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Dr. Mohammed Ghouse and ors. Vs. K.A. Hameed and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ329
AppellantDr. Mohammed Ghouse and ors.
RespondentK.A. Hameed and anr.
Cases ReferredJagannath v. Abdul Aizz
Excerpt:
- - ramalingarn and a receipt bad also been obtained therefor. 6. it is seen from exhibit r-1 that the first respondent bad been regularly paying the rent to the petitioners and also obtaining receipts for such payments after signing the counterfoil in the receipt book upto the end of december, 1980. admittedly, during the period between january, 1981 and july, 1981, such a course was not adopted. exhibit r-5 also clearly shows that the first respondent, figuring as the petitioner, had filed r. in paragraph 3 of that application, the first respondent had clearly admitted having sublet the premises to the second respondent. it is also impossible to imply any such consent from the writing found in exhibit r-3. under these circumstances and on the materials made available in this case,.....orderv. ratnam, j.1. the landlords of the premises bearing door no. 8-a appasami mudali street, madras-1, are the petitioners in this civil revision petition. the first respondent is a tenant under the petitioners on a monthly rent of rs. 65. according to the case of the petitioners, the first respondent did not even tender or pay the monthly rent from january, 1981 to july, 1981, and that such non-payment of rents for that period was deliberate and the default in such payment was wilful default within the meaning of section 10(2)(i) of the tamil nadu buildings (lease and rent control) act (xviii of 1960) (as amended by act xxiii of 1973) (hereinafter referred to as the 'adi'). the petitioners further stated that the first respondent had, without the written consent of the petitioners,.....
Judgment:
ORDER

V. Ratnam, J.

1. The landlords of the premises bearing Door No. 8-A Appasami Mudali Street, Madras-1, are the petitioners in this civil revision petition. The first respondent is a tenant under the petitioners on a monthly rent of Rs. 65. According to the case of the petitioners, the first respondent did not even tender or pay the monthly rent from January, 1981 to July, 1981, and that such non-payment of rents for that period was deliberate and the default in such payment was wilful default within the meaning of Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by Act XXIII of 1973) (hereinafter referred to as the 'Adi'). The petitioners further stated that the first respondent had, without the written consent of the petitioners, sublet the entire premises to the second respondent, rendering- the first respondent liable to be evicted under Section 10(2)(ii)(a) of the Act. Alleging that the premises had been, let out to the first respondent for residential purposes and that he was also using the premises for such purposes till the sublease in favour of the second respondent, the petitioners claimed that there was a different user of the premises for a purpose other than that for which it was leased in that the second respondent was using the premises for non-residential purposes, namely, manufacture of suit cases and other allied products. That according to the petitioners attracted the provisions of Section 10(2)(ii)(b) of the Act meriting the passing of an order for eviction against the respondents. It was on the aforesaid grounds that the petitioners filed B.R.C. No. 3876 of 1981 before the Rent Controller (XIV Judge, Court of Small Causes), Madras.

2. The first respondent in his counter contended that he did not become a tenant under the petitioners on a monthly rent of Rs. 65 as claimed by them, but that he was inducted into possession earlier on a monthly rent of Rs. 35. Referring to the filing of an earlier application for eviction in H.R.C. No. 1551 of 1978 under Section 10(?)(i), 10(ii)(a) and 10(2)(ii)(6) of the Act and the withdrawal of that application after agreeing to receive a sum of Rs. 65 towards rent per month, the first respondent disputed that he committed wilful default in the payment of rent and stated that on the instructions of the petitioners, the rents upto date had been paid to their counsel Thiru T. Ramalingarn and a receipt bad also been obtained therefor. While accepting the subleasing of the premises and also the non-residential user thereof by the second respondent, the first respondent put forth the plea that the petitioners acknowledged and consented to the same at the time of the disposal of H.R.C. No. 1551 of 1978, and that the application for eviction was filed only to secure still higher and unreasonable rent in respect of which a demand was also made and refused to be complied with by the first respondent. The first respondent, therefore, characterised the application for eviction as one without any substance whatever.

