NARAYANAN Vs. NATESA ACHARI

JUDGEMENT

(1.) THESE appeals at the instance of the tenant have beers preferred against the common judgment in A.S.Nos.108 of 1981 and 129 of 1981, District Court, South Arcot at Cuddalore. The Respondent in these Appeals (hereinafter referred to as the landlord) is the owner of the building bearing No.158, Pandit Jawaharlal Nehru Road, Villupuram. The first floor of this building comprising of 24 rooms was leased to the tenant originally in 1967 and the lease was subsequently renewed and finally, on 1.7.1979, a lease deed was executed. That lease deed mentions that in addition to the first floor of the building, the cots, electric fans, chairs, tables and other items of furniture and some utensils, a three horse power electric pumpset and certain other articles also formed part of the tease and that the premises was to be used for the purpose of running a lodging house by the tenant. The period of the lease as finally renewed was from 3.7.1979 to 31.3.1980. After the expiry of the said period, the landlord declined to accept the rent from the tenant and demanded by a notice, delivery of possession. Thereupon, the tenant filed O.S.No.5 of 1981, Sub Court, Cuddalore, for a declaration that he is a statutory tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the Act) and, therefore, he is entitled to remain in possession till he is evicted in accordance with due process of law and for a consequential injunction restraining the landlord from interfering with his possession. In turn, the landlord filed O.S.No.7 of 1981, Sub Court Cuddalore, praying for recovery of possession of the demised premises and for a permanent injunction restraining the tenant from running the business and lodging house and for damages for use and occupation, past and future. The suits were tried together and the trial Court found that as the building was leased to the tenant together with fixtures, furniture and other articles for the purpose of running a lodging house, section 30(iii) of the Act would apply to exempt the building from the provisions of the Act and that the tenant cannot be considered to be a statutory tenant under the Act and, therefore, the landlord is entitled to recover possession with past and future damages for use and occupation. Consequently, the suit instituted by the tenant in O.S.No.5 of 1981 was dismissed and a decree directing delivery of possession of the suit property to the landlord was granted in O.S.No.7 of 1981 and the relief of injunction was negatived. The quantum of damages recoverable by the landlord was relegated to be decided in separate proceedings under Order 20, rule 12, C.P.C. Aggrieved by this, the tenant preferred A.S.Nos.108 of 1981 and 129 of 1981, District Court, South Arcot at Cuddalore. The appellate Court found that the tenant had taken the premises on lease for the purpose of running a lodging house with the building and the materials of the landlord situate in the building demised to him and that would be exempt under section 30(iii) of the Act rendering inapplicable the provisions of the Act. In that view, the lower appellate Court affirmed the dismissal of O.S.No.5 of 1981 and the decree in O.S.No.7 of 1981 and dismissed the appeals. It is the correctness of this that is challenged by the tenant in these appeals.

(2.) THE learned Counsel for the tenant frist contended that having regard to the terms of the lease deed Ex.B-1, the courts below were in error in concluding that the building in question would be exempt under section 30(iii) of the Act from the provisions of the Act. Elaborating this contention, the learned Counsel drew attention to Illustration (3) occurring under section 30(iii) of the Act and submitted that the exemption would apply only in cases where there is a lease of a business actually carried on by the landlord and not to a case like this where the landlord had merely demised the building to enable the tenant to carry on lodging business in the premises with the furniture and other accessories provided by the landlord. On the other hand, the learned Counsel for the landlord contended that on the terms of the lease deed, the object of the demise is to enable the tenant to run the lodging business with the furniture and other accessories belonging to the landlord and situate in the building and that would suffice to attract the applicability of section 30(iii) of the Act rendering inapplicable the other provisions of the Act. It was also further pointed out that the Illustration relied on cannot have the effect of supplanting the substantial statutory provision and to cut down the width and amplitude of the scope of exemption. Reference in this connection was made to the decision in Bombay Bur-mah Trading Corporation Ltd. Pollachi Coimbatore District v. A.T.Narayanaswami Pillai, (1981)1 M.L.J.433= (1981) 94 L.W. 334.

(3.) THE learned Counsel for the tenant next contended that as the tenancy agreement under Ex.P>-l became operative and effective only on the payment of stamp duty and penalty by the landlord and not before, the notice issued under Ex.A-37 is not a valid notice to quit. On the other hand, the learned Counsel for the landlord submitted that the payment of stamp duty and penalty was made only with a view to mark Ex.B-1 in evidence and it cannot, therefore, be claimed that the lease became operative and effective only from then and not from the date of execution. It was further pointed out that no objection at all had been raised by the tenant in the written statement or before the* trial court or even before the appellate court that the notice is defective.