This petition has been filed under Section 25 of the Tamil Nadu Buildings (Lease & Rent control) Act 1960 as amended Act XXIII of 1973 and Act 1 of 1980 against the order and decreetal order of the learned Judge VII Small Causes Court, Chennai in R.C.A.No.168 of 2006 dated 07.07.2009 confirming the order and decreetal order of the learned Judge X Small causes court at Chennai at R.C.O.P.No.1092 of 2005, dated 28.12.2005.
2. In the eviction petition filed by the respondent under Section 10(2)(ii)(a) & 10(2)(ii)(b) of the Tamil Nadu Buildings (lease & Rent control) Act 1960 are as follows:-
2.(i) The petitioner is the owner of the premises in the ground floor in door No.23, Old No.11, Bharathi Salai (formerly known as Pycrofts Road) Triplicane, Chennai. The said shop was let out by this petitioner to the respondent only for doing business in fancy and gift items under the name and style of Vijay Gift Paradise and the tenant is not entitled to do any business without her consent. The terms of tenancy are governed by the agreement, dated 20.01.1994 and the rent payable by the respondent is Rs.1,650/- per month and the mode of payment is by account payee cheque.
2.(ii) While so, contrary to the rental agreement, the respondent discontinued the business of fancy and gift items, but he had put up the name board Vijay Book Store in February,2005. Only then, the petitioner came to know of the business started by the respondent in sale of books. The conversion by the respondent of his business and use of the shop for a purpose other than that for which it was leased is unauthorised and without the written consent of the petitioner and as such, the respondent is liable to be evicted from the shop.
2.(iii) Apart from that, the respondent has also installed or permitted a third party to run a STD and ISD booth of TATA INDICOM bearing phone No.55533763 without her written consent or permission. In spite of her requests, the respondent refused to divulge the name of the person who is carrying on STD and ISD telecom business in the shop. The rental agreement prohibits such subletting. The said act on the part of the respondent is unauthorised and he is liable to be evicted from the shop.
2.(iv) When the matter stood thus, on 05.03.2005, the petitioner issued a Lawyer's notice to the respondent to vacate the shop and deliver the possession thereof. But, on 19.03.2005, with false and untenable grounds, he sent a reply notice and a rejoinder notice was also issued by this petitioner on 24.03.2005. Hence, eviction order may be passed against the respondent.
3. In the counter filed by the respondent (tenant), the following allegations are found:-
3.1. It is denied that the petitioner does not know about the business of the respondent since the book shop is being run by the tenant with the knowledge and consent of the petitioner for the past three years. He did not put up the board as Vijay Book Centre, but for more than three years it is there, that there is no telephone connection in the premises of the shop and that when this respondent failed to comply with the demand for enhancement of the rent to Rs.2,500/- per month, the petitioner has rushed to this Court by untenable claims to get an order of eviction by hook or crook and hence, the eviction petition may be dismissed.
4. The learned Rent Controller after scrutiny of the evidence and materials on record found bona fide intention in the land lady and passed an eviction order on 28.12.2005, granting two months time to vacate. This appellant carried the matter in R.C.A.No.168 of 2006 on the file of the VII Court of Small Causes, Chennai and the same suffered dismissal on 07.07.2009 after grant of one month for delivery. Hence, this petitioner is before this Court.
5. It is the version of the landlady that from February,2005 onwards, the tenant has been running a book shop under the name and style of the above-said book store. It is stated by the tenant that with the consent and knowledge of the landlady, he has been running the book selling business. Those facts were alleged by the landlady in her notice dated 05.03.2005. But only in the reply, the tenant has admitted the running of book shop.
6. Remarkably, it is to be stated that on no other earlier occasions, he made the landlady to know of his running of book shop in the tenanted premises. There is no material nor evidence to show when he informed the landlady and when she accorded the alleged permission or consent to him.
7. In this connection, the recital in Ex.P.1, tenancy agreement, dated 20.01.1994, between both parties is worth mentioning in which the relevant clause goes thus:-
Clause No:3 The shop portion has been let out to the tenant only for doing business in Fancy and Gift items under the name and style of Vijay Gift Paradise' and therefore, the tenant shall not be entitled to do any other business without the written consent of the landlady.
.....
Clause No:6 The tenant shall not utilise the portion for any other purpose excepting for the purpose it has been tenanted and the tenant shall not use the portion for residential purposes.
8. The above-said clauses would amply amplify that except selling of fancy and gift items, the tenant has been prohibited from dealing with any other articles in the demised premises. The right of the tenant has been restricted with the business of fancy and gift items alone and not any other articles.
9. In his chief examination, the tenant says that from 2001 November onwards, he has been running the book shop which is a retail business and Ex.R.1 to R.4 series would establish that he had been running such business since 2001. Whether he started his business in 2001 or in 2005, it has to be seen whether the demised premises is being utilised for different user and whether necessary consent or permission was obtained from the landlady. In the absence of any evidence showing nod on the part of the landlady permitting the tenant to conduct a different business, it could not be concluded that with her permission he is dealing with the book selling business. It has been clearly established that the tenanted premises is being utilised for different purpose other than for what purpose it was leased out. In other words, it could be stated that the tenant has been running the book business violative of the stipulations recited in Ex.P.1.
10. The learned counsel for the petitioner would place reliance upon a decision of this Court reported in 1990 TLNJ 122, T.M.Ramaswamy Gounder Vs. Ranganayaki, in which it is held that since the purpose was not specified at the time when the premises was taken on lease, it is open to him to carry on any business in the demised premises provided that such carrying on business is not injurious to the demises premises.
