C.R.P.(NPD). No. 1867 of 2009 and M.P. No. 1 of 2010. Case: Radhakrishnan Vs Lakshmipathi @ A.L. Pathy and Ananda Ganapathi. High Court of Madras (India)
| Case Number | C.R.P.(NPD). No. 1867 of 2009 and M.P. No. 1 of 2010 |
| Counsel | For Appellant: A. Chidambaram, Adv. and For Respondents: M.L. Ramesh, Adv. |
| Judges | G. Rajasuria, J. |
| Issue | Tamil Nadu Buildings Lease and Rent Control Act, 1960 - Sections 1(3), 10(2), 10(2), 10(3), 12(2), 13(2), 14(1), 18, 22, 25 and 25(1); Transfer of Property Act, 1882 - Sections 105 and 108; Easements Act, 1882 - Section 52; Delhi Rent Control Act - Section 14(1); Haryana Urban (Control of Rent and Eviction) Act, 1973; East-Punjab Urban Rent ... |
| Judgement Date | August 10, 2010 |
| Court | High Court of Madras (India) |
Order:
G. Rajasuria, J.
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Animadverting upon the order dated 30.4.2009 passed by the Principal Subordinate Judge, (Rent Control Appellate Authority), Chengalpattu, in R.C.A. No. 16 of 2008, reversing the order dated 24.1.2008 passed by the District Munsif (Rent Controller), Chengapattu in RCOP No. 3 of 2005, this civil revision petition is focussed by the landlord.
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Niggard and bereft of unnecessary details, the germane facts for the disposal of this civil revision petition could pithily and precisely be set out thus:
(i) The revision petitioner herein filed the RCOP No. 3 of 2005 invoking Sections 10(2)(i), 10(2)(ii)(a), 10(2)(ii)(b), 10(2)(iii) and 10(3)(c) of the Tamil Nadu Buildings Lease and Rent Control Act (hereinafter referred to as the 'Act' for short) seeking eviction of the respondents, citing R1 as the chief tenant and R2 as the unauthorised sub-tenant, on the following grounds:
(i) 'Wilful default' in paying the rent by the tenant;
(ii) The tenant sub-let the demised premises concerned;
(iii) The tenant used the demised premises for a purpose other than that for which it was leased;
(iv) The tenant committed the act of waste;
(v) The demised premises concerned is required by the landlord for 'additional accommodation';
(b) During trial, on the side of the revision petitioner/landlord, he examined himself as P.W.1 along with one Babu alias B. Mohamed Nasrulla as P.W.2 and Exs.P1 to P9 were marked. On the side of the respondents/tenants, the first respondent herein examined himself as R.W.1 along with one Rajeshwar as R.W.2 and the second respondent herein as R.W.3 and Ex.R1 to R22 were marked.
(c) Ultimately, the rent controller ordered eviction on all the five grounds.
(d) As against the said order, the tenant preferred the appeal in RCA. No. 16 of 2008 and the appellate authority set aside the order of the Rent Controller and dismissed the RCOP in toto.
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Being aggrieved by and dissatisfied with the order of the learned appellate authority, this revision has been filed by the landlord on various grounds:
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The learned Counsel for the revision petitioner, placing reliance on the grounds of revision would develop his arguments, the warp and woof of them would run thus:
(i) The Rent Controller failed to apply the law relating to sub-tenancy. No one could precisely with mathematical precision establish the sub-tenancy as the chief tenant would surruptiously sub-lease the property in such a manner that others would not be able to know the terms and conditions of the same. Hence it would be preposterous on the part of the Court to expect that the landlord should prove the quantum of the rent paid by the sub-tenant to the chief tenant.
(ii) The appellate authority wrongly understood the law as though if at all sub-tenancy has to be established, the chief tenant's total departure from the premises should be found established. Even if the sub-tenant is found to be in occupation of a part of the demised premises, then that would be sufficient to attract eviction on the ground of sub-tenancy.
(iii) The change of user so far this case is concerned is so obvious and axiomatic that no additional evidence is required.
