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Sha Jetmull Genmull Vs. Gocooldass Jamunadass and Co. Represented by Its Partner Govindass Purushothamdas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1971)2MLJ224
AppellantSha Jetmull Genmull
RespondentGocooldass Jamunadass and Co. Represented by Its Partner Govindass Purushothamdas
Cases ReferredIn Damodaram v. Loganatka
Excerpt:
.....if so read, where the acts of the tenant complained of are such as to add to the utility of the building, eviction cannot be sought under section 10(2)(iii). the learned counsel refers to the evidence of p. 4, a structural engineer had deposed that the age of the building would be 80 to 100 years, that the building is of mud construction, that he found the rafters having been removed, that a staircase has been constructed after chipping off the old wall, that it would not have been advisable to construct the staircase in such an old building, that the whole building is unsafe, that the building may collapse at any moment, that the roof over the staircase was covered by zinc sheet and that so long as the structure stands putting up of the balcony and the staircase will add to the..........if so read, where the acts of the tenant complained of are such as to add to the utility of the building, eviction cannot be sought under section 10(2)(iii). the learned counsel refers to the evidence of p.ws.1 and 4 examined on the side of the respondent and the evidence of the petitioner in defence, and submits that the evidence did not make out a case for eviction under section 10(2)(iii) of the act. it is not disputed that the petitioner had put up the staircase leading from the first floor to the second floor in the place where there was a verandah previously, and a balcony without the supporting pillars but resting on the beam erected by him. it has also been found by the courts below that these alterations and additions were made without the consent of either the.....
Judgment:

G. Ramanujam, J.

1. The respondent-landlord applied for eviction of the petitioner-tenant from premises No. 13, Kasi Chetty Street, Madras-I, Under Section 10(2)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) on the ground that he had committed acts of waste which have impaired the value and utility of the building. It was the respondent's case that the petitioner has unauthorisedly and without the respondent's knowledge and consent demolished a portion of the roof in the first floor, removed the Burmah teak-wood rafters, planks, doors and windows, thus considerably damaging the old building, that a new staircase has been put up leading from the first floor to the second floor and that he had also loaded the beams of the ground floor by putting up a balcony in the first floor without the knowledge and consent of the respondent. By a notice, Exhibit P-3, dated 7th November, 1966 the respondent terminated the tenancy of the petitioner.

2. The petition for eviction was resisted by the petitioner on the following grounds: The respondent which is a firm of partnership was not the owner of the premises, that one Govind Dass is the owner of the same, and that the petition for eviction filed by the firm without the written consent of the said Govind Dass, the owner of the premises was not maintainable in law. The petitioner denied that he committed any act of waste which was likely to impair materially the value and utility of the building. He also denied that any portion of the roof was removed or the Burmah-teakwood rafters or planks or doors or windows were ever removed. Though he admitted the putting up of a balcony, he denied that the erection of a balcony had caused any additional load on the beams in the ground floor of the premises. He further denied that the staircase which he had put up leading from the first floor to the second floor had damaged the building. The petitioner also pleaded that the staircase from the first floor to the second floor and the balcony is in the first floor had been erected long earlier with the consent of the respondent. He also attributed mala fide motive on the part of the respondent to evict him somehow. He referred to certain earlier eviction petitions filed by the respondent against him unsuccessfully to show that the respondent is seeking his eviction mala fide.

3. The Rent Controller considered the following points:

(1) Whether the petitioner has unauthorisedly constructed a new staircase on the first floor leading to the second floor without the knowledge and consent of the respondent

(2) Whether the balcony and the staircase were constructed in 1966 as contended by the respondent or whether they were constructed in 1958 as alleged by the petitioner

(3) Whether the petitioner has committed acts of waste which have impaired the value and the utility of the building

On the first and second points, the Rent Controller held, after considering the evidence, both oral and documentary adduced on either side, that the petitioner's case that he put up the staircase and balcony in question in 1958 only with the consent and knowledge of the respondent was not true. This finding has been accepted by the appellate authority. That finding has not been canvassed before me in this revision by the learned Counsel for the petitioner and as such it has to be taken that the construction of the staircase and the balcony was made in the year 1966 without the knowledge or consent of the respondent.

