BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.160 of 2004 CMP.No.1243 of 2004 & MP.No.1 of 2009 L.Gnanaraj ... petitioner Vs 1. Kulandai Raj Pillai 2. Maria Anthonirayar ... respondents Prayer This Civil Revision Petition is filed against the judgement dated 17.10.2003 made in RCA.No.37/2007 by the Rent Control Appellate Authority (Principal Subordinate Judge), Trichy, reversing the judgement and decree dated 21.2.1994 made in RCOP.No.78/1988 passed by the Rent Controller (II Additional District Munsif) Trichy. !For Petitioner ... Mr.D.Rajendran ^For Respondents ... Mr.N.Krishnaveni :ORDER
This Civil Revision Petition is filed by the tenant who failed
before the Rent Control Appellate Authority in RCA.No.37/2007 by order dated
17.10.2003, reversing the order dated 21.2.1994 passed by the Rent Controller
in RCOP.No.78/1988.
2. The respondent/landlord has filed a petition in RCOP.NO.78/1988
before the Rent Controller (II Additional District Munsif) Trichy on the grounds
of willful default in payment of rent, committing acts of waste and non
occupation of the building for more than four months. The respondent is the
owner of the petition premises and the petitioner is the tenant paying a monthly
rent of Rs.500/- payable before the 5th of every succeeding English Calendar
Month. The premises was let out to the petitioner for stocking the cigarettes as
a godown.
3. The respondent has alleged that the petitioner committed willful
default in payment of rent from 1.10.1985 to 7.11.1987 i.e. till the issuance of
notice by the respondent demanding the rent for the above said period.
According to the respondent, despite the demand made several times, the
petitioner did not pay the rent and belatedly sent the rents by way of a cheque
and the same had been received without prejudice and as such a lump sum payment
will not absolve the tenant from willfulness in payment of rent for a continuous
period of 2 years.
4. It has been further submitted by the respondent that the
petitioner has committed major acts of waste as briefly stated below:
a. 5 windows have been blocked by brick walls inside the room.
b. One door way has been blocked by bricks wide the room.
c. Cross walls in the terraced portion have been demolished between passage and
two rooms and converted into halls and other acts of waste as noted by the
Advocate Commissioner.
5. The respondent has also sought eviction on the ground of non-use
of premises by the petitioner for more than a year as it was kept under lock
causing heavy damage and not using the property as godown to stock the
cigarettes.
6. The eviction petition was resisted by the petitioner stating that
immediately after receiving the lawyer’s notice dated 7.11.1987 sent by the
respondent, the petitioner sent a cheque for a sum of Rs.12,500/- representing
the rent from October 1985 till October 1987 and the respondent having accepted
the rent even before the eviction proceedings were filed, there could be no
cause of action for filing the eviction petition on the said ground. He would
submit that it is the practice of the landlord to come and collect the rent and
the petitioner was bona fide under the impression that he would collect it in
lump sum. The petitioner would state that he had never committed any acts of
waste and the said allegation is made only to create a ground for eviction. He
would further contend that the petition premises is still in the active
occupation of the petitioner and the same is utilised for stocking cigarettes.
7. The learned Rent Controller ordered eviction only on the ground
of willful default committed in payment of rent and disallowed other two
grounds. Aggrieved over the same, the tenant filed an appeal in RCA.No.16/1994
and the landlord filed an appeal in RCA.No.37/1994 against the disallowed
grounds of eviction. The Rent Control Appellate Authority reversed the findings
of the Rent Controller and ordered eviction on the grounds of causing acts of
waste affecting materially the value of the building. Aggrieved against the
order of the Rent Control Appellate Authority, the petitioner has filed this
Civil Revision Petition.
8. The learned counsel for the petitioner would submit that before
coming to the conclusion that the petitioner has committed acts of waste, the
Rent Control Appellate Authority failed to consider the condition of the
building in which it was let out during the commencement of the tenancy and the
building having been let out only for the purpose of non residential purpose,
more specifically as a godown, the finding of the Authority that the storing of
wooden boxes and crates had damaged and impaired the building is legally
unsustainable. He would submit that the finding of the learned Rent Control
Appellate Authority is solely on the basis of the report of the Advocate
Commissioner and the cracks found on the building is only due to the age of the
building which is also only in the plastering level.
9. In a case for eviction of the tenant on the ground of acts of
waste, the burden of proof is always on the landlord to show that the
unauthorised act of the tenant has caused damages to the building and such
damage has materially impaired its value or utility. There may be damages, but
it should be such as to affect the value or utility of the building. The
Appellate Authority has referred to certain cracks and damages found in four
rooms out of seven rooms as referred to in the report of the Advocate
Commissioner, which is extracted below:-
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10. It is pertinent to state that the Advocate Commissioner has not
been cross examined by the petitioner and hence his report remains unchallenged.
From the above said report of the Advocate Commissioner, it could be seen that
there were certain cracks and windows in three rooms had been blocked by bricks.
11. The Appellate Authority has found that the blockage to the
windows ought to have been done unauthorisedly as the petitioner has not
produced any evidence to show that the same has been done after getting
permission from the landlord and further the building would not have been let to
the petitioner in the said condition at the inception of the tenancy. The said
finding of the Appellate Authority is unassailable. The alteration done without
the knowledge of the respondent certainly would diminish the value of the
building both from the commercial and utilisation aspect of the building.
Changing the nature of the demised premises tantamount to technical waste and
the removal of the doors and windows will clearly amount to doing an act
affecting the utility of the building.
12. It is no doubt true that the burden of proof is on the landlord
to prove that the building has been materially affected, however, as the damages
to the building having been proved, an inference can be drawn that such acts
have materially affected the value or utility of the building.
13. In the case of M.Shanmugam Vs. Kannabiran and another [1996-2-
LW-322], this court has held that while considering the petition for eviction on
the ground of acts of waste, it should be considered from the point of view of
the landlord and not that of a tenant.
1.In the case on hand, there is sufficient
evidence placed before the court below for coming to a conclusion that the
tenant has caused such damages to impair materially the value of the building
and therefore, I do not find any illegality or infirmity in the impugned order
passed by the Rent Control Appellate Authority and hence, the same stands
confirmed.
15. In the result, this Civil Revision Petition is dismissed. No
costs. Consequently, the connected MPs are closed.
Srcm
To
1. The Principal Subordinate Judge, Trichy
2. The II Additional District Munsif, Trichy