(iv) The Rent Controller taking into consideration the pros and cons of the matter appropriately and appositely held that there was change of user as RW1-the tenant candidly and categorically admitted in his deposition that the property was leased out only for the purpose of conducting his business in selling xerox machines and servicing the same and no where it is found stated that he was given carte blanche to do any business which is not illegal.
(v) Here the tenant categorically admitted that in the demised premises PCO as well as D.T.P. Centre are being conducted and in such a case it is quite obvious that the appellate authority should have accepted the findings of the Rent Controller, but erroneously he set aside the order of the Rent Controller.
(vi) Admittedly and indisputably, unarguably and unassailably the landlord is running his own business in the adjacent shop to the demised premises and in the event of the tenant vacating the demised premises he would be able to expand his business in conducting PCO as well as xerox copy business etc.
(vii) The Rent Controller taking into consideration the bona fides ordered eviction, but the appellate authority erroneously applied the law as though there was no proof substantiating the plea of the landlord etc.
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The learned Counsel for the revision petitioner/landlord would submit that he is not pressing the grounds relating to 'wilful default' and 'the act of waste' and accordingly, the learned Counsel prays for setting aside the order of the appellate authority and confirming the order of the Rent Controller by allowing this civil revision petition.
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Refuting and challenging, impugning and gainsaying the contentions and arguements as put forth on the side of the learned Counsel for the revision petitioner/landlord, the learned Counsel for the respondents/tenants would advance his arguments, which could tersely and briefly be set out thus:
(i) The law is well settled that it is the duty of the landlord to prove the sub-tenancy. It cannot be assumed or presumed as though the tenant sub-leased the demised premises in favour of a person who is found present in the demised premises. Mere presence of a person other than the tenant in the demised premises would not lead to the irresistible conclusion that there was sub-tenancy in favour of such person, who is present in the demised premises.
(ii) The alleged 'change of user' should be substantiated so as to attract eviction. Mere addition in the conduct of existing business by the tenant would not attract eviction.
(iii) There should be proper pleadings highlighting the less hardship of the tenant as well as the corresponding high benefit that would accrue to the landlord. But in this case, in the absence of pleadings, the landlord cannot press into service the ingredients as contemplated in Sub-clause (e) of Section 10(3) of the Act.
(iv) The Rent Controller did not take into consideration the relative hardship of the tenant and the corresponding benefit that would accrue in favour of the landlord in the event of evicting the tenant. As such, the order of the Rent Controller is basically wrong and the High Court cannot for the first time consider the relative hardship and the consequent benefit of the landlord as contemplated under Sub-clause (e) of Section 10(3) of the Act.
Accordingly, the learned Counsel for the respondents/tenants prays for the dismissal of the CRP.
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The points for consideration are as under:
(i) Whether the landlord established before the Courts below that the tenant sub-leased the demised premises?
(ii) Whether there is ample evidence to show that there is 'change of user' concerning the demised premises?
(iii) Whether there is objective evidence to show the bona fides of the landlord in seeking 'additional accommodation'?
(iv) Whether there is any perversity or illegality in the orders passed by the Courts below?
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Point No. (i): Relating to the plea of sub-letting is concerned, I would like to refer to the following judgments:
(i) (1984) 2 SCC 590 (Jagdish Prasad v. Angoori Devi). An excerpt from it would run thus:
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As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the court to assume a sub-tenancy merely from the fact of presence of an outsider....
(ii) (1988) 1 SCC 70 (Shalimar Tar Products Ltd. v. H.C. Sharma and Ors.). An excerpt from it would run thus:
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"In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant.
(iii) (1989) 1 SCC 19 (Rajbir Kaur and Anr. v. S. Chokesiri and Co.). Certain excerpts from it would run thus:
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It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'lease' in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'licence' under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an "easement" or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory Licences' which confer a right of exclusive possession, marking them off fromt he more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one fromt he other. The "solution that would seem to have been found is, as one would...
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