IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2011 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.(NPD)No.1689 of 2010 and M.P.Nos.1 and 2 of 2010 P.C.Philip .. Petitioner/Respondent/Tenant -Vs- R.Ponnusamy .. Respondent/Petitioner/Landlord Petition filed under section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the Judgment and decree dated 28.04.2009 made in RCA.No.89 of 2007 on the file of the III Additional Subordinate Judge, Coimbatore, against the order and decreetal order dated 07.03.2007 made in RCOP.No.152 of 2003 on the file of the I Additional District Munsif (Rent Controller), Coimbatore. For Petitioner : Mr.M.Velmurugan For Respondent : Mr.M.R.Thangavel O R D E R This revision has been filed by the petitioner / tenant against the eviction order passed by the learned Rent Control Appellate Authority (III Additional Sub Judge, Coimbatore) in RCA.No.89 of 2007 confirming one of the grounds namely 'different user' as made by the learned Rent Controller made in RCOP. No.152/2003. 2. The respondent in this Revision is the landlord, who filed RCOP.No.152 of 2003 before the learned Rent Controller (Additional District Munsif), Coimbatore, seeking eviction of the respondent / tenant from the demised premises on three grounds, namely, (i) 'wilful default', (ii) 'different user' and (iii) 'nuisance', under the provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent) Control Act. 3. For convenience sake, the status of the parties as landlord and tenant are maintained in this judgment. 4. The brief facts of the case of the petitioner / landlord before the Rent Controller are as follows:- https://hcservices.ecourts.gov.in/hcservices/ The respondent / tenant has been in occupation of the petition premises situated at D.No.1179 (New No.93), MSR Road, Saibaba Colony, Coimbatore for non-residential purpose, at a monthly rent of Rs.3000/-. At the inception, the rent was Rs.1000/- per month. The petition premises belongs to the petitioner / landlord. The respondent is a chronic defaulter in payment of rent. Since the respondent did not pay the rent promptly, the petitioner requested the respondent to quit from the petition premises. Though the respondent/tenant accepted to vacate the petition premises, he did not do so. The tenant has been in arrears of rent from the month of April 2002. The petition premises was leased out to the respondent / tenant to run his business in Sound System and Decorators. But, all of a sudden, without the permission of the petitioner / landlord, the respondent / tenant started a new business in hiring furniture in the petition premises. The respondent not only failed to pay the rent promptly and using the petition premises for different purpose, but also causes 'nuisance' to the neighbours by playing sound amplifiers. Having undertook to vacate the petition premises, the respondent instead of doing so, filed a suit in O.S.No.576 of 2003 seeking the relief of permanent injunction against the petitioner, to restrain him from interfering with the respondent's possession and enjoyment of the petition premises. On the above backgrounds, the petitioner issued a legal notice to the respondent on 03.05.2003 calling upon the respondent to vacate and deliver vacant possession of the petition premises, but the respondent did not comply with the said notice. Hence the petition. 5. The brief facts of the case of the respondent / tenant before the Rent Controller are as follows: The respondent did not pay a monthly rent of Rs.1000/- at the outset and presently also he has not been paying rent at the rate of Rs.3000/- per month. When the respondent tendered the rent payable for the months of March and April 2003, the petitioner refused to receive it. Hence, the respondent sent a sum of Rs.2000/- to the petitioner through Money Order on 10.05.2003 towards the rent payable for the months of March and April 2003 at the rate of Rs.1000/- per month. The petitioner did not receive the same also. Hence, the respondent filed a petition in RCOP.No.100/2003 seeking permission to deposit the rent with the Rent Controller. If really, the respondent had been at default in payment of rent, the petitioner could not have given a consent letter to the respondent on 24.08.2002 for grant of Crackers License in favour of the respondent. The petitioner is not in the habit of issuing receipts whenever he received rent from the respondent. The respondent did not start a new business all of a sudden and his business in hiring furniture is closely related to his business in Sound System and Decorators. The respondent has been doing the above said business for the past four years with the knowledge of the petitioner also. The rent was also increased to Rs.1000/- per month, when the respondent started his https://hcservices.ecourts.gov.in/hcservices/ business of hiring furniture. The respondent has been doing business in Sound Amplifiers for the past 15 years and he did not cause any 'nuisance' to the neighbours. The 'nuisance' now complained by the petitioner is nothing but an imagination of the petitioner, to add one more ground in seeking the respondent's eviction from the petition premises. None of the grounds set out by the petitioner while seeking the respondent's eviction from the petition premises is true. Hence, the petition is liable to be dismissed. 