CHAPTER – V

GROUNDS OF EVICTION -
JUDICIAL INTREPRETATION
 GROUNDS OF EVICTION – JUDICIAL INTREPRETATION

This Chapter deals with the impact of the judgements of the High Court and

Supreme Court and its interpretation on the eviction of tenants on various reasons as

recognized by the Act. Earlier one of the ground of eviction namely wilful default in

payment of rent by the tenant became redundant as the precedents held that when the

rent is paid or tendered on the first hearing date of the eviction proceedings, the

Landlord cannot evict the tenant as the ground ceases to exist. Similarly each and

every grounds of eviction and the effect of interpretation of Courts are considered.

Eviction of Tenants:

In order to get a decree or order for eviction against a tenant whose tenancy is

governed by any Rent Restriction Act or Eviction Control Act, the suitor must make

out a case for eviction in accordance with the provisions of the Act. When the suit is

contested, the issue goes to trial. The court passes a decree for eviction only if it is

satisfied on evidence that a ground passing such a decree in accordance with the
1
requirement of the statute has been established. It is well settled that where Rent

Restriction Acts are in operation a landlord cannot obtain eviction of the tenant unless

he can satisfy the requirements of the provisions in these Acts. The statutory

protection can only be given in accordance with the terms on which it is permissible.

The Act does not certainly confer a power upon the court to excuse a violation of the

provisions of the Act by making wrong assumptions or on compassionate grounds.

1
Roshanlal vs Madanlal 1975 (2) SCC 785

128
The court could not therefore exercise what would be in effect a power to condone

infringement of the provisions of the Act. Event assuming that the tenant was allowed

to continue till the amount lent was repaid, it was held it would not stand in the way

of the landlord getting an order or eviction. 2

A single eviction petition can be filed in respect of more than one separate

portion let out to a tenant if no prejudice is caused to the tenant. The mere fact that the

shops are separately numbered by the corporation for purposes of assessment is not a

bar for the maintainability of the application of the landlords under section 10(3) (c).

Where the demised premises consisted of two door numbers, leased out under a single

lease to a single tenant, then a single petition for eviction under section 14 (1) (b)

would be maintainable. The landlord files a single petition for eviction against

different tenants in respect of premises bearing various door numbers. The ultimate

test is to see whether any prejudice has been caused to the tenant by the procedure of

filing a single petition for eviction. No hard and fast rule can be laid down in such

cases.

The Petition for eviction on the ground of wilful default by the Landlord. The

contention of the tenant that the original owner had filed the petition for eviction and

during pendency of the same property was sold to the present landlord without

intimation to the tenants. Further, it was proved by record that the letter informing the

purchase of the property by the present landlord was sent to the tenant and the tenant

has not replied to the said letter. No amount deposited by the tenant during concerned

period even to the original landlord. Moreover no deposit of rent made by the tenant

2
Kuppta Pandithan vs Marudhachala Pandian 1979 (1) MLJ 503

129
even during pendency of eviction proceedings. Tenant was held guilty of wilful

default and order of eviction confirmed. 3

Even if the cause title refers only to the firm by its name and the names of

partners are not mentioned therein, the partners are parties to the proceedings and they

are before the court though in a wrong name. This does not mean that the partners

become parties to the proceedings for the first time only when they are described as

co – nominees. Hence the question of granting liberty to the partners to file additional
4
counter to the original petition does not arise. The requirement for own occupation

for the purpose of business and the requirements for the purpose of demolition and

reconstruction are not contradictory to each other and they can be combined even in

one petition.5 Common eviction petition against four tenants in the same premises is

maintainable. If the possession partly is with the Accommodation Controller, then the

order of eviction against other tenants can be kept in abeyance till the portion in the

occupation of the Government is therefore available to the landlord. 6

(A) Wilful default:

Section 10 (2) (i) explains the wilful default the one of the grounds of eviction.

No tenant could be evicted from the premises in his occupation unless wilful default

was established. A mere default in payment of rent is not sufficient ipso jure to

constitute a ground for eviction. Before the amended Act a tenant can be evicted for

non-payment of rent, but the same cannot be sustained because under the amended

3
A.Hari Kumar vs P.Rajendra Kumar 2015 (4) CTC 386
4
Common Wealth Packing Industries & another vs S.S.Perumal, Proprietor Pioneer Engineering
Works, Madras & another 102 LW 62
5
Lipton India Ltd vs Smt.M.M.K.Sara Uma 102 LW 227
6
Raghavan vs Dayarchi & others 100 LW 303

130
section there must be a finding of not mere default but of wilful default. To arrive at a

finding that the tenant is in wilful default, the mere fact that the tenant is in arrears of

rent would not be enough and the court has to consider whether there has been

intentional violation of the clear obligation to pay rent. The provision contemplates an

agreement between the landlord and tenant as regards the time for payment of rent.

Parties may stipulate for payment of rent on the first of the month for which rent is

payable or during the period of the month or at the end of the month. 7

Payment of rent to person other than Landlord whether would amount to

willful default. Tenant contending that he had remitted rent for the said period to one

‘S’ and said ‘S’ is not Landlord and he himself had disowned the ownership of the

property. Therefore it is clear that the tenant had defaulted for the petition mentioned

period. The revision was filed challenging the order of eviction by the Rent Controller

and confirmed by the Appellate Authority before High Court, Madras. Order of

eviction on account of willful default in payment of rent committed by tenant was

upheld and revision was dismissed. When the tenant had claimed that he has paid the

rent to another person, who is not the owner whether the default would amount to

willful. The term willful refers to the act consciously and deliberately done. From the

above explanation the word willful default appears to indicate that the default in order

to be willful must be intentional, deliberate and calculated and conscious with the full

knowledge of legal consequences flowing there from. In this case, the tenant had

committed default willfully denying the ownership of the Landlord. Therefore the

7
Venugopal vs Doyal Prasad 1970(1) MLJ 60

131
tenant can be said to be guilty of willful default because such a course of conduct

manifestly amounts to willful default as contemplated by the Rent Control Act. 8

It cannot be held that merely because the rent for one month has been

improperly refused when tendered, the rent for the succeeding month is neither due or

payable. In the absence of a specific agreement between landlord and tenant that the

rent may be paid at such time as the tenant chooses, the law compels the tenant to pay

the rent regularly month after month. Rent is lawfully due as soon as the proper date

for payment has arrived. If any date is fixed, the tenant is bound to pay the rent within

fifteen days thereafter.

This position is clear under this provision that a duty is cast on the tenant to

make payment or tender every a duty is cast on the tenant on the tenant to make

payment or tender every month if he desires to take advantage of the provisions of the

Act. The law has not yet come to the point that the landlord must seek the tenant for

collection of rent and not for the tenant to seek the landlord to pay the rent. It is the

duty of the tenant to pay the rent in cash though it is open to the landlord to accept

cheque as a conditional payment of the amount. It is true that the tenant has no right to

site upon the landlord receiving the rent by cheque and that his duty is to pay in cash.

It is also true that decisions have held that payment of rent by cheque was a good

payment and when landlord had retained the cheque with him, it would not be open to

him to treat the tenant as a defaulter. The questions however still remains whether in

the absence of an agreement between parties tender of rent by cheque amounts to a

valid discharge of the obligation. It would have no application where the landlord had

8
G.R.Nathan vs P.S.Jagadeesa Iyengar (died) & others 2015 (2) CTC 420

132
clearly informed the tenant that payment by cheque would not in future be accepted

and thereafter the tenant must make payment only in the current coin of the realm and

the tenant has no right to insist that the landlord should accept the cheque. The

landlord issued a notice demanding payment of arrears and there was nothing to

signify the willingness of the landlady to receive the payment and the tenant deposited

the arrears into court. It was held that the deposit into court was tantamount to

payment to the landlady. There is no magical formula or any prescribed manner in

which rent can be deposited by the tenant to the landlady. The rent can be deposited

by placing the money in the hands of the landlord which would amount to actual

tender. Second mode of payment is to deposit the amount in the court where the case

is pending in such manner so as make the amount available to the landlord without

hitch or hindrance whenever he wants it.9

There is a clear difference in law between default and wilful default. While

non payment of rent within the time specified will certainly be tantamount to default

obviously any default cannot be treated in law as wilful default. There is sharp

distinction between “default” and “wilful default”. The legislature presumably was

very conscious of all these distinctions when the rent control Act laid down that mere

default prolonged or established was not a ground for eviction but that wilful default

was alone a ground for eviction. Wilful default or intestinal default is a default

accompanied by a particular state of mind which cannot be directory proved but had

to be interred from the entire complex set circumstances. To hold that a tenant is

wilful in non-payment of arrears of rent, it must be proved beyond doubt that he had

9
Sheo Narain vs Singh 1980 (1) SCC 125

133
 10
exhibited supine indifference and callousness. While ordering eviction on the

ground of wilful default, the totality and cumulative effect of all the circumstances

should be taken into account and not any particular feature in isolation, to decide

whether the default is wilful or mere default as decided in lakshmi Bai’s case. 11 Mere

agreement of sale will not terminate the landlord tenant relationship and the liability

of the tenant to continue to pay the rent. The tenant must continue to pay the rent

unless there are specific recitals to the contrary in the agreement of sale. This was

decided in Kuppammal’s case following Duraisamy’s case. 12

The burden to show that default is not intentional or deliberate is on the tenant.

The effect of the decision in 1985 AIR SC page 585 will only be that a mere proof of

default is wilful or not is a conclusion to be arrived at on the facts circumstances of

each case. If there was a continuous default which is unexplained, a court will be well
13
justified in coming to the conclusion that default is wilful and deliberate. The

landlord has no unfettered right to adjusted the rents out of the advance without the
14
option being exercised by the tenant which has decided in Velayutham’s case. But

the decision of the Court later on held that even without any option being exercised by

the tenant, it is mandatory for the landlord to adjust the rent in the advance amount

over and above one month rent. The landlord cannot complain wilful default against

the tenant as long as the landlord is retaining more than one month rent as advance.

The default accompanied by particular state of mind can be inferred from the fact that

10
Rangaraju vs Parthasarathy 1964 (1) MLJ 12
11
Lakshmi Bai vs Gita Bai Natwarlal & another 1987 TLNJ 125
12
B.Kuppammal vs Saghunathala 1987 (1) MLJ 242
13
C.Thangasamy Nadar vs Pappa & 6 others 102 LW 223
14
V.S.S.Velayutham vs K.Palanichamy 101 LW 249

134
the tenant deposits the arrears of rent after the petition for eviction filed. It was held

that it would amount to wilful default. 15

Default wilful:

The fact that on grounds of convenience or for other reasons the landlord

chose to collect the rent at irregular intervals does not lead to the inference in laws

that there is an agreement under which the rent is payable only at such intervals.

