JUDGMENT
K. Govindarajan, J.
1. The tenant who suffered eviction before the authorities below has filed the above revision.
2. The landlord filed R.C.O.P. No. 1361 of 1990 on the file of the learned Rent Controller/XVI Judge, Court of Small Causes, Madras under Sections l0(2)(ii)(b) and 10(2)(iii) of Act 18 of 1960. According to the landlord, the tenant had constructed a pucca wall from floor to ceiling level in the central hall of the two floors in between two pillars, in the building in question thereby the central hall had been partitioned into two portions. He had put up a door way in the said wall. Apart from that he had raised a wall in the open terrace and covered the same with asbestos sheet thereby converting the open terrace into a constructed portion. According to the landlord the said additions and alterations are unauthorised and without any permission. Since the building is very old and aged one it would not bear any extra weight that may be put by the tenant. The said constructions have materially impaired the value and utility of the building. According to the landlord, the tenant has put up unauthorised construction and has been using the second floor for dwelling purposes which is not the purpose for which the building was let out. The tenant contested the petitioner by filing counter. According to the tenant he raised a small wall preventing access to the adjacent owners and since the light roofing has become old and leaky, he has provided A.C. sheet roofing over and above the false roofing. With respect to the wall in the ground floor it is the case of the tenant that he has raised a wall only to the height of 4 feet running to a length of four feet in order to make the entire ground floor available to the tenant. He denied the allegation that he is using the second floor for dwelling purpose. The Rent Controller has not accepted the case of the landlord under Section 10(2)(ii)(b), but he has ordered eviction under Section 10(2)(iii) of the Act, accepting the case of the landlord. The tenant filed the Appeal R. C,A. No,859 of 1992. The learned Appellate Authority/VII Judge, Court of Small Causes, Madras also confirmed the order of the Rent Controller and dismissed the appeal. Aggrieved against the same the tenant has filed the above revision. 3. The respondent/landlord filed the eviction petition under Sections 10(2)(ii)(b) and 10(2)(iii) of the Act. To prove his case that the construction of wall in the ground floor and the additional construction put up in the second floor of the building by the tenant will impair the value and utility of the building, he examined himself as P.W.I. In his evidence he has stated that
In the cross-examination, R.W. 1 has admitted that at the time of leasing out the building the wall in the second floor was only 3′ height and now it has been raised to 6′ and he has constructed on the parapet wall to the height of 6′ and to the length of 18′. The engineer who had been examined as R.W. 2 has stated in his chief-examination that merely because of some addition by the tenant there will not be any damage to the building. From a reading of the cross examination of R.W. 2 would show that he has not noted so many important aspects with respect to the constructions. He has admitted that he has not decided the strength of foundation. In the report marked as Ex. R-5, R.W. 2 has stated that sheets are provided over the light roofing to prevent leakage. He has not stated as to how he came to know about the leakage personally and the way in which the report is given will show that he has given the report only to help the case of the petitioner/tenant. Both the authorities below disbelieved the evidence of R.W. 2 as he has not properly inspected the building. Both the authorities below found that the tenant has raised walls over the parapet wall and covered the same with zinc sheets which will impair materially the value and utility of the building. It is the specific case of the landlord that the strength of the building will be affected in view of the new constructions made by the tenant. The learned Counsel appearing for the tenant has submitted that merely because some additional constructions have been made in the II floor it cannot be said that the value and utility of the building will be affected; on the other hand the value and utility of the building would be increased. The learned Counsel has also relied in the report of the Advocatecommissioner but he has not been examined before the authorities below. The Advocatecommissioner cannot be a fit person to assess the structural stability. So, that report of the Commissioner also cannot be relied on by the tenant in support of his case.
4. The learned Counsel has relied on the decision in Dinakaran v. Chinna Kuppuswamy (1987) 1 M.L.J. 124, wherein S. Natarajan, J., as he then was held as follows:
On a plain reading of the above provision, it may be seen that what is envisaged is committing of acts of waste which are likely to impair materially the value or utility of the building. In other words, the acts of the tenant must be such as would prejudicially affect the interests of the landlord by either lowering the value of the building or by reducing its utilitarian value for being let out for the same purpose for which it had been let out, or for allied purpose. Therefore, it goes without saying that every act of a tenant, even if it is not permitted by the landlord, will not amount to an act of waste, as contemplated under Section 10(2)(iii) of the Act. It is only a harmful act which is contemplated under Section 10(2)(iii) of the Act, namely, an act of waste which impairs materially or affects adversely the value or utility of the building. ” There is no doubt about the said principle.
5. In this case on the basis of the evidence available on record the authorities below have found that in view of the additional structure put up by the tenant, the same will affect the strength of the building. The learned Counsel appearing for the respondent/landlord has submitted that the authorities below have concurrently found that the additional structure will affect the strength of the building and so it amounts to an act of waste.
6. It is not possible to accept the petitioner’s case, that so long as the utility of the building has not been affected, he could make any alterations and additions to the building. Having regard to the object of the provisions in Section 10(2)(iii) of the Act, that is, to prevent tenants from making indiscriminate alterations and additions without the consent of the landlord affecting the value and the utility of the building, any alteration made by the petitioner which is likely to reduce the age of the building or its value, the respondent is entitled to an order of eviction even if the additions or alterations have added to the utility of the building. Section 10(2)(iii) talks of acts of waste.
