P. Rethinaswami vs S.M.A. Kamal

Venkataswami, J.—This Revision Petition is filed by a tenant in Rent Control proceedings, feeling aggrieved by the judgment of the

Appellate Authority in R.C.A. No. 12 of 1987. The respondents herein filed R.C.O.P. No. 24 of 1984, on the tile of the Rent Controller (District

Munsif), Tiruthuraipoondi, for eviction of the petitioner, on the ground that he had committed willful default in payment of rents, that he ceased to

occupy the premises for a continuous period of four months, and also on the ground that he had committed acts of waste

The petition for eviction was resisted by the petitioner herein, contending inter aha that there was no default in payment of rent, that he was

injured in a bus accident and was hospitalised and therefore he could not pay the rent in time, that the default, even if any, was not willful, and that

in any event, he had paid the rent on receipt of notice before the filing of the R.C.O.P The plea that the tenant ceased to occupy the premises for a

continuous period of four months was denied by stating that at the instance of the tenant (petitioner herein), his mother and brother carried on the

business in rice, which could not be carried on by the petitioner on account of his having been injured in a bus accident and that therefore there was

no question of the petitioner ceasing to occupy the premises. He also denied that he had committed any act of waste so as to enable the landlord to

evict him on that ground

Before the learned Rent Controller, the respondent/landlord examined himself as P.W. 1 and the tenant examined himself as R.W.1 and also

examined two other witnesses by name Krishnamoorthi and Chellappa Pathar as R.Ws. 2 and 3. On behalf of the respondent herein (landlord)

Exs.A-1 to A-7 were marked and on behalf of the petitioner herein (tenant), Exs.B-1 to B-7 were marked.

The learned Rent Controller, on the basis of the pleadings, evidence and arguments advanced before it, found that the landlord has made out a

case for eviction on all the three grounds urged in the eviction petition, and consequently ordered eviction of the petitioner herein. Aggrieved by the

order of eviction, an appeal was filed to the Appellate Authority in R.C.A. No. 12 of 1987, on the file of the Appellate Authority (Sub Judge),

Nagapattinam. The learned Appellate Authority, while negativing the case of the landlord that there was willful default in payment of rent, and that

the tenant has committed acts of waste, concurred with the Rent Controller that the tenant has ceased to occupy the premises for a continuous

period of more than four months, and on that ground the tenant was liable to be evicted. Accordingly, the Appellate Authority dismissed the

appeal. Aggrieved by that, the tenant has preferred the present Revision Petition.

Mrs. Prabha Sridevan, Learned Counsel appearing for the tenant, petitioner herein, took me through the orders of the Authorities below and

also the evidence of P.W. 1 and R.W.1. In as much as the only ground on which the eviction was ordered by the Appellate Authority was under

S.10 (2) (vi) of the Tamil Nadu Buildings (Lease & Rent Control) Act (1960) (hereinafter referred to as ''the Act), Learned Counsel on both sides

confined their arguments to that aspect. According to the Learned Counsel for the petitioner, the finding of the Rent Controller, confirmed by the

Appellate Authority, that the tenant ceased to occupy the premises for a continuous period of four months without reasonable cause, is

unsustainable in law as the same is contrary to the evidence available in the case. According to her, there is evidence to show that at the instance of

the tenant, his mother and brother continued the rice business which was carried on by the tenant in the premises in question, and in the place of

that, the contrary finding given by the Authorities below is unsustainable. Even assuming for the sake of arguments, (it is argued by the Learned

Counsel for the petitioner) the tenant was injured on account of a bus accident and he could not carry on the business, that by itself will not lead to

a conclusion that the tenant has ceased to occupy the building. In support of that, Learned Counsel placed reliance on two judgments of this Court,

namely, A. Gulam Mohamed Vs. A.K.M. Pichai Maracair, and M.R.W. Duraiappa Nadar v. P. Thirupurasundari Amma reported in 1980 1

L.W. 46.

Contending contra, Learned Counsel appearing for the respondent/landlord Miss R.T. Shyamala, submitted that the concurrent finding of the

Authorities below to the effect that the tenant/petitioner is liable to be evicted on the ground that he (tenant) has ceased to occupy the premises for

a continuous period of four months without reasonable cause, is well-founded and supported by evidence and therefore, does not call for any

interference. The authorities below have placed reliance on the notice issued by the Electricity Board for non-payment of electricity charges by the

tenant for the separate meter installed in the premises in question and also the non-payment of Professional tax. The Authorities below have also

taken note of the failure on the part of the tenant to produce the license to carry on the business during the relevant period. In as much as the

finding of the Authorities below is supported by documentary evidence, the same cannot be interfered with by this Court sitting in Revision, is the

contention of the Learned Counsel tor the respondent. She also placed reliance on a judgment of the Andhra Pradesh High Court and another

judgment of the Supreme Court, on the scope of Section 10 (2) (vi) of the Act.