Unless it is proved that there was term in the agreement that the rent was payable only

at particular intervals of time, the tenant who has not paid the particular intervals of

time, the tenant who has paid the monthly rent cannot say there was no default and

resists eviction by his landlord. Paying the arrears of rent after the in situation of suit

by the tenant does not affect his liability to eviction and the court’s power to pass

decree for eviction. However much the tenant has paid the amount subsequently the

default committed by him cannot be cured. This has been decided in Kesasvan’s case.

The fact that the landlord has in the past allowed the tenant to pay the after the due

dates doesn’t amount to waiver of his right to future payments on the due dates. In the

absence of estoppels or a variation in the terms of the tenancy rent will be due on the

specified date even though the landlord had accepted unpunctual payments and has

not given the tenant any warning that punctual payments should be made in future.

Where delay occurs with regard to several months, it is difficult to accept the

argument that the default is not wilful. The fact that the tenant deposited the

subsequently to landlord after inception of the proceedings may service to extenuate

his default in the sense that he might be granted a reasonable time for vacating the

15
Mutha Bai & others vs Adinarayana Chetty 1989 (1) MLJ 502

135
premises but it is not a ground that the law can recognize for holding that a tenant

who deposits such rent is not guilty of “wilful default “. Where fair rent is fixed by

court, the tenant ought to pay fair rent after it was determined. But where he has paid

only at the old agreed rate even after the fixation of fair rent, an order under section

11 (4) could be passed with reference to the balance amount, since the tenant has not

paid the balance amount.

The duty of the tenant is to tender the full amount of rent. Failure on the part

of the tenant to do so will entitle the landlord to refuse the money order. The omission

on the part of the tenant to pay the full amount of rent cannot be anything other than
16
supine indifference and would undoubtedly constitute wilful default. Refusal by

the landlord to receive the rent and the tenant remits the money order without resort to

section 8. The refusal of the landlord to accept the tender is justified and the cannot

without recourse to the Act, proceed to carry out the repairs and mulct the respondent

with the expense of such repairs or even claim an adjustment of such amount towards
17
rent payable. Tenant sending rent to the previous owner and depositing in his

personal account will not amount to a tender to the landlord. Tenant not paying rent to

the purchaser even after coming to know of the same amounts to supine indifference

and coming to know and amounts to wilful default. 18

In Ramsamy vs Thulaja Bi’s case, it is held in plain languages under section

109 of Transfer of property Act, once the lessor transfer the property leased, the

transferee of the property becomes subrogated to the position of the lessor – transferor

16
N.M.H.Rasheeda Bivil vs V.R.Sreepathy 96 LW 678
17
Kalyani vs G.V.Subramaniyam and another 1990(1) MLJ 29
18
B.Kuppulal vs D.Saghuntala & another 100 LW 577

136
in respect of rights and liabilities of the property so transferred. Hence the tenant who

sets up a plea of loan to the vendor of the property and did nor pay rent was held to be

a defaulter in the petition filed by the purchaser. Under Section 22 of the Act. the

tenant is not permitted to deduct the unauthorized repair charges from the rent

payable to the landlord. The contention of the tenant that he deducted the rents under

the bonafide impression that he was entitled to do so and hence, if he has not

committed willful default could be countenanced , if the tenant had deposited the rents

into court immediately after coming to know that the landlords has raised objections

for the same. In the absence of such a deposit by the tenant, it is not possible to hold

that he has not committed wilful default in the payment of rent. 19

The Explanation to section 10 “(2) (i) does not contemplate that before wilful

default could be constructed as wilful, two months notice should be given. It must

also be pointed out that explanation is not exhaustive of all cases of wilful default and

it is not necessary for a landlord to issue a notice to the tenant giving him two months

clear time before eviction can be brought on the ground of wilful default. As a matter

of fact the legislature by introducing the Explanation to section 10 (2) of the Act has

given a helping hand to the tenant not to commit default by enunciating that if after

demand for arrears they fail to pay the arrears of rent within the prescribed time it is

statutorily called wilful default. It has to be found in each case whether has been a

wilful default prior to the issuance of notice and where there has been a continuation

of such wilful default even after a notice demanding arrears has been issued, both the

circumstance as above are satisfied and it is a case from which the tenant cannot

19
A.Vasudevan vs S.Ramasubramanian and three others 101 LW 509

137
escape. In the absence of notice as required by explanation given to the tenant, the

controller or the courts can certainly examine the question whether the default has

been wilful and to such a case the explanation would have no application. 20

Default – Not wilful:

If there was an arrangement between the landlord and the tenant by which the

rent of any particular month to be appropriated and spent in a particular manner for

instance for carrying out certain alterations or repairs in the premises it cannot be said

the rent for the month was due within the meaning of the section. If a tenant makes a

default in payment of rent for the simple reason he has not the money to pay the rent

and on that ground delays few days in paying the arrears, it is certainly not a case of

wilful default, and one which certainly deserves sympathetic consideration by the

court. A tenant’s illness and the alacrity with which he paid the rent after receipt of

notice though not conclusive is certainly relevant to negative wilful default. Where it

is admitted that a landlord usually sends his bill collector to collect the rent from the

tenant and that particular month or month in questions he did not do so he cannot

heard to say that tenant has committed wilful default in the payment of rent. If the

tenant without with the clause (under section 8) resorts to the next clauses viz., not

asking landlord to specify the bank but sends it by money order, failure to continue to

tender subsequently monthly rents by money order will not constitute wilful default.

The mere default committed by the tenant will not entail eviction. The default

committed by the tenant will not entail eviction. The default should be wilful,

intentional or incidental. The tenant paid the property tax to the corporation after

20
C.Pandithurai vs Jaithoon Beebi 1991 (1) MLJ 330

138
notice from the corporation. The tenant pays the balance of rent to the landlord. The

default is not wilful. 21 The non payment of corporation tax by the tenant, when there

is no specific undertaking to pay the same by the tenant, will not constitute wilful

default within the meaning of the section 10 (2) (i). Where the rent sent by the tenant

is refused to be received by the landlord, the tenant cannot be treated to have

committed wilful default in payment of the rent even though he has not taken steps to

deposit the same before the rent controller.

It is now well established that in order to prove the case of wilful default the

landlord should establish beyond doubt that the tender of the rent was made with the

conspicuous knowledge that the tenant was making a default and in this context he

was supinely indifferent and there is an element of mens rea in it and there is visible

and overt act on the part of the tenant. Order of the eviction should not have been

passed without a finding whether the default was wilful. The court has given a

definite finding about the tender of rent by the tenant and refusal by the landlord to

accept the same.

[B] SUB LETTING:

Section 10 (2) (ii) (a) explains the ground of sub – letting as one of the

grounds of eviction. In the lease deed there must be specific clause authoring the

tenant to sub – let the premises and in the absence of such specific clause, it cannot be

said that the right the tenant enjoys under the ordinary law with regard to subletting

can be inferred. It is clear from the section that the tenant cannot without the written

consent of the landlord transfer his right under the lease or sublet the entire building

21
Janaki Devi vs Krishnan Nambiar 1988 TLNJ 302

139
or any portion thereof if the lease does not confer him any right to do so. 22 Discussing

various decisions, certain principles do emerge. Sub-letting is made a ground for

seeking eviction by the landlord. Consent by landlord for such subletting would

provide a cover for the tenant, may be express or implied provided it is writing.

subletting done during the tenure of a lease under a previous landlord and without his

written consent can be availed by a subsequent purchaser from the previous landlord

to seek eviction of the tenant.

In eviction proceedings under this section, it is necessary implead the sub-

tenant also, who was inducted into with the written concert of the landlord. In order to

save a tenant from the consequence of eviction on the ground subletting, it must be

established that he had the concert in writing of the landlord to do so. A mere

unilateral acceptance for payment of higher rent by the tenant or the tenant concert in

writing by the landlord enabling the tenant to sublet the premises. Even on the

assumption that a higher rent been paid by the tenant that would not enable him to

claim tat he had the concert in writing of the landlord to sublet the premises. Payment

of higher rent will not enable a tenant to claim to have had consent in writing of the

landlord to sublet.

The relevant words are “has sub – let”. The present perfect thence

contemplates a completed event connected in some way with the present time. The

words take within their sweep any subletting, which was made in the past and has

continued up to the present time. It does not matter that the subletting was either

before the Act came into force. All such subletting are within the purview of the

22
V.K.C.Choultry vs Veeraswamy 1972 (1) MLJ 184

140
clauses. If the tenant has sublet the premises without the permission of the landlord

either before or after the coming into force of the Act he is not protected from

eviction. On the harmonious construction of the clauses all that is required is that

subsequent to 23rd October 1945 the tenant should have sublet to the premises without

the written consent of the landlord. Once this requirement is satisfied the tenant

forfeits his protection and become liable to be evicted and the statute does not impose

any further condition that the subletting must be continuing through the entire course

of eviction petition.23 Sub – letting refers to a tenant who has entered in to a

transaction of subletting and the transaction of subletting is referable to a single point

of time. The words imply that the subletting must subsist on the date when the Act

came into force unqualified by any reference to the commencement of the Act refers

to a transaction of subletting entered into before or after the commencement of the

Act.

Since a statutory tenant has merely a personal right to protect his possession

and has no estate or interest in the premises occupied by him, he cannot convey an

estate or interest in the premises occupied by him which he does not possess. A

statutory tenant by parting with possession expressly provided or clearly implies

otherwise, the persons inducted by him cannot claim the protection of the Act. 24 Party

in possession for consideration would amount to subletting. The burden of providing

subletting is on the landlord and even if direct evidence is not there circumstantial

evidence could acted upon. But, subletting cannot be inferred from the tenant is

23
M.Yusuf Zulaika vs Abdul Khader 1980 (1) MLJ 218
24
Calcutta Credit Corporation vs Happy Homes Private Limited 1968 (2) MLJ SC 42

141
 25
assisting the tenant and that the name of the business has been changed. The

evidence of the name board of the type writing institute and the license standing in the

name of the wife of the subtenant will be a case of subletting.

A statutory tenant cannot transfer his interest in the premises to another since

as per section 10 (2) (ii) (a) of the Act or sublet the entire building or any portion

thereof if the lease does not confer on him any right to do so, liable to be evicted.