10.1. This Court after referring to a judgment reported in AIR 1988 SC 1034, Mohanlal Vs. Jai Bhagavan, observed that the Supreme Court has taken a view that change of user would not cause any mischief or detriment or impairment to the shop and it could also be called an allied business in extending concept of departmental stores and consequently it did not attract the mischief of change of user and that ordinarily so long as the interest of landlord is prejudiced, a small change in the user would not be actionable. But, the facts prevailing in the case on hand are different. The book selling business could not be stated to be an allied business to the dealing with fancy and gift items. For example, if it is a book shop, considerable space would be required to store heavy volumes of books, which may impair the utility of the building.
11. The learned counsel for the respondent would garner support from a decision of the Supreme Court reported in AIR 2005 SC 3389, Hari Rao V. N.Govindachari and others, wherein it is held as follows:-
.... In other words, when the lease is granted for the purpose of a trade, in the absence of any covenant in the contract between the parties prohibiting a user different from the particular one mentioned in the lease deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. In a case, where the premises let out for a commercial purpose is used by the tenant for a residential purpose, it would be a user for a purpose other than that for which it was leased attracting S.10(2)(ii)(b).
12. In a decision reported in (2000) 3 SCC 723, M.Arul Jothi and another Vs. Lajja Bal (deceased) and another, it is observed thus:-
In the case in hand, there is a specific prohibition clause in the rent deed. In the present case, there is a specific clause which states shall be used by the tenant only for carrying on his own business.. and the tenant shall not carry on any other business than the above-said business. By the use of the word only with regard to the tenant doing business coupled with the last three lines namely, the tenant shall not carry on any other business than the abovesaid business, clearly spells out the intent of the parties which restricts the user of the tenanted premises, only for the business which is stated therein and no other.
13. Following the views expressed by the Supreme Court, when the intention of the parties gathered from the lease agreement goes to the effect that there must be no other business excepting a specific business, it has to be held that the demised premises has been utilised for different user which would call for eviction as per the provisions of the Act.
14. Yet another ground upon which the request for eviction order was passed is that subletting the building in question. P.W.2 is a lens-man who took photographs, Ex.P.6 series which show that a STD Booth is being run in the demised premises. It is the grievance of the landlady that without her consent or knowledge, the tenant has entertained another person. The appellant has categorically admitted in his evidence that he started the telephone booth and was running 10 or 15 days, that the neighbouring shop holder one Prabakar kept the telephone in his place, that he left the place and the telephone stood in the name of his friend Prabakar, that since he left for foreign countries, he shifted the STD and ISD telephone booth to the demised premises and that since he was about to return, he kept the the telephone in his shop.
15. A harmonious reading of his oral evidence would indicate that the said Prabakar shifted his STD and ISD telephone booth to the demised premises earlier to the filing of the eviction petition, for which no consent was received from the landlady. In this regard, the learned counsel for the respondent would place much reliance upon a Full Bench decision of this Court in 1980(1)MLJ 1(FB), Dr.N.R.Rao alias N.Raghavendra Rao and another, wherein this Court dealt with the circumstances under which the subletting could be inferred. The operative portion of the judgment goes thus:-
We are of opinion that the two clauses have a certain amount of over-lapping area and with regard to that area the clauses are not mutually exclusive. For example, if the respondent sub-lets or parts with possession of a certain area of the premises to a third party without the consent of the lessors, then such act will not only be violative of Clause 6 but will also be violative of Clause 9 to the extent the tenant had failed to use the demised premises solely and exclusively for the purpose for which the building was let out to him.
...Thus, from the findings of both the authorities below, it is clear that a third party had been allowed to occupy a portion of the demised building for it was own purposes. We have already held in the foregoing paragraphs that this act of the tenant is clearly violative of clause 9 of the lease agreement and that he would directly come under the mischief of section 10(2)(ii)(b) of the Act
14. Following the principles laid down in the above said decision, while the facts of the present case are considered, when a person other than the tenant has entered into the demised premises without the knowledge of a landlady, then it has to be construed that the tenant could be brought within the purview of Section 10(2)(ii)(b) of the Act. The tenant has also not stated in his evidence that for shifting of the telephone booth by Prabakar, he (tenant) got permission of the landlady. In the absence of any knowledge on the part of the landlady, it has to be necessarily held that element of subletting is there which would disentitle the tenant to continue in the tenanted premises.
15. In view of the observations obtained on scrutiny of the materials on record, it is held that the demised premises has been utilised for different purpose other than for which it was leased out and the appellant has sublet the same to his friend Prabakar without consent of the landlady and on establishing the said two grounds, he has got to be evicted. This Court does not find any infirmity legally or factually in the orders passed by the authorities below which deserve to be confirmed and accordingly, they are confirmed. The appeal is devoid of merits which suffers dismissal.
In fine, the civil revision petition stands dismissed. Consequently, connected M.P. is closed. No costs. Time for delivery three months.
This matter has been taken up under the caption "for being mentioned". Heard the learned counsel for the appellant seeks further time from this court so as to enable the petitioner to move before the Hon'ble Supreme Court and get necessary orders in the SLP.
Considering the circumstances, two weeks further time is granted to the petitioner for vacating the premises and handing over the same to the land lady.
25.03.2010.
tsh Note : Registry to issue Order copy today 25.03.2010.