CORAMTHE HONOURABLE MR v. P.Naresh Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-6-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD Nos.1071 and 1162 of 2006John Mathew.. Petitioner in both revisions LandlordvsP.Naresh Kumar.. Respondent in both revisions TenantCRP 1071 of 2006 preferred under Sec.25 of the TamilnaduBuildings (Lease and Rent Control) Act 18/1960 as amended by Act23/1973 and Act 1 of 1980 against the judgment and decree dated20.1.2006 passed by the VIII Judge, Court of Small Causes,Chennai-Rent Control Appellate Authority in RCA No.966 of 2004reversing the judgment and decree dated 26.7.2004 passed by theXIII Judge, Court of Small Causes, Madras (Rent Controller) inRCOP No.912 of 2003.CRP 1162 of 2006 preferred under Sec.25 of the TamilnaduBuildings (Lease and Rent Control) Act 18/1960 as amended by Act23/1973 and Act 1 of 1980 against the judgment and decree dated20.1.2006 passed by the VIII Judge, Court of Small Causes,Chennai-Rent Control Appellate Authority in RCA No.740 of 2004reversing the judgment and decree dated 16.3.2004 passed by theXII Judge, Court of Small Causes, Madras (Rent Controller) in RCOPNo.335 of 2003.For Petitioner: Mr.K.P.AshokFor Respondent: Mr.P.B.BalajiCOMMON ORDERThis order shall govern these two revisions which have arisenfrom an order of the VIII Judge, Court of Small Causes, Madras,made in two RCAs namely RCA No.966/2004 at the instance of thetenant and RCA No.740/2004 at the instance of the landlord whofailed in both the forums.2.The Court heard the learned Counsel on either side andlooked into the materials available. https://hcservices.ecourts.gov.in/hcservices/

3.The landlord approached the Rent Controller originally withan application for eviction in RCOP No.335 of 2003 on the groundof willful default alleging that the property was let out to thetenant in the month of July 1999; that the monthly rental wasRs.36,000/-; that there was a written agreement, a registered one,between the parties; that he was put in possession also; thatthere was a default in making payment of rental, which waswillful, and hence, an order of eviction should be passed. Thesame was contested by the tenant, and it was also dismissed on16.3.2004 by the XII Judge of Court of Small Causes, wherefrom RCANo.740/2004 was filed. 4.The same landlord filed another RCOP No.912 of 2003 on thegrounds that the tenant, when he was in occupation of thebuilding, has made number of alterations and has demolished numberof portions, which has directly impaired the use, utility andvalue of the building, and thus, he has committed an act of waste,and he was to be evicted. The said application was seriouslycontested by the tenant. It was taken up by the XIII Judge, Courtof Small Causes, and the application was allowed on 26.7.2004.Aggrieved, the tenant took it on appeal in RCA No.966 of 2004.The said appeal was taken up by the appellate authority along withthe other appeal for enquiry, and a common judgment was rendered,whereby the petitions filed by the landlord, were dismissed.Hence, these revisions have arisen before this Court.5.Advancing his arguments on behalf of the revisionpetitioner, the learned Counsel would submit that in the instantcase, there was a written agreement between the parties; thatthere is a specific Clause in the lease deed that the lessee shallnot carry out any structural alterations whatsoever in the demisedpremises; that despite the same, so many alterations were made;that all have been narrated in the course of the application; thatan Advocate Commissioner was also appointed; that he made aninspection of the premises after notice to the parties; that hehas put 9 Clauses in his report, wherein he has pointed out thatalterations have been made in the building and even the ceramictiles were removed from the field, and some of the walls have beendemolished; that the petitioner examined himself as P.W.1 where hehas categorically stated about the alterations which arestructural in nature; that it is pertinent to point out that therespondent-tenant also examined himself as R.W.1; that he has alsoadmitted what was all stated by the Commissioner in his report;that agreeing with the case of the petitioner-landlord, the RentController has given a detailed order recording a finding that allthose structural alterations have been done, and they have beennoted by the Commissioner in his report, and they are all nothingbut act of waste, and therefore, the petitioner-landlord wasentitled for an order of eviction and accordingly, passed so; but,the appellate forum has set aside that order on the grounds thatthey were not structural alterations, and they cannot be termed asan act of waste; but, they are all adding to the value of the https://hcservices.ecourts.gov.in/hcservices/ property, and the Advocate Commissioner was not technicallyqualified, and he is not competent to speak about the act ofwaste, and under the circumstances, the order of the RentController was to be set aside, and accordingly set aside. Thelearned Counsel took the Court to the part of the Commissioner'sreport and the admissions made by the respondent-tenant before theRent Controller as to the alterations made, and also relied on thelease deed entered into between the parties. The learned Counselwould submit that Clause No.14 of the lease deed speaks about thefact that the lessee should not carry out any structuralalterations; that under the circumstances, the appellate forumshould have affirmed the order of the Rent Controller, but failedto do so, and hence, both the revisions have got to be ordered,and the order of eviction has got to be restored. 