Hence in the case of statutory tenant, there is no transferable interest. The relationship

between the tenant and the alleged subtenant is within the special knowledge of either

the tenant or the subtenant. Unless therefore a tenant or subtenant satisfactorily

explains the presence of the alleged subtenant in the premises the court is entire to

draw inference is clearly permissible in law.26 Where admittedly the telephone which

belonged to the second respondent continues to be in the petition premises and the

name board of the second respondent is also in the petition premises, the explanation

given by the tenant that the second respondent is also in the petition premises, the

explanation given by the tenant that the second respondent is permitted to use the

telephone and to suppress this fact to the telephone department the name board is kept

there, cannot be accepted. The tenant is guilty of unauthorized subletting and he is

liable to be evicted. 27

Where the original tenancy was in favour of three persons who were partners

of the firm and after the dissolution of the firm one of the partners was allowed to

wind up the affairs of the business this act on the part of the two partners other than

25
N.Sambandam and another vs Saraswathi Ammal 1984 (II) MLJ 116
26
Subramaniam and another vs Malarselvi and another 1986 TLNJ 187
27
M/s.Vijaya Traders by Executive Partner Saradha vs C.K.Sampath and another 1991 (II) MLJ 174

142
the third partner cannot be a transfer or subletting of the premises to the third partner.

Where a tenant allowed a vegetable merchant to keep baskets of vegetables in a room

in the premises on payment of small fee for any each basket there is no subletting of

the premises or any portion thereof. If at all the merchant was only a licensee. The

main criterion is whether the tenant had permitted a third party to occupy the premises

and had desisted himself completely of the possession of the premises or a part

thereof. If the tenant has permitted another person to use the premises, along with

him, it may not amount to subletting. The mere exhibition of a name board of a

company (different from the tenant) will not amount to transfer of possession of the

premises. 28

A tenant can be said can be aid to sublet the demised premises to a third party

only when the tenant had permitted the third party to occupy the premises and had

divested himself completely of the possession of the premises or part thereof. In other

words there must be transfer of the exclusive right to enjoy the demised premises by

the tenant in favour of a third party and the said must be in lieu of payment of some

compensation or rent. If a tenant had permitted a third to use the premises along with

him while the tenant retains legal possession, it will not amount to subletting. There

cannot be subletting unless the lessee parted with legal possession. This decision is

made following the Supreme Court decision in AIR 1990 SC 1298. The occupation of

the tenant is not wrongful during the Rent control proceedings, but from the date of

the order eviction has possession becomes wrongful and he would be liable to pay

28
M.Thangiah Nadar & Sons vs R.Rajathi Ammal 1982 (I) MLJ 161

143
damages from that date. The decision reported in AIR 1977 SC 2262 is followed in

this case.

Burden Of Proof:

The landlord has come as an applicant for eviction of the tenant and the

burden was on the landlord to prove all the ingredients which entitled him to seek

eviction. It was therefore for the landlord to establish independently of the plea of the

tenant that the tenant’s use was in breach of the terms of the lease. The onus to prove

subletting was on the landlord. It is for the landlord to establish independently his plea

that the dependently his plea that the respondent tenant has sublet the premises. It was

rightly pointed tenant has sublet the premises. It was rightly pointed out by the Rent

sublet the premises. It was rightly pointed out by the Rent Controller that is different

to get direct evidence about the sublease by the tenant and it is facts which can be

proved as much by circumstantial evidence as by direct evidence. The order of

eviction passed by the Rent Controller against the sub-tenants who are parties to the

proceedings, after the demise of the chief tenant is sustainable even when legal

representatives of the tenant are not impleaded as parties to the proceeding. 29

[C] DIFFERENT USER:

The ground different user is dealt with under section 10 (2) (ii) (b). In order to

decide whether a building let as a dwelling place is being used for a different purpose,

the nature of trade of business carried or the nature of person coming and going, the

duration of their stay, their hours of arrival and departure and purpose of their visits as

29
N.R.S.Sankara Mudaliar and others vs B.M.Haji Abubucker Maricar 1982 (2) RCJ 374

144
also the manner in which they conduct themselves when on the premises would all be

relevant and material.

The question of using the premises for additional business other than the one

agreed would amount to different user was considered by the High Court in the

present revision and held that it would amount to different user and upheld the order

of eviction by the Rent Controller. Landlord produced a document purported to be a

Lease Agreement which was opposed by the tenant that it was a unilateral document

and the same cannot be treated as Rental Agreement between the parties. On perusal

of the above said document, the Courts below held that the tenant agreed all the

conditions imposed for taking the premises on lease and signed the above said

document and so both the parties are liable to obey the conditions in terms of the said

agreement. The tenant has taken the premises to run a Hotel business in the name of

Eswari Bhavan. But contrary to the said undertaking, the tenant started a new business

in the name and style of Eswari Cycle and Motor Cycle Service. The tenant used the

premises against the purpose for which he took the building on lease and hence the

order of eviction by the Courts below on the ground of different user is not perverse

finding or illegal. 30

Landlord filed the eviction petition on the ground of different user apart from

other grounds. In so far as eviction on the ground of putting the premises for different

use is concerned, the tenants are carrying on only the Dry Leather Processing work

and the landlords have not established that the tenants are carrying on any other

business other than the Leather processing work. In the absence of any evidence to

30
S.Kayarohanam vs N.K.S.Natarajan 2014(5) CTC 31

145
that effect, the Rent Control Appellate Authority should not have ordered eviction on

the ground of different use. When there is absolutely no evidence with regard to

different use, the order of eviction by the Lower Appellate Court is not proper and the

High Court set aside the same. 31

A fugitive sporadic user of the leased premises for a limited period ought not

to be taken as the test of conversion to some other use, inconsistent with the use
32
contemplated by the original user. Though the word ‘Purpose’ occurring in this

section has not been defined in the Act, it is qualified by the other words occurring in

the sub – clause viz. other than that for which it was leased. Once the purpose of lease

is determined the evidence regarding different user of the premises by the tenant will

afford material to the controller decided whether the tenant has put the premises for

different user or not. Hence there is neither vagueness in the use of the word ‘purpose’

in section 10 (2) (ii) (b) nor any room for artistry exercise of power under the sub-

clause. 33

Where the tenancy was a residential purpose and the tenant kept scrap iron in

one room, it was held that as there was no substantial user it was sufficient to negative

the request of the landlord for eviction. As the definition includes part of the building

also, the occupation of a portion of the building by a third party squarely comes

within meaning of occupation of a substantial part of the building as contemplated by

the supreme court in Palaniappa chettiar vs Ponnuswami Pillai,34 and such an

expression “substantial portion” has been used in contrast to the minimal or trivial
31
S.Rajasekar and another vs Sartaj Begum and others 2016 (1) CTC 231
32
Abdul Razack vs Umapathy 1965 (2) MLJ SN 41
33
Patel Roadways (Pvt) Ltd., Broadway vs State of Tamil Nadu 97 LW 155 (SN)
34
1970 ACWR 487

146
portion of the building. The section requires the written consent of the landlord of the

building left out were to used for purpose other than for which it was leased. Section

10(2) (ii) (b) entitles the Rent controller to order eviction where the tenant had

building had without the written consent of the landlord used building for a purpose

other than for which it was leased out the written consent of the landlord used the

building for a purpose other than for which it was leased out.

Where the purpose for which the building was leased was evident from the

agreement that the demised premises should be used for administrative office of its

business and for no other purpose and when it was found on evidence that a third

party has been using the portion of the demised building, which is definitely contrary

to the purpose for which the building was leased out to the tenant. If the user of the

building or part thereof by some person other than the tenant to whom it has been let

out is found to be true the tenant will definitely come under the mischief of section 10

(2) (ii) (b). 35 Where the lease was for the purpose of a soda factory but it was used for

storing soda manufactured elsewhere, it was held to be different user. The premises

let out for residential purposes was used for playing cards regularly. It amounted to

premises being put to use a purpose other than that for which it was let out.

When the tenant of a premises leased as a shop for a limited period in the

absence of his wife, did some cooking and stayed there due to the stridency of

circumstances though he had his residence of his own elsewhere and where the record

did not show that the shop was not run as a shop during the period or that the business

was temporarily closed down even for a day, it was held that it would not constitute

35
Dr.N.R.Rao vs Premier Auto Electrical Limited 1980 (1) MLJ 1

147
 36
putting the leased premises to a different user entailing eviction. If the tenant

claimed that he had parted with the possession of the residential premises and that the

persons were only members of his family, it may not amount to a different or

unauthorized user. When the landlord failed to show that any substantial part of the

building was being used for a purpose different from the purpose for which the

building has been let (namely let out for non-residential purpose but a portion was

used for cooking), the claim of the landlord had to fail irrespective of the plea taken

by the tenant to resist the application. Where the premises was not let out for any

specific purpose, the use of the premises for the business of arrack by the tenant

instead of textile business will not amount to different user, as long as the interest of

the landlord is not prejudiced a small change in the user would not be actionable. 37

If a landlord files an application on the ground of conversion and complaints

about the user of the demised premises other than that for which it was let out then it

is incumbent upon him to establish notwithstanding the nature of the defense in any

particular case by the tenant, that such unauthorized user was substantial and the area

in which such prohibited occupation being carried out bears substantial proportion to

the totality of area demised by the landlord to the tenant. It reduces itself to a

question of fact. The burden was on the landlord to make out a case establishing the

dominant or primary user of the shop for a purpose different from that or which it was

let. It was for the landlord to lead proper and sufficient evidence directed towards

establishing their case under the section and if they did not do so their claim for

36
Abdul Razack vs Umapathy 1965 (2) MLJ SN 4
37
T.M.Ramaswamy Gounder vs Ranganayaki 1990 TLNJ 122

148
 38
possession will be liable to fail. It is for the landlady to establish that the demised

premises was let out only for the purpose of carrying on the textile business and not

for any other business. The non production of the lease deed on the part of the

landlady is fatal to her case.

Subletting and Different User:

Where in the earlier petition there was no Subletting although the grounds on

which eviction were under (b) of Section 10 (2) (ii) (a) and (b), it is held clauses (a)

and (b) of section 10 (2) (ii) appear to be different clauses of action. Clause (a)

involves contractual relationship. It may in certain circumstances in addition reflect

unauthorized user. But the emphasis under clauses (a) as ground for eviction is the

unauthorized subletting that is to say, putting somebody in possession as a result of a

contract and in consideration of payment of rent. But clause (b) as a ground of

eviction has nothing to do with any contractual relationship. It is merely unauthorized

user. It is therefore a different cause of action. It cannot be acceded that once the

ground under clause (a) is rejected, it automatically means that it is a decision against

clause (b) as well though to a certain extent common facts are required for purposes

of establishing the ground under clause (a). They are not same grounds and issues

related to each of those cannot be the same.