3. The second respondent in his counter stated that he had been a tenant in occupation of the premises in question for the last 35 years, initially on payment of a rent of Rs. 35 per mensem which was subsequently raised to Rs, 70 and further raised and fixed at Rs. 80 at the time of the filing of the application for eviction. The second respondent thus denied that the first respondent became a tenant under the petitioners and also disputed the claim of the petitioners that the premises had been sublet to him by the first respondent. The premises, according to him, had 'been since the inception of the tenancy in his favour used only for non-residential purposes and, therefore, no question of the user of the premises for a purpose other than that for which it was let out arose. The second, respondent also put forth the' plea that the first respondent represented that he is an agent of the owners of the premises and that the second respondent had been-paying the rents to the first respondent as the agent of the petitioners under the bona fide impression that the rents were being paid to the owners through their collection agent, the first respondent. On these grounds, the second respondent prayed for the dismissal of the application for eviction.

4. Before the Rent Controller (XIV Judge, Court of Small Causes) Madras, on behalf of the petitioners, Exhibits P-1 and P-2 were marked and the second petitioner was examined as P.W. 1, while Exhibits R-1 to R-4 were filed on behalf of the respondents and the first respondent was examined as R.W. 1 and the son of the second respondent was examined as R.W. 2. 'Considering the question of wilful default attributed to the first respondent, the learned Rent Controller was of the view that on the date of the filing of the application for eviction, the first respondent had paid the rents upto July, 1981, to one Thiru T. Ramalingam, counsel and that the receipt Exhibit R-4, dated 3rd May, 1981, had also been obtained and, therefore, there was no wilful default in the payment of rents by the first respondent. Dealing with the question of subletting, the Rent Controller found that though the second respondent claimed that he is a tenant directly under the petitioners, such a claim was not established at all and that by reason of an endorsement stated to have been made in the prior proceedings for eviction in H. R. C. No. 1551 of 1978, there had been a recognition of the right of the first respondent to sublet and that would amount to a written consent for purposes of subletting and, therefore, no order for eviction could he passed against the respondents on that ground. Referring to the different user of the premises, the learned Rent Controller concluded that though in the premises let out there was a kitchen and a bath room, there was no evidence to show that the premises had been used as a residential one or that it was let out 'for such a purpose and, therefore, by the non-residential user of the premises : by the respondents no order for eviction could be passed against them. In view of these conclusions, the application for eviction tiled by the petitioners, was dismissed. Aggrieved by this, the petitioners preferred an appeal in R. C. A. No. 449 of 1982, before the Appellate Authority (VI Judge, Court of Small Causes), Madras. M.P. No. 435 of 1982, was also filed by the petitioners 'for permission to file a true copy of the application for eviction filed by the first respondent against the second respondent herein in R.C. O.P. No. 1565 of 1982, as additional evidence to establish the subleasing of the property by the first respondent in favour of the second respondent. Though that application was resisted by the first respondent herein, his objections were overruled and the true copy of the application for eviction in R.C.O.P. No. 1565 of 1982, filed by the first respondent against the second respondent herein was marked as Exhibit R-5. The Appellate Authority also relied upon a receipt Exhibit R-4 to find that R. W. 1 had paid the rents upto July, 1981, to the counsel for the petitioners and, therefore, the first respondent had not committed any wilful default in the matter of paying rents for the period mentioned in the application for eviction. Regarding the subletting, the Appellate Authority was inclined to take the view that R.W. 2 had not established that he is a direct tenant under the petitioners, but that the endorsement made in the prior application for eviction would establish that the petitioners had consented to the respondent remaining in possession of the premises as a sub-tenant at least after that date and since the second respondent had been in occupation of the premises for more than 35 years, it cannot be that the first respondent had suddenly sublet the premises for the non-residential user of the second respondent, and, therefore, subletting as a ground for securing an order of eviction against the respondents would not be available. Adverting to the absence of any documentary evidences about the nature of the tenancy, the Appellate Authority concluded that the premises must have been used only for non-residential purposes 'since' the inception of the tenancy and, therefore, the user of the premises for a purpose other than that for which it was; let out was also not established. In the result, the appeal was dismissed. It is the correctness of this order that is challenged in this civil revision petition.

