Shenbagam Lorry Service vs J.M. Rahamathullah and Others

M. Karpagavinayagam, J.—Shenbagam Lorry Service, represented by its partner M. Mathivanan, the tenant in R.C.O.P.No. 7 of 1987 on

the file of the Rent Controller, Mannargudi, is the revision petitioner.

The eviction was sought for by the respondents herein on the ground that the revision petitioner has committed wilful default in payment of rent

for two months, viz., November and December, 1986 at the rate of Rs. 225 per month. There is also another ground that the tenant/petitioner

committed the acts of waste which have reduced the value and utility of the building permanently.

The said allegations were seriously opposed by the Revision petitioner. In the counter statement, the petitioner stated that they have been

running the business of lorry agency for about 12 years, that immediately after taking the lease of the property, the petitioner has put up temporary

thatched shed in front of the vacant space to park lorries, that the said shed has been there for about 12 years, that the landlords did not object to

it and that the tenant did not obstruct the passage of the landlords, as there is no backyard for landlords'' use.

In the counter, the tenant also denied having committed any act of waste. He further denied that there is default in the payment of rents.

According to him, even assuming that there is rental arrears, in the lease deed, there is a stipulation for collection of interest at 12 per cent per

annum for defaulted rent and as such, the ground of eviction, namely, wilful default as well as the act of waste is not maintainable legally.

The Rent Controller, as per the order dated 18.2.1988, held that the petitioner is liable to be evicted on two grounds, namely, (1) wilful default

in payment of rent; and (2) the act of waste. The matter was taken up in appeal by the tenant in R.C.A.No. 22 of 1993 on the file of the Appellate

Authority (Subordinate Judge), Nagapattinam. The appellate authority after hearing the counsel for the parties, confirmed these two findings and

the order of eviction. The propriety of the orders of the authorities below is challenged in this revision.

Let me first take into consideration the contention put forward by Mr. Subramaniam, the learned Counsel appearing for the tenant/petitioner

herein, that the landlord has not substantiated his case that the tenant is liable to be evicted on the ground of act of waste.

Before going into the deposition, the averments in the petition with reference to the act of waste could be extracted. In para 4 of the petition in

R.C.O.P. it is stated as follows:

One of the conditions in the rent deed is that the respondent should not put up any new structure in the demised premises without the landlords''

written consent and knowledge. While so, taking advantage of the fact that the petitioners are living in a different village, the respondent has in or

about September, 1986 put a pucca shed in the vacant space comprised in the demised portion thereby clearly and expressly violating one of the

conditions of the tenancy and also completely obstructing the passage of the petitioners to the backyard of the premises. The respondent is thus

clearly guilty of act of waste and on this ground also he is liable to be evicted.

The said allegation made by the landlord is denied by the tenant in the counter. In the chief-examination of P.W.1, one of the respondents

herein, he would state as follows:

This is the only evidence regarding the acts of waste. On behalf of the tenant, one Murugaiya Pillai, Manager of the tenant-lorry transport, was

examined who would state that there is a ''kottagai'' in the vacant space. However, he would state that the said thatched shed was constructed as

early as 1974. (i.e.) 13 years before when the premises was handed over to the tenant while leasing out the property. He also denied having

disturbed enjoyment of the landlord by putting up thatched shed in the vacant space. Both in the counter and in the evidence, it is stated that the

shed was put up, in order to park the lorry and the said shed was only temporary.

Apart from this material, an Advocate Commissioner inspected the premises in question and filed a report and the plan. The plan and the

report are Exs.C-1 and C-2 respectively. According to the report, the Advocate Commissioner inspected the property on 25.2.1987 in the

presence of both the landlord and the tenant, and he found that the disputed portion in the premises is a thatched shed which is very recent

construction and the thatched shed looks 6 months'' old and no one can have access to the area of the backyard, which is kept open.

On the basis of these materials, both the rent controller and the appellate authority concluded that putting up a thatched shed in the vacant

space and not allowing the landlord to use the passage to go to the backyard, in violation of the terms and conditions of the lease deed without the

written consent of the landlord is an act of waste. Therefore, both the authorities held that the tenant is liable to be evicted on this ground.

The counsel for both the parties would cite several authorities, in order to substantiate their respective pleas with reference to the ingredients to

be established for the ground of act of waste.

Before going into the decisions, let us now quote the provision which deals with the act of waste. Section 10(2)(iii) of the Tamil Nadu Buildings

(Lease and Rent Control) Act reads thus:

that the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building.

Let us now see those citations one by one.