[D] ACT OF WASTE:

In short though changing the nature of the demised premises is technically

waste, yet this is not so if the change has been expressly sanctioned by the lessor, and

the mere change is not waste unless it is in fact injurious to the inheritance either by

38
Bathimal Raichand vs Laxmibai Tata 1975 (1) SCC 858

149
diminishing the value of the estate or by increasing the burden upon it or by impairing

the evidence of title. At any rate in the case of acts which may be technically waste

but in fact improve the inheritance acts as they are termed as meliorating waste the

court will acts as they are termed as meliorating waste the court will not interfere to

restrain them by injunction nor will they be a ground of forfeiture under a proviso for

re-entry on commission or waste nor in general can damages be recovered in respect

of them. To sum up to constitute voluntary waste by destruction of the premises, the

destruction must be willful or negligent. It is not waste if the premises is destroyed in

the course of reasonable user and any user is reasonable if it is for a purpose for which

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 businessman he ought to

know of. 39

An act of waste should not be misunderstood as any act done by the lessee

whether it be for improving the prejudicial to the interest of the landlord in so far as

the lessen the utilitarian and would physically and demonstrably lessen the utilitarian

value of the building and cause resultant prejudice to the landlord. 40

In so far as the eviction on the ground of act of waste is concerned, the

Landlords have not established those contentions by oral and documentary evidence.

Unless there is clinching evidence to satisfy the conscience of the court that the acts

complained to have caused damage to the building or its utility, it would be in the

39
Damodaram vs Loganatha AIR 1956 Mad 54
40
Mohideen Saheb vs Mohammed Habibullah Saheb 1975 TLNJ 53

150
region of wild speculation to conclude that the necessary ingredients or the sine quo

non of the section have been satisfied. In the case on hand, mere installation of boiler

in the premises cannot be construed as an act of waste. Therefore eviction on the

ground of act of waste is liable to set aside. 41

Having regard to the object of the provisions in section 10 (2) (iii) of the Act

that is to prevent tenants making indiscriminate alterations and additions without the

consent of the landlord affecting the value and utility of the building for any alteration

made by the petitioner which is likely to reduce the age of the building or its value,

the respondent is entitled to a order eviction of the building.

Impairment of value or utility:

The words “value of or utility” referred to in the section cannot be considered

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 tenants may add to the utility of the

building for sometime but they may cause damage to the building. There may be also

cases where they might not do any damage to the building but utility of the building

might be seriously affected. In either case the tenant should be held to have

committed acts of waste coming under the section.

Whether all acts of waste allegedly committed by the tenant would amount to

a ground for eviction or it is only those acts of waste, which would very probably

impair the value of the building or its utility, would be a ground for eviction. In other

words, is it enough to prove that some impairment has been caused to the building or

41
S.Rajasekar and another vs Sartaj Begum and others 2016 (1) CTC 231

151
the proof that the impairment was capable of diminishing the value or utility of the

building (materially) to a substantial degree must be proved to substantiate the ground

for eviction. Whether the impairment in the value or utility of the building has to be

considered from the point of view of the landlord or of the tenant. The landlords

sought for eviction of the tenant on the ground that the tenant altered the super-

structure of the rented building, without the consent of the landlords and that it has

impaired the value and utility of the building. The Rent Controller gave a finding that

the tenant has materially altered the structure of the building, without the written

consent of the landlords, and therefore, he is liable to be evicted. While giving a

finding, the Rent Controller has taken into account, the contradictory stand taken by

the tenant. In the counter, the tenant has stated that he did not make any alterations

and the asbestos sheet, which were alleged to be newly put, was originally available,

even at the time when the property was let-out. But, in the evidence, i.e., during the

cross-examination of P.W.1, the suggestion put to P.W.1 was that, it was altered only

with the permission of the landlords, thereby indirectly admitting that there had been

alterations. Apart from that, the Rent Controller has also taken into account, the newly

put up lintel and the wall over it. Considering that the age of the building was 50 to 60

years old and the additional construction would affect the value and utility of the

building, the Court has ordered eviction. This finding has been confirmed by the

appellate authority also. The tenant has challenged those findings in this Revision

Petition.

All acts of waste do not amount to a ground for eviction. It is only those acts

of waste which would very probably impair the value of the building or its utility. The

152
word "likely" in the above clause must be understood as a condition which is

reasonably probable that such acts would cause impairment to the value or utility of

the building. However, it is not enough that some impairment has been caused to the

building. The value of the building or utility thereof should have been lessened in a

reasonably substantial degree. Then only it can be said that the acts of waste are likely

to impair the value or utility of the building "materially". Admittedly, some changes

have been made by the tenant. He may plead that the changes that have been made

have not impaired the utility of the building. He may also contend that what he has

done has only added to its value. In this case, the evidence that has been let in is that

he has put up a sun-shade, dug holes in the floor and has effected changes for making,

it convenient to run a watch repairing shop. Even if it is contended that it is only

temporary, a big hall has now been converted into small rooms and made use of for

different purpose. While considering as to how far these changes have impaired

materially the utility, and value of the building, the same has to be judged and

determined from the point of view of the landlord, and not that of the tenant.”

Changing the nature of the demised premises tantamount to technical waste and the

demolition or removal of the doors and shutters, pillars, etc., are undoubtedly wilful

and reckless on the part of the tenant. It is not as if the removal of these portions was

caused in the course of reasonable user and it is certainly prejudicial to the interests of

the landlord, in that the tenant had made indiscriminate alterations and additions. In

my opinion, this also amounts to doing of an act which affects the utility of the

building, though the tenant might have added to the value of the building by putting

up a better appearance. In this view of the matter, the findings of the Courts below

153
that the tenant should be held to have committed 'acts of waste' coming under the

definition have to be upheld. The tenant has obviously made these unauthorised

constructions at his own risk and therefore, exposed himself for eviction under this

ground. Hence, the findings of the Courts below on this ground are confirmed.”
42
Further, in the judgment reported in the case of B.Ramesh vs. H.Nandeeswari,

Justice Mr.S.S.Subramani has discussed the entire case law in this aspect and held that

impairment of value or utility of building is to be considered from the point of

landlord and not of the tenant. Therefore, even assuming that repairs effected by the

tenant, in the view of the tenant, the utility of the building is not impaired that should

not be taken into consideration and the utility of the building should be considered

from the view point of the landlord.”

The submissions made on behalf of the petitioners / tenants was that the 'act of

waste' must be judged from an objective standard and if the subjective standard is

adopted, it would likely to lead to injustice. It is also pointed out that, whenever there

is no express provision governing the relationship between the landlord and tenant, in

the Buildings Act, then, provisions of Transfer of Property Act can be invoked to find

out whether the act complained of against the tenant would be a permissible one or

impermissible one. The meaning given in that Lexicon reads thus: Impair: To

diminish in quality, value, excellence or strength of a thing. The word 'impair' means

to make worse; to weaken; to enfeeble. To make or become worse or less; to lessen,

reduce or diminish the quantity or quality.” It cannot be disputed that, it is the

objective standard that would be applicable to find out whether there is any

42
2000(2) MLJ 527

154
impairment to the value and utility of the building. It is equally true that it is for the

landlord to prove the same. But, so far as this case is concerned, from the

contradictory stand taken by the tenant himself, it is proved that the tenant has altered

the structure of the building, without the consent of the landlords. It is only in those

cases, where the provisions of the Act do not govern the relationship, the question of

invoking the provisions of the Transfer of Property Act arise. But, in this case, the

relationship is governed by the provisions of the Act and hence, there is no necessity

of invoking the provisions of the Transfer of Property Act. Therefore, the decisions

relied on the side of the tenants will not help their case. As per the reported decisions,

the impairment in the value and utility must be judged from the landlords' point of

view. In the case on hand, it is the case of the landlords that because of the alterations

done, the value and utility of the building has been impaired. The value of utility may

be different for the landlords and for the tenant depending upon the need. What is

useful for the tenant need not be useful for the landlord and vice-versa. The works

carried out by a tenant may increase the material value, but may affect the utilitarian

value. Therefore, the reasons stated by the Courts below on a finding of fact does not

require any interference from this Court. Those findings cannot be said to be

perverse.43

Amounts to Acts of Waste:

The construction of an overhead tank on the top floor of the building which is

not in a condition to bear the additional weight is a waste within the meaning of the

Act. If a watchman in a nonresidential building is found cooking in the premises and

43
B. Selvaraj & Others vs Krishna Reddy & Another CDJ 2014 MHC 4343

155
walls are damaged, different considerations would prevail. It is an act of waste. The

tenant without the knowledge of the owner deliberately put a staircase and balcony

thus adding additional weight to the existing building through the opening over the

top of the staircase and he should be held to have committed act of waste within the

meaning of the section. If the lessee chose to make unauthorized construction at his

own risk and the lessor did not take action, the latter on that account cannot be

estopped from filing a suit for ejectment. 44

Changing the nature of the demised premises tantamount to technical waste

and the demolition or removal of the doors and shutters, pillars etc., will clearly

amount to doing of an act, which affects the utility of the building, though by such

acts the tenant might have added to the value of the building by putting up a better
45
appearance. Removal of one door in the main entrance and blocking the drainage

systems by storing chips any hay stacks and using it where the tenant has replaced the

wooden doors with rolling shutters and in the process has lowered the floor level, the

same will amount to acts of waste considering the age of the building and other

factors.

Not Amount to Acts of Waste:

Where the tenant has replaced the worn out roof with new roof and has also

replaced the mud walls and the wooden pillars with brick walls and brick pillars and

has thus enhanced the value of the building the landlord cannot succeed in his case in

the absence of proving how the improvements made by the tenant affects the

44
J.S.Sethi vs R.B.B.D. Jain 1972 (2) SCC 613
45
Sha Nirbhayala Bhahadurmal vs Krishna Rao M.Nikam 1982 (I) MLJ 376

156
 46
utilitarian value of the building. The user of a garage as a room by the tenant

cannot be said to the an act of waste in the absence of any evidence to show that such

user has materially impaired the value or utility of the building. The acts of waste

committed by the tenant should be one which would materially impair the value or

utility of the building. Putting up a sunshade in front of the shop is not an act of waste

which in any way could be said to impair materially the value or utility of the

building.