5. Mr. K. Hariharan, the learned Counsel for the petitioners, contended that the counter foils of the receipt book Exhibit P-1 show that the first respondent had paid the rents regularly upto December, 1980, and had also-obtained receipts from the petitioners and that subsequently he had committed default in the payment of rents and such default amounted to wilful default within the meaning of Section 10(2) (i) of the Act. Elaborating' this argument, the learned Counsel submitted that there was no refusal on the part of the petitioners to receive any rent that had been tendered of paid by the first respondent and, therefore, there was no need whatever for the first respondent to have paid the rents to the counsel Thiru T. Ramalingam. The learned Counsel further submitted that assuming that the petitioners directed the first respondent to pay. the monthly rents to the counsel Thiru T. Ramalingam, there was absolutely no justification at all for the payment of rents from January to March, 1981, only on 3rd May, 1981, belatedly without any excuse whatever and the non-payment of the rents for the period January to March, 1981, would amount to wilful default. On the other hand, Mr. M. Srinivasan, the learned Counsel for the respondents submitted that the rents had been paid to the counsel Thiru T. Ramalingam and nothing had been said about those payments by the petitioners and it is not even the case of the petitioners that such payments were unauthorised and, therefore, no question of wilful default in the payment of rents would arise. Relying upon the receipt issued by the counsel under Exhibit R-4, the learned Counsel contended that was a proper payment and acceptance of the rent and there could be no wilful default at all.

6. It is seen from Exhibit R-1 that the first respondent bad been regularly paying the rent to the petitioners and also obtaining receipts for such payments after signing the counterfoil in the receipt book upto the end of December, 1980. Admittedly, during the period between January, 1981 and July, 1981, such a course was not adopted. In paragraph 4 of his counter, the first respondent would say that on the instruction of the petitioners, the rents had been paid to Thiru T. Ramialingam, who had also passed a receipt for such payments. In the course of his evidence as R.W. 1, the first respondent stated that in December, 1980, the petitioners demanded enhanced rent at Rs. 100 per mensem and that he did not give any answer. He would say that the rent for January, 1981, was refused and that in February, 1981, the petitioner's directed that the payment : should be made to Thiru T. Ramalingam and that in accordance therewith, the rents upto June, 1981, had been paid to him and a receipt obtained under Exhibit R-4. In the course of his cross-examination, R.W. 1 would say that in January, 1981, the petitioners demanded payment of rent at Rs. 200 per mensem and that in February, 1981, when the rent was tendered, the petitioners directed the rents to be paid to the advocate. He would also add that the rents were directed to be sent by money order. It is thus seen from the evidence of R.W. 1 that he is not sure about the enhanced rent stated to have been demanded by the) petitioners. In his chief examination, he would say that Rs. 100 was demanded while, in the course of his cross-examination he would say that Rs. 200 was demanded. Again in his chief-examination R.W. 1 stated that such a demand was made in December, 1980, while in the course of his cross-examination he would say that it was in January, 1981. This shows that the first respondent was no sure of either the quantum of enhanced rent stated to have been demanded by the 'petitioners or even the month when such a demand was made. Apart from this, R.W. 1 would also admit that the rents were directed to be sent by money order. If the rents were directed to be sent by money order, there was no reason as to why the first respondent did not adopt that course. P. W. 1 would state in the course of his chief-examination that he was unaware of the payment of rents stated to have been made by the first respondent to Thiru. T. Ramalingam and that he did not know about the payment of such rents to Thiru T. Ramalingam for the period January, 1981 to July, 1981. He would admit that in the prior application for eviction in H.R.C. No. 1551 of 1978, the first respondent had paid some rents to Thiru T. Ramalingam. He would also further say that after the filing of the application for eviction, Thiru T. Ramalingam had informed him that the first respondent had paid the rents to him and that was in August. From the aforesaid evidence, it is obvious that the first respondent, who had been regularly paying the rents to the petitioners and obtaining receipts, did not do so for the period between January to July, 1981. The reason given by the first respondent for the departure from the usual practice is that there was a demand for higher rent, but that is not satisfactorily established by the evidence. On the other hand, P.W. 1 is positive that the rents were directed to be sent by money order. The first respondent did not tender the rents in the manner desired by the petitioners. On the basis of the evidence, it is clear that for some unknown reason, the first respondent had suddenly and unilaterally changed the method : and manner of the payment of rents to the petitioners without any justification whatever therefor.