4. On the third point the Rent Controller found that, admittedly there is another staircase leading from the first floor to the second floor on the side of Narayana Mudali Lane, and as such the staircase in question put up by the petitioner in front was not an absolute necessity that the petitioner as R.W. 1 had admitted that the staircase in question had no roofing and the rain water would enter into the building through the roofing over the staircase, and that such rain water would cause considerable damage to the building which is admittedly more than 80 years old. It has also been found that, the staircase has been put up after removing the verandah in the first floor, that the balcony in question admittedly has no vertical support resulting in causing additional load on the old beams already existing and that having regard to the age, nature and condition of the building the construction of the staircase and the balcony would materially affect the value and the utility of the building. On this view he allowed the petition for eviction. The appellate authority practically agreed with the Rent Controller and affirmed the order of eviction and dismissed the petitioner's appeal. Hence this revision.

5. Mr. Ratan, learned Counsel for the petitioner raised the point which was raised by the petitioner in the counter-affidavit filed before the Rent Controller that the eviction petition filed by the firm as such is not maintainable without the written consent of the owner as required Under Section 10(8) of the Act. Though this point was not considered by the authorities below, I allowed the said point to be raised as it did not involve any investigation of new facts. The learned Counsel for the petitioner contends that though the firm has been collecting the rents for the premises from the petitioner all these years, the owner of the building is one Govind Dass, one of the partners of the firm and he is the person entitled to file an eviction petition and that the respondent-partnership can maintain the eviction petition only with the consent of Govind Dass, the owner of the premises. According to the learned Counsel there is no specific written consent or permission by Govind Dass authorising the firm to file the eviction petition against the petitioner and that the proceedings for eviction initiated by the firm cannot be treated as one initiated by the owner, one of the partners of the firm.

6. The learned Counsel for the respondent put forward the following three answers to the above contention as to the maintainability of the eviction petition: (1) that the owner in this case is a partner of the firm which has filed the eviction petition and as such the eviction petition can be treated as one filed by the partner who is the owner of the premises. According to the learned Counsel for the respondent a firm is only a compendious name to denote all the partners and that the eviction petition filed by all the partners can be treated as one filed by the owner-partner; (2) Section 10(8) of the Act will apply only to a case of an intermediary and the firm being a landlord as defined under the Act and having been treated as such by the petitioner all these years, he not having attorned to the owner, the said Govind Dass, there is no question of any consent being obtained for filing an eviction petition as required Under Section 10(8) of the Act, and (3) even if Section 10(8) of the Act applies to the facts of this case, Govind Dass having signed the eviction petition, though as a partner of the firm, can be treated as having given his written consent for filing the eviction petition.

7. After having considered the rival contentions as regards the maintainability of the petition for eviction, I am inclined to hold that the eviction petition filed by the firm cannot be treated as one filed by the owner, Govind Dass and as such Section 10(8) of the Act will stand attracted to the present eviction petition. But, I am agreeing with the contention that the signing of the petition for eviction by the said Govind Dass can be construed as his written consent for the firm filing an eviction petition against the petitioner and the present eviction petition filed by the firm cannot be rejected on the ground of non-compliance with Section 10(8) of the Act. The argument of the learned Counsel for the respondent that as the petitioner has been paying rent only to the firm and has not attorned to Govind Dass, who has become the owner of the property after the partition in 1962 he cannot raise the plea that the firm is not the person empowered to evict him from the premises is not possible of acceptance. Whether there is an attornment by the tenant after the property had been allotted to the said Govind Dass or not, the fact remains that he is the owner of the premises and the firm is only collecting the rents on his behalf. For the purpose of the application of Section 10(8) of the Act, one has to find as to who is the owner of the property and who is entitled to evict the tenant, and admittedly, he having signed the petition for eviction as partner of the firm he should be deemed to have given his written consent for the eviction petition being filed against the petitioner by the firm.