Where sufficient evidence has not been placed before the court for coming to

the conclusion whether the tenant has caused such damage as to impair materially the

value or utility of the building in the interest of the parties, the case can be remanded

to the Appellate Authority giving opportunity to both the landlord and tenant to

adduce evidence, preferably an expert opinion to enable the Appellate Authority to

come to the conclusion whether the tenant has really caused damage as to impair

materially the value or utility of the building. 47

[E] ILLEGAL OR IMMORAL PURPOSE:

Section 10 (2) (iv) deals with the eviction on the ground of using the building

for the illegal or immoral purpose. Merely because a tenant played cards for stakes in

the building in his occupation on a solitary occasion and was convicted under the city

Police Act, it is almost fantastic to say that the building has been converted into a

gambling den. If the main purpose of the lease continues and in the course of

carrying out that purpose the tenant indulged in an isolated illegal act, it would not

46
R.R.Dinakaran vs S.L.Chinna Kuppuswami 99 LW 678
47
P.M.Sidique vs Prince of Arcot Edowment 1964 (1) MLJ 97

157
amount to an use for an illegal purpose. Much more than a single instance might be

necessary for an inference that the purpose of the tenancy has become different.

[F] ACTS OF NUISANCE:

What the Act requires under this section is either the tenant is guilty of such

acts and conduct which are a source of nuisance to those who occupy other portions in

the building, a portion of which he himself occupies as a tenant, or such acts and

conduct amount to nuisance to the occupiers of the building in the neighbourhood.

There is nothing in the provision to suggest that the acts and conduct complained of

against a tenant should be committed within the precincts of the premises. 48

` It is interesting to find from the English decisions in how many ways a tenant

can become a nuisance and cause annoyance. Some of these instances are tenant

systematic discourtesy to his neighbours, permitting sink to become blocked and

overflow into the premises of another tenant, tenant’s persistent noisy abuse of the

landlord as thief, murderer, whore, indecent exposure or exhibition of one’s self,

keeping brothel and all other acts tending to affect public morals are instances of

nuisance of annoyance. Other instances are running of hospital or sanatorium for

infectious diseases. Smoke or obnoxious vapour, keeping wild animal dancing, noisy

hammering from workshop etc.

Where a tenant has been the cause of frequent quarrels and he made it

impossible for the tenant occupying the other portions to lie in the house along with

him order of eviction was rightly passed against him. Where the tenant and her

daughter indulged in quarrels among themselves using vulgar and indecent language

48
A.Doss Arokianathan vs S.Rita 1984 (II) MLJ 194

158
such conduct would amount to nuisance entailing eviction under the section. Frequent

quarrels and use of abusive language indulged in by the servants of the tenants by

reason of their coming to the back side of the premises where the daughters and wife

of the landlord take bath constitute nuisance. Merely because there had not been a
49
police complainant nor was there an enquiry it does not cease to be a nuisance.

Where apart from the normal activities, the tenant is indulging in constant hammering

in the premises such acts would amount to nuisance.

The fact that the tenant was responsible for verbal quarrels with his landlord is

not a sufficient ground for eviction. Mere fact that the tenant brought on the rented

premises persons whom the landlord did not like or with whom the landlord was not

in good terms is not a kind of annoyance which the law can recognize or remedy and

it cannot be a ground for eviction. Mere possession of a dog or even dogs by the

tenant will not by itself constitute a nuisance within the meaning of the section.

[G] CEASE TO OCCUPY:

Section 10 (2) (vi) depicts that if a tenant fails to occupy the demised premises

for more than four months without assigning any bonafide reason, he is liable to be

evicted on that ground along. Where it was indisputable that the tenant had not only

vacated the suit and the tenant had shifted his business to another premises it was held

that eviction must ensure. The onus of proving that the tenant was not in occupation

of the premises for a period of more than four months continuously is entirely on the

landlord who alleges the same. 50

49
Davey & Sons vs Liberty Dry Cleaners 1980 TLNJ 15
50
Srinivasan vs Ramaswamy Chettiar 1978 (2) MLJ 232

159
 Where the evidence clearly and categorically disclosed that the tenant was in

effective possession of the premises in question by not only keeping the articles

required in connection with his business there but also carrying on though not

regularly his business through his agents, it is held that the tenant was still in

occupation of the building. Though at first sight, the circumstance that meter card in

respect of the premises indicated that the door of the premises had remained locked

i.e., for more that four months, it is not to improbable that the premises remained

locked only on those days on which the meter reader visited the premises and

therefore it is not possible to infer that the premises had been kept locked by the

tenant for a continuous period of four months.

Mere ceasing to occupy a building for a continuous period of four months is

itself not enough to entitle a landlord for an order of eviction. It has in addition to be

established that the conduct of the tenant in ceasing to occupy the building is without

a reasonable cause. The primary burden of proving the ingredient of Section 10 (2)

(vi) is on the landlord though the tenant cannot be absolved of the responsibilities to

adduce the necessary evidence because the facts with regard to his occupation are

facts within his special knowledge. 51

[H] DENIAL OF TITLE:

The language of section 10 (1) second provision is only an enabling provision.

The section merely says landlord shall be entitled to sue for eviction of the tenant in

Civil Court and the court may pass a decree for eviction. This does not mean that the

landlord shall sue in the civil court and obtain an order for eviction before the civil

51
M.Z.M.Duraiappa Nadar vs P.Thirupurasundari Ammal 103 LW 46 SN

160
court. The jurisdiction is not confined to civil court. Of course, the landlord should

get his title declared in the civil court. Disputed questions of the relationship of

landlord and tenant have also to be decided by the Rent controller. If the controller

decides that there is no such relationship, the proceeding has to terminate without

deciding the main question of eviction, but if on the other hand if it is found that the

relationship is that of landlord and tenant the further proceedings have to go on. 52

Denial of title should be bonafide and should not be malafide. The contention

of the tenant is that there is no relationship of landlord and tenant between them and

the Landlord had no title and so the initiation of proceedings under Rent Control Act

is invalid. The issue to be considered by the High Court in revision is whether there is

justification in the denial of title or denial of title is towards procrastination. The

tenant has filed earlier suit for permanent injunction and in the said suit the tenant has

recognized the Landlords herein as owners of the property. As already extracted by

the Appellate Court when the tenants had admitted the relationship of landlord and

tenant in a prior suit for permanent injunction it is not open to the tenant to turn round

and deny the ownership of the landlords. Under such circumstances the denial of title

of the landlord is malafide and not bonafide and hence the order of eviction was

upheld. 53

Landlord filed petition for eviction on the ground of denial of title and

bonafide requirement for personal requirement. The Courts below ordered eviction.

The tenants aggrieved by the order of eviction preferred the revision before High

52
Kesava Naicker vs Sivagnana Mudaliar 93 LW 484
53
M.Palanisamy vs P.Rajagopalan & another 2014(5) CTC 94

161
Court. The evidence reveals that the suit filed by one Balasubramaniam was for a

decree against his mother for recovery of the net rent for one year preceding the filing

of the suit, for permanent injunction against his mother not to collect rent from the

tenants and for mandatory injunction against the tenants to pay the rent to him. When

such a case came to be filed in which the tenants were arrayed as defendants and a

mandatory injunction had also been sought for against them to pay the rent, they

could have very well tendered the rent in the civil case itself. Even if it is assumed

that the dispute between Balasubramaniam and his mother made the tenants to feel

that it was not safe to pay the rent to either of them as they were not sure as to who

was entitled to receive the rent, they could have deposited the rent with the competent

authority under section 9(3) of the Act and intimated such deposit to the Rent

Controller having jurisdiction. The tenants filed the petitions before the Revenue

Divisional Officer, Coimbatore i.e. the Competent Authority under Section 9(3) of the

Act seeking leave to deposit the rent that too nearly after committing default for

nearly six years. The tenants have not chosen to first deposit the amount with the

Authority and immediately submit a report to the Rent Controller to enable the Rent

Controller to take a decision under Section 9(4) of the Act. On the other hand thinking

that the decision making authority was the prescribed authority, they filed the petition

before RDO under Section 9(3) of the Act which is not at all necessary and kept it

pending for nearly four years without making deposit. The said act on the part of the

tenants will show that the tenants were indulged in abuse of process. The very fact

that the tenants did not file any appeal against the decree in the suit, will make it clear

that the acts of the tenants were not bonafide and they were not justified in seeking an

162
order from RDO after such dispute had been resolved by the civil court. Even after the

decree by the Trial court and in the absence of any appeal, the tenants did not make

payment of rent to the landlord. On the other hand they were bent upon getting an

order from the RDO who is not competent to pass such an order without even

bringing the matter to the notice of the Rent Controller by submitting a report as

contemplated under Section 9(3) of the Act. The ingenious method adopted by the

tenants to take sides with the mother of the landlord will make it clear that their denial

of title was not bonafide. Hence the tenants are liable to be evicted as per order of the

Rent Controller which was upheld by the High Court. 54

It is not open to the tenant to plead taking advantage of the plain language of

the second proviso to section 10 (1) that the denial as regards the title of the landlord

might even mean and include the vesting of the title to the property in a third party.

On the other hand, such denial of title of the landlord would be the resultant of a

himself and not by setting up title in the third party. In case of denial of title, the Rent

Controller has no jurisdiction to decide the issue of title but has to only decide

whether there is a bonafide dispute as to the landlord’s title or not.

Denial of Title-Bonafide:

Where there is no controversy that the tenant denies the title of the landlord

only by putting forward the contention that somebody else had become the owner of

the property and to such a situation the principle of estoppel contemplated by section

116 of the Transfer of property Act would not apply. Where there is an immediate

threat of eviction to the tenant on the ground that the tenanted premises are built on

54
M.K.Alan (Deceased) & others vs R.Balasubramanian 2015 (4) CTC 378

163
Government land, then the tenant is not estopped from denying the title of the

landlord. 55

Denial of Title-Not Bonafide:

A denial is nonetheless a denial though a person so denying purports to give

reasons which may have a qualifying effect. Where the tenant went to the extent of

stating that the landlord had not put up any building and he was entitled to the ent for

vacant site only, it was held that it was sufficient to indicate the intention of the tenant

to set up title in himself for the superstructure and it was a case of willful denial. In

the case of denial of title of the landlord, the tenant himself is conferred only a limited

right, provided the denial is bonafide in nature. In such a case, it will be preposterous

for the sub tenant to say that he has an independent right to deny the title of the

landlord and that such a right will be available to him even in those cases where the

tenant himself did not choose to deny the title of the landlord.56 The tenant cannot

question the right of the landlord to possess the superstructure with lease-hold right

and deny tenancy on that ground. Such a denial is not a bonafide denial of title.

