A GURUSAMI Vs. A JACOB

JUDGEMENT

(1.) THE revision petitioner is the tenant in R.C.O.P.No.8 of 1989 on the file of the Rent Controller, Arani and the appellant in R.C.A.No.9 of 1991 on the file of the appellate authority (Sub-Court) Arani. THE respondent is the petitioner before the Rent Controller and the respondent before the appellate authority. She is the landlady. Though eviction was sought for on three grounds namely, wilful default in the payment of rent; putting the building to a different user and committing an act of waste, yet the order of eviction came to be passed only on two grounds namely different user and act of waste. That order of the Rent Controller was sustained by the appellate authority on both the grounds. Hence the present revision.

(2.) I heard Mr. M.N. Padmanabhan, learned senior counsel, appearing for the revision petitioner and Mr. S. Francis Ashok, learned counsel appearing for the respondents. According to the learned senior counsel, the order of eviction passed in this case suffers from illegalities and therefore it cannot be sustained. The learned senior counsel would also argue that the purpose of tenancy is for non-residential purposes and no material whatsoever has been placed before the courts below by the landlady, to fix that the building was taken for running a lottery shop only. Under these circumstances, in the absence of a contract evidencing tenancy for such a purpose only, the use of the building for any business which the tenant decides to have would not amount to a different user. According to the learned senior counsel, so long as the business carried on by the tenant is legal and so long the change of business, assuming it to be so had not resulted in any mischief or detriment to the demised premises, it cannot give a cause of action for the landlady to seek eviction of the tenant on that ground. Assuming for a moment without admitting that there was a change in user, the learned senior counsel would state the change alleged by the landlady is very trivial and therefore it cannot be taken note of to grant relief in favour of the landlady. As far as the act of waste is concerned, the learned senior counsel would argue that making an opening in the wall, fixing a door therein and dividing the premises into two halls by erecting a plywood partition would not amount to committing an act of waste in the eye of law and as understood from the various judgments on this issue. Opposing these arguments, Mr. S. Francis Ashok, learned counsel would argue that it is established in this case that at the inception of tenancy, it was in the mind of both the parties that the tenant should use the building only for selling the lottery tickets and not for any other business. Admittedly in this case, the tenant is found to use a portion of the building for a purpose not connected with the selling of the lottery tickets and therefore it must be held that the tenant has put the building to a different user. According to the learned counsel Mr.S.Francis Ashok, the tenant did not at any point of time state, till his evidence before court, that he is using a portion of the building for his Hotel business, as well and therefore his evidence before court on those lines will have to be necessarily rejected. As far as the act of waste is concerned, the learned counsel for the respondent would state that the tenant has no right to make an opening in the wall belonging to the landlady and he having done so, cannot be allowed to say that he had not committed any act of waste. Making an opening in the wall, according to the learned counsel, is definitely an act of waste, which would impair the utility of the building. On those lines, the erection of the plywood partition was also attacked. The learned counsel for the respondent also would state that the vacant site behind the tenanted premises is not the subject matter of the tenancy and the tenant using that site as a cattle shed has thereby caused the value of the building to come down.

(3.) IN this case also there is absolutely no evidence on the side of the landlady about the utility value of the tenanted building having been brought down by any such act. Curiously the Rent Controller and the appellate authority proceeded to order eviction on the ground of committing an act of waste, which act of waste was related to exploiting the vacant land behind the tenanted premises by using it as a cattle shed. The case of the landlady is that the vacant site is not the subject matter of the tenancy at all. If that is so, how could it be a ground for eviction with reference to the demised building, I am unable to understand. Under these circumstances, I am of the opinion that the finding rendered by the Rent Controller and affirmed by the appellate authority on the ground of act of waste in favour of the landlady cannot also be sustained. Under these circumstances, the order of eviction passed by the Rent Controller against the tenant on both the grounds referred to above and affirmed by the appellate authority have to be necessarily set aside. It is accordingly set aside. The C.R.P. is allowed and there will be no order as to costs.