S.U.S. Davey and Sons vs Liberty Dry Cleaners

S. Mohan, J.—Throughout the C.R.P., the parties will be referred to as Landlords and Tenants. The landlords (S.U.S. Davey & Sons) are

a registered partnership firm carrying on business as opticians at No. 173, Broadway, Madras-1. The partners of the firm are (1) Lalitha Ben

Davey, (2) Lakshmi Shanker Davey, (3) Ambalal Davey, (4) Batilal Davey and (5) Harihar Davey. They are represented by one of the partners,

Harihar Davey. They are the owners of the house and ground bearing Door No. 57, Sir Theagaraya Road, Theagarayanagar, Madras-17. The

property came to be purchased in an auction sale held by one of the creditors of the previous owner on 10th May, 1973. The tenants were in

occupation of a portion of the said premises consisting of a verandah and two rooms in the front and portion had been let out and used for non-

residential purpose, namely, running a show-room for Dry Cleaners'' business. The rent was Rs. 200/- per mensem. Since the landlords intend to

open a branch of their optical business at Theagarayanagar, they bona fide needed the portion under the occupation of the tenants. The landlords

are already in occupation of a portion of the building. If the additional accommodation in the occupation of the tenants is given, it will enable the

landlords to open a branch under the supervision of one of the partners, who is residing in a portion of that building, Of late, the tenants had been

using the portion under their occupation for purposes other than the one for which it was let out, in that, it had allowed its servants to sleep in the

premises, to take bath and to use the F.O.L. Initially, though these acts were confined to the servants, others in the other show-rooms belonging to

the tenants also used the premises for these purposes. There were protests by the landlord, but they were of no avail. Thus, the tenants, by such

acts, have been using the premises for purposes other than for which it was let out, and hence, the tenants are liable to be evicted. The servants of

the tenants, who have been sleeping and taking bath, have been behaving in a most disorderly manner, much to the embarrassment of the women-

folk in the house. Even a slightest protest gives them the room to pick up quarrels and use all filthy and threatening language. Their behaviour is

nothing less than nuisance, The tenants are liable to be evicted on this ground also. On these allegations, the eviction petition came to be filed under

Sections 10(3)(c), 10(2)(ii)(b) and 10(2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

In the counter of the tenants, it is stated that with reference to the ciairn for additional accommodation u/s 10(3)(c), it is not maintainable. The

landlords are not occupying any portion of the building, nor are they carrying on any business in the petition premises. The landlords have no bona

fide intention to set up the business here, and if they had such an invention, they could have commenced the business in the portion vacated already

by the other tenants. The tenants had been carrying on their business for a long time and had established a goodwill in the said place and the

disadvantages and hardship for the tenants will be more than the advantage to the landlords.

The tenants have not used the premises for a different user than the one for which it was let out. The tenants were there, even before the

landlords purchased the premises, under the predecessors-in-title of the landlords, The bathroom and F.O.L. were parts of tenancy and the same

were used by the employees of the tenants even since the date of tenancy. There was no change of user after the present landlords became the

owners of the premises.

4 The tenants deny the allegations that the servants of the tenants have been behaving in a disorderly manner. Neither the servants nor the tenants

interfered with the enjoyment of the premises, nor had they committed any nuisance at any time. The landlords, after their purchase, have been

harassing the tenants by various unlawful methods with a view to let out the premises at a higher rent. The petition for eviction has been preferred

with mala fide intentions and there are no merits in it.

On these allegations, the matter came up for trial before the Rent Controller in H.R.C. No. 2439 of 1974. He posed three points for

consideration:

Whether the requirement of the petition-premises for non-residential purposes of the petitioners (landlords) is bona fide as and by way of

additional accommodation?

Whether the respondents (tenants) have been using the petition premises for a purpose other than for which it was leased out?

Whether the respondents (tenants) have allowed their servants to commit nuisance?

