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CASE NO.:

Appeal (civil) 14150 of 1996

PETITIONER:

M. ARUL JOTHI & ANR. .

Vs.

RESPONDENT:

LAJJA BAL (DECEASED) & ANR. ..

DATE OF JUDGMENT: 29/02/2000

BENCH:

N.S.Hegde, A.P.Misra

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

MISRA, J.

The question raised in this appeal is the

interpretation of Section 10(2)(ii)(b) of the Tamil Nadu

Buildings (Lease and Rent Control) Act 1960. The question

is whether in terms of the rent agreement between the

appellant (tenant) and the respondent (landlord), if the

tenant uses the shop for a different purpose than the one

specified therein will he be liable for eviction?

The short facts are, a rent agreement was entered into

between respondent no.1 and one Mr. T.S. Arulrayar (the

grandfather of the appellant) under which the disputed shop

was rented out. The relevant portion of the rent agreement

which requires our consideration is reproduced below:-

shall be used by the tenant only for carrying on his

own business dealing in radios, cycles, fans, clocks and

steel furniture and for non-residential purposes and the

tenant shall not carry on any other business than the above

said business.

{Emphasis supplied}

On 12th April, 1979 a legal notice was sent by the

landlady to the said T.S. Arulrayar terminating his tenancy

on two grounds, the wilful default in payment of rent and

using the shop for a purpose other than that for which it

was let out. This was followed by filing of petition before

the rent controller in which it was stated that the tenant

is also doing the business of provisions such as chilies,

dals and other condiments etc., which is other than the one

for which he took the accommodation on rent. The tenant

denied it and asserted, if the rent-deed is read as a whole

it cannot be said that it was for any specified purpose but

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was given broadly for doing business but was not for

residential purpose. Thus, it cannot be termed as a

different user. The rent controller finally decreed the

suit by holding that tenant is also carrying on the business

of provisions, which is other than the one mentioned in the

rent deed which would be a different user, hence ordered for

his eviction. Thereafter the said T.S. Arulrayar filed an

appeal before the Appellate Authority which also confirmed

the aforesaid judgment. Next civil revision was filed

before the High Court. The High Court remanded the case to

the Appellate Authority, relying on M.K.P. Chettiar Vs.

A.P. Pillay, 1970 (2) SCC 290, for recording, whether the

tenant was using substantial portion of the disputed shop

for a different user. After remand the Appellate Authority

once again decreed the eviction suit recording substantial

portion being put to different user. The appellants

grievance is that the said Authority did not record any

finding as to the area actually used by him for a different

purpose. The inference of a different use of substantial

portion was only drawn since appellant could not produce the

accounts books relating to the grocery business. The

challenge was also that the said Authority wrongly placed

burden of proof on the tenant instead on the landlord, hence

filed the revision before the High Court. During pendency

of the same, Mr. T.S. Arulrayar died and the present

appellant and respondent no.2 were brought as his legal

representatives. The High Court also confirmed the findings

recorded by the Appellate Authority. Aggrieved by this the

present appeal is filed.

The thrust of submission by learned senior Counsel for

the appellant is that the shop was given on tenancy for

doing business and even if the appellant changes his

business or undertook another business from dealings in

radios, cycles, fans, clocks and steel furniture to the

grocery business; would still be a business and such a

change would not affect his right to use it as such.

Broadly, tenancies are either for residential or commercial

use. Since the change of business does not change its use

from commercial it would not constitute this to be a ground

for his eviction. To substantiate this, he made reliance on

Section 108 (o) of the Transfer of Property Act, which is

quoted hereunder:-

108 Rights and liabilities of lessor and lessee

.. (o) the lessee may use the

property and its products (if any) as a person of ordinary

prudence would use them if they were his own; but he must

not use, or permit another to use, the property for a

purpose other than that for which it was leased, or fell or

sell timber, pull down or damage buildings belonging to the

lessor, or work mines or quarries not open when the lease

was granted, or commit any other act which is destructive or

permanently injurious thereto;