7. Normally, waste will mean a spoil or destruction to houses, gardens, trees, or other corporcal hereditaments and can be broadly divided into two divisions, voluntary waste and permissive waste. Voluntary waste is actual or commissive, as by pulling down houses or altering their structure, and permissive waste is a matter of negligence and omission as by suffering buildings to fall or rot for want of necessary reparations. In addition to the said two broad ‘divisions of waste’ it is also possible to divide it into ‘ameliorating waste’ and ‘equitable waste. ‘ ‘Ameliorating Waste’ is such voluntary waste as improves the demised premises as a tenant puts a new front to his house. ‘Equitable waste’ consists in acts of gross damage, usually the cutting down ornamental timber by a tenant. It has been held by courts that turning two rooms into one or a bail into a stable, building a new house where there was none before, pulling down a house even though it be rebuilt afterwards are acts of waste.
8. In Damodaran v. Loganatha A.I.R. 1956 Mad. 54 Ramaswami, J., had to construe the scope of a similar. provision in Section 7(2)(iii) of the Madras Act XV of 1946. In that case the tenant had, without the knowledge of the landlord constructed a masonry overhead tank likely to overload the floor which was not in a condition to bear the additional weight. The defence of the tenant was that the putting up of an overhead tank would not constitute an act of waste, that it only constituted an improvement adding to the utility of the building and that he has committed acts of waste. The court held that the construction of an overhead tank in the open terrace of the building which cannot bear the additional weight was dangerous to the safety of the building and that the tenant had committed an act of waste within the meaning of Section 7(2)(iii) of the Act, the learned Judge has expressed;
To constitute voluntary waste by destruction of the premises, the destruction must be wilful or negligent; it is not waste if the premises are destroyed in the course of reasonable user, and any user is reasonable, if it is for a purpose for which the property was intended to be used, and if the mode and extent of the user is apparently proper, having regard to the nature of the property and what the tenant knows of it, and, in the case of business premises, to what, as an ordinary business man, he ought to know of it. It is not every act of waste on the part of the tenant which will entitle the landlord to obtain an order of eviction and what should be the nature and extent of the waste will depend on the circumstances of each case.
9. Relying on the decision in Shanmugham v. C. Kannabiran and Anr. (1996) 2 L.W. 322, the learned Counsel appearing for the respondent/land-lord has submitted that while considering as to how far the changes made by the tenant have impaired materially the value and utility of the building, the same has to be judged and determined from the point of view of the landlord and not that of the tenant.
10. The Apex Court in Shri Gurcharan Singh and Anr. v. Shivalak Rubber Industries and Ors. (1996) 2 S.C.C. 615, while considering similar provision has held as follows:
A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression to impair materially’ in common parlance would mean to diminish in quality, strength or value substantially. In other words, to make a thing or substance worse and deterirorate. The word ‘impair’ cannot be said to have a fixed meaning. It is a relative term affording different meanings in different contexts and situations. Here in the context the term ‘impair materially’ has been used to mean considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or effected suggesting impairment. Further, the word ‘value’ means intrinsic worth of a thing. In other words, utility of an object satisfying, directly, the needs or desires of a person. Thus the ground for eviction of a tenant would be available to landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness of the value and utility of the building or rented land has to be judged and determined from the point of view of the land-lord and not of the tenant or any one else.
11. So, in this case the findings of the authorities below cannot be said to be without any evidence. Sitting in revision, as held in the decision in Smt. Rajbirkumar and Anr. v. Ms. S. Chokosiri and Company , this Court cannot interfere with the findings of fact unless there is perversity in the appreciation of evidence. To come to such conclusion, I take aid of the Apex Court decision of stated supra, which reads as follows:
When the findings of fact recorded by the courts below are supportable on the evidence on record, the revision court must be reluctant to embark upon an independent reassessment of the evidence and to support a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the courts below. Therefore in the instant case the concurrent finding as to exclusive possession of subtenant was not amenable to reversal in revision by the High Court.
12. In the decision on Devkumar (died) through L. Rs. v. Swaran Lata (Smt) and Ors. , it is held as follows:
The jurisdiction of the High Court under Sub-section (5) of Section 15 of the Act, would entitle the court be examine the legality and propriety of a conclusion of the Appellate Authority and is thus much wider than the revisional jurisdiction under Section 115 of the Code of Civil Procedure. But it has to be exercised subject to the wellknown limitations inherent in all revisional jurisdictions and cannot be equated with an appellate jurisdiction. Unless there is a perversity in the matter of appreciation of evidence by the Appellate Authority or unless the Appellate Authority has arrived at a conclusion which on the materials, no reasonable man can come to the High Court will not interfere with the same.
13. In view of the above, I confirm the findings of the authorities below and dismiss this revision. No costs. The learned Counsel appearing for the revision petitioner requests three months time to vacate the premises. Hence, three months’ time is granted to the tenant to vacate the premises., on condition that the petitioner should file an affidavit of undertaking stating that he will vacate and handover vacant possession within the said period and he will not drag the landlord to the court for taking possession. Such an affidavit should be filed on or before 20.11.1997. If such an affidavit is not filed within time, the order of eviction will come into operation immediately.