IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.No.545 of 2008 and M.P.No.1 of 2008 1. Uttam Chand 2. Kamalesh Kumar .. Petitioners -Vs- A.R.Shamudeen .. Respondent Petition filed under section 25(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the Judgment and decree dated 10.08.2006 made in RCA.6 of 2005 on the file of the Principal Sub Judge, Chengalput, against the order and decreetal order dated 23.12.2004 made in RCOP.No.75 of 1998 on the file of the District Munsif (Rent Controller Court), Alandur. For Petitioner : Mr.M.Chidambaram For Respondent : Mr.K.Gajendran O R D E R This revision has been filed against the order of the learned Rent Control Appellate Authority passed in R.CA.No.6 of 2005 dated 10.8.2006 confirming the eviction order passed against the revision petitioner on one of the grounds of own use and occupation. 2. The petitioners are the tenants under the respondent against whom the respondent filed the eviction petition before the learned Rent Controller, Alandur in R.C.O.P.No.75 of 1998 in respect of the demised premises which was leased out for non-residential purpose. The respondent landlord has sought for eviction based on three grounds namely willful default of payment of rents, different user of the premises and the requirements of the demised premises for the own use and occupation of the respondent/landlord. The learned Rent Controller had examined the landlord as P.W.1 and had admitted Exs.P1 to P8 in support of his case and also examined the second petitioner/tenant as R.W.1 and marked Exs.R1 to R12 on his side and had come to a conclusion that the respondent landlord had established all the three grounds namely willful default, different user and requirement for own use and occupation and ordered eviction against the petitioners/tenant. However, the tenants have preferred the appeal before the Rent Control Appellate authority in R.C.A.No.6 of 2005 and after hearing both sides, the learned Rent Control Appellate Authority had rejected the grounds of willful default and different user but accepted the ground raised by the landlord in respect of requirements of the premises for his own use and occupation and confirmed the order of eviction of the tenants. The petitioners/tenants have preferred this revision against the order of the learned Rent Control Appellate Authority in arriving to a conclusion of confirming the order of the learned Rent Controller on the ground of requirements for own use and occupation and ordering eviction. 3. The respondent/landlord did not prefer any revision against the findings reached by the learned Rent Control Authority in rejecting the grounds for willful default and different user. The argument was also advanced by both sides only on the decision reached by the learned rent Control Appellate Authority for ordering eviction under the ground of own use and occupation. 4. Heard Mr.M.Chidambaram, learned counsel for the revision petitioners/tenants and Mr.K.Gajendran, counsel for the respondents/landlords. 5. The learned counsel for the petitioners would submit in his argument that the intention of the landlord in filing the R.C.O.P. against the tenants for evicting them from the premises is not bonafide and the father of the landlord was originally the owner of the property who had leased the said premises to the father of the tenants for conducting pawn broker shop and the tenants' father was in possession and enjoyment of the said premises and was paying the rent payable to the premises to the father of the landlord without any default, however, the father of the landlord filed an eviction petition against the father of the tenants for own use and occupation and the said petition was dismissed by the learned Rent Controller and the same was confirmed by the Rent Control Appellate Authority in a C.M.A. Preferred by the father of the landlord. He would therefore submit that the said decision will certainly bind upon the landlord who had inherited the property from the previous landlord his father. Therefore, the learned Rent Control Appellate Authority should have rejected the plea of own use and occupation also. He would further submit in his arguments that the landlord has not established that he is running a shop in a rented premises by producing an agreement in between his landlord, and mere production of the income tax returns would not be helpful for the landlord to establish that he is having a shop in a rented premises and he requires his own shop namely the demised premises for his own use and occupation. He would also submit that the landlord has not established to Court that he had no other premises except the demised premises for accommodating his business. He would also submit that the tenants have continued the tenancy after the death of their father and they have got good will and reputation in the said area and they will be much prejudiced if they are evicted from the said premises and therefore the requirement of own use on the side of the landlord will cause much prejudice than the advantageous accrued to the landlord. He would also submit that the learned Rent Control Appellate Authority is not correct to come to a conclusion that the finding of the learned Rent Controller in favour of the landlord for his own use and occupation was established and therefore, the tenants had to vacate the premises. He would therefore, request the Court that the finding of the learned Rent Control Appellate Authority is quite contrary to the fact and law and the circumstances of the case and therefore, the finding of the learned Rent Control Appellate Authority may be interfered with and set aside and thus, the petition filed by the landlord before the Rent Controller for eviction of the tenants from the premises may be dismissed. 