The mere statement that he was not aware of in the particular set of facts as to

who was his landlord is not to say that he even denied title of his landlord. Mere say

that it is an expressed denial of title. The provisions of section 111 (g) of Transfer of

Property Act cannot be lost sight of when determining the case of forfeiture and dis-

claimer. The plea on behalf of husband that the property was purchased out of his

own funds by way of benami in the name of his wife is not available in view of the

55
P.Sella Pillai vs L.Balaraman 1983 (I) RCJ 472 SN
56
Pattabhiramayya vs Rangappa Gounder 1981 TLNJ 56

164
Benami Act. The denial of the title by the husband, on this ground of his wife in

respect of the petition premises is not bonafide and the husband is liable to be evicted

under Section 10 (2) (vii) of the Act. 57

[I] PERSONAL OCCUPATION:

Section 10 (3) deals with the ground of personal occupation for eviction. This

section consists of three clauses namely clause (i) which deals with the residential

buildings, clause (ii) deals with buildings used for keeping vehicle clause (iii) deals

with the non residential buildings. Under this section a landlord can ask for his own

occupation only if he has no other building of his own. Primary purpose for which

the building is let out or used should be the determining factor. Using a room for a

non residential purpose will never make the house itself into one residential purpose

will never make the house itself into one used for not residential purpose. A lawyer

may use a room of his house for giving legal advice to his clients, an astrologer may

use a room of his house for giving prediction, a barber may use a room of his house

for shaving his clients. But such a use of a room will never make the house itself one

used for non-residential purpose. Where the landlord was admittedly residing in the

other portion of the building and no other portion was let out and it was that only a

room was used for running a typewriting institute, it was held that mere user of a

room in a residential building as a whole would not make it a non residential building

as to bar the landlord from availing of the provision of Section 10 (3) (a) (i) of the

Act. 58

57
Rajammal vs P.K.Pillai and J.H.Moorthy & others 1991 (2) LW 253
58
Rangaswamy Aiyengar vs Postman co. operative Credit Society 91 LW 403

165
 The tenanted premises is non residential in character. At the time when the

petition was filed, the landlords were carrying on the business of Mahalakshmi

Jewellers. The Landlords though owns other non residential premises, they have not

occupied any of them. During the pendency of the Rent Control Appeal, the Tenant

itself has brought to the notice of the Appellate Authority that the shop in which

jewellery business was carried on has been demolished. That place has been altered as

a passage to reach the eastern portion. There is no allegation that any other shop

premises of the Landlords is vacant or in the occupation of the Landlords. The

Landlords have been in the business of Gold Covering Jewellers. They have stated

that they continue to carry on the business and for that purpose they need the shop

premises in the possession of the Revision Petitioner. Further, the subsequent events

show that in view of the demolition of the shop premises in the possession of the

Landlords, it has become necessary for the landlords to ask for the possession of the

tenanted shop premises from the revision petitioner. Landlord owns other shops in

city and he did not occupy the same at the time of filing of eviction petition. Rent

Controller dismissed the petition and the Appellate Authority ordered eviction by

setting aside order of the Rent Controller. The tenant filed the revision petition. Held,

the suitability of the place of business is the choice of the Landlords depending upon

several aspects. The tenant cannot direct the landlords to choose a particular place to

run their business. 59

The Petition has been filed for evicting the tenants on the ground of owner’s

occupation. There is no dispute with regard to the jural relationship of the parties. It is

59
National Textile Corporation Ltd., vs Ettappan & Sons 2016(1) CTC 627

166
the case of the landlords that the 1st Landlord’s husband had started leather business in

1977 at Bangalore under the name and style of M/s.Mysore Leather Corporation. The

business was closed by the State of Karnataka. In order to start their own business in

the petition property, the landlords have filed the eviction petition. The landlords also

registered with the Government of Tamil Nadu for setting up a manufacturing unit.

They also have all the machineries for running the said business. However the tenants

contended that landlords do not require the premises for their own use and occupation

for the reason that they are not running their business in some other rental premises.

The Hon’ble Supreme court held that the landlord can seek eviction of the tenant for

benefit of member of his family notwithstanding that such landlord is himself

occupying building of his own for carrying business so long as such member of

family for whose benefit eviction is sought does not occupy any premises of his own

in city or town. Further, the tenant cannot dictate to the landlord the portion or

premises landlord should choose. This court further held that the landlord or the

person for whom the eviction is sought for is not already carrying on business the

requirement on the ground of own use and occupation can be ordered if steps have

been taken by the landlord for commencement of the business. It is not necessary for

the landlord to carry on business for filing eviction application under section

10(3)(a)(iii) and it is sufficient if he has the bonafide intention to start the business. In

the case on hand the landlords have already registered with the Government of Tamil

Nadu for setting up of a manufacturing unit under the name and style of M/s.Sofia

Exports for manufacturing of leather shoe lining material. It is evident from the

documentary evidence that the landlords have established their intention to start the

167
business in the petition premises. It is not the case of tenants that the landlords are

owning some other property for running the business. That being the case when the

landlords established their intention to start the business in the premises, the order of

eviction on the ground of own use and occupation is just and proper. 60

The requirement of the Landlord for establishment of separate family for

brother’s family would be considered as for own occupation of the Landlord. The

Rent Controller ordered eviction on the ground of owner’s occupation and confirmed

by the Appellate Authority which was under challenge in revision before High Court.

The High Court upheld the order of eviction on the ground of requirement for own

use and occupation. The Landlord had pleaded that their family is a Joint family and

after the demise of his elder brother, the elder brother’s family has been facing

problems in joint living. Hence, the premise is required for having a separate

establishment for the brother’s family. When the landlord in having a Joint Family, it

should be viewed in that sense and not in the strict sense of the members of the

family. It is also established by the Landlord that the petition mentioned premises is

required for establishing a separate family for the widow of the deceased elder brother

and children as presently they are all living in a Joint Family set up. The Authorities

below found that such a requirement is bonafide and ordered eviction which was

confirmed by the High Court. 61

Eviction on the ground of own use and occupation. Landlady seeking eviction

of tenant for providing office space to her son practicing as Advocate. Eviction order

60
S.Rajasekar and another vs Sartaj Begum and others 2016 (1) CTC 231
61
G.R.Nathan vs P.S.Jagadeesa Iyengar (died) & others 2015 (2) CTC 420

168
passed by the Rent Controller and reversed by the Appellate Authority on the ground

that Advocate profession does not come within the definition of business. The

landlady preferred the revision. The Hon’ble Supreme Court held that the scheme of

the Act, is to prevent unreasonable eviction of tenants by landlords and to provide for

eviction on specified grounds. The Act is of general application and its protection not

confined to any classes of tenants not is the right to evict under the Act limited to any

class of landlords. There is no reason why a landlord who is a member of the Legal or

Medical profession and who requires the premises for carrying on the practice of his

profession should be wholly debarred from obtaining possession of the premises. It is

impossible to discover any reason for so making a discrimination against the liberal

professions. But, that would be the result if the expression business is given a narrow

meaning which the appellant wants us to give to that expression. It would indeed be

anomalous to hold that all the provisions of the Act including Section 4, which

provides for the determination of fair rent and section 10(1) which bars the eviction of

tenants apply to non residential buildings owned by an advocate but not section 10(3)

(a) (iii) only. In our view the expression business occurring in Section 10(3) (a) (iii) is

used in a wide sense so as to include the practice of the profession of an Advocate.

The meaning of business as stated in Black’s Law dictionary was employment,

occupation, profession or commercial activity engaged in for gain or livelihood.

Activity or enterprise for gain, benefit, advantage or livelihood. In view of the

decisions of the Supreme Court, the contention raised on that ground cannot stand. 62

62
N.Gangabai vs D.Jeyachandran 2015 (4) CTC 519

169
 When a portion or the part of a house which is meant for residential purpose

was made use of for a non residential purpose for a certain number of years, it cannot

be said that it had acquired independently the character of a non residential building

permanently. In view of the specific provision with reference to eviction in respect of

residential as well as non residential building in section 10 (3) of the Act, the

contention of the landlord that even in the case of non residential building, he can

claim to evict the tenant for his own use for residential purpose as supported by

section 21 of the Act cannot be accepted. 63 Though the building in question is partly

residential and partly non residential the courts below have found that it is

predominantly non residential and it has to be proceeded on that basis. Where the

evidence on record goes to show that the premises though structurally a residential

building has been utilized for laundry purposes and where the landlord himself

addressed the authorities for grant of license for the tenant to secure three phase

current and secured the same for his laundry business it was held that the premises

was non residential. The contract of tenancy is single and indivisible and in the

absence of any statutory provision to that effect, it is not open to the court to divide it

into two contracts one for letting for residential purpose and the other for non

residential purpose and to grant relief under the section of the Act limited to that

portion of the demised property which is being used for residential purpose.

The requirement of his own occupation as a ground of eviction includes the

requirement for his family and dependants. It is proper and desirable for the court to

bear in mind the context of social order and habits and ideals of living, religious and

63
T.N.Lakshmanan vs M/s.S.T.Hajee Alavudeen Sahib Sons 1980 (I) MLJ 9

170
socio-religious customs of the community to which the individual belongs and then

come to the conclusion on the facts of each case. Thus the various courts in

determining the expression “his own” have held that it does not necessarily mean the

particular individual alone but must be interpreted to include the individual’s family

and also dependents. The rationale behind the inclusion of the son is that the ground

of eviction should be available for the occupation of the landlord’s nearest kith and

kin. By introducing son’s requirement the object of the legislature was not to whittle

down the interpretation of the expression “if the landlord requires it for his own

occupation” made in several decisions of the Act. The landlady’s husband is

occupying a small portion in his wife’s premises for non residential purpose. The rest

of the building is used as residence for the landlady. The landlady is entitled to

residence for the landlady. The landlady is entitled to maintain a petition for eviction
64
for her husband’s business. The daughter of the landlord though married would

undoubtedly be a member of his family within the meaning of the section 10 (3) (a) (i)

of the Act. The definition of family in section 2[6-A] of the Act does not exclude a

married daughter. In its absence the word daughter occurring in section 2 has got to

be given the widest amplitude to include married daughter, unmarried daughter and

even a widowed daughter. An application for eviction by the landlord on the ground

of requirement of a building for the use of his married daughter is maintainable, since
65
the married daughter is a member of the family under section 2 of the Act. When a

co-parcener applies for possession under section 10 (3)(a) (i) he will be entitled to an