On the first of the above points, he held that as the landlord has occupied a portion of the house for his residence it is legitimate to ask for an

additional accommodation for running the optical shop in the space now occupied by the tenant. He also considered the relative hardship that might

be caused to the tenant if an order of eviction has to be passed, but held that such hardship would not be more in comparision to the advantage

that might accrue in favour of the landlord. On the second point also, he concluded in favour of the landlord. On the third point he held that having

regard to the non-examination of any servants by the tenants to disprove the allegation of nuisance by the landlord that ground has also been made

out. Therefore, on all the three grounds, namely, under Sections 103(c), 10(2)(ii)(b) and 10(2)(v), eviction was ordered.

Aggrieved by the order of eviction, the tenants took up the matter in appeal in H.R.A. No. 503 of 1976 which came to be tried by the learned

VI Judge of the Court of Small Causes, Madras. There, the learned Judge was of the view that if really P.W. 1 was getting so many customers

from Theagarayanagar area with the prescriptions from Dr. Srinivasan and Ors., nothing would have been easier for him than to produce these

prescriptions, which would satisfy a Tribunal that P.W. 1 is getting customers from Theagarayanagar area. It is further held that the landlords firm

did not pass any resolution or had taken a decision to open a new branch. On these grounds, he held the requirement was not bona fide. Only in

the event of its being established that the requirement was not bona fide, the relative hardships to the tenant had to be examined, and therefore, he

held,

We have to necessarily conclude that the hardship which may be Caused to the tenant by granting the application will outweigh the advantage to

the landlords.

As regards the ground contemplated u/s 10(2)(ii)(b), he disagreed with the Rent Controller and held that the tenant had not put the premises to a

different user. Lastly, as regards the nuisance constituting the ground of eviction u/s 10(2)(v), he was of the view that since it was the case of P.W.

1 that the tenant was neither instrumental for quarrel nor was abetting the commission of the offence by its servants, such acts would not constitute

nuisance by the tenant. Besides, there was no police complaint nor was there any enquiry. In this view, this point was also found in favour of the

tenants. It is under these circumstances, the revision petition has been preferred by the landlords.

The contentions are as under:

Section 10(3)(c) is wide enough to include the need for additional accommodation. Because of the phrase ''as the case may be'' used in the said

section, even though the landlord is using a portion thereof for residential purposes, yet the remaining portion could be asked for non-residential

purposes. Such a non-residential purpose in this case is to have a branch of the optical shop which business is carried on, admittedly, at

Broadway. Then again, the appellate authority erred in requiring the prescriptions by the doctor at Theagarayanagar as proof for a sufficient

number of clientele comes from Theagarayanagar.

As regards the ground that there has been a conversion of the building, the evidence in this case is that the servants are using the premises which

would certainly amount to conversion of non-residential building into a residential one. As regards nuisance, the argument is, if frequent quarrels

would not amount to nuisance, nothing else would. Further, in this case, there is the evidence of P.W. 1 who clearly speaks to the fact that when

the womenfolk of the landlord who reside in a portion of the premises are taking bath, strangers come to the place who call themselves the

servants of the tenants, as a result of which there have been frequent quarrels. In addition to this oral evidence, there is also Exhibit B-6 which

clearly bears out tampering with the electric meter on as many as four occasions. All this would constitute nuisance. Law does not require that such

a nuisance must be committed by the tenant himself or that he should abet in the commission of such nuisance. The fact that there is no police

complaint nor an enquiry would not militate against this ground of nuisance. On this score also, the order of the appellate authority is liable to be

reversed. In support of this argument about the scope of Section 10(3)(c), the learned Counsel for the tenant would rely on: Veerappa Naidu v.

Gopalan (1961) 1 M.L.J. 223 Easwaran Chettiar Vs. K. Subbarayan, ; V.S. Ahmed Thambi Maraicayar Vs. Revathi Stores,

The learned Counsel for the tenant in supporting the order of the appellate authority states that the application u/s 10(3)(c) is not maintainable.