6. The said Rent Control Original Petition was enquired after recording the evidence of both sides, the learned Rent Controller had satisfied himself to accept the grounds of 'wilful default' and 'different user', but rejected the ground of 'nuisance' and ultimately passed an order of eviction against the petitioner / tenant. 7. Against which, the petitioner / tenant had preferred Rent Control Appeal before the learned Rent Control Appellate Authority (III Additional Sub Judge, Coimbatore) in RCA.No.89 of 2007 seeking to set aside the eviction order passed by the learned Rent Controller. The learned Rent Control Appellate Authority after hearing the detailed arguments of both sides had come to the conclusion of accepting the eviction order passed by the learned Rent Controller on the ground of 'different user' under section 10(2)(ii) (b) of the Act and did not accept the eviction ordered for 'wilful default' committed by the petitioner / tenant under Section 10(2)(i) of the said Act and confirmed the order of eviction. Against the said finding of the learned Rent Control Appellate Authority, the present revision has been filed by the petitioner / tenant. 8. Heard Mr.M.Velmurugan, learned counsel for the revision petitioner / tenant and Mr.R.Syed Mustafa, learned counsel for the respondent / landlord. 9. The learned counsel for the revision petitioner / tenant would submit in his argument that the Rent Control Appellate Authority was not correct in holding that the petitioner / tenant had admitted that he started the business of hiring furniture, erecting 'shamiyanas', making light arrangements etc., some four years ago and it was not the original purpose of the trade and the said change of trade was attracted under Section 10(2)(ii)(b) of the Act and there was no written consent obtained by the tenant from the respondent / landlord. He would further submit in his argument that the business of hiring furniture etc., is an allied trade and it would not be for a different purpose and it is also one of the non-residential purpose and therefore it cannot be a 'different user' . He would also submit that there was no change of purpose like manufacturing or installing any machineries and there was no conversion of the premises from non- residential to residential and therefore it could not be a 'different user' as per the meaning of Section 10(2)(ii)(b) of the Act. He https://hcservices.ecourts.gov.in/hcservices/ would also draw the attention of the Court to a judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3389 (Hari Rao ..vs.. N.Govindachari and others) for the principle that switching over to another trade or allied trade without changing the purpose of the trade or the commercial nature of business would not be attracted by the definition of 'different user' . The said principle laid down by the Hon'ble Apex Court was not followed by the learned Rent Control Appellate Authority. He would also submit in his argument that the learned Rent Control Appellate Authority had come to a conclusion that doing the business of hiring furniture, erecting shamiyanas, making light arrangements etc., would be amounting to a 'different user' and it was admitted by the petitioner / tenant and it required a written permission of the respondent / landlord cannot be sustained. He would also submit in his argument that the respondent / landlord did not prefer any revision against the finding of the learned Rent Control Appellate Authority in respect of 'wilful default' which was negatived by the said Court. Therefore, the said finding will bind upon the landlord. Therefore, he would request the Court that the eviction order passed by the learned Rent Control Appellate Authority on the ground of 'different user' is necessarily to be interfered and set aside and thus the eviction order passed against the petitioner / tenant may be set aside, and thus revision may be allowed. 