6. Learned counsel for the respondent/landlord would submit in his arguments that the concurrent findings of the Rent Controller and the Rent Control Appellate Authority over the requirements of the premises for own use and occupation of the landlord need not be interfered with as both the Courts below have applied their mind in appreciation of evidence and have come to a conclusion that R.W.1 (2nd respondent) before the Rent Controller admitted that the landlord is conducting a shop in the rented premises at Pallavaram in his cross examination. He would further submit that the factual finding reached by the Courts below need not be interfered with. He would further submit that the evidence of P.W.1 would go to show that he had no other property of his own on the date of petition for accommodating his business. He is doing his business in a different place on rental basis and it cannot be proved by producing any negative documentary evidence to the effect that he is not having any other property. He would further submit that if the landlord is having any other property apart from the demised premises for accommodating his business being conducted in a rental premises, it is for the tenant to produce necessary evidence before the Rent Controller to disprove the case of the landlord but it was not done so by the tenants. He would further submit in his argument that the eviction petition filed by the father of the landlord against the father of the tenant was in different circumstances and the landlord inherited the demised property alone whereas the father had many properties at that time. Therefore, the factual matrix existed at the time of previous petition is different from the present circumstances prevailed at the time of filing of the eviction petition by the landlord. He would further submit that therefore, the doctrine of 'resjudicata' cannot be applied in the present case. He would submit in his argument that both the Courts have perfectly considered in coming to the conclusion that the landlord had no other premises for accommodating the business of the landlord and he is being carried on a rental premises and therefore, the requirement of the landlord for his own use and occupation of the demised premises was bonafide and there is no reason or necessity to interfere with the said concurrent findings reached by the courts below. He would therefore, request the Court to dismiss the revision and confirm the order of eviction passed by the Courts below. 7. I have given anxious consideration to the arguments advanced on either side. 8. There is no dispute that the tenants have continued as tenants in the demised premises after the death of their father who was originally a tenant of the premises. Similarly, the demised premises was leased out by the father of the landlord to the father of the tenants and after the death of the father of the landlord the demised property was allotted to the landlord and he was admitted to be the landlord of the premises. The grounds raised by the landlord for the eviction of the tenant from the premises under willful default of payment of rents and different user were accepted by the Rent Controller apart from the ground for requirement of the premies for own use and occupation. However, the learned Rent Control Appellate Authority had rejected the grounds of willful default and different user. The reason given by the learned Rent Control Appellate Authority for rejecting the ground of willful default was that the tenants have deposited 62 months rent as per the direction of the learned Rent Controller in Section 11(4) application and the principles laid down in 2000(3) MLJ 829 (Nageswara Rao v. Shankar) is squarely applicable. The default committed by the tenants, during the proceedings is also amounting to willful default since every months rent was not regularly paid by the tenant. The learned Rent Control Appellate Authority had distinguished the application of the said judgment of this Court and said that the arrears of rent payable for 62 months was paid as per the order of the learned Rent Controller passed in Section 11(4) application and therefore, there was no default in payment of every month's rent and therefore, the said principle was not applicable. No doubt, the said finding of the learned Rent Control Appellate Authority is correct. The landlord has not advanced any arguments on the ground of willful default so as to reach to a conclusion for eviction of the tenants from the premises. Similarly, no argument was advanced for different user by the tenants. Even otherwise the use of the Pawn broker shop as jewelry shop without the written consent of the landlord cannot change its character as per Section 21 of the Tamil Nadu Buildings (Lease and Rent Control) Act. The principle laid down by the Honourable Apex Court in AIR 2005 SC 3389 (Hari Rao ..vs.. N.Govindachari and others) coupled with the provisions of Section 10(2)(b) with Section 21 would also apply to the present case. Therefore, the different user ground was righty rejected by the learned Rent Control Appellate Authority. 