The evidence in this case bears out that the business of optical stores is carried on at Broadway. Therefore, the landlords are in possession of a

non-residential premises of their own. In that event, Section 10(3)(a)(iii) cannot be availed of by them. That is the reason why they chose to come

u/s 10(3)(c). The scope of the section is not as is contended by the other side. In this case, it is established that in a portion of the petition

premises, one of the landlords is residing. If that be so, he can require the addition only for residential use. Then again business carried on at

Broadway cannot be tagged on to a branch which the landlords propose to open at Theagarayanagar because Section 10(3)(c) speaks of ''the

remaining part of the building. Therefore, the ground for eviction u/s 10(3)(c) is not available.

The learned Counsel cites the decision in Easwaran Chettiar Vs. K. Subbarayan, and then submits that this supports his argument. As regards

change of user, merely because the servants of the tenants are allowed to sleep and take bath, that does not mean conversion. Therefore, the

appellate authority rightly relied on Vedachalam v. Kanniah (1957) 1 M.L.J. 24.

The finding of the appellate authority as regards nuisance must also be upheld because u/s 10(2)(v), there must be repetitive acts or persistent

acts. What is the meaning of nuisance has come to be laid down by the Gujarat High Court in Gaurishankar Vs. Bhikhalal Chhaganlal and Others,

The instant case does not pass the test adumbrated in that decision. Merely because the servants of the tenants had quarrelled once or twice, it

cannot be held that the tenants are guilty of such a nuisance as laid down in Janakiraman v. Nagammal (1958) 1 M.L.J. 5 which has been correctly

relied on by the appellate authority. Consequently, no exception could be taken to the order under revision, on this ground.

Having regard to the above, three points arise for my determination, namely,

Whether the application of the landlords u/s 10(3)(c) is maintainable?

Whether the tenants are guilty of converting the premises into a user other than the purpose for which it was let out?

Whether the tenants have been guilty of such acts and conduct which are a nuisance to the occupiers of the other portion, as contemplated u/s

10(2)(v) of the Act?

I will take up these grounds in seriatim. Section 10(3)(c) of the Act reads:

A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in Clause (a),

apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord

in possession thereof. If he requires additional accommodation for residential purposes or for purposes of a business which. he is carrying on, as

the case may be.

There is no doubt that this clause overrides Clause (a), which relates to non-residential building under Clause (iii), and, of course, depending upon

the nature of the case in the latter of these two clauses. This clause, in my view, is the one which enables the landlord to seek additional

accommodation. In the case on hand, it is established by evidence that one of the landlords is residing in a portion of the premises. To that extent, it

is residential in character. The tenants, who are occupying the other portion, for a non-residential purpose of laundry, are sought to be evicted on

the ground that the non-residential portion is required for opening of a branch of the optical stores at Theagaraya Nagar, the main business being

situate at Broadway. Certainly, the business at Broadway cannot be tagged on to the proposed business at Theagaraya Nagar because the clause

speaks of ''the remaining part of the building''. Therefore, the obvious question that arises is: Can a landlord, who is in occupation of a portion of

the building and using that portion as his residence, seek the eviction of the tenant who is using the remaining portion for non-residential purposes?

My answer is ''No'', because be it remembered this section speaks of additional accommodation. If the landlord is residing, he must establish that

additional accommodation is required of the remaining portion or any portion of the building for residential purposes, albeit its being used as non-

residential by the tenant. Equally, if the landlord is carrying on business in a portion of the building and is occupying it as non-residential, he must

seek to establish that the additional accommodation is required for non-residential purposes, albeit its being used by the tenant for residential

purposes. In other words, ''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 alone will constitute ''addition''. Likewise, the

reverse case of non-residential purposes. In so far as this case has not passed through this test, I do not think the petition u/s 10(3)(c) can ever be

maintained. The case cited by the landlords'' counsel will be of no assistance in answering this issue. In Veerappa Naidu v. Gopalan (1961) 1

M.L.J. 223 Ramachandra Iyer J., as he then was, held:

Where a portion of a building has been let out to a tenant and the other portion remains which the landlord the case would come within Section

7(3)(c) of the Act. There may also be cases where a landlord in occupation of a part of a building may bona fide require the rest of it even though

he may be in occupation of a different building as a tenant. It is not necessary in such cases that the additional accommodation sought for should be

in respect of the same business carried on by the landlord in the other part of the building.