{Emphasis supplied}

It is submitted that language of this section and that

of Section 10 (2)(ii) (b) are similar. Both expresses that

tenant must not use the property for a purpose other than

that for which it was leased. He also emphasised that the

accompanying words used in the aforesaid quoted portion of

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the rent-deed, namely, that shall be used by the tenant

only .and for non- residential purposes, confirms the

interpretation that the shop is to be used for

non-residential purposes in other words only for business

thus any change of business would have no consequence and

thus would not defeat the tenants right. For ready

reference Section 10(2)(ii)(b) of the Tamil Nadu Buildings

(Lease and Rent Control) Act 1960 is also quoted below:-

10. Eviction of tenants: (1) A tenant shall not

evicted whether in execution of a decree or otherwise except

in accordance with the provisions of this section or

sections 14 to 16:

(2) landlord who seeks to evict his tenant shall apply

to the Controller for a direction in that behalf. If the

Controller, after giving the tenant a reasonable opportunity

of showing cause against the application, is satisfied

(i)

(ii) that the tenant has after the 23rd October, 1945

without the written consent of the landlord

(a).

(b) used the building for a purpose other than that

for which it was leased, or . {Emphasis supplied}

He relied on, Gurdial Batra Vs. Raj Kumar Jain, 1989

[3] SCR 423. This was a case where the premises (shop) was

let out for repairing business. Later, along with the

repairing business, the sale of T.V. was temporarily

carried on. The Court held that this change of user would

not constitute to be a use for a purpose other than that for

which it was leased. This was a case under Section

13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act,

1949, the provision of which is similar to the present

provision to which we are called upon to interpret. For

this conclusion, the Court relied on an earlier decision of

this Court in Mohan Lal Vs. Jai Bhagwan ,1988 [2] SCC 474,

to which we shall refer hereunder and also observations of

Lord Diplock J. in Duport Steels Ltd. Vs. Sirs, 1980 [1]

ALL ER 529, which is reproduced below:-

While respectfully agreeing with the said

observations of Lord Diplock, that the Parliament Legislates

to remedy and the judiciary interprets them, it has to be

borne in mind that the meaning of the expression must be

found in the felt necessities of the time. In the

background of the purpose of rent legislation and inasmuch

as in the instant case the change of the user would not

cause any mischief or detriment or impairment of the shop in

question and in one sense could be called an allied business

in the expanding concept of departmental stores, in our

opinion, in this case there was no change of user which

attracted the mischief of section 13(2)(ii)(b).

It held:

Letting the premises can broadly be for residential

or commercial purpose. The restriction which is statutorily

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provided in Section 13(2)(ii)(b) of the Act is obviously one

to protect the interests of the landlord and is intended to

restrict the use of landlords premises taken by the tenant

under lease. It is akin to the provision contained in

Section 108(o) of the Transfer of Property Act dealing with

the obligations of a lessee. A house let for residential

purpose would not be available for being used as a shop even

without structural alteration. The concept of injury to the

premises which forms the foundation of clause (o) is the

main basis for providing clause (b) in Section 13(2)(ii) of

the Act as a ground for the tenants eviction.

We find in Gurdial Batras case (supra) there is

absence of any words in the rent deed which restricts or

limits of doing or not doing any business except the one

stated in the rent deed. Thus, on these facts the court

held that the letting could only be either for residential

or commercial purpose. This distinguished feature is

revealed by what the Court also records:

The landlord has accepted the position that in the

rent note it was not written that the respondent would not

do any business in the shop in dispute except the cycle or

rickshaw repairs. On these facts it has now to be decided

as to whether the premises has been used for a purpose other

than that for which it had been leased.