6.Insofar as the second application, it is contended by thelearned Counsel for the petitioner that it is an admitted positionthat originally, the rental was Rs.36,000/-, as per the leasedeed; that the only plea that was taken by the tenant before theRent Controller was that there was an advance of Rs.3 lakhs withthem, and it was not a part of the agreement, and on the next dayto the agreement, there was a demand draft given, and it was madefor the purpose of advance; that in view of the fact that advancewas available, both the authorities below have found that therewas default, but, it cannot be termed as willful default in viewof the advance in the hands of the landlord; that the said findingwas also affirmed by the appellate forum; that the said view takenby the authorities below is erroneous, and it has got to be setaside. In support of his contention, the learned Counsel reliedon a decision of the Apex Court reported in (1993) 2 SUPREME COURTCASES 614 (VIPIN KUMAR V. ROSHAN LAL ANAND AND OTHERS).7.Countering the above contentions, the learned Counsel forthe respondent-tenant would submit that in the instant case, therewas no act of waste at all; that the Advocate Commissioner hasgone to the spot, made an inspection and filed the report; but, areading of the report would clearly reveal that it is true thatthere were alterations and additions made; but, they werenecessary for carrying on the business of the tenant; that thesealterations and additions have added the value of the building;that it also added to the use and utility of the building, andunder the circumstance, at no stretch of imagination, it could betermed as act of waste. The learned Counsel also relied on Clause15 of the lease deed, which, according to him, would permit thetenant to make necessary alterations and additions suitable to thebusiness, which are temporary in nature. The learned Counselwould further submit that the parties entered into the agreementfor making such alterations and additions which have been actuallydone by the tenant, and under the circumstances, though the RentController has taken an erroneous view, the same was set aside bythe appellate forum; that the appellate forum has clearly pointedout that the Advocate Commissioner was not technically qualified,and he cannot speak about the alterations and additions, whetherthere are acts of waste or they added to the use, utility and https://hcservices.ecourts.gov.in/hcservices/ value of the building, and under the circumstances, the order ofthe appellate forum has got to be sustained. The learned Counselreiterated the findings of both the forums insofar as the groundof willful default. In support of his contentions, the learnedCounsel relied on a decision of the Apex Court reported in 2005-4-L.W. 1 (HARI RAO V. N.GOVINDACHARI AND OTHERS).8.The Court paid its anxious consideration on the submissionsmade, looked into the materials available and made a thoroughscrutiny of the decisions relied on by the respective sides. 9.Admittedly, the respondent-tenant occupied the building ofthe revision petitioner-landlord in July 1999 pursuant to a leaseagreement, a registered one, wherein he has agreed to payRs.36,000/- as monthly rental, and he was paying so to someextent. Thereafter, according to the landlord, there was adefault and also willful default. Now, both the authorities belowhave found that in view of the decision of the Supreme Court,while there was admittedly an advance of Rs.3 lakhs available,there was default; but, it cannot be stated to be willful default.Therefore, as far as that ground is concerned, the finding of theboth the authorities below have got to be affirmed. 10.As far as the other application filed by the landlordseeking eviction on the ground of act of waste is concerned, thisCourt has to necessarily restore the order of the Rent Controller.In the instant case, an Advocate Commissioner was appointed tomake an inspection of the property, and the Advocate Commissioneron notice, made an inspection of the property. In his report, hehas mentioned the act of waste as detailed below:"1.Main walls (shown in orange) in front facing 2ndAvenue Road was demolished and broken in several placesand openings for installation of some rolling shutterswere made.2.New brick wall with beams and pillars beingconstructed in the front shed shown as Red Colour.3.Two RCC pillars with Plinth beam being erected insidethe front shed main wall in the front at place marked A1and A2.4.Ceramic tiled flooring being fully unearthed(Removed).5.The western side main wall broken in two places forwindow gaps shown as Brown Colour.6.The Southern and Eastern side of main wall of FOL andwash area being demolished in area shown as B1 (as shownin Green colour).7.The main wall of the main building (rear side mainportion) facing 11th Main Road, demolished for makingdoor way opening, shown in Pink Colour.There were building materials such as bricks, sand,jelly, etc. stocked both outside and inside thepremises. Further there was lot of debris lying inseveral places inside the petition premises. https://hcservices.ecourts.gov.in/hcservices/