7. Exhibit R-4, heavily relied on by the first respondent, does not assist him in any manner. It is seen therefrom that the very first payment stated to have been made by the first respondent was only on 3rd May, 1981, for the months of January to April, 1981, at the rate of Rs. 65 per mensem. By the time the payment was made, admittedly, the first respondent had not paid the rents for the months January to March, 1981, before the end of the next succeeding month. It has earlier been seen how the petitioners had not instructed the first respondent to pay the rents to Thiru T. Ramalingam and, therefore, any payment stated to have been made by the first respondent to him would not be binding in any manner on the petitioners. Even assuming that the petitioners had directed the first respondent to pay the rents to Thiru T. Ramalingam, there is no explanation as : to why the first respondent did not pay the rent every month as and when it fell due, according to the directions of the petitioners, to Thiru T. Ramalingam, but had allowed! the rents to be accumulated. Thus Exhibit R-4 contains intrinsic evidence of a totally unexplained non-payment of the rent for the period between January and March, 1981. The date of the next payment of Rs. 65 stated to be towards rent for the month of May, 1981, does not appear from Exhibit R-4. For the payment of rent for June, 1981, the date of payment has been given as 15th July, 1981, in Exhibit R-4. However, for the payment of rent for July, 1981, no date is given. It is thus seen that there is no knowing whether the rents for May and July, 1981, have been paid as and when such rents fell due for payment. Earlier, it has been noticed as to how Exhibit R-4 wound indicate a belated payment for the period January to March, 1981. Even on the assumption that the first respondent can be taken to have paid the rents in time for the months of May, June and July, 1981, though with reference to May and July, 1981, the date of payment is not available, yet, there was no justification at all on the part of the first, respondent not to have paid the rents for January to March, 1981, till 3rd May, 1981. Even according to R.W. 2, he was directed to send the rent by money order and if the petitioners had refused to receive the money order so sent, the first respondent could have resorted to the remedies provided under the Act for deposit of rents into Court. That was also not done. There is no clinching material to show that the petitioners directed the first respondent to pay the rents to Thiru T. Ramalingam and in the absence of any evidence in support of that, the payments stated to have been made by the first respondent to Thiru T. Ramalingam would not enable him to avoid the consequences of the non-payment of rent. As pointed out earlier, in any event, there is no explanation for the non-payment of the rent for the period January to March, 1981, till May, 1981, even assuming that the) rants were directed to be paid to Thiru T. Ramalingam. It is not in dispute that during the course of the proceedings before, the Rent Controller, Thiru T. Ramalingam was available and the first respondent could have examined him to throw light upon the circumstances under which the rents were paid by him to Thiru T. Ramalingam, and received by Thiru T. Ramalingam. The first respondent had been alive to his obligation to pay the rent to the petitioners at Rs. 65 per mensem and has been discharging that obligation by prompt payments till December, 1980, and had also obtained receipts therefor. Undoubtedly, therefore, the first respondent was fully conscious of his obligation to the petitioners in the matter of payment of rents and had not discharged that obligation at least for the period January to March, 1981. There is no convincing or acceptable explanation supported by the evidence for such non-payment. Under those circumstance, the default in the payment of rents by the first respondent for the months of January, to March, 1981, at least should be considered to be wilful.

8. The learned Counsel for the petitioners next contended that the first respondent had sublet the entire premises to the second respondent without the written consent of the petitioners and on that ground an order for eviction should be passed against them. Reference was made in this connection to the admissions in the evidence of R.Ws. 1 and 2 and Exhibit R-5. Further, the learned Counsel pointed out that any kind of acquiescence or even estoppel by conduct could not be a substitute for plain requirement of the statute of a written consent. Reliance in this connection was placed by the learned Counsel for the petitioners upon a series of decisions commencing from Rangathaman v. Sankarlal Davey, to Reethamma : AIR1950Mad139 v. K. Arumugham Pillai : (1978)1MLJ536 . On the other hand, the learned Counsel for the respondents submitted that the effect of the order passed on an endorsements made in H.R.C. No. 1551 of 1978 under Exhibit R-3 was that the act of subletting by the first respondent to the second respondent was accepted by the petitioners and there was an agreement to pay a higher rent and on that footing, the application for eviction filed in H.R.C. No. 1551 of 1978, was dismissed and that would amount to consent in writing for subletting at least impliedly, if not expressly. Considerable reliance in this connection was placed by the learned, counsel for the respondents on the decisions is Jagannath v. Abdul Aziz : AIR1973Delhi9 , and Raja Ram Goyat v. Ashok Kumar and Ors. 1975 R.C.J. 534.