64
Sarojini Ammal vs Sohanlal Jain 1984 (I) MLJ 50
65
Kanyalal Chandanmul vs T.Raghavalu Naidu 96 LW 686

171
order if he establishes that he requires the house for his own occupation and if he is

himself not in occupation of another residential building. Where the statement of the

landlord that there was not enough accommodation for all the members of his family

to live together and that separate accommodation is needed for the second son and

daughter –in-law remained uncontradicted, it was held that the requirements of the

landlord was bonafide. The primary requirement is that the landlord should not

occupy a residential building of his own. The accent should not be on payment or non

payment of rent for the premises which he is occupying but the accent should be on

the fact whether the building in which he is residing or which he is occupying is his

own or not. Under section 10 (3) (i) the landlord is bound to prove that he is not

occupying any buildings of his own or that of the members of his family in the town

or city, as the case may be. The landlord lived in a rented building. In the petition for

eviction against the tenant on the ground of bonafide requirement for his own

occupation the landlord did not examine himself. It has been held it is not sufficient

reason to hold that his evidence cannot be accepted and that the danger of being
66
evicted from the rented building need not be proved. The Condition imposed under

Section 10(3) as per words “Not occupying a residential building of his own” is to be

understood with reference to the person for whose benefit the building is required. It

must be noted under section 10(3)(a)(i) the word occupation is used and not the word

possession. The mere possession or occupation by the landlord of a fractional share in

the premises belonging to the deceased mother cannot deprive them of their right to

66
Ambrose vs Abdul Rahim 1989 (I) MLJ 344

172
 67
claim an order for eviction against the petitioners. Of course it gives him a choice

since the proviso states that it shall be lawful for such a landlord to indicate the

particular dwelling house among a plurality of houses owned by him, possession of

which he intended to recover. The tenant has no right to dictate to the landlord which

house he should choose. It is not for the tenant to dictate to the landlord as to which

portion he must choose for his personal occupation or for the occupation of any

member of his family. The Reasons for not occupying the first floor that the aged

mother-in-law is 93 years old is a valid reason for not occupying the first floor. The

requirement of the petitioner of the ground floor is hence held bonafide. 68

Even with reference to non residential buildings the Act makes a distinction

between two sets of non residential buildings; one is under Section 10(3)(a)(ii) and

the other under Section 10(3)(a)(iii). The only type of non residential building

expressly dealt with under Section 10 (3)(a)(ii) is a non residential building which is

used for the purpose of keeping a vehicle or adapted for such use. Under Section

10(3)(a)(ii), two conditions must be satisfied namely (1) that the non residential

building should be used for the purpose of keeping a vehicle or adapted for such use,

(2) the landlord or any member of his family requiring the said building is not

occupying any such building. When the landlord is not occupying any such building

and it is admitted that the said building is used for the purpose of parking vehicles, the

landlord is entitled to an order of eviction. 69

67
M/s.Shaporji Pollurji Company Private Limited and another vs A.Nishant and another 1991 (1) MLJ
229
68
S.K.Babu Syed vs A.Zubaida Bee 1991 (1) MLJ 412
69
C.Kuppuswamy Naidu vs Krishtappa Chetty (died) 1985 (I) MLJ 92

173
 What is envisaged under this section is not only a non residential building but

also a building which can be adapted for such use. The building need not be used as a

garage at the time of filing the petition. It may either be used as a garage or

alternatively it may be of such structural design that it can be used as a garage with

certain adaptations.

When the landlord does not make any preparations for starting the business in

the petition premises and also fails to occupy another premises when it fell vacant, the

requirement of the landlord cannot be said to be bonafide. The conditions for

obtaining possession of a non residential building are (1) the building should be non

residential in character, (2) the landlord should be carrying on business on the date of

application for eviction, (3) the landlord should not be occupying any building

belonging to him in respect of the business and claim is bonafide for his business need

and is not found to be indirect or oblique motive for evicting the tenant either with a

view to obtaining more rent than the premises already fetched or with a view to harass

the tenant in possession. To obtain possession of a non residential building, the

following requirements must be satisfied:-

(1) The building should be non residential character.

(2) The landlord should be carrying on business on the date of his

application for eviction.

(3) The landlord should not be occupying any other non residential

building belonging to him for the purpose of his business and

174
 (4) The landlord’s claim is bonafide for his business needs and not based

on oblique motives like trying to obtain more rent or to harass the

tenant.

A landlord cannot invoke this section to compel his tenant to make way for his foster

son however close the landlord may feel towards that foster son. The findings that the

requirement of landlord was not bonafide on the ground that the petition under this

section of the Act was filed with oblique motive of getting enhanced rent and also

fabulous advance was sustained in the revision on the ground that concurrent finding

cannot be touched by the High Court exercising jurisdiction under Section 25 of the
70
Act. The conditions necessary for obtaining orders under this section are as

follows:- (1) the petition mentioned premises must be non residential, (2) the

petitioner’s son for whose business the petitioner requires the petition mentioned

shop must carry on business, (3) the petitioner’s son for whose business the petitioner

requires the shop are not occupying for the purpose of such business as non residential

building of their own, and (4) the petitioner’s requirement of the petition mentioned

shop for the business of his sons must be bonafide. 71 Though section would insist that

the landlord must actually carrying on business it is too late in the day to contend that

there must be an actual business run on the date of petition. It is enough if bonafide

preparations to commence business are being made. To invoke the section it is enough

if the landlord make bonafide preparations to commence business and it is not

necessary that he should be carrying on business on the date of the petition. Where the

70
M.Rajagopala Iyer vs Top in Dry Cleaners, Madras 24 1992 (1) MLJ 167
71
A.M.Dhanapal Chettiar vs T.P.Sundaram and others 1991 (1) MLJ 490

175
landlord filed a petition for eviction on the ground of own requirement for doing

commission business of his father-in-law and also proves that his father-in-law also

was doing such business held that no elaborate preparations are necessary for setting

up or the establishment of such commission business and that his requirement is

bonafide. 72 Since admittedly the landlord has not let in any evidence to show that he

is making arrangements to carry on his own business in automobile spare parts in the

building. His requirement for own occupation is not acceptable. The landlord filed an

application for eviction on the ground of own requirement for running jewellery shop.

Since the landlord was not carrying on any business on the date of filing the

application nor took any steps to commence the jewellery shop, and not even applied

for license to run the jewellery shop, the requirement of the landlord was held not

bonafide. In an application under this section the landlord must be carrying on any

business in a rented premises for which he requires the premises under the occupation

of the tenant. If the landlord has closed down his business on the date of filing the

petition then the landlord cannot maintain an application under this section even

though he has rich experience in business since the requirement under this section is

not complied with. The Act that the landlord is in occupation of a residential building

in which he is carrying on his business is not sufficient to prevent him from obtaining

possession of a non residential building of his own for carrying on his own business

under the section. Where the landlord is admittedly carrying on his own soap

manufacturing business after obtaining proper license, it is not for the tenant to say

72
Krishnamswamy Naicker vs C.Veerababu Pillai and two others 1990 TLNJ 138

176
that the petition premises is neither suitable nor sufficient for the business conducted

by the landlord. 73

[J] ADDITIONAL ACCOMMODATION:

The ground of additional accommodation for eviction is embodied under

section 10(3)(c). The purpose of this sub section would be that if the landlord is in

occupation of a portion of a residential or non residential building he would be

entitled to the other portion and there is no warrant in the section restricting his right

to activities which are commercial in nature. The expression “as the case may be”

occurring in the section has only one meaning that is the requirement of additional

accommodation may be for residential or for non residential purpose. A single

petition filed by the landlord under this section for additional accommodation is

maintainable if the requirement is bonafide. The landlord can ask for additional

accommodation for residential purpose only if the tenancy is residential. Similarly, for
74
non residential purposes only if the tenancy is non residential. “Addition” means in

addition to what is existing. This is the reason that the landlord who is using a portion

for residential purposes must require the additional accommodation for residential

purposes which will constitute “addition”. Likewise the reverse is the case for non

residential purposes. Under the section the only requirement is that the landlord

should be in occupation of a portion of the building and the additional

accommodation sought for should be bonafide. Whatever meaning is attributed to the

word “building” occurring in this section the first thing before the section could be

73
Natarajan vs V.M.Sundaram 106 LW 595
74
Ramiah Chettiar vs Rajagopal 1982 (II) MLJ (NRC) 1

177
invoked that has to be ascertained is whether the building is a residential building or a

non residential building. If it is a residential building the landlord can obtain

additional accommodation only for purpose of his residence. If it is a non residential

building the landlord can obtain additional accommodation only for the purpose of his

business which he is carrying on. The word landlord occurring in this section has to

be interpreted liberally and the requirement of the landlord is to be taken to include

the requirements of the members of his family also. Hence, an application filed by the

landlord seeking additional accommodation in order to enable his son to live

comfortably with the members of his family is maintainable and the tenant cannot
75
object the same on the question of relative hardship to him. When a superstructure

consists of two or more tenements and each tenement is an independent unit distinct

and separate from the other, the provision would of no application because each

tenement would be a unit and not a part of the unit. It is only where there is a unit of

the accommodation out of which a part is under the tenancy and the remaining part is

in the occupation of the landlord and the provision is attracted. Where there is

absolutely no evidence that the three rooms were under the lock and key of the

landlord and it was also clear from the evidence that the landlord was not in physical
76
possession of the said three rooms then the Section 10 (3) (c) was not applicable.

Once it is conceded the demand is bonafide it is for the landlord to choose the

portions for his bonafide it is for the landlord to choose the portions for his additional

accommodation and it is not for the tenant to dictate or direct the landlord to take such

75
R.V.Dharmalinga Mudaliar vs K.Annamalai 1982 (1) RCJ 699
76
Rahmat Bai vs Ahmed Sheriff 1981 (2) MLJ 148

178
and such portion for additional accommodation. The fact that there are other tenants

in other portions against whom the landlord could proceed is not a ground for

depriving the landlord for additional accommodation. Under this section a landlord

can seek for additional accommodation of any residential or non residential building

only if he requires the same for his own purpose and not for the purpose of the

members of the family. What is material under this section is the need of the landlord

alone for his own residence or non residential purposes of the members of the family.

[K] DEMOLITION AND RECONSTRUCTION:

Section 14 deals with the demolition and reconstruction as a ground for

eviction. This section stipulates that the landlord can ask for eviction of the tenants on

the ground of demolition and reconstruction. For this section the condition of the

building, then the age of the building etc., are to be taken into consideration for

passing a decree for eviction. It is not necessary that the building should be very old

and decrepit to enable the landlord to claim that the immediate purpose was for

demolition of the building. Section 14(1)(b) is not rendered inapplicable merely

because the building is not old or dilapidated but is in a good condition.

