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K. Santha and ors. Vs. Subbiah Nadar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1987)1MLJ366
AppellantK. Santha and ors.
RespondentSubbiah Nadar
Cases Referred and Natarajan v. Thandavarayan
Excerpt:
- - the appellate authority was of the view that having given the premises for the purpose of bakery, the petitioners could not complain of any damages to the property by the user of the premises for such purpose. section 10(3)(iii) of the pondicherry buildings (lease and rent control) act, 1969 under which also this petition for eviction was filed, provides that if the controller is satisfied: apart from the fact that he had not specifically stated nor produced any documentary evidence to show that he had the authority to permit the tenant to alter the construction or put up a roof or ovens, his evidence is also not reliable as, all is not well with the petitioners and r. i am of the view that using the premises with so many ovens constructed and when the damages shown by the..........it is further asserted that the tenant had altered the entrance of the room, constructed several ovens in the ground floor and also in the first floor for the purpose of preparing edibles and that due to the smoke, heat and vibration of the motor used for the purpose of the business there was damage by smoke and heat and cracks in terrace.2. the respondent-tenant filed a counter contending that even at the time when the building was leased in 1963 it was for the specific purpose of confectionery, that subsequently with the consent of the power of attorney he had put up four ovens in the ground floor and also constructed over the terrace an asbestos roofing and installed four other ovens. all these according to the tenant, was done in the year 1965 with oral consent of the then.....
Judgment:
ORDER

V. Ramaswami, J.

1. The petitioners are the landladies. They are the owners of the building which is the subject matter of these eviction proceedings. They filed a petition under Section (2)(ii) and (iii) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 seeking eviction of the respondent from the premises on the ground that he had committed acts of waste on the building. The petitioners' case was that one Chandravadanammal the mother of the petitioners, during her lifetime, some time in 1963 leased the premises to the respondent. According to the petitioners, originally the leased premises consisted of a house and a car shed on the western side and later, the shed on the eastern side also was leased to him. The main ground on which eviction is prayed for was that the house portion of the premises was leased for residential purposes and only the shed portions were given for non-residential purposes. However, without the consent of the landladies the respondent has converted that house also for non-residential purposes. It was also the complaint that he had also committed acts of waste causing damage to the building affecting the value and utility of the building. It is further asserted that the tenant had altered the entrance of the room, constructed several ovens in the ground floor and also in the first floor for the purpose of preparing edibles and that due to the smoke, heat and vibration of the motor used for the purpose of the business there was damage by smoke and heat and cracks in terrace.

2. The respondent-tenant filed a counter contending that even at the time when the building was leased in 1963 it was for the specific purpose of confectionery, that subsequently with the consent of the power of attorney he had put up four ovens in the ground floor and also constructed over the terrace an asbestos roofing and installed four other ovens. All these according to the tenant, was done in the year 1965 with oral consent of the then power-of-attorney of the petitioners. His further case was that by reason of the user of the premises as a confectionery or putting up ovens in the ground floor and the upstairs portion no damage has been caused to the building and that whatever cracks and other things may be there, they may be due to the old age of the premises itself and not by reason of the user of the premises as a confectionery.

3. The learned Rent Controller held that by reason of construction of the ovens and using the same for bakery purposes, generating heat, smoke and vibration, the respondent has committed acts of waste in the building so as to affect the utility and the value of the building and on that ground ordered eviction. It may be mentioned that the Rent Controller also made a spot inspection of the premises during the trial.

4.On appeal, the appellate authority, in the view that the spot inspection was not in accordance with law, on the request of the parties, also made a spot inspection after notice to the parties and inspected the premises in the presence of all the parties. The appellate authority was of the view that having given the premises for the purpose of bakery, the petitioners could not complain of any damages to the property by the user of the premises for such purpose. He was also of the view that whatever new addition of ovens or constructions or alterations were made, they were so made with the oral consent of the power-of-attorney. He was also of the view that the damages shown to him during the inspection were not heavy but minimal and that they cannot be taken as so serious damage as to order eviction on the ground of waste or damage to the building. In this view he allowed the appeal and set aside the order of eviction. It is against this order, the present revision petition has been filed by the landladies.

5. It is the admitted case of the parties that the ovens were not there in the ground floor or in the upstairs at the time when the premises was originally leased to the tenant in 1983. The evidence of Rule 52 who was said to be acting as a power-of-attorney agent during 1964 to 1969 is to the effect that he gave oral consent both for putting up the ovens in the ground floor as also the putting up of asbestos sheet roofing over the terrace and for putting up four more ovens in the upstairs. Section 10(3)(iii) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 under which also this petition for eviction was filed, provides that if the Controller is satisfied:

(ii) that the tenant has after the commencement of this Act without the written consent of the landlord.

(b) used the building for a purpose other than that for which it was leased, or

(iii) that the tenant has committed or caused to be committed such act of waste as are likely to impair materially the value or utility of the building.

