Soundarajan @ Sampath vs Venkataraman

This Civil Revision Petition has been filed by the tenant as revision petitioner against the judgment and decree dated 20.2.2001 and made in

R.C.A.No.496 of 1994 on the file of the learned VIII Judge, Court of Small Causes, Madras confirming the order and decretal order dated

31.1.1992 and made in R.C.O.P.No.2281 of 1986 on the file of the learned XIV Judge, court of small causes, Madras.

The facts that are necessary for disposal of this Civil Revision Petition are as fotlows:-

The petitioner Smt. Lakshmi Ammal is the landlady of the premises described in the Rent Control Original Petition and the respondent is the tenant

of the said premises on a monthly rent of Rs.325. The premises was let out by the landlady to the revision petitioner who is the respondent before

the Rent Control Court, only for the residential purpose. The revision petitioner and another are running travel service in the premises under their

occupation and there was protest by the landlady. They said that they are parking the vehicles only in the public road and not in the premises under

their occupation. The electrical tariff was converted from domestic tariff rate to commercial tariff because of the user of the premises under the

occupation of the revision petitioner for non residential purpose. Therefore, the landlady has come forward with this petition against the revision

petitioner for eviction on the ground of using the premises for a different purpose than for which the premises was let out.

The revision petitioner as respondent before the Rent Control Court resisted the claim made by the landlady on the following grounds:-

The revision petitioner became the tenant of a room in the front portion on a monthly rent of Rs.50 under the landlady fore non residential purpose

in the year 1972. Two months rent was given as advance. He was unmarried and unemployed then. He was carrying on business by exhibiting

films with the film projector he had at that time in Schools, Colleges and business premises. He was staying in the said room. The revision petitioner

married in May, 1976 and had taken the rear portion that had fallen vacant in the ground floor for residential purpose on a monthly rent of Rs.200.

Two months rent was paid as advance. The rent was raised from Rs.250 to Rs.325 now. The premises was taken for residential and non

residential purposes. The travel"" business was carried not in the demised premises, but outside the said premises. The landlady demanded rent of

Rs.500 per month for which this revision petitioner was not agreeable. It is because of that, the landlady has come forward with this petition for

eviction. Therefore, the revision petitioner as respondent before the Rent Control Court has sought for dismissal of the eviction petition.

K. Swaminathan, brother of the landlady and Muralikrishnan, grandson of the landlady were examined as P.Ws.l and 2 respectively apart from

examining one S.R. Natarajan, one of the tenants in the first floor of the building in which the demised premises is a portion, as P.W.3 before the

Rent Control Court. Exs.P.1 to P.5 were marked before the Rent Control Court on the side of the landlady. The revision petitioner was examined

as R.W.I and Exs.R.1 to R.4 were marked on the side of the revision petitioner before the Rent Control Court. The report of the advocate

Commissioner was marked as Ex.C.1 by the learned Rent Controller. After considering the submissions made on both sides in the light of the

evidence referred to above, the learned Rent Controller has come to the conclusion that the demised premises was utilised for a different purpose

than for which it was let out and accordingly ordered eviction. Aggrieved at the order and decretal order dated 31.1.1994 and made in

R.C.O.P.No.2281 of 1986 on the file of the learned XIV Judge, Court of Small causes, Madras, the tenant was appellant has preferred the

appeal in R.C.A.No.496 of 1994 on the file of the learned VIII Judge, Court of Small Causes, Madras. In the light of the submissions made on

both sides and the material evidence available on record, the learned Rent Control Appellate Authority has concurred with the finding of the Court

below and accordingly dismissed the Rent Control Appeal thereby confirming the order and decretal order of the learned Rent Controller.

Aggrieved at the judgment and decree dated 20.2.2001 and made in R.C.A.No.496 of 1994 on the file of the learned VI11 Judge, Court of Small

Causes, Madras, the tenant as revision petitioner has come forward with this Civil Revision Petition.