8. The next question that has to be considered is whether the petitioner has committed acts of waste which have materially impaired the value and utility of the building. The learned Counsel for the petitioner states that the evidence adduced in the case is not sufficient for a finding that the additions and alterations made by the petitioner to the premises in question are acts of waste so as to attract the provisions of Section 10(2)(iii) of the Act. He also contends that the additions and alterations made by the petitioner have added to the utility of the building and as such Section 10(2)(iii) cannot be invoked in this case. According to the learned Counsel the words 'value and utility' referred to in Section 10(2)(iii) should be read as value and/or utility, and if so read, where the acts of the tenant complained of are such as to add to the utility of the building, eviction cannot be sought Under Section 10(2)(iii). The learned Counsel refers to the evidence of P.Ws.1 and 4 examined on the side of the respondent and the evidence of the petitioner in defence, and submits that the evidence did not make out a case for eviction Under Section 10(2)(iii) of the Act. It is not disputed that the petitioner had put up the staircase leading from the first floor to the second floor in the place where there was a verandah previously, and a balcony without the supporting pillars but resting on the beam erected by him. It has also been found by the Courts below that these alterations and additions were made without the consent of either the respondent-firm or the owner, Govind Dass. It is also seen that the respondent filed a suit in the City Civil Court, Madras, against the petitioner for damages and for a permanent injunction restraining him from making any additions and alterations to the premises and a Commissioner had been appointed for inspecting the premises and to assess the damages caused to the premises. The Commissioner submitted a report filed as Exhibit P-6 in this case which showed that the petitioner had removed a portion of the terrace in the second floor and also the rafters and had constructed the staircase in its place. That Commissioner was also examined in this case as P.W. 3 and he had deposed that there were indications of the rafters having been removed when he inspected the premises in the presence of the parties. P.W.1, the owner of the premises had deposed that the building was 70 years old, that the petitioner had removed 6 rafters from the roof of the second floor and the teakwood planks underneath the rafters and two windows, that the thickness of the wall adjoining the staircase had been reduced, and that the building would not bear the weight of the newly constructed staircase and balcony. In his cross-examination he had stated that the petitioner has removed the roof and the teak-wood planks and rafters and constructed a new staircase in that place. P.W. 4, a Structural Engineer had deposed that the age of the building would be 80 to 100 years, that the building is of mud construction, that he found the rafters having been removed, that a staircase has been constructed after chipping off the old wall, that it would not have been advisable to construct the staircase in such an old building, that the whole building is unsafe, that the building may collapse at any moment, that the roof over the staircase was covered by zinc sheet and that so long as the structure stands putting up of the balcony and the staircase will add to the utility of the building. The petitioner as R.W. 1 has admitted that after erection of the additional staircase in question there is no roofing at the second floor level and if it rains, the rain water would enter into the premises, that the staircase though plastered at the bottom in the upper portion it is not fully plastered, that he does not remember if the thickness of the wall along side the staircase had been reduced, that there is no vertical support for the balcony he had erected, that the balcony is resting on pillars and rafters and that the rafters are resting on the original pillars. R.W. 2 who is a retired Construction Engineer of the Madras State Electricity Board deposed that the building will not be materially affected due to the construction of the staircase as it has been erected at the end of the building, that the building is not extra loaded by putting up of the additional construction, that the staircase portion is open on the top, that it must have been open always and that putting up of a staircase and balcony will add to the utility of the building.

9. The learned Counsel for the petitioner, relying on the evidence of P.W. 4 and R.W. 2 that the provision of a staircase and balcony will add to the utility of the building, contends that the petitioner had put up additional constructions adding to the utility of the building and that his acts cannot therefore be construed as acts of waste so as to attract Section 10(2)(iii) of the Act. I am not in a position, to construe the words 'value and utility' referred to in the section in a disjunctive manner. The Legislature has clearly intended to prohibit a tenant from causing damage to the building or doing any act which may affect the utility of the building. There may be cases in which acts of the tenant may add to the utility of the building for sometime but they may cause serious damage to the building. There may also be cases where there might not be any damage to the building but the utility of the building might be seriously affected. In either of these cases the tenant should be held to have committed acts of waste as coming under that section. The petitioner in this case cannot escape the operation of Section 10(2)(iii) merely on the ground that the acts committed by him have added to the utility of the building, if they seriously impair its value. As a matter of fact, P.W. 4 says that so long as the building stands, the alterations and additions will add to its utility. But if the additions and alterations are such as to curtail or reduce the age of the building, it will definitely impair its value. The Courts below have specifically referred to the admission made by the petitioner as R.W. 1 that there is no roofing over the staircase at the second floor level and the rain water would enter into the premises. Apart from the question whether the staircase has been put after slicing off a portion of the adjoining wall and whether the staircase has resulted in additional load on the old building, allowing rain water to flow into the building through the opening at the roof in the second floor will definitely cause damage to the building. It is not possible to say that the Courts below are in error in proceeding on the basis of the admission made by the petitioner about the rain water being allowed to run into the building through the opening above the staircase. That there is such an opening has also been spoken to by R.W. 2, the Engineer examined on the side of the petitioner. It is pointed out on the petitioner's side that the said admission of R.Ws. 1 and 2 has to be ignored in view of the deposition of P. Ws. 3 and 4 who have spoken to a temporary zinc sheet roofing having been provided at the top of the staircase. Having regard to the specific admission of R.Ws. 1 and 2 the Courts below are justified in basing their finding on that admission. As regards the balcony, the Courts below have on a consideration of the evidence adduced on either side, held that there is no vertical support to the balcony and that it is supported by rafters which have caused additional load on the pillars on which the rafters rest. The Courts below have, therefore, held that the construction of the staircase and balcony had materially affected the value and utility of the building and that therefore the petitioner is liable to be evicted from the premises in question. I am inclined to agree with them.

