S N VAIRAVELU Vs. P SUNDARAM

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed by the tenant as revision petitioner against the judgment and decree dated 30.10.2000 and made in R.C.A.No.1230 of 1996 on the file of the learned VII Judge, Court of Small Causes, Madras reversing the order dated 8.9.1994 and made in R.C.O.P.No.2638 of 1992 on the file of the learned X Judge, Court of Small Causes, Madras. 2. The facts that are necessary for disposal of this Civil Revision Petition are as follows:- The Respondent herein who is the petitioner before the Rent Control Court and appellant before the Rent Control Appellate Authority, is the landlord of the premises described in the Rent Control Original Petition and the revision petitioner who is the respondent before the Rent Control Court as well as the Rent Control Appellate Authority is the tenant of the said premises on a monthly rent of Rs.228. The revision petitioner has committed wilful default in payment of rent for the period from September, 1991 to August, 1992. The premises was let out for running a laundry under the name and style of "Ravindra Dry Cleaners" by the revision petitioner, but the said premises was converted to carry on milk business under the name and style of "Sakthi Milk Depot". The revision petitioner has cut and removed the front door with frames and constructed a concrete platform thereby committed act of waste. The grandson C.S. Ravikumar is a learner in a medical pharmacy at Door No.17, Nyniappa Naicken Street, Madras-3 and he wants to start a business of his own in pharmacy. He is qualified to carry on such business. Therefore, the demised premises is required for own use and occupation to carry on medical pharmacy by C.S. Ravikumar. It is on these grounds, the respondent herein has sought for eviction of the revision petitioner from the demised premises. 3. The revision petitioner who is the respondent before the Rent Control Court has resisted the claim made by the respondent herein as petitioner before the said Court on the following grounds:- The revision petitioner is in occupation of the demised premises as tenant on a monthly rent of Rs.228. The respondent herein had refused to receive the rent while he paid in the month of August, 1991. The rent was sent for the months of August and September, 1991 by Money Order and the same was also refused. Notic e sent to specify the name of the bank in which the rent can be deposited was also returned as refused. The revision petitioner has not committed wilful default in payment of rent. The laundry business carried on by this revision petitioner was not profitable and, therefore, he is carrying on business in milk under the name and style of "SakthiMilk and Company". Since the premises was let out only for non-residential purposes, change of business will not help the respondent herein to evict the revision petitioner from the demised premises. The cutting of the wooden door frames will not amount to act of waste. C.S. Ravikumar, the grandson of the respondent herein is working along with his father in the pharmacy run by him at 17, Nyniappa Naicken Street, Madras-3, and therefore, the requirement of the demised premises for own use and occupation by the respondent herein to carry on medical pharmacy by C. S. Ravikumar is not bona fide. Therefore, the revision petitioner has sought for dismissal of the petition filed for eviction by the respondent herein. 4. The respondent herein, Thiru Sundaram and his grand son C.S. Ravikumar were examined as P.Ws.l and 2 and Exs. P-l to P-1 1 were marked before the Rent Control Court on the side of the respondent herein. The revision petitioner Thiru Vairavelu was examined as R.W.I and Exs. R-l to R-3 were marked before the said Court on the side of the revision petitioner. After considering the submission made by both sides and in the light of the material evidence available on record, the learned Rent Controller dismissed the Rent Control Original Petition, filed for eviction on the grounds of using the demised premises for a purpose other than for which it was let out, the act of waste and own use and occupation since the respondent herein had not pressed the ground of wilful default even before the Rent Control Court. Aggrieved at the order and decretal order dated 12.10.1992 and made in R.C.O.P.No.2638 of 1992 on the file of the learned X Judge, Court of Small Causes, Madras, the landlord as appellant has preferred the appeal in R.C.A.No. 1230 of 1996 on the file of the learned Rent Control Appellate Authority (VII Judge, Court of Small Causes, Madras). The learned Rent Control Appellate Authority after considering the submission made on both sides and in the light of the material evidence available on record has come to the conclusion that the respondent herein had not made out a case for eviction on the ground of using the demised premises for a purpose other than for which it was let out, but ordered eviction on the grounds of act of waste and own use and occupation. Aggrieved at the judgment and decree dated 30.10.2000 and made in R.C.A.No.1230 of 1996 on the file of the learned VII Judge, Court of Small Causes, Madras, the tenant as revision petitioner has come forward with this Civil Revision Petition. 5. The fact remains that the respondent herein is the landlord of the premises described in the Rent Control Original Petition and the revision petitioner is the tenant of the above said premises on a monthly rent of Rs.228. The fact also remains that the revision petitioner who was carrying on laundry business under the name and style of "Ravindra Dry Cleaners" had changed his business and is carrying on milk business under the name and style of "Sakthi Milk and Company" in the demised premises. The learn ed counsel appearing for the respondent herein contends that the revision petitioner had constructed a concrete platform to an height of about one and half feet in the entrance of the premises and for construction of such concrete platform he has cut and removed the teakwood door and frames on either side. According to him such cutting and removing of a teakwood door at the bottom to an extent of one and half feet height apart from cutting door frames on either side without any support below to such door frames, will certainly amount to act of waste. 