Before considering the decisions relied on by Learned Counsel on both sides, it is necessary to appreciate the facts and the evidence available in

this case.

In the petition for eviction, the landlord has definitely stated that the tenant has carried on business in rice only for some time and thereafter

neither he continued the rice business nor switched over to any other business. On the other hand, he kept the premises under lock and key,

particularly, for the years 1981-82, 1982-83 and 1983-84. The above allegation was disputed by the tenant by stating that that allegation was

contrary to the truth and the petitioner''s mother and brother were looking after the business, when the petitioner was undergoing treatment on

account of the bus accident. On this aspect, the first Authority, on the basis of evidence, held that the failure of the tenant to produce receipts for

payments of Profession tax for the three years in question and the Certificate issued by the Town Panchayat to the effect that the tenant has not

paid any Profession tax for the said three years are circumstances in favour of the landlord. As regards the documentary evidence produced by the

tenant to show that he was continuously carrying on business, the first Authority held that the same could not be relied upon, for, the documents

were either not related to the suit premises or had come into existence after the commencement of the dispute. The first Authority was also not

prepared to believe the case of the tenant that in his absence, his mother and brother continuously carried on the business. On the basis of these

findings, the first Authority held that the landlord has made out a case u/s 10 (2) (vi) of the Act and the same was confirmed by the Appellate

Authority. In the light of the above concurrent findings, let us see the decisions cited by the Learned Counsel on both sides.

In A. Gulam Mohamed Vs. A.K.M. Pichai Maracair, , Ratnam, J. took the following view, on the scope of section 10 (2) (vi) of the Act:-

The word ""occupy"" means ""to take possession of"" or ""to hold and have in possession"". It is noting dispute in the present case that the respondent is

keeping the articles required in connection with his business inside the premises in question and even the evidence of the petitioner examined as P.

W. 1 supports this. Whether this would amount to occupation of the building or not has to be considered in the light of the surrounding

circumstances and the intention of the parties.... The evidence in the instant case clearly and categorically discloses that the respondent is in

effective occupation 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 and that would suffice to hold that the tenant is still in occupation of the buildup.

....

Again, in 1989 1 L.W.46 (supra), Chandurkar, C.J., on the scope of section 10 (2) (Vi) of the Act, has held as follows:-

Mere ceasing to occupy a building for a continuous period of four months is by 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. Occupation of any

building and carrying on business in that building are really two different things. While carrying on of a business in a building will clearly show that

the building is in occupation of the tenant, the converse does not necessarily follow. Even though a business of the tenant has been stopped it will

not mean that the ten-ant has ceased to occupy the building. It may mean that the tenant has ceased to use the building but the building continues to

be in occupation of the tenant as long as his articles and things are lying in the building. Both the authorities have equated censing to carrying on

business with ceasing to occupy the building which is not justified by the provisions of S. 10 (2) (vi). Apart from this, it is obvious that the primary

burden of proving the ingredient of S. 10 (2)(vi) is on the landlord though the tenant cannot he absolved of the responsibility to adduce the

necessary evidence because the facts with regard to his occupation are facts within his special knowledge''s But there must be some prima facie

evidence on the part of the landlord to show that the tenant has ceased to occupy the building.

Placing heavy reliance on the abovesaid two decisions, Learned Counsel for the petitioner argued that the ratio laid down in both the above said

cases will apply to the facts of this case. She also pointed out that it is for the landlord to prove that ingredient of section 10(2) (vi) of the Act.

The cases relied on by the Learned Counsel for the respondent may now be noted.

In Kanumuri Suryakantham v Kancheria Annapurnamma reported in 1984 1 An.W.R.397, a learned judge of that High Court, on the scope of

similar section in Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, has held as follows:-

The Learned Counsel for the revision petitioner submitted that the revision petitioner/tenant had no intention to cease her occupation of the

premises but there is positive intention for her to return to the premises and continue business, which she, in fact, did after the suit was filed. He

cited a decision reported in Brown v. Brash and Ambrose. In the earliest decision, their Lordships of the King''s Bench observed: ""that on

principle, there must be proved by the tenant not only, an animus possidendi, but a corpus possession is; that is to say, the tenant must have an

intention to continue in possession of the property and also should have actual possession"". Here, in this case, surely the revision petitioner was not

in occupation of the premises in the sense that is required under this principle, for four months. Even though she came forward with a plea that her

relation (R.W.4) was asked to be in possession and continue the business, the same was disbelieved by the two lower courts. In this very decision

cited above, their lordships observed:

A non-occupying"" tenant prima-facie forfeits hic status as a statutory tenant under the Rent Restriction Acts, but the term ''non- occupying tenant''

cannot cover every tenant who, for however short a time, or however necessary a purpose, or with whatever intention as regards returning,

absents himself from the demised premises. But absence may be sufficiently prolonged or un-intermittent to compel the inference prima-facie of

access or of occupation. The issue is one of fact and of degree.

