has erroneously admitted two documents of lease, one

unregistered and another registered, and relied upon the same in spite of objections having been taken by the tenant to the admissibility of the

same. The two documents are dated 25th January, 1970 and 20th November, 1974, marked respectively as Exs. A-4 and A-5. Ex. A-4 is an

unregistered document. It should be mentioned that the genuineness of the documents is not questioned by the tenant. He admits that the leases

were entered between him and the landlord. A technical objection is raised on the fooling that Ex. A-5 is not properly stamped. That is a icgistcred

document. Once it is registered, there cannot be an objection on the ground of insufficiency of the stamp. The transaction is valid and the document

can be acted upon. Vide : MA PA PWA MAY and Anr. v. R.M.M.A. Cheitiar Firm AIR 1929 P.C. 279.

There is no substance in the objection that the documents cannot be looked into. The first document, though unregistered, can certainly be used

for a collateral purpose to ascertain the date from which the tenant has come into occupation of the building. The second document is a registered

one and there can be no objection whatever to its admissibility. The second document makes a specific reference to the first document. According

to the lease deed, the building was given along with the adjacent vacant site to the petitioner herein for the purpose of doing furniture business.

There can be no doubt that the lease was only for non-residential purpose. The documents do not make any reference to the residential user of the

building. The Appellate Authority is, therefore, justified in admitting the document and holding that the building was let out for non-residential

purpose.

The next contention of learned Counsel is that there is absolutely no evidence that the building has been used for a different purpose. According

to him, the landlord''s evidence does not make out the same. There is no merit in this contention. The landlord has staled in his evidence that the

building was let out only for non-residential purpose and is used for a different purpose by the tenant. Apart from that, the tenant has admitted in

the counter statement that he is using the building both for residential and non-residential purpose ever since the inception of the tenancy and there

was no question of conversion in the user of the building at a later stage. In view of the admission made by the tenant, the case of the landlord that

the building is used for a different purpose stands proved.

The next contention is that the tenant has been using the building for both the purposes from 1970 and the landlord has been keeping quiet all

these years and, therefore, it is not open to him to seek eviction on that ground. There is no merit in this contention also. Section 10(2)(ii)(b) of the

Tamil Nadu Buildings (Lease and Rent Control) Act makes the user of the building for a purpose other than that for which it was leased after 23rd

October, 1945 without the written consent of the landlord, a ground for eviction. It is not the case of the tenant that he has obtained the written

consent of the landlord for using the building for residential purposes. It is his case that the original lease itself was for both the purposes. That case

having been disproved by Exs. A-4 and A-5, there can be no doubt that the tenant falls within the scope of Section 10(2)(ii)(b) of the Act. He has

used the building for a purpose other than that for which it was leased and that was without the written consent of the landlord. The more fact that

the landlord has been keeping quiet will not tantamount to acquiescence on his part. Even if there is acquiescence, that is not sufficient for the

purpose of the section.

It has been held in Ponnuswamy Pillai v. Palaniappa Chettiar 79 L.W. (S.N.) 15, that the use was not of permissible type if the use of residence

is not an ancillary to the business and, therefore, the tenant lost protection. In this case also, the use of the building for residential purpose can, by

no stretch of imagination, be said to be ancillary to the furniture business. It has also been held that acquiescence or absence of protest on the part

of the landlord will not enable the tenant to escape the consequences of the section which insists upon a written consent. Vide: Abdul Kader v.

G.H. Rao (1964) 2 M.L.J. 288. In the circumstances, the finding of the Appellate Authority is unassailable and the tenant is liable to be evicted.

Learned Counsel for the respondent draws my attention to the finding of the Appellate Authority that the tenant is also guilty of denial title.

During the proceedings, the tenant has chosen to claim that he constructed the building and the subject matter of the lease was only a land. That

version is disproved by ample evidence, the finding of the Appellate Authority that the building belongs to the landlord is not challenged before me

by the tenant. Learned Counsel expressly stated that the said finding is not canvassed in these proceedings.

In the circumstances, the only conclusion possible is to dismiss the revision petition. Accordingly, it is dismissed. There will be no order as to

costs.

The petitioner''s counsel prays for time for vacating the building. Learned Counsel for the respondent is agreeable for grant of three months

provided an affidavit of undertaking is filed. Hence, the petitioner is granted time to vacate the. premises till 31.10.1994 on condition that the

petitioner files an affidavit in this Court on or before 5.8.1994 undertaking to vacate the premises before 31.10.1994 without driving the landlord

to execution proceedings. If the affidavit of undertaking is not filed, the tenant will not been entitled to the benefit of grant of time.