The fact remains that the premises described in the Rent Control Original Petition belonged to the landlady Lakshmi Ainmal and the revision

petitioner became a tenant of the front room in 1972 on a monthly rent of Rs.50. The fact also remains that he was unmarried and unemployed in

the year 1972, but was doing business in exhibiting films by using film projectors which he was owning. Ex.R.8 letter by The Presidency Ltd., 7,

Commander-in-Chief Road, Egmore, Madras-8 to the revision petitioner would disclose that he was exhibiting film with the projector for

commercial concerns even on 18.7.1973. Exs.R.10 to R.12 and R.14 to R.16 are also documents, which were marked before the learned Rent

Control Appellate Authority, showing the carrying on business in exhibiting films with the help of projectors owned by the revision petitioner after

1973 for many years. The evidence of P.Ws. 1 and 2 would also disclose that the revision petitioner used to exhibit films with the film projectors

from 1972 when he was self employed in the business of exhibiting films with the film projectors owned by him. Admittedly, the above said film

projectors were kept in the room which was let out to the revision petitioner by the landlady and the said film projectors can be packed in one suit-

case.

Admittedly, the rear portion of the building in the ground floor containing one room, half portion in the Koodam and a Kitchen was let out to the

revision petitioner by the landlady in the year 1976 for residential purpose and the total rent for both premises let let in the years 1972 and 1976 is

Rs.325. The evidence of P.W.I, who was not present at the time of entering into an oral tenancy agreement by the revision petitioner with the

landlady, would disclose that the revision petitioner is living in the demised premises apart form doing business in the said premises. The fact also

remains that the revision petitioner is having two vans and is doing travel business also after he got married in the year 1976. It is not in dispute that

the building owned by the landlady is Street house and the vans can be parked by the revision petitioner only in the Corporation road in front of the

house. P.W.1 would admit during cross-examination that the tourist vans owned by the revision petitioner cannot enter into the rented premises,

that the above said vehicles would be always running at road and may be parked only for 2 to 3 hours, that there is no name board for carrying on

business in travels in the demised premises and that there is no evidence to show that the revision petitioner is carrying on business in travels in the

rented premises. Admittedly, the landlady died during the pendency of the Rent Control Appeal and her only son Venkataraman was impleaded as

legal representative of the deceased landlady. P.W.1 would admit during cross-examination that the said Venkataraman is his son-in-law apart

from the fact that he is the brother of the landlady. He is an interested witness. No reason was given as to why the landlady or her son was not

examined in this matter.

P.W.2 is admittedly the grand-son of the landlady, He has also spoken to about the lease of the front room by the landlady to the revision

petitioner in the year 1972 and about the carrying on business in film projection by the revision petitioner from the year 1972. It is an admitted case

that P.W.2 was born only in the year 1967 and he was aged about 5 years at the time of letting out the premises by the landlady to the revision

petitioner. Therefore, he may not be a proper person to speak about the terms of the oral tenancy agreement between the landlady and the revision

petitioner.

The grievance of the landlady seems to be that the electric consumption charges were converted from domestic tariff to commercial tariff

because of the alleged business carried on by the revision petitioner in the front room of the premises let out to him in the year 1972. Exs.R.1 to

R.3 are money order coupons showing the payment of electric consumption charges to the landlady and Exs.R.4 is the family card showing the fact

of the revision petitioner staying in the premises let out to him. The above said documents and the change of tariff from domestic to commercial

may not be a ground to hold that the revision petitioner has used the demised premises for a purpose than for which it was let out to him. P.W.3.