The Apex Court in Om Pal Vs. Anand Swarup (Dead) by Lrs., , while considering the meaning of the words ''as are likely to impair materially

the value and utility of the building ""contained in the analogous provision of the East Punjab Urban Rent Restriction Act, 1949, would observe as

follows:

As has been repeatedly pointed out in several decisions it is not every construction that would result in material impairment to the value or the utility

of the building. In order to attract Section 13(2)(iii), the construction must not only be one affecting or diminishing the value or utility of the building

but such impairment must be of a material nature, i.e., of a substantial and significant nature. It was pointed out in Om Prakash Vs. Amar Singh and

Others, , that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the

building that would provide a ground for the tenant''s eviction and hence it had taken care to use the words ""materially altered the accommodation

and as such the construction of a chabutra, almirah, opening of window or closing a veranda by temporary structure or replacing of a leaking roof

or placing partition in a room or making minor alteration for the convenient use of the accommodation would not materially alter the building. It

would therefore follow that when a construction is alleged to materially impair the value or utility of a building, the construction value or utility of a

building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial or monetary

point of view or from the utilitarian aspect of the building.

The above decision of the Apex Court was rendered upholding the observation made by this Court reported in R. Govindaswami Naidu Vs.

G. Pushpalammal and Another, . In the said decision, the Division Bench of this Court would hold as follows:

Every act of waste by the tenant will not entitle the landlord to obtain an order of eviction under the provisions of Section 7 of the Madras

Buildings (Lease and Rent Control) Act. It cannot be laid down as a rule of law that a demolition of a wall in a building must necessarily be

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

Yet another decision of the Apex Court is Om Prakash v. A mar Singh and Ors. J.T. 1987 S.C. 199. in which it has been held thus:

A landlord, in order to be entitled to the grant of permission to terminate the tenancy, is required not only to prove an act of waste on the part of

the tenant, but also to prove that the said act is likely to impair materially the value or the utility of the house.

In G. Natarajan v. P. Thandavarayan 1989 R.C.J. 733, it is held that drilling of a hole to let out smoke by the tenant who had taken the

building for hoteliering business and removal of a portion of parapet wall for temporarily accommodating the hotel employees housed in the

adjacent building cannot be said to be acts which would impair the utility of the building or its valued.

In Brijendra Nath Bhargava and Another Vs. Harsh Wardhan and Others, , a similar question came up for consideration. After following the

earlier decisions of the Supreme Court, it was held in that case that unless it is proved that it has materially affected the value and utility of the

building, the landlord will not get a cause of action.

In Pratap Narain v. District Judge (1995) 3 S.C.C. (Supp.) 459, which relates to a case where structural alterations were made by the tenant

without written consent of the landlord and the landlord contended that the changes so made have diminished the value of the building, the Apex

Court would hold thus:

A perusal of Clause (c) of Sub-section (2) of Section 20 of Act 13 of 1972 (U.P. Urban Buildings Registration Act) would indicate that a suit for

eviction is maintainable only if the tenant is found to have made any structural changes without the consent of the landlord and that such changes

resulted in diminishing the value of the building. Therefore, even if it is held that the structural changes were made by the appellant without the

consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building.

By following, these principles, several decisions have been rendered by this Court holding that every act of waste cannot be construed to be an

act of waste which materially affects the value or utility of the building. The landlord has to necessarily establish the case of structural changes in the

building, that there was impairment to the value or utility of the building.

In the light of the above principles, let me now look into the materials available on record.

It is true that there is specific averment in the petition filed by the landlord that in the vacant space, a thatched shed was constructed by the

tenant without the consent of the landlord thereby preventing the landlord from going to the backyard of the premises

It is the case of the tenant that a thatched shed was constructed when the premises was leased out in the year 1974 and there was no objection

ever raised by the landlord and the same was used for parking the lorry and that there is no other premises at the backyard of the premises in

question which belongs to the landlord so as to prevent the passage to go to other places, it is also seen from the evidence that P.W.1 would admit

that the entire portion of the petition premises including the vacant space which is marked in the plan Ex.C-1, was leased out to the tenant, in which

the alleged thatched shed was constructed.

Though it is mentioned in the petition that the landlord was not able to go to the premises in the backyard by utilising the vacant space as

passage, there is no material either oral or documentary to show that the particular vacant space had been used as passage to go to backyard.

No doubt, it is true that as per the Advocate Commissioner''s report, it is clear that the thatched shed has been recently constructed.