Motive for demolition and reconstruction is wholly irrelevant. The contention

of the tenant is that the building is in a very good condition and not in dilapidated

condition and therefore the requirement towards demolition and reconstruction is a

motivated one. The condition of the building need not have deteriorated to the extent

of the building being in the danger of crumbling down but the condition must be to

the extent of indicating a bonafide requirement for the timely and true purpose of

demolition and reconstruction. The tenant failed to establish that there is no bonafides

179
on the part of the Landlord in seeking to get back the building for the purpose of

demolition and reconstruction. Suffice to point out that motive for demolition and

reconstruction is wholly irrelevant in a petition for eviction under section 14(1)(b).

Merely because the building is not old or dilapidated, it cannot be contended that it

does not require demolition and reconstruction. The requirement on the ground of

demolition and reconstruction is not bonafide cannot be accepted. 77

In other words when the intention of the landlord for demolition and

reconstruction is proved to be genuine and not spurious or suspicious, he will be

entitled to an order of eviction under this section whether or not the condition of the

building is such as to require immediate demolition, the age and dilapidated condition

of the building not being a sine qua non for such eviction. While the age and

condition of the building are relevant factors to be taken into account it is not possible

to insist that the condition of the building must be such that there is an imminent

threat of the same crumbling down in the near future and only in such a contingency,

the landlord could resort to the process under section 14 (1)(b) of the Act. There is no

warrant for applying such stringent tests to discountenance the plea of the landlord for

requiring the building for demolition and reconstruction of a better structure either to

get a better return or to accommodate himself comfortably. Under this section, the

only factor to be proved by the landlord is that his requirement of the building for

demolishing it for the purpose of erection is bonafide. The term bonafides includes the

means of the landlord for reconstruction of the building and other steps taken by him

in that regard. The condition of the building is not a relevant consideration for

77
M.Palanisamy vs P.Rajagopalan & another 2014(5) CTC 94

180
determination of such bonafide. The landlord should satisfy one essential condition

that the condition of the building is such that it required immediate demolition and

reconstruction. The decision in P.Orr & Sons78 is relied on.

The Landlord preferred the petition for eviction on the ground of demolition

and reconstruction apart from other grounds. The Rent Controller ordered eviction

and the same was confirmed by the Appellate Authority. The Tenant preferred the

revision aggrieved by the order of eviction before High Court. So far as the question

of demolition and reconstruction is concerned, the landlord wanted to pull down the

old structure and construct a new building. Landlord obtained sanctioned plan from

the planning authority. The bonafide intention of the landlord is established by

producing relevant evidence. The Supreme Court held that the law is well settled on

this aspect. Even if the building is in a good condition, if it is not suitable for the

requirement of the landlord, he can always demolish even a good building and put up

a new building to suit his requirements. It is not necessary for the landlord to prove

that the condition of the building is such that it requires immediate demolition

particularly when the premises is required by the landlord. Therefore it has to be held

that the finding of the trial court cannot be sustained and the High Court on re-

appreciation of the evidence, rightly so held that the landlord has established that his

need for all the four petition schedule premises is bonafide and reasonable. In view of

the above position, even if the building is not in a very bad shape, if the landlord

requires it to be demolished and reconstructed, the tenant cannot stall the same. Apart

from age and condition of the building the capacity of the landlord to demolish and

78
1990 (2) LW 547 (SC)

181
reconstruct the useful utilization of the property after reconstruction and the desire of

the landlord to earn economic advantage are also relevant factors to consider the

bonafide requirement. In the present case the landlord had in fact offered sanctioned

plan for the construction. The means of the landlord also was not doubted and there is

truthfulness in the statement of the landlord. The order of eviction ordered by the Rent

Controller does not require any interference. 79

The landlord had filed three petitions for the eviction of the tenants and to put

him in possession of the petition mentioned premises. According to the Landlord the

whole building including the petition mentioned premises is a old building and the

income from the lodge and the rental income from the rented premises are very

meagre and therefore, he wanted to demolish and reconstruct the building including

the rented premises as a luxurious lodge with modern amenities for getting more and

maximum income. Rent Controller dismissed all the three petitions and the Appellate

Authority, allowed the appeals. The tenants preferred revision petitions. The essence

of sub-clause (b) to Sub-Section (1) of Section 14 is that the Rent Controller shall

pass an order directing the tenant to deliver possession of the building if he is satisfied

that the requirement of the landlord is bona fide for demolition and reconstruction of

the building on the site of the building sought to be demolished. In so far as the given

case on hand is concerned, the building which encompasses the non residential

portions in which the revision petitioners/tenants are in occupation is located in prime

area of Anna Nagar. Admittedly, the petition mentioned premises are part and parcel

of the entire building excluding Kalyana Mandapam. All the three portions are

79
Mariammal vs Narayanan 2015 (4) CTC 403

182
situated in the ground floor. As it appear from the averments of the petition, the old

building is consisting of ground, first and second floors. All the three shopping

portions have been rented out to the tenants for the purpose of running a laundry and

tailoring shop and hotel business. In this connection, the landlord would state that the

restaurant, which is being run by one of the tenants under the name and style of

“Anna Restaurant” occupies a portion of the first floor also and in the remaining

portion of the first floor, the landlord has been doing his own business by running a

lodge. As stated in the foregoing paragraphs, in order to augment the income from the

lodge and the rental income from the petition mentioned premises, the Landlord

wanted to demolish the entire building and reconstruct as a luxurious lodge with

modern amenities. He has also stated that he had got sufficient fund for demolition

and reconstruction and he had also obtained planning permission for the purpose of

demolition and reconstruction of a multi storied building. The documentary evidences

produced by the landlord would go to show that he is a man of means and is in well

placed position to reconstruct a multi storied building. Keeping in view of the above

facts, it is thus made clear that the age and the condition of the building may be one of

the components of bona fides, but that alone is not the material ground. The non

examination of expert with regard to the age and condition of the building is also

immaterial. Based on the evidences available on record, this Court finds that the

requirement of the respondent/landlord for demolition and reconstruction of the

building is bona fide and hence, this Court does not find any reason for interfering

with the judgment of the learned Rent Control Appellate Authority holding that the

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revision petitioners/tenants are liable to be evicted under Section 14(1)(b) of the

Act.80

The obtaining of plan subsequent to the filing of eviction petition will not

show that the requirement of the premises by the landlord for the purpose of

demolition and reconstruction is not bonafide. The fact that earlier the landlord filed a

petition for eviction on the ground of requiring the premises for repair would not

disentitle the landlord subsequently to file petition under section 14(1)(b) of the Act.

Section 14(1)(b) does not state that old and dilapidated buildings alone are governed

by it. If the landlord comes to court stating that the building is old and dilapidated, he

must prove it. The principle laid down in metal ware case will not apply to all

petitions under this section. If the landlord’s case though the building is not old he

wants to construct a modern building, then question of age and condition of the
81
building are not materials. A concrete and immediate proposal or scheme to

demolish an existing building and reconstruct it into bigger and more high income

yielding one cannot by any means be said to be malafide. The desire of the landlord to

put the property to a more profitable use after demolition and reconstruction is also a

factor which may be taken into account in favour of the landlord. Where the landlord

enter into a joint venture with the owner of the adjacent property for the purpose of

erecting a four storyed building in the entire area, consistent with the modern design

which will increase the value of the property, the claim of the landlord can certainly

be entertained on the ground of putting the property into a profitable and better use,

80
J. Kubendran & Others vs D. Rajappa & Others CDJ 2015 MHC 6654
81
Kanakavalli Ammal vs Sundaram 1984 (I) MLJ 311

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 82
even though the condition of the building is not dilapidated. In assessing the

bonafides of the landlord the means of the landlord to undertake new construction, the

existing condition of the building and the fact that the preparation is made by the

landlord by way of getting plan for construction of new building from the municipal

authorities are relevant factors to be considered. But at the same time if the claim of

the landlord is oblique or discrete, made with the sole aim of evicting the tenant, the

claim will have to be negatived. Mere fact that the building is old by itself is not

sufficient for invoking the provisions of the section 14 (1)(b) of the Act and ordering

eviction. The mere fact that the landlord has got sufficient funds and has taken steps

by obtaining sanction of plan for demolition and reconstruction would also be not

sufficient.

It is clear that section 14 (2) prescribes a condition precedent to be satisfied

before the Rent Controller could pass an order directing the tenant to deliver

possession of the building under Section 14. These conditions are tow in number the

one referable to the ground under section 14 (1) (a) and the other referable to the

ground under section 14 (1) (b). Under section 14 (2) (a) is an enabling section

entitling a landlord to take temporary possession of a building for purposes of

effecting repairs and for being redelivered to the tenant after the repairs are over. The

undertaking under section 14 (2) (b) is different. There are two limbs to the

undertaking in this section. One is that the work of demolition of any material

portions of the building shall be substantially commenced by him not later than one

month from the date of recovery of possession of the entire building. This time limit

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P.Orr and Sons Limited vs M/s.Associated Publishers 1990 TLNJ 194

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is unalterable. The second limb of the undertaking is that the demolition shall be

completed before the expiry of three months from the date the landlord recovers

possession of the entire building. The time limit of three months in the second limb

can be extended by the court for reasons to be recorded in writing. Consequently the

undertaking with reference to both these limbs must be given before an order can be

passed directing the tenant to put the landlord in possession of the building. The

undertaking given by the landlord in the deposition is sufficient for satisfying the

requirement of the section 14 (2) (b) of the Act. Where the landlord gives an

undertaking in his deposition that he will demolish and reconstruct the building

immediately that is enough to satisfy the requirement of the section. The undertaking

need not necessarily be in writing. 83 Under section 14 (2) (b) an undertaking has to be

given by the landlord that the work of demolishing any material portion of the

building would be substantially commenced by him not later than one month and that

any violation of the undertaking will visit the landlord with penal consequences

contemplated under section 33 (3) (b) with conviction and punishment with a fine

extending to one thousand rupees.

The decisions rendered by the Hon’ble Supreme Court and Hon’ble High

Court were examined in detail with the provisions relating to eviction of tenants under

various grounds. The result of the above consideration of judgements are manifold

and suggestions are made only for those which require definite changes. In so far as

the ground of wilful default is concerned, the latest rulings has overruled the earlier

view that payment or tender of rent payable to the landlord on the first hearing date

83
Radhakrishnan and two others vs Rajendran alias Rajee & two others 1990 TLNJ 204

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would negate the plea of wilful default of payment of rent by the landlord. In the

interregnum period the High Court held that tender or payment of rent on the effective

first hearing date would also obliterate the existence of ground of wilful default.

Hence, there is no necessity for any changes in these areas. However in case of

seeking eviction on the ground of personal occupation, the landlord is precluded from

seeking possession if he had already obtained possession of a premises on that ground

of personal occupation.

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