10. Learned counsel for the respondent / landlord would submit in his argument that the order of the learned Rent Control Appellate Authority is sustainable because the petitioner / tenant himself admitted in his evidence that some four years ago, when the rent was raised from Rs.450/- to Rs.1000/- per moth, the respondent / landlord had agreed to permit him to do the business of hiring furnitures, erecting shamiyanas, making light arrangements etc., along with the existing sound service hiring business and therefore the starting of new business at the demised premises had been categorically admitted by the petitioner / tenant and the nature of the business of lending sound service system is different from hiring furnitures, erecting shamiyanas, making light arrangements etc.. The ingredients of Section 10(2)(ii)(b) of the Act would go to show that when once the purpose of the trade has been differently used without obtaining written consent from the landlord it would be amounting to 'different user' and therefore the decision of the learned Rent Control Appellate Authority that the petitioner / tenant had committed 'different user' in the demised premises is perfectly alright. He would also submit in his argument that the case on hand is different from the facts of the case discussed in the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3389 cited supra and therefore, the finding of the learned Rent Control Appellate Authority may be confirmed. 11. Learned counsel for the respondent / landlord would also submit that the learned Rent Control Appellate Authority had come to a conclusion of ordering eviction of the petitioner / tenant from the premises on the reason that he had committed 'different user' , but negatived the claim of the respondent / landlord that the https://hcservices.ecourts.gov.in/hcservices/ petitioner / tenant had committed 'wilful default'. He would further submit that even though he did not prefer any appeal against the said finding, he is always entitled to agitate his case in order to support the eviction order passed by the learned Rent Control Appellate Authority. He would also submit that the finding regarding 'wilful default' can be shown to be wrong. In order to support the decision of the learned Rent Control Appellate Authority directing the petitioner / tenant to vacate the premises, he would cite the judgment of this Court reported in 1998 (1) CTC 761 (Dr.V.K.Jayalakshmi ..vs.. M.S.Meenakshi and another). He would also submit that in the event of the respondent / landlord entitled to canvas against the finding of 'wilful default' in the revision filed by the tenant, it could highlight the contradictory findings reached by the learned Rent Control Appellate Authority on the ground of 'wilful default'. He would also submit in his argument that the learned Rent Control Appellate Authority in his judgment at paragraph 12 had categorically come to a conclusion that there was no infirmity in the order of learned Rent Controller in concluding that the the petitioner / tenant had committed 'wilful default'. However, he had decided in Paragraph 14 of the order that the judgment of the Hon'ble Supreme Court reported in 2003-1- LW-134 (Raja Muthukone (D) by Lrs. ..vs.. T.Gopalsami and another) is applicable and according to the said judgment, two months period should have been given as per the explanation to Section 10(2) of the Act must be considered for deciding the 'wilful default' and therefore, there could not be any 'wilful default' on the part of the petitioner / tenant . He would also submit that there is no doubt that the said two months period was not complied with in the petition filed by the respondent / landlord. However, the petitioner / tenant did not pay the rent payable during the pendency of the proceedings as found by the learned Rent Control Appellate Authority in Paragraph 12 of the judgment. He would further submit that the learned Rent Control Appellate Authority ought to have found that the petitioner / tenant had committed 'wilful default' in paying the rent and to confirm the 'wilful default' ground also. 12. He would also submit in his argument that it is a settled law that the default of the tenant in paying the rent during the pendency of the proceedings would be amounting to 'wilful default'. He would also cite a judgment of this Court reported in 2003 (1) LW 134 cited supra for the said principle. He would also submit in his argument that the petitioner / tenant had also committed 'wilful default' even after preferring this Revision before this Court when there was a direction by this Court to deposit a sum of Rs.75,000/- while ordering a conditional stay and the petitioner / tenant is yet to deposit the said amount and that would be amounting to a 'wilful default' by virtue of the judgment of this Court made and reported in 1975 (2) MLJ 25 (Hemalnath ..vs.. B.Kasthuri). He would further submