MOHAMMED GHOUSE Vs. K A HAMEED

JUDGEMENT

(1.) THE landlords of the premises bearing Door No. 8-A Appasami Mudali Street, Madras-1, are the petitioners in this civil revision petition. THE first respondent is a tenant under the petitioners on a monthly rent of Rs.65. According to the case of the petitioners, the first respondent did not even tender or pay the monthly rent from January, 1981 to July, 1981, and that such non-payment of rents for that period was deliberate and the default in such payment was wilful default within the meaning of section 10 (2) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by Act XXIII of 1973) (hereinafter referred to as the Act). THE petitioners further stated that the first respondent had, without the written consent of the petitioners, sublet the entire premises to the second respondent, rendering the first respondent liable to be evicted under section 10 (2) (ii) (a) of the Act. Alleging that the premises had been let out to the first respondent for residential purposes and that he was also using the premises for such purposes till the sublease in favour of the second respondent, the petitioners claimed that there was a different user of the premises for a purpose other than that for which it was leased in that the second respondent was using the premises for nonresidential purposes, namely, manufacture of suit cases and other allied products. That according to the petitioners attracted the provisions of section 10 (2) (ii) (b) of the Act meriting the passing of an order for eviction against the respondents. It was on the aforesaid grounds that the petitioners filed H.R.C. No. 3876 of 1981 before the Rent Controller (XIV Judge, Court of Small Causes), Madras.

(2.) THE first respondent in his counter contended that he did not become a tenant under the petitioners on a monthly rent of Rs. 65 as claimed by them, but that he was inducted into possession earlier on a monthly rent of Rs. 35. Referring to the filing of an earlier application for eviction in H.R.C. No. 1551 of 1978 under section 10 (2) (i), 10 (ii) (a) and 10 (2) (ii) (b) of the Act and the withdrawal of that application after agreeing to receive a sum of Rs. 65 towards rent per month, the first respondent disputed that he committed wilful default in the payment of rent and stated that on the instructions of the petitioners, the rents upto date had been paid to their counsel Thiru T. Ramalingam and a receipt had also been obtained therefor. While accepting the subleasing of the premises and also the non-residential user thereof by the second respondent, the first respondent put forth the plea that the petitioners acknowledged and consented to the same at the time of the disposal of H.R.C. No. 1551 of 1978, and that the application for eviction was filed only to secure still higher and unreasonable rent in respect of which a demand was also made and refused to be complied with by the first respondent. THE first, respondent, therefore, characterised the application for eviction as one without any substance whatever.

(3.) BEFORE the Rent Controller (XIV Judge, Court of Small Causes) Madras, on behalf of the petitioners, Exhibits P-l and P-2 were marked and the second petitioner was examined as P.W.1, while Exhibits R-l to R-4 were filed on behalf of the respondents and the first respondent was examined as R.W. 1 and the son of the second respondent was examined as R.W. 2. Considering the question of wilful default attributed to the first respondent, the learned Rent Controller was of the view that on the date of the filing of the application for eviction, the first respondent had paid the rents upto July. 1981. to one Thiru T. Ramalingam, counsel and that the receipt Exhibit R-4, dated 3rd May, 1981, had also been obtained and, therefore, there was no wilful default in the payment of rents by the first respondent. Dealing with the question of subletting, the Rent Controller found that though the second respondent claimed that he is a tenant directly under the petitioners. such a claim was not established at all and that by reason of an endorsement stated to have been made in the prior proceedings for eviction in H. R. C. No. 1551 of 1978, there had been a recognition of the right of the first respondent to sublet and that would amount to a written consent for purposes of subletting and, therefore, no order for eviction could be passed against the respondents on that ground. Referring to the different user of the premises, the learned Rent Controller concluded that though in the premises let out there was a kitchen and a bath room, there was no evidence to show that the premises had been used as a residential one or that it was let out for such a purpose and, therefore, by the non-residential user of the premises by the respondents no order for eviction could be passed against them. In view of these conclusions, the application for eviction filed by the petitioners, was dismissed. Aggrieved by this, the petitioners preferred an appeal in R. C. A. No. 449 of 1982, before the Appellate Authority (VI Judge, Court of Small Causes), Madras. M.P. No. 435 of 1982, was also filed by the petitioners for permission to file a true copy of the application for eviction filed by the first respondent against the second respondent herein in R.C. O.P. No. 1565 of 1982, as additional evidence to establish the subleasing of the pro-party by the first respondent in favour of the second respondent. Though that application was resisted by the first respondent herein, his objections were overruled and the true copy of the application for eviction in R.C.O.P. No. 1565 of 1982, filed by the first respondent against the second respondent herein was marked as Exhibit R-5. The Appellate Authority also relied upon a receipt Exhibit R-4 to find that R. W. 1 had paid the rents upto July, 1981. to the counsel for the petitioners and, therefore, the first respondent had not committed any, willful default in the matter of paying rents for the period mentioned in the application for eviction. Regarding the subletting, the Appellate Authority was inclined to take the view that R.W. 2 had not established that he is a direct tenant under the petitioners, but that the endorsement made in the prior application for eviction would establish that the petitioners had consented to the respondent remaining in possession of the premises as a sub-tenant at least after that date and since the second respondent had been in occupation of the premises for more than 35 years, it cannot be that the first respondent had suddenly sublet the premises for the nonresidential user of the second respondent, and, therefore, subletting as a ground for securing an order of eviction against the respondents would not be available. Adverting to the absence of any documentary evidence about the nature of the tenancy, the Appellate Authority concluded that the premises must have been used only for non-residential purposes since the inception of the tenancy and, therefore, the user of the premises for a purpose other than that for which it was let out was also not established. In the result, the appeal was dismissed. It is the correctness of this order that is challenged in this civil revision petition.