No doubt, Section 7(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, contains a similar wording as Section 10(3)(c), but

yet the question before us is not answered. Again in Easwaran Chettiar Vs. K. Subbarayan, this question did not come up for consideration. All

that was stated by the Division Bench at page 702-703 is:

Where the landlord is occupying an independent non-residential building of his own and the tenant is in occupation of a portion of such a building,

then only Section 7(3)(c) would operate on its force and might help the landlord; but in case the tenant is in occupation of a completely different

premises then the landlord cannot take advantage of either Section 7(a)(iii) or the said section read with Section 7(3)(c).

Turning to V.S. Ahmed Thambi Maraicayar Vs. Revathi Stores, , Kailasam, J., as he then was, construing the scope of Section 10(3)(c) held:

If the landlord is occupying a part of the building, whether it is residential or non-residential or whether he wants additional accommodation for

residential or for a business purpose, he may apply. The wording is wide enough to enable the landlord to apply if he wants additional

accommodation either for one of the purposes or for both the purposes, residential or non- residential.

The learned Counsel for the tenants relies on the same decision in Easwaran Chettiar Vs. K. Subbarayan, but, I have expressed my view already,

about its inapplicability to this case. Therefore, I conclude that the petition of the landlords, in so far as it seeks eviction of the tenants u/s 10(3)(c)

on the ground alleged, is not maintainable.

On the second point, I may straightaway say that merely because the servants of the tenants are allowed to sleep in the premises that could

never mean that the demised premises has been put to a different user. In fact, in Vedachalam v. Kanniah (1957) 1 M.L.J. 24 it is held that where

a tenant allowed his watchman to eat and sleep in the premises, that would not constitute the ground of different user. I may say that the appellate

authority rightly relied on this decision in disagreeing with the Rent Controller''s findings. Therefore, that ground of eviction is also not available to

the landlords.

On the third point, that is nuisance (1957) 1 M.L.J. (S.N.) 24 Section 10(2)(v) reads as under:

That the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of other portions in the same building or of buildings

in the neighbourhood,

The evidence of P.W. 1 in this case is as follows:

The trouble started in 1974. At odd hours the respondent used to come and disturb the peace, 5 to 6 persons used to sleep there. I objected.

They used to shout at odd hours. There is no bath room outside. There are two F.O Ls. in the downstairs. They were using the F.O.Ls. in the

downstairs inspite of our objection. They also were taking bath near the well in the back side. I have got 3 daughters and one son. I live with them

and my wife. My daughters and son are using the backyard for their studies. The well is very near to the room in the backside. I objected. In the

beginning I was locking the gate. As the respondents men were coming at odd hours, I did not lock the gate. Strangers come to the backside of

the premises where my daughters and wife take bath. When they are asked, they say that all are working in the shop of the respondent. There used

to be frequent quarrels and they use abusing language. The main switch is in the shop of the respondent. They switch off the main frequently putting

me to difficulties. I also complained to the M.E.S. Exhibit P-2 is the reply of the M.E.S. I also wrote a letter to the respondent. Exhibit P-6 is the

copy of the letter with postal acknowledgment.

Then I may also refer to the documentary evidence, Exhibit P-6 which is spoken to by P.W.I. It is as under:

3-12-1973

Registered for Acknowledgment.

M/s. Liberty Dry Cleaners,

61/62, Purasawalkam High Road,

Madras - 10.

Dear Sirs,

Sub: Premises No. 57, Sir Theagaraya Road T. Nagar, Madras-17.

On 2nd December, 1973, we found that some of your people had meddled with the Electric Line pertaining to meter No. 18-61-54 and had

placed the fuse carriers somewhere which we had located later on with great difficulty.