{Emphasis supplied}

The next reliance was placed on Mohan Lal Vs. Jai

Bhagwan, 1988 [3] SCR 345. As per clause 4 of the rent

note, the tenant was to run the business of English Liquor

Vend, and do sale of liquor in the shop. The landlord

filed the eviction suit on the change of user by the tenant

from liquor business to that of general merchandise. In

this case the Court held:

While respectfully agreeing with the said

observations of Lord Diplock, that the Parliament Legislates

to remedy and the judiciary interprets them, it has to be

borne in mind that the meaning of the expression must be

found in the felt necessities of the time. In the

background of the purpose of rent legislation and inasmuch

as in the instant case the change of the user would not

cause any mischief or detriment or impairment of the shop in

question and in one sense could be called an allied business

in the expanding concept of departmental stores, in our

opinion, in this case there was no change of user which

attracted the mischief of section 13(2)(ii)(b) of the Act.

The High Court, therefore, was in error.

This Court held, in expanding concept of departmental

stores the other business would only be allied business.

But again we find this case is again as in the Gurdial Batra

(supra), there were no restrictive words. However, this

case also significantly records the following:-

According to the appellant the purpose of the user

still remains commercial and that in the rent note there was

no clause prohibiting the appellant to change any other

business in the shop in dispute.

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{Emphasis supplied}

Next reliance is on State of Karnataka Vs.

Ayyanahalli Bakappa and Sons, 1988 [3] SCC 587. This is a

case where initially shop was given for running a grocery

shop but later it was changed to running a book shop. This

decision neither records facts nor any reason.

Next reliance is on Mehta General and Provisions

Stores and Ors. Vs. Prem Wati (Smt.) (Dead) Through LRs.,

1995 Supp [1] SCC 319. Here the change was from general

provision store to the textile. Again here also neither

reasons nor facts are recorded. In the aforesaid last two

cases it cannot be said whether there was any prohibition

clause in the rent deed of the use of the building.

On the other hand, learned counsel for the respondent

relied on Ram Gopal Vs. Jai Narain and Ors., 1995 Supp [4]

SCC 648. This is a case where the shop was given for

business but later tenant installed an Atta Chakki and Oil

Kohlu. This case could not be of any help to the

respondents as here the change was, as held, from business

to manufacture. Having heard learned counsels for the

parties in our considered view the case cited on behalf of

the appellants were all those where there was no specific

clause restricting the use of the tenanted accommodation.

On the other hand, in the case in hand, there is specific

prohibition clause in the rent deed. In the present case

there is specific clause which states shall be used by the

tenant only for carrying on his own businessand the tenant

shall not carry on any other business than the above said

business. By the use of the words only with reference to

the tenant doing business coupled with the last three lines,

namely, the tenant shall not carry on any other business

than the above said business, clearly spells out the intend

of the parties which restricts the user of the tenanted

premises, only for the business which is stated therein and

no other. In order to meet this, learned counsel for the

appellant referred to section 108(o) of the Transfer of

Property Act and language of Section 10(2)(ii)(b) which are

similar hence he submits interpretation has to be given in a

broader perspective, that is the use of building by the

tenant should not be such as to damage it or diminishes its

value and restriction if any could be that if it was given

for business it should not be used for residential purpose

and vice versa. We have no hesitation to reject this. If

such an interpretation is given, it would make any specific

term of a valid agreement redundant. Once parties enter

into a contract then every word stated therein has to be

given its due meaning which reveals the rights and

obligations between the parties. No part of the agreement

or words used therein could be said to be redundant. Such

restriction could only be if any statute or provisions of

the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

specifies, which is none. Nor we find any restriction by

Section 108 of the Transfer of Property Act. In fact,

Section 108 of the Transfer of Property Act starts with the

words in the absence of a contract or local usage to the

contrary. In other words, it permits contract to the

contrary mentioned under that Section.

So, we come to the conclusion that use of the words in

the rent-deed not to use it for any other purpose, it has

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to be given effect to and hence Section 10(2)(ii)(b) has to

be interpreted to mean that use of building shall not be for

a purpose other than that for which the shop was given.