6. The learned counsel appearing for the revision petitioner contends contra by saying that such act will not amount to act of waste. The revision petitioner while he was examined as R.W.1 has admitted the fact of construction of a platform to a height of about one and half feet and also about the cutting of door and door frames for erection of such platform to a height of about one and half feet. Production of Ex. P-3 photo would also establish that fact. He would admit that he has not obtained the consent of the respondent herein in writing for cutting bottom of teakwood door to a height of about one and half feet along with teakwood door and door frames on either side. An attempt was made to establish that the consent of the respondent herein was given by being present at the time of cutting and removing of teakwood door at the bottom of the door to the extent mentioned above along with teakwood door frames. The said fact has not been pleaded in the counter filed by the revision petitioner. In the light of the said fact, the contention raised by the learned counsel for the respondent herein that the claim made by the revision petitioner about the presence of the respondent herein at the time of cutting and removing the bottom of the door and door frames on either side for erection of platform is to be held only an after thought and cannot be sustained. Fixing a teakwood door and door frames will cost considerably high and cutting to a height of one and half feet at the bottom of the door apart from cutting the door frames on either side without any support at the bottom of the door frames will certainly impair the value and utility of the building. Constructing a platform to a height of one and half feet in the main entrance of the premises let out to him will add fuel to the fire. 7. In Associated Traders & Engineers Ltd. v. Alamelu Ammal , 1984 (l) M.L.J. 251, the learned Judge, Fakkir Mohammed, J.. has held that making an opening in the wall dividing two rooms without the written consent of the landlady will certainly amount to act of waste since such opening will weaken the strength of the wall. In this case, if the platform constructed in the main entrance of the premises is removed, the teakwood door which was cut to an extent of one and half feet height at the bottom along with the bottom frame and door frames on either side without any support below, will not only weaken the construction put up at that place, but also will impair the value and utility of the premises. In Vipin Kumar v. Roshan Lal Anand and others , 1993 (2) SCC 614, the Hon"ble Apex Court has held that material impairment has to be inferred from the proved facts from the point of view of the landlord and the burden of proof is on the tenant to establish that the act of waste committed by the tenant has not impaired materially the value and utility of the building and that such burden will be shifted on the landlord only if the burden is discharged by the tenant. In this case, there is absolutely no evidence on the side of the revision petitioner to establish that the act of waste committed by him has not impaired materially the value or utility of the building. If the decisions referred to above are taken into consideration, this Court is of opinion that the Rent Control Appellate Authority has come to a correct conclusion that the act of waste committed by the revision petitioner has impaired materially the value and utility of the building of the respondent herein. Therefore, there is no reason to interfere with such finding of the Rent Control Appellate Authority by this Court. 8. The fact remains that C.S. Kumar who was examined as P.W.2 before the Rent Control Court is the grandson through the daughter of P.W.I, the respondent herein. The respondent herein required the abovesaid premises for own use and occupation to start a medical pharmacy to his grandson referred to above. The learned counsel for the revision petitioner contends that the respondent herein cannot seek eviction of the revision petitioner from the demised premises on the ground of own use and occupation for running a medical pharmacy by grandson through his daughter. The learned counsel appearing for the respondent herein contends contra to it. In support of the contention of the learned counsel for the revision petitioner reliance was placed on the decision reported in Koyilerian Janaki and others v. Rent Controller (Munsiff), Cannanore and others , 2000 (9) SCC 406. A perusal of the decision of the Hon"ble Apex Court would disclose that Section 1 1(3) of Kerala Rent Act, stipulates that landlord can seek order of possession if suit premises are required for the occupation of "any member of his family dependent on him". Based on that the Hon"ble Apex Court was pleased to hold that the landlord must expressly plead that the member for whom building is required is dependent on him and in the absence of such pleadings possession sought for by the landlord cannot be granted. Section 2 (6-A) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, herein after referred to as "the Act" defines that "member of his family" in relation to a landlord means his spouse, son, daughter, grandchild or dependent parent, It would disclose that a landlord can seek eviction of the tenant from the demised premises for the purpose of occupation of his parent only if he pleads and establishes that the parent is depending on him, but not for his spouse, son, d aughter or grandchild, No difference has been mentioned a grand-child through son or a grand-child through daughter. Section 10(3)(a)(iii) of the Act would also reveal that a landlord subject to the provisions of clause (d), can apply to the Controller for an order directing the tenant to put the landlord in possession of the building in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own. No mention of member of his family depending on the landlord has also been mentioned in the abovesaid provision. Therefore, reliance placed by the learned counsel for the revision petitioner on the decision cited above will not in any way help him to establish that the respondent herein cannot maintain this petition for eviction on the ground of own use and occupation for want of proof of dependent on the landlord or on the ground that the requirement is for the grandson through daughter. 9. The learned counsel for the revision petitioner contends that C.S. Ravikumar was not actually carrying on business at the time of filing of the petition for own use and occupation by the respondent herein and therefore, the eviction sought for on the said ground cannot be sustained. The learned counsel for the revision petitioner contends contra to it. In Thirunavukkarasu v. Vasantha Ammal , 1997 (2) LW 607, the learned judge S.S. Subramani, J. has considered the meaning of "carrying on business" and held that if a step is taken with intent to do actual business in future, that will mean "carrying on business" and will be sufficient compliance of the Section. It is also held that if such step is taken in contemplation of future need, it will tantamount to "carrying on business". In Indian Organic Chemicals Ltd., Madras v. Radha Venkataraman , 1997 (2) LW 517, the learned Judge, S.S. Subramani, J. has held that law does not say that there should be a current and urgent need for establishing bona fide requirement of landlord. It is enough if it is reasonably likely to arise in future. If the principles laid down in the case cited above, are taken into consideration, the contention raised by the 1earned counsel for the revision petitioner that the respondent herein cannot maintain a petition for eviction on the ground of own use and occupation for want of starting business in medical pharmacy at the time of filing of the petition for eviction cannot be accepted. 10. In P. Sriramamurthy v. Mrs. Vasantha Raman , 1997 (2) LW 64, the Hon"ble Apex Court was pleased to hold that it is settled law that for moulding the relief, subsequent events can be taken note of. On such principle the Apex Court was pleased to hold that the relief of eviction can be granted on the ground of personal occupation taking into consideration of subsequent events. The same principle has been laid down by the learned Judge, A.R.Lakshmanan, J. (as he then was) in J. Jermons v. Aliammal and four others , 1997(3) LW 235 following the various decisions of the Apex Court and this Court. 11. The revision petitioner herein while he was examined as R.W.1 before the Rent Control Court admits that C.S. Ravikumar is the grandson of the respondent herein, that he was working in the medical pharmacy owned by his father and his brothers as partners at 17, Nyniappa Naicken Street, Madras-3 which is a rented premises, that C.S. Ravikumar was not doing business as his own in the abovesaid pharmacy and that either Ravikumar or the respondent herein did not own any building of their own for non-residential purposes in the city of Madras. 12. Documents from the lower courts were sent for by this Court, and the same were perused. Ex. P-4 is the certificate issued for holding Diploma in Pharmacy and also registration of the same on 18.5.1992 to carry on business in medical pharmacy. Acknowledgment dated 7.9.1992 in Ex. P-5 series, would show that C.S. Ravikumar has filed an application before the Assistant Director of Controller for issue of licence to start the business in pharmacy even on 7.9.1992 which is prior to the filing of the petition for eviction in the month of October, 1992. Ex. P-10 dated 1.4.1988 is the partnership deed showing the father of C.S. Ravikumar and his brothers partners of the medical pharmacy carried on at No. 17, Nyniappa Naicken Street, Madras-3. Ex. P-9 is the registration certificate to run such pharmacy in the abovesaid premises and the same was issued by the Registrar of Firms on 6.10.1972. The respondent herein has filed a petition before the Appellate Authority for receiving additional evidence and the said petition was allowed and Exs. P-12 to P- 26 (xerox copies)were received as additional evidence before the learned Rent Control Appellate Authority. It is not in dispute that C.S. Ravikumar had purchased a medical pharmacy run under the name and style of M.G. Murthi and Co,. at No. 36, Thatha Muthiah Street, Chennai which is a rented premises and got the licence transferred to his name apart from getting lease of the said premises from its landlord to carry on the pharmacy business. The said development had taken place during the pendency of the Rent Control proceeding for which Exs. P-12 to P-26 (xerox copies) were produced before the Rent Control Appellate Authority at Appeal stage. As already pointed out that such subsequent development can also be taken into consideration to mould the relief sought for by the respondent herein against revision petitioner. If the facts stated supra are taken into consideration, it is quite clear that the requirement of the demised premises for own use and occupation to start a medical pharmacy business to his grandson C.S. Ravikumar in the demised premises is bona fide and therefore, the Rent Control Appellate Authority was right in coming to the conclusion that the requirement for own use and occupation by the respondent herein is bona fide. Therefore, there is no warranting circumstances to interfere with such conclusion also. 13. In fine, the judgment and decree of the learned Rent Control Appellate Authority on the abovesaid two grounds are confirmed and the Civil Revision Petition is dismissed. In view of the dismissal of the Civil Revision Petition, the petition in C.M.P.No.140 of 2001 is closed as unnecessary. Taking into consideration of the circumstances of this case, both parties are directed to bear their own costs. 14. The learned counsel for the revision petitioner submits that the revision petitioner may be given six months time for vacating the premises. The learned counsel appearing for the respondent herein has no objection to grant four months time subject to the conditions to be imposed by this Court. Four months time is granted subject to the following conditions: - (i) The revision petitioner should pay the rent every month on the last day without fail and arrears of rent, if any, has to be paid by 31.7.2001. (ii) The revision petitioner should not permit any third party to enter in possession or sublet the demised premises to third party during the abovesaid period. (iii) An affidavit of undertaking to the effect mentioned above has to be filed within ten days from this date. If any of the conditions are flouted, the respondent herein is at liberty to execute the decree.