Here, the non-occupation of the revision petitioner of the demised is over a long period of over four months prescribed by statute. Therefore, it is

for the tenant to establish the fact that the said non-occupation is for sufficient cause. Surely, in my opinion, her presence at Madras to supervise

her son''s preparation for examinations and sickness for sometime cannot be construed as sufficient cause for non-occupation of the premise for

over four months. As their Lordships in the earlier quoted decision observed, the issue is one of fact and the two lower Courts concurrently gave

the finding on this fact that the non-occupation was not for any sufficient cause.

In Vora Rahimbhai Haji Hasanbhai Popat Vs. Vora Sunderlal Manilal and Another, the Supreme Court, while interpreting section 13 (1) of the

Bombay Rents, Hotel and Lodging House Rates Control Act, which is not exactly similar to the Tamil Nadu Act, has held as follows:-

This leads us to the second part of the submission made by the counsel for the appellant that on a correct interpretation of S. 13 (1) (k) of the Act

even non-user of the premises for any purpose whatsoever for years together would make him liable for eviction. The contention on behalf of the

respondent, however is that we cannot add words to S.13 (1) (k) and the intention of the legislature is clear from the words used therein, and all

that S.13 (1) (i) contemplates is that the premises had not been used for the purpose for which they were let out for a continuous period of six

months immediately preceding the date of suit without reasonable cause. It does not say that mere non-user of the premises will make him liable for

eviction. The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain

premises, of rates of hotels and lodging houses and of evictions. The control had to be brought in because of the scarcity of accommodation in the

cities. If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together

without using it in the absence of any reasonable cause. The intendment of the legislature could be carried out only when the premises is used and

not kept vacant for years together. Shri Sheth, however, sought to support the finding of the High Court that the construction of a superstructure is

also a user of the property and the defendant had raised superstructures on the land in question. This argument must be repelled. It appears from

the rent note, Ext.61 that the defendant had taken the premises from the present plaintiff when the defendant had already built the superstructures

when he had taken the land on rent from the predecessor in interest of the plaintiff-appellant. Therefore, there was no question of using the land by

raising constructions by the defendant after the execution of the rent note Ext.61.

On the basis of the above two judgments, Learned Counsel for the respondent/landlord submitted that the fact that the tenant has not paid the

electricity charges for a long period will certainly go to show that he was not in occupation of the premises. If he had been in the occupation of the

premises, certainly he would have paid the electricity charges. It is stated that the landlord, while issuing notice to the tenant has mentioned about

the notice received from the Electricity Board regarding the arrears and threat of disconnection and thereafter the tenant paid the electricity

charges. Learned Counsel also placed reliance on the non-payment of Profession tax by the tenant and the certificate issued by the Town

Panchayat to that effect. It is the argument of the Learned Counsel for the petitioner that non-payment of Profession tax or electricity charges might

lead to certain other consequences, but that by itself will not lead to the conclusion that the tenant had ceased to occupy the premises.

It is not in dispute that the Landlord was obliged in this case to move the Rent Controller for eviction of the tenant on an earlier occasion on the

ground of willful default in payment of rent. That was dismissed on the ground that on account of the tenant having sustained injuries in bus accident

he had to undergo treatment in hospital and, therefore, could not pay the rents, and that the default in such circumstances, cannot be construed as

willful. The very same reason is also given in the present proceedings to get over the default in payment of rent. We are not concerned with that

ground. We need not dilate more on that. However, that will help the landlord to argue that the tenant was not in occupation of the building. Both

the Authorities below have concurrently found that the case of the tenant that in his absence, his mother and brother carried on the business cannot

be accepted in the absence of any acceptable corroborating evidence. If that finding of the Authorities below is accepted, the burden of proving

that he was in occupation of the building shifts to the tenant. In this case, he attempted to prove that by producing Exs.B-3 dated 30-7-1984, B-4

dated 14-8-1986 and B-5 dated 25-8-1986.of these documents, Ex. B-3 came into existence after the issuance of the notice by the landlord. Exs.

B-4 and B-5 have come into existence when the case was pending before the Rent Controller. Apart from that, the Authorities below have found

that there is nothing to show that Exs. B-4 and B-5 relate to the petitioner/tenant. On account of the above defects, the Authorities below were not

prepared to accept that evidence produced on the side of the tenant. In the circumstances, I do not think there is any case to interfere with the

findings of the Authorities below. The two decisions relied or by the Learned Counsel for the petitioner on the scope of section 10(2) (vi) of the act

will not help the petitioner as the first case was decided on the facts of that case, and even if we apply the ratio laid down in the second case,

namely, 1989 1 L.W.46 (supra) the findings of the Authorities below can be sustained. In the result, the Civil Revision Petition fails and the same is

dismissed. However there will be no order as to costs.