Therefore please instruct your people not to meddle with other meters in the above premises, as it would cause very great inconvenience not only

to the landlord but also to other tenants.

For your information we may mention that this is the fourth time it had happened like this.

Thanking you,

Yours faithfully,

For S.U.S. Davey Sons,

Sd...

Partner.

Therefore, two positive acts are attributed namely:

The frequent quarrels and use of abusive language indulged in by the servants of the tenants by reason of their coming to the backside of the

premises where the daughters and the wife of the landlord take bath.

The switching off of the main frequently as stated in Exhibit P-6 which says that the same has been done on four occasions.

The learned Counsel for the tenant would say that unless there is a persistent commission of the nuisance, it cannot constitute a ground for

eviction. Relying on Gaurishankar Vs. Bhikhalal Chhaganlal and Others, he would state that the nuisance alleged must be:

Of gross character.

Of unusual character.

Frequent and persistent.

One cannot ordinarily expect in a household.

Such that it would not be possible for the neighbours to lead a normal life which one can hope to live in a busy town or city.

These were the tests laid down with reference to Section 13(i)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act. In that

case, the tenant who was married allegedly brought his sister-in-law, in the house and went though a marriage with his sister-in-law, which was

deemed to be illegal. There were quarrels between her and the children born to the sister-in-law on the one hand and with the wife of the tenant on

the other. The Courts below passed a decree on the ground of the nuisance, but the High Court of Gujarat reversed it saying that it did not pass

the tests adumberated above. The reasoning as appears at Page 48 is,

Now it is difficult to visualise a house where there are no quarrels in families. Sometimes the quarrels are between brothers. Sometimes the quarrels

are between the mother-in-law and a daughter-in-law. Sometimes quarrels are between the wives of two brothers. If an eviction decree were to

be passed merely because there are quarrels in the domestic household of a tenant no tenant would be safe and it would amount to virtually

repealing the Rent Act for all intents and purposes.

In my considered view, this case has no application whatever. A reading of the evidence of P.W. 1 and Exhibit P-6, which have been referred to

at length earlier, would clearly constitute a ground for eviction u/s 10(2)(v), in that, the tenants have been found guilty of such acts and conduct

which are a nuisance to the occupiers of the other portion, namely the landlords in this case.

The frequent quarrels and use of abusive language have been persistent. I do not think, I need elaborate on this. It also requires to be noted

that the Rent Controller is right when he says that if the evidence of P.W. 1 was not true, nothing prevented the tenants from examining anyone of

the servants to contradict the same. I also find that Exhibit P-6 has not been replied to. Therefore, as against these evidence, there is no contra

evidence. These evidence, if accepted clearly make out a ease of nuisance to the occupier. The appellate authority is not right when he states that

the tenants must have been either instrumental or must abet the commission of the offence. Law does not lay down such a qualification. Then again

merely because there had not been a police complaint nor was there any enquiry, it does not cease to be a nuisance. The decision in Janakiraman

v. Nagammal (1958) 1 M.L.J. (S.N.) 5, relied on by the appellate authority has no bearing. Then again, the appellate authority erred in holding.

We do not know whether the servants used indecent language or whether they retaliated when the son and daughters of P.W. 1 obstructed them

from using the F.O.L. or well.

The appellate authority had merely indulged in surmises instead of rendering positive evidence. The only evidence is, as I held earlier, of P.W. 1

and also Exhibit P-6, which have not been contraverted in any manner.

Therefore, reversing the findings of the appellate authority under this head, I hold the tenants are guilty of such acts and conduct which

constitute a nuisance, and thereby, they are liable to be evicted u/s 10(2)(v) of the Act. 1 am in entire agreement with the findings of the Rent

Controller on this score. Accordingly, the revision will stand allowed. There will be no order as to costs. The tenant will be given time till 31st

January, 1980, to hand over vacant possession. The executing Court, if and when the landlords file such a petition, shall not grant any further time

than 31st January, 1980.