8.The Glazed tiles in several portions in FOL area (B1)broken and removed.9.Wall plastering being removed in several places infront light roofing shed area."11.Now, at this juncture, it is pertinent to point out thatall the alterations and additions which are noticed by theAdvocate Commissioner, were actually mentioned in the course ofthe pleading. When the petitioner-P.W.1 has been examined, he hasspoken about all these facts. Now, the comment made by theopposite side that no one further witness was examined would befutile. Once the Advocate Commissioner, an Officer of the Court,was appointed, and he made an inspection on notice, and he filedthe report, wherein he has enumerated all the alterations andadditions as found therein, and further the respondent-tenant asR.W.1 has also in the course of his evidence at the time of thecross-examination, has affirmed what are all found in the courseof the Commissioner's report, this Court is of the consideredopinion that it does not require any more evidence. 12.The next question that would arise for consideration wouldbe whether these additions and alterations could be considered asact of waste or not. The learned Counsel for the respondent wouldsubmit that it is true that alterations have been made, but theyhave added to the utility and value of the building. The learnedCounsel for the respondent read the provisions of Sec.10(2)(i) andwould submit that so long as the act of waste is not found ornoticed or shown, the application deserves an order of dismissal.This Court is unable to agree with the contentions put forth bythe learned Counsel for the respondent-tenant. It would be moreapt and appropriate to reproduce Clauses 14 and 15 as found in thelease deed, a registered one, entered into between the parties.Clause 14 reads as follows:"14.The LESSEE shall not carry out any structuralalterations whatsoever in the 'Demised Premises'..."Clause 15 reads thus:"The LESSEE is permitted to make necessary alterationsand additions suitable to the business, which aretemporary in nature and will not in any manner affectthe structure of the 'Demised Premises'...."13.Clause 14 would clearly reveal that the lessee shall notcarry out any structural alterations, and if at all he has to makeany alterations or additions necessary for carrying on thebusiness, he can make so, which are temporary in nature, but not apermanent one. Added further, Clause 15 makes it clear that thelessee should not in any manner affect the structure of thedemised premises. What are all stated by the Commissioner in hisreport, would clearly indicate the demolition of the walls andremoval of the ceramic tiles in the floor, etc. Now, thecontention that these alterations added to the value and utilityof the building can, at no stretch of imagination, becountenanced. What are all could be seen is that the so-called https://hcservices.ecourts.gov.in/hcservices/ alterations and additions are not temporary in nature; but, theyhave been done in a manner which would affect the structure of thedemised premisses. What has been done by the tenant is nothingbut in violation of the Clause 14 which stipulates that the lesseeshould not carry out any structural alterations whatsoever in thedemised premises. It is not the case of the respondent-tenantthat he obtained consent from the petitioner-landlord to make suchalterations or additions; but, it is a case where all the thingsdone by him as narrated above, would clearly indicate that it wasnothing but an act of waste. 14.So far as the decisions relied on by both sides areconcerned, this Court has no quarrel with the same; but, thedecision relied on by the respondent-tenant, cannot be applied tothe present facts of the case. On the contrary, the decisionrelied on by the petitioner-landlord, could be well applied to thepresent facts. Under the circumstances, there was an act ofwaste, and the petitioner is entitled for an order of eviction.Hence, the order of the appellate forum in RCA No.966/2004 can bemade undone by upsetting the same. Accordingly, it is set aside,and the order of the Rent Controller in RCOP No.912 of 2003 isrestored, and the application is ordered. As far as RCA No.740 of2004 is concerned, the order of the appellate forum is confirmed.Time for eviction is 6 (six) months. An affidavit of undertakingshall be filed within one week herefrom.15.In the result, C.R.P.No.1071 of 2006 is allowed, andC.R.P.No.1162 of 2006 is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Registrar, Court of Small Causes, Chenani.2.The VIII Judge, Court of Small Causes, Chennai.3.The XII Judge, Court of Small Causes, Chennai.4.The XIII Judge, Court of Small Causes, Chennai.+ 2 ccs to Mr. P. Ashok Advocate CCSR Nos.35356, 35357+ 2 ccs to Mr. P. B. Ramanusam, Advocate CCSR No.35523, 355022Nsv/MBS(CO)SR/6.7.2007CRP NPD Nos.1071 and1162 of 2006