Therefore, it cannot be accepted that it was constructed 13 years ago, especially when there is no objection raised to the Advocate

Commissioner''s Report. But, the question is whether the act of constructing thatched shed in the vacant space six months ago would be

considered to be an act of waste which would materially impair the utility or value of the building?

As indicated above, there are several decisions reported by this Court as well as the Apex Court, which would show that mere causing of

damage to the building and even causing structural changes in the view of the building, in the absence of any impairment to the value or utility of the

building cannot give rise to the cause of action for filing a petition for eviction.

Admittedly, this is a thatched shed. It is not established that thatched shed is a permanent structure. There is also no material placed before the

court, to show that because of the putting of the structure, there is impairment to the value or utility of the building.

The mere assertion in the deposition or mere averment in the petition, that the passage to go to backyard of the premises was prevented,

would not, in my view, amount to impairment to the value or utility of the building, especially when the entire premises including the vacant space

has been in enjoyment and possession of the tenant, in pursuance of the lease deed executed between the landlord and the tenant 13 years ago.

Therefore, though it could be said to be an act, it could not be said to be an act of waste which materially impairs the value or utility of the building.

So, in that view of the matter, I am of the opinion that putting up thatched shed which is temporary in nature cannot be said to be a substantial

ground, though it is established that the said shed was constructed without the consent of the landlord.

Mr. Jayaraman, the learned senior counsel, representing Mr. H.M. Abdul Kalam, the learned Counsel for the respondent/landlord, would

vehemently contend, on the strength of the decision in Sha Nirbhayala Bahadurmal Vs. Krishna Rao M. Nikan, , that structural change in the

building without the consent of the landlord would definitely mean that there is an impairment in the value or utility of the building.

I am not able to accept the contention of the learned Counsel for the respondent, since in the said case, the entire building was remodelled

without the consent of the landlord which affected the value or utility of the building and in the light of the peculiar facts and circumstances of the

case, the learned single Judge of this Court while confirming the concurrent finding held that the said act shall be construed to be an act of waste as

contemplated in Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

The facts of the present case are entirely different from the facts mentioned in that case. As indicated earlier, putting up a thatched shed of

temporary nature in the vacant space leased out to the tenant can never be said to be an act of waste, which would materially impair the value and

utility of the building.

Though the finding given by both the authorities below with reference to the act of waste is in favour of the landlord, I am of the view that the

said finding is not based upon the relevant materials available on record. Therefore, I am constrained to set aside the same holding that the landlord

had not established that the putting up a thatched shed had impaired the value and utility of the building and as such, there will have no cause of

action to file eviction petition on this ground and accordingly, I set aside the impugned order in respect of that ground.

However, the landlord succeeds on the other ground that the tenant committed wilful default.

According to the landlord, the rental arrears for the months of November and December, 1986 had not been paid. Even according to R.W.1,

the amounts were not paid prior to the filing of the eviction petition. In fact, in the cross-examination, R.W.1 would fairly admit that the rental

arrears for November and December, 1986 were not paid before filing of the R.C.O.P.

It is contended that one of the recital in the lease agreement is that in the event of any arrear, the landlord is entitled to get interest at the rate of

12 per cent per annum and as such, the landlord cannot file eviction petition on this ground.

This was submitted on the basis of the decision in R. Kandaswamy v. Sadasiva Iyer 1974 T.N.L.J. 163. The appellate authority has

considered this decision and correctly concluded that this would not be applicable to the facts of the present case. The learned single Judge of this

Court in the said decision held that the tenant did not pay the rent on the bona fide intention that the payment could be made along with interest at

12 per cent to the landlord.

Therefore, the submission on the basis of the above decision made before this Court does not impress me, since the finding with reference to

the wilful default rendered by both the courts below on the factual aspect and on the basis of the materials adduced by P.W.1 and R.W.1, is

correct and as such, I do not find any valid ground to interfere with the said finding.

Though the tenant succeeds on the ground of acts of waste, ultimately, the landlord succeeds on the ground of wilful default in payment of rent.

In the result, I hold that the revision petitioner/tenant is liable to be evicted on the ground of wilful default in payment of rent.

At this stage, the counsel for the petitioner/tenant would request this Court to give 6 months time to vacate the premises and to hand over the

possession to the landlord. For this course, the learned Counsel for the respondent has no objection. Accordingly, 6 months'' time is granted to the

petitioner/tenant, provided the petitioner/tenant shall file an affidavit of undertaking on or before 10.6.1999 to the effect that he shall vacate the

premises and hand over the possession of the premises to the landlord within 6 months from today i.e., on or before 26.10.1999.

With the above observation, the revision is dismissed. No costs.