9. According to the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3389 (Hari Rao ..vs.. N.Govindachari and others) cited supra, the object of the 'different user' can be determined in context of Section 21 of the Tamil Nadu Buildings (Lease and Rent Control) Act dealing with the conversion of tenancy. The relevant parragraphs would run as follows:- "6. On the plain terms of the statute, uninfluenced by authorities, it appears to us that user of the building for a purpose other than that for which it was leased, has to be considered in the context of Section 21 of the Act which prohibits conversion of a residential building into a non-residential building except with the permission in writing of the controller, any convenant in that behalf entered into by the tenant and the nature of the tenancy. In other words, when the lease is granted for the purpose of a trade, in the absence of any convenant in the contract between the parties prohibiting a user different from the particular one mentioned in the lease deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. In a case where the premises let out for a commercial purpose, is used by the tenant for a residential purpose, it would be a user for a purpose other than that for which it was leased attracting Section 10(2)(ii)(b) of the Act. Similarly, if a building had been let out for the purpose of a trade, but a tenant uses the premises for the purpose of manufacture or production of materials after installing machinery, that would be a user other than the one for which the building was let. User of a building let out for a trade as a godown may attract the provision. Ultimately, the question would depend upon the facts of a particular case, in the context of the terms of the letting and the covenants governing the transaction and the general spirit of Section 108(o) of the Transfer of Property Act. Merely because a shop let out for trade in shoes and other leather goods, is used by the tenant also for the purpose of trading in readymade garments, it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased." In the said judgment, it has been categorically laid down that the 'different user' in the context of Esection 10(2)(ii0(b) of the Act has to be considered in respect of conversion from non-residential purpose to residential purpose or from the residential purpose to non-residential purpose. In the case discussed by the Hon'ble Apex Court, it had been categorically found that the conduct of the readymade business in the place where the premises was tenanted for the purpose of running a shoe shop will not be amounting to a different user. As far as this case is concerned, the complaint of the respondent / landlord would be that the petitioner / tenant had switched over to jewelry business from pawn broker business. I do not find any difference in between these two cases and therefore, I could see that the dictum laid down by the Hon'ble Apex Court is squarely applicable to the present case. Therefore, the finding of the learned Rent Control Appellate Authority that the petitioner / tenant found to be a 'different user' under Section 10(2)(b) of the Act is not in accordance in law and therefore, on that ground also he is liable to be evicted is not correct and therefore, the said finding is liable to be set aside. 10. As regards the ground of requirement of the premises for own use and occupation, it is an admitted case as per the evidence of R.W.1 that the landlord is having a petty shop at Radha Nagar Chrompettai. He had also admitted that the said shop was not belonging to him. The second petitioner/ tenant(RW1) had admitted that the landlord is having business or a shop in a rental premises which is not belonging to him, it is certainly for the tenants to show that the landlord is having other properties also on the date of filing of the petition to disprove the bonafide of the petitioner but there was no other document produced to show that the landlord was having other properties of his own on the date of filing of the petition. Apart from that, the evidence would go to show that the property in which he was conducting the shop was not belonging to him. In the said circumstances, the evidence of P.W.1 that he was conducting the cut piece business at the rental shop is true. When the landlord was not having any other premises except the demised premises for housing his business and such requirement cannot be negatived as malafide. In the absence of any evidence contrary to the requirement of the premises for the own use and occupation of the landlord it has to be deemed that the requirement of the landlord is bonafide. Apart from that, the earlier case filed by the father of the landlord against the father of the tenants for evicting him from the premises on the ground of own use and occupation would be a bar against the respondent cannot also be sustained since the demised premises alone was derived from the father's property where the father of the landlord was having many properties of his own. Therefore, the said circumstances prevailed in the earlier application filed by the father cannot be equivated to the present circumstances, which necessitated the landlord seeking for requirement of the premises for his own use and occupation. 11. Therefore, I find bonafide on the request of the landlord seeking the premises for his own use and occupation. Both the courts below concurrent over the request of the landlord's requirement for own use and occupation even though they differ in respect of the grounds raised by the landlord for willful default and different user. Therefore, I find no reason to interfere with the order of the Courts below. Accordingly, the civil revision petition is dismissed confirming the order passed by the learned Rent Control Appellate Authority. No costs. Consequently, connected M.P.No.1 of 2008 is closed. 12. It is brought to the notice of the Court that the revision petitioners have vacated the premises already during the pendency of revision, as the matter was compromised in between the parties. Therefore, I am not passing any orders granting time for vacating the premises by the revision petitioners. 17.06.2011 Index:Yes/No Internet:Yes/No vsi Note: Office is directed to issue order copy on 20.6.2011 To 1. The Principal Sub Judge, Chengalput, 2. The District Munsif (Rent Controller Court), Alandur. V.PERIYA KARUPPIAH.,J. vsi Pre-delivery order made in C.R.P.No.545 of 2008 and M.P.No.1 of 2008 17.06.2011