9. In the counter filed in H.R.C. No. 3876 of 1981, the first respondent, in paragraph 5, would admit having sublet the premises, but would plead consent of and acknowledgment and approval by the petitioners. The second respondent in his counter took up the stand that he had been in occupation as a tenant directly under the petitioners and had been paying the rents to the first respondent under the belief that he is an agent of the petitioners. It may be mentioned that no evidence worth the name regarding the tenancy occupation of the premises by the second respondent had been made available. The authorities below, therefore, rightly negatived that claim of the second respondent. It now remains to be seen as to how in the evidence the possession of the second respondent is accounted for. P.W. 1 would say that the first respondent had sublet the premises to the second respondent without the consent in writing of the petitioners. R.W. 1 in his evidence would say that he had teen a tenant of the premises since 1945. He would further admit in 1965 he had let put the premises to Haq, the brother of the second respondent. In the course of his cross-examination R.W. 1 would say that there was no lease agreement with Haq, but that Haq had known .that R.W. 1 was the chief tenant. In the course of his further cross-examination R.W. 1 would admit that for the purpose of subletting the premises to Haq, no letter was obtained from the petitioners. He would also admit that the second respondent is paying the rents to him. R.W. 2 in the course of his chief examination would state that his father has been carrying on business in the premises for the last 7 or 8 years, and that he had been paying the rents to the first respondent. He is positive that the premises were let out only by the first respondent and that the petitioners have no connection whatever with that. He has spoken to the payment of Rs. 80 per mensem to the first respondent. In the course of further cross-examination R.W. 2 would affirm that the rents are being paid only to the first respondent and that such payments had been made even one month prior to the filing of the application for eviction. Exhibit R-5 also clearly shows that the first respondent, figuring as the petitioner, had filed R.C.O.P. No. 1565 of 1982, against the second respondent herein praying for an order of eviction on the ground that the second respondent had committed wilful default in the payment of rents. In paragraph 3 of that application, the first respondent had clearly admitted having sublet the premises to the second respondent. Thus, even on the admissions of R.Ws. 2 and 3 and Exhibit R-5, it is clear that there has been a subletting of the premises by the first respondent in favour of the second respondent. Under Section 10(2)(ii)(a) of the Act, if the tenant has, after 23rd October, 1945, without the written consent of the landlord, sublet the entire building or any portion thereof, if the lease does mot confer on him any right to do so, shall be liable to be evicted. The question is, whether there is any consent in writing in this case for such subletting. It is in this connection that a reference to Exhibits R-2 and R-3 becomes necessary. Exhibit R-2 is the copy of the application for eviction in H.R.C. No. 1551 of 1978 filed by the petitioners against the first respondent herein. After referring to the appointment of the petitioners therein as joint receivers, the application proceeds to state that the respondent therein (the first respondent herein) has, without the written consent of the landlords, sublet the premises to Sadakathuolah (the second respondent herein) and one Rahamathullah for purposes of carrying on business. On that footing, an order for eviction had been prayed for. Exhibit R-3 is the certified copy of the order passed by the Court on 13th March, 1979, in H.R.C. No. 1551 of 1978. That order runs as under-

In view of the endorsement the petition is dismissed as not pressed.

End : In view of the endorsement by the respondent the petition may be dismissed as not pressed.

It is significant to note that in the endorsement as found in Exhibit R-3 there is no reference whatever to any recognition of the subtlettiing by the first respondent in favour of the second respondent or an expression of willingness on the part of the petitioners to accept such a situation arising out of the subletting. It is in this context that the evidence of P.W. 1 is significant. He is positive that H.R.C. No. 1551 of 1978 was dismissed as not pressed because higher rent of Rs. 65 per mensem was promised to be paid. He would also add that the second respondent in this civil revision petition was not a party to H.R.C. No. 1551 of 1978 and Exhibits R-2 and R-3 bears this out. R.W. 1 also stated in his evidence that an endorsement was made to the effect that there could be no objection to his remaining in possession, if Rs. 65 per mensem was paid by way of rent. Thus, even according to R.W. 1, at the time of endorsement stated to have been made in H.R.C. No. 1551 of 1978 the position of the second respondent as a sub-tenant was not accepted or assented to by the petitioners. No endorsement is found in Exhibit R-2. The endorsement made is reflected in the certified copy of Exhibit R-3 and that had already been set out. That does not show that there was any reference whatever to the second respondent and his being allowed to continue in possession as a sub-tenant on the payment of a rent of Rs : 65 per mensem by the first respondent to the petitioners. In the absence of any such reference to the second respondent and his being allowed to remain in possession as the sub-tenant of the first respondent and such possession being either accepted or assented to by the petitioners, the endorsement made in Exhibit R-3 cannot be relied upon as a piece of writing by which the petitioners assented to the sublease by the first respondent in favour of the second respondent. A long live of decisions of this Court to which it is not necessary to make a detailed reference has uniformly held that consent in writing of the landlord is necessary for eviction on the ground of subletting. In this case, as seen from the evidence already referred to, there is nothing in writing by way of consent and the only writing is under Exhibit R-3, and even assuming that such a writing need not be signed by the parties, as a writing it does not either permit the subletting or assent to and accept the subletting of the premises already effected by the first respondent in favour of the second respondent. Express consent for subletting, there is none. It is also impossible to imply any such consent from the writing found in Exhibit R-3. Under these circumstances and on the materials made available in this case, the admitted subleting by the first respondent in favour of the second respondent has been done without the consent in writing of the petitioners and that would clearly attract Section 10(2) (ii) (a) of the Act.

