This Civil Revision Petition is filed by the tenant who failed before the Rent Control Appellate Authority in RCA.No.37/2007 by order dated 17.10.2003, reversing the order dated 21.2.1994 passed by the Rent Controller in RCOP.No.78/1988.
2. The respondent/landlord has filed a petition in RCOP.NO.78/1988 before the Rent Controller (II Additional District Munsif) Trichy on the grounds of willful default in payment of rent, committing acts of waste and non occupation of the building for more than four months. The respondent is the owner of the petition premises and the petitioner is the tenant paying a monthly rent of Rs.500/- payable before the 5th of every succeeding English Calendar Month. The premises was let out to the petitioner for stocking the cigarettes as a godown.
3. The respondent has alleged that the petitioner committed willful default in payment of rent from 1.10.1985 to 7.11.1987 i.e. till the issuance of notice by the respondent demanding the rent for the above said period. According to the respondent, despite the demand made several times, the petitioner did not pay the rent and belatedly sent the rents by way of a cheque and the same had been received without prejudice and as such a lump sum payment will not absolve the tenant from willfulness in payment of rent for a continuous period of 2 years.
4. It has been further submitted by the respondent that the petitioner has committed major acts of waste as briefly stated below: a. 5 windows have been blocked by brick walls inside the room.
b. One door way has been blocked by bricks wide the room.
c. Cross walls in the terraced portion have been demolished between passage and two rooms and converted into halls and other acts of waste as noted by the Advocate Commissioner.
5. The respondent has also sought eviction on the ground of non-use of premises by the petitioner for more than a year as it was kept under lock causing heavy damage and not using the property as godown to stock the cigarettes.
6. The eviction petition was resisted by the petitioner stating that immediately after receiving the lawyer's notice dated 7.11.1987 sent by the respondent, the petitioner sent a cheque for a sum of Rs.12,500/- representing the rent from October 1985 till October 1987 and the respondent having accepted the rent even before the eviction proceedings were filed, there could be no cause of action for filing the eviction petition on the said ground. He would submit that it is the practice of the landlord to come and collect the rent and the petitioner was bona fide under the impression that he would collect it in lump sum. The petitioner would state that he had never committed any acts of waste and the said allegation is made only to create a ground for eviction. He would further contend that the petition premises is still in the active occupation of the petitioner and the same is utilised for stocking cigarettes.
7. The learned Rent Controller ordered eviction only on the ground of willful default committed in payment of rent and disallowed other two grounds. Aggrieved over the same, the tenant filed an appeal in RCA.No.16/1994 and the landlord filed an appeal in RCA.No.37/1994 against the disallowed grounds of eviction. The Rent Control Appellate Authority reversed the findings of the Rent Controller and ordered eviction on the grounds of causing acts of waste affecting materially the value of the building. Aggrieved against the order of the Rent Control Appellate Authority, the petitioner has filed this Civil Revision Petition.
8. The learned counsel for the petitioner would submit that before coming to the conclusion that the petitioner has committed acts of waste, the Rent Control Appellate Authority failed to consider the condition of the building in which it was let out during the commencement of the tenancy and the building having been let out only for the purpose of non residential purpose, more specifically as a godown, the finding of the Authority that the storing of wooden boxes and crates had damaged and impaired the building is legally unsustainable. He would submit that the finding of the learned Rent Control Appellate Authority is solely on the basis of the report of the Advocate Commissioner and the cracks found on the building is only due to the age of the building which is also only in the plastering level.
9. In a case for eviction of the tenant on the ground of acts of waste, the burden of proof is always on the landlord to show that the unauthorised act of the tenant has caused damages to the building and such damage has materially impaired its value or utility. There may be damages, but it should be such as to affect the value or utility of the building. The Appellate Authority has referred to certain cracks and damages found in four rooms out of seven rooms as referred to in the report of the Advocate Commissioner, which is extracted below:-
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10. It is pertinent to state that the Advocate Commissioner has not been cross examined by the petitioner and hence his report remains unchallenged. From the above said report of the Advocate Commissioner, it could be seen that there were certain cracks and windows in three rooms had been blocked by bricks.
11. The Appellate Authority has found that the blockage to the windows ought to have been done unauthorisedly as the petitioner has not produced any evidence to show that the same has been done after getting permission from the landlord and further the building would not have been let to the petitioner in the said condition at the inception of the tenancy. The said finding of the Appellate Authority is unassailable. The alteration done without the knowledge of the respondent certainly would diminish the value of the building both from the commercial and utilisation aspect of the building. Changing the nature of the demised premises tantamount to technical waste and the removal of the doors and windows will clearly amount to doing an act affecting the utility of the building.
12. It is no doubt true that the burden of proof is on the landlord to prove that the building has been materially affected, however, as the damages to the building having been proved, an inference can be drawn that such acts have materially affected the value or utility of the building.
13. In the case of M.Shanmugam Vs. Kannabiran and another [1996-2- LW-322], this court has held that while considering the petition for eviction on the ground of acts of waste, it should be considered from the point of view of the landlord and not that of a tenant.
1.In the case on hand, there is sufficient evidence placed before the court below for coming to a conclusion that the tenant has caused such damages to impair materially the value of the building and therefore, I do not find any illegality or infirmity in the impugned order passed by the Rent Control Appellate Authority and hence, the same stands confirmed.
15. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MPs are closed.
Srcm To
1. The Principal Subordinate Judge, Trichy
2. The II Additional District Munsif, Trichy