10. 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.

11. Woodfall on 'Landlord and Tenant', Volume 2, 27th Edition, at page 1538, has stated: 'Waste will include such acts as pulling down any part of the premises, making unauthorised alterations such as new doorways or windows, removing wainscots, floors or any other part of the structure or things fixed to the freehold, making two rooms into one, converting a dwelling house into a shop by removing a partition wall etc.', and has quoted Marsden v. Heyes, L.R. (1927)2 K.B.1, in support. Normally, waste will mean a spoil or destruction to houses, gardens, trees, or other corporeal 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 where 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 hall 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. It has also been held that it is waste to pull down or remove any part of a house, as the windows, doors or other fixtures annexed to the house either by the landlord or by the tenant. In Hyman v. Rose L.R. 1912 A.C. 623, while holding that structural alterations which did not injure the reversion nor change the nature of thing demised, regard being had to the user of the premises. Permissible under the lease did not constitute waste, the Court felt that it is always a question of degree.

12. Ramaprasada Rao, J. had held in Sha Surajmal Bhalechand v. Punamchand R. Shah (1967) 80 L.W. 402, that Section 10(2)(iii) would be attracted if the act of a tenant is likely to impair the value or utility of the building and it is enough if a definite or reasonable prospect of such damage to the value or utility of the premises existed. There the tenant removed the wooden partition in the first floor and replaced it by pucca walls with no support for them on the ground floor of the building which was 80 years old, and the Court held that an act by which the load of an 80-year old building is increased and such load consists of pucca walls in the first floor without any foundation to take them in the ground floor, is a deliberate act of waste which impair not only the value but also the utility of the building.

13. In Damodaram v. Loganatka, Ramaswami A.I.R. 1956 Mad. 54, 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 was not liable to be evicted on the ground 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.

14. In 1969 All India Rent Control Journal, page 32, the Punjab High Court has held that if a demised property is wholly or substantially reconstructed by a tenant, it is quite likely that instead of its value or utility being materially impaired the same may be enhanced by such reconstruction. But by this devise, the tenant cannot escape eviction on the ground in Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949, which is on terms similar to Section 10(2)(iii) of Madras Act XVIII of 1960. In that case the tenant demolished the front verandah and the western walls of the shops and reconstructed one other wall and out of the roofs of the two shops one was replaced and the other was partly replaced. The Court after considering the nature of the additions and alterations made, held that it is a case of almost reconstruction of two demised shops and that the tenant cannot escape eviction on the ground of acts of waste by contending that his acts have materially enhanced the value and utility of the building let. According to that decision, material impairment of the value or utility of the property has reference only to the demised property as let and if the demised property is wholly or substantially altered by the tenant, it is quite likely that in spite of its value and utility being materially impaired the same may be enhanced by such alterations but the tenant cannot avoid the operation of Section 13(2)(iii) of the East Punjab Act III of 1949.

15. Bearing the principles aforesaid, it is found in this case that the petitioner has, without the knowledge of the owner, deliberately put up a staircase and balcony thus adding additional weight to the existing building through the opening over the top of the staircase and that the petitioner should be held to have committed acts of waste within the meaning of Section 10(2)(iii) of the Act, notwithstanding the fact that the utility of the building might have been increased as alleged by him.

16. In the result I have to uphold the order of eviction passed by the Courts below. The Civil Revision Petition is therefore dismissed but, there will, however, be no order as to costs.


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