10. It now remains only to refer to the two decisions upon which the learned Counsel for the respondents placed considerable reliance. In Jagannath v. Abdul Aziz : AIR1973Delhi9 , in the endorsement, made the occupation of one Daulat Ram Dogal Mal and Jagan Nath as sub-tenante and the possession of Neb Raj as a tenant was expressly recognised and accepted and a further undertaking was given not to bring into the premises any new sub-tenants. It was on the basis of such an endorsement, the Court held that the statements made and signed by counsel would amount to consent in writing accepting that Daulat Ram Dogal Mal and Jagan Nath were sub-tenants, and that they lived in the house along with Neb Raj, the tenant and therefore, it was not open to the landlords to secure an order for possession on the ground that the premises had been sublet without the consent in writing. Such is not the position in this case where, as noticed earlier, there is not reference, whatever to the sub-tenant at all in the endorsement and there is no assent by the petitioners either express or implied to the continuance of the possession of the second respondent as a sub-tenant. Indeed, the second respondent was not even a party and, therefore, there was no occasion whatever even to make a reference to his possession and the maintenance of such possession as a sub-tenant assanted to and accepted by the petitioners. The other decision in Raja Ram Goyal v. Ashok Kumar and Ors. 1975 R.C.J. 534, also does not in any manner assist the respondents for in that case, on the facts it was established that the consent of the landlady was oral and such a consent could not be availed of by the tenant to resist the application for eviction. On the facts of this case, these two decisions relied on by the learned Counsel for the respondents can have no application whatever.

11. Encouraged by the decision in Jagannath v. Abdul Aizz : AIR1973Delhi9 , the learned Counsel for the respondents faintly contended that the petitioners were estopped from pleading want of consent in writing as there had been a recognition and assent by them to the subletting as a result of the agreement to pay enhanced rent to the petitioners. There is no question of estoppel as such especially when there had been no recognition of the second respondent by the petitioners as a subtenant and as a result of that, the first respondent altering his position and agreeing to pay Rs. 65 every month and, therefore, the petitioners cannot be precluded from pleading want of consent in writing.

12. That leaves for consideration the last ground on which the petitioners sought an order for eviction against the respondents, namely, the different user of the premises. In the application for eviction, the petitioners stated that the building was originally let out for residential purpose, but that the second respondent had been using it for non-residential purposes. There is no acceptable evidence to establish the purpose of the letting out at its inception. It is true that the evidence of R.W. 2 discloses that there is a kitchen and a bath room in the premises. But there is .no evidence to show that at any point of time it was used as a residential building. R.W. 1 would deny that there is a kitchen or a bath room. But even assuming that evidence is not acceptable, the petitioners have not established by evidence that at the inception of the tenancy, 'the premises had been let out for residential purposes and that it had been put to a different user subsequently, namely, non-residential user without the consent in writing of the petitioners. The authorities below were, therefore, quite correct in Having declined to pass an order for eviction on this ground.

13. Thus, on a careful consideration of the oral as well as the documentary evidence, and other circumstances, the petitioners have clearly established that the first respondent had committed wilful default in the payment of rents and had also sublet the premises in his occupation to the second respondent without consent in writing of petitioners and they would, therefore, be entitled to an order for eviction on these two grounds. The orders of the authorities below are set aside and there will be an order for eviction against the respondents 1 and 2. Consequently, the civil revision petition is allowed with costs throughout.


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