The Learned Counsel for the respondent contended that the word 'landlord' is defined in Section 2(7) and that definition includes a person who is receiving or is entitled to receive the rent of a building also as a landlord and, therefore, the oral consent obtained by him from power-of-attorney is enough for the purpose of converting the building or using the same for a purpose other than that for which it was leased and therefore, even if the contention that originally a portion of the building was used as a residential building is to be accepted in view of the oral consent given by the power-of-attorney, the petitioners are not entitled to get an Order for eviction on that ground. The opening pa' of Section 2 itself says, 'unless the context otherwise requires'. Therefore the inclusive definition of landlord given in Section 2(7) could not be automatically applied in understanding the scope of the provision in Section 10(2). Though a person who is receiving or is entitled to receive the rent of the building for the purpose of receiving the rent may satisfy the definition of 'landlord', it could not be said that a power-of-attorney agent who had no authority or who had not been conferred specifically any power to consent for any alteration or addition to the building is also so included in that definition. The power-of-attorney could become a landlord only for the purposes for which the power was granted and not for all purposes. Therefore, unless the tenant shows that the power-of-attorney given enabled the power holder to consent for any alteration or addition or for a general administration, such a power-of-attorney holder could not be termed as a landlord for the purpose of giving consent for transferring the leasehold right or for permitting the use of the building for a purpose other than that for which it was leased. It was, therefore, necessary, for the tenant to prove that R.W. 2 had a power which enabled him to permit the tenant to put up ovens or constructions over the roof. R.W.2 has given evidence. He does not say that he had the power to give such permission under the power-of-attorney given to him. He had not produced the power-of-attorney executed by the petitioners or their mother. He seemed to have been receiving the rents and had not accounted for the same and therefore, the petitioners had also filed a separate suit against him for recovery of that money. Apart from the fact that he had not specifically stated nor produced any documentary evidence to show that he had the authority to permit the tenant to alter the construction or put up a roof or ovens, his evidence is also not reliable as, all is not well with the petitioners and R.W.2 and in fact, as already stated, a suit is stated to be pending against him for recovery of the amounts collected from the tenant. Therefore, there is no evidence to show that R.W. 2 had the authority to consent for permitting the tenant for conversion of the residential portion into a bakery as also for putting up constructions over the terrace and using it as a bakery. I am also not able to agree with the appellate a authority that even assuming that even at the inception the building was given for nonresidential purpose, namely for running a confectionery, that would enable him either to put up a superstructure over the terrace, construct ovens and use it as a bakery or to go on adding to the building other types of constructions used as ovens or any other purpose.

6. It is also in evidence and in fact in a way it is also admitted that some of the windows or ventilators were removed and made bigger in Order to let out the smoke and these also had been done without permission. The damages found by the appellate authority are that there was a crack on the western side wall in the upstairs and also in the ground floor portion walls. The appellate authority also found a thin crack on the terrace of the building to a width of 1 m.m., and to a length of 2 metres. According to the appellate authority these appeared to be quite old and are not damages. I am unable to see how a crack on the terrace could not be considered to be a serious damage or a damage to the building. The Learned Counsel for the respondent relied on two decisions of this Court, one reported in Govindaswami Naidu v. Pushpalammal : AIR1951Mad1060 and Natarajan v. Thandavarayan (1969) 2 M.L.J. 1982 . The ratio of the judgment in those two decisions is that every act of waste will not entitle the landlord to obtain an order of eviction under the provisions of the Act and that he cannot presume that act of waste is likely to impair materially the value or utility of the building and it will have to depend on the facts and circumstances in each case. That is exactly what we are applying in this case also. I am of the view that using the premises with so many ovens constructed and when the damages shown by the inspection notes of the appellate authority clearly show that that the value of the building has been materially affected, it could not be said that it will not amount to a waste within the meaning of Section 10(2)(iii). I may also point out that in the evidence of R.W. 1, the tenant had stated that there are three ovens in the ground floor portion and five in the upstairs. But at the time of the inspection by the Rent Controller as also the Appellate Authority which were subsequent to the recording of the evidence of R.W. 1, it was found that there were four ovens in the ground floor and four in the upstairs. Thus one addition has been made in the ground floor and one demolition has taken place in the upstairs. This should have been during the pendency of the proceedings. It is true, as pointed out by the Learned Counsel, that these ovens appeared to be old. But it is difficult to say the age of the oven used in a bakery by merely having a spot inspection. Once it is used even for a few days, due to smoke and other conditions it may look old. In any case no expert evidence has been adduced as to the age of the ovens. But the fact remains that in his evidence as R.W. 1, the tenant has stated that there were only three ovens in the ground floor, though on inspection it was found that there were four. In the circumstances, am satisfied that the tenant had not only converted the residential portion also into a bakery but also put up ovens and superstructure above the terrace and removed ventilators or enlarged them and has thus committed acts of waste which will really affect the value and utility of the building.

7. In the result, the civil revision petition is allowed and the order of the appellate authority is set aside and the order of the Rent Controller is restored. However, there will be no order as to costs. The respondent-tenant is 'given three months' time to vacate the premises, from this date.


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