There is specific clause restricting its user thus it has to

be used for the purpose given and no other.

The last submission by learned counsel for the

appellant is unless there is specific finding that tenant

has used substantial portion of the building it could not be

said that there is change of user in view of M.K.P.

Chettiar Vs. A.P. Pillay 1970 (2) SCC 290 (Supra), and it

is for this the case was remanded, and the finding of

substantial portion having used is not sustainable as

details of that not recorded hence eviction decree is not

sustainable. On the other hand, learned counsel for the

respondents relied on the statement made by the appellants

father (Mr. T.S. Arulrayar) who was the original lessee,

which reveals that substantial portion of the shop was used

for the changed business. The said statement is quoted

hereunder:

I am running the radio shop in area measuring East to

West 9 feet and North to South 9 and ½ feet. The provision

store is being run in area measuring East to West 7 feet and

North to South 9 and ½ feet.

The submission is, this itself shows substantial

portion of the shop is being used for other business. In

view of this statement and the finding recorded by authority

below that substantial portion of the shop is being used by

the tenant for the changed business we do not feel it proper

to interfere with it.

However, we find in Bishamber Dass Kohli (Dead) By

Lrs. Vs. Satya Bhalla (Smt.), 1993 [1] SCC 566 where this

question was raised that change of business was not in the

substantial part of the building. The Court held:

Shri Mahajan contended that to constitute the ground

under Section 13(2)(ii)(b), the change in user should be in

respect of at least a substantial part of the building if

not the entire building. The comparison of sub-clause (b)

with sub-clause (a) shows that the omission of the word

entire before the word building in sub-clause (b) when

the word entire has been used before the word building

in sub-clause (a) is deliberate. For this reason, the

change in user of the building required to constitute the

ground under sub-clause (b) need not be of the entire

building, the word entire being deliberately omitted in

sub-clause (b). Faced with this difficulty, Shri Mahajan

submitted that the change of user should be of a substantial

part of the building let out even though not of the entire

building. This argument also cannot be accepted in this

context. The definitions in Section 2 of the Act show that

even though a schedule building continues to be a

residential building as defined in Section 2(g), a

residential building of which even a part is used for a

scheduled purpose, becomes and is called a scheduled

building when user of the building is significant or the

criterion. Thus, where user of the building is of

significance, a distinction is made in the Act between a

residential building which is not a scheduled building and

that which is a scheduled building. This is so in Section 4

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of the Act dealing with determination of fair rent wherein

fixation of rent is made on the basis of user and for that

purpose a scheduled building is treated differently from a

residential building which is not a scheduled building.

Same is the position with regard to the ground of eviction

contained in Section 13(2)(ii)(b) wherein change in user of

the building is alone significant for constituting the

ground. {Emphasis supplied}

This is a decision by three Honble Judges of this

Court. This completely dissolves the submission for the

appellant. Learned counsel for the appellant attempts to

distinguish this decision that this was a case under Section

2(h) of the East Punjab Urban Rent Restriction Act, 1949.

It defines scheduled building as one being used partly for

business and partly for residence. So even if part is used

for residence it continues to be scheduled building. This

distinction would not distract the law laid down therein

which is evid ent from the last line of the aforesaid quoted

lines which holds, Same is the position with regard to the

ground of eviction contained in Section 10(2)(ii)(b) wherein

change in user of the building is alone significant for

constituting the ground. In view of what we have concluded

and the said decision which squarely apply, we have no

hesitation to hold that courts below have rightly decreed

the suit for eviction as against the appellant and change of

user of the business by the appellants from radios, cycles,

fans, clocks and steel furniture to grocery business is in

contradiction to the specific term of the agreement. Thus

such tenant would be covered by Section 10(2)(ii)(b). Hence

the appellant is liable for eviction which the courts below

have rightly decreed. This appeal accordingly fails and is

dismissed. Costs on the parties.