S.R. Natarajan is one of the tenants occupying a portion of the first floor of the building in which the demised premises is a portion. He is also

carrying on business in travels like the revision petitioner by occupying a portion of the building owned by the landlady. He would admit while he

was cross-examined on 12.9.1991 that he is carrying on business in the premises owned by the landlady. He would also admit that the revision

petitioner is carrying on travel business and the said Vehicles will be parked only in front of the house. It is also the evidence of P.W.3 that the

revision petitioner is residing in the said premises apart from doing business in the demised premises. The revision petitioner is not disputing the fact

of keeping the projectors in the front room of the building which was let out in the year 1972 and also not denying the fact of projecting films in

Schools, Colleges, Government Departments and Commercial Institutions. That cannot be a factor to hold that the revision petitioner is carrying on

business in exhibiting films in the demised premises. Admittedly, the premises !et put to the revision petitioner was not used as a theatre for

exhibiting films to invite others to witness the film for any monetary benefit to him. There is also no evidence to that effect. In the circumstances, the

evidence of P.W.2 who is said to be a rival in the travel business to the revision petitioner, cannot advance the case of the landlady in any respect.

In Dr. (Mrs.) C.K. Gajalakshmi Vs. Zinna Sons and Others, , His Lordship M. Srinivasan, J. as Judge of this Court (as he then was) was

pleased to hold as follows:-

Even assuming that without residing there, she was using a portion of the premises or a room thereof for the purpose of meeting her clients in

order to give them treatment or advice them as to the treatment to be taken, that would not convert the premises into a non-residential one. It is

well known that a person having M.B.B.S., Degree and further qualifications can practise as a doctor with the aid of a medical kit bag containing

thermometer, sphygmomanometer, Stethoscope, kneehammer, sterilcs syringes and a torch light. Keeping a medical kit bag in a room of the house

will not convert the building into a non-residential one. To say that the ground floor was used as a clinic, the petitioner must have produced more

evidence to prove that the ground floor was used as a sort of private hospital. Just because she was using it for seeing patients or allowing the

patients to consult her, it would not convert the building into a non- residential one particularly when there is evidence to show that upto the date of

purchase of the building, the building was used only for residential purpose. The burden is heavily on the petitioner to show that the state of affairs

had changed after her purchase and that the building has been converted into a non-residential one. The presumption u/s 114(d) of the Indian

Evidence Act would certainly come into play. In this case, there is absolutely no evidence to show that the petitioner converted the building into a

Clinic or a non-residential building. The fact that the ground floor was let out for non-residential purposes during the pendency of the proceedings

will not alter the situation.

The principles laid down by His Lordship in the case cited above would lead to hold that the facts of retaining the projectors to exhibit films by the

revision petitioner in the front room let out to him in the year 1972, in Schools, Colleges and Commercial establishments or meeting 4 or 5 persons

daily at the rented premises in connection with the travel business will not lead to hold that the premises was used either for business of exhibiting

films with the projectors owned by the revision petitioner or for travel business of the vehicles which are parked either in the public road in front of

the house or in Egmore and Central Railway stations in Madras City. In any view of the matter, this court ids of opinion that the landlady has not

made out a case that the premises was used for a purpose than it was let out by the landlady to the revision petitioner. There is no absolutely no

satisfactory evidence on record to come to the conclusion that the revision petitioner has used the premises for a purpose than it was let out to him.

The Courts below have committed an error in appreciating the evidence available on record and also coming to an incorrect conclusion assuming

that there is evidence for such conclusion. Of course this court sitting in supervisory jurisdiction u/s 25 of the Tamil Nadu Buildings (Lease and

Rent Control) Act, 1960, cannot interfere in concurrent findings of the Courts below unless there is illegality, impropreitary or irregularity in arriving

at such conclusion. In this case, the Courts below have not understood the evidence available on record and failed to appreciate the evidence

before the courts below. On assumption and presumption, the Courts below have come to an erroneous conclusion. In the interest of justice this

court has to interfere with such concurrent finding and accordingly, this Court holds that the judgment and decree passed by the learned Rent

Control Appellate Authority has to be set aside.

In fine, the judgment and decree of the learned Rent Control Appellate Authority are set aside and the Civil Revision Petition is allowed

thereby dismissing the petition filed for eviction before the learned Rent Controller Court of Small Causes, Madras. In the circumstances of the

case, both parties are directed to bear their own costs. Since the Civil Revision Petition has been disposed of, the petition in C.M.P.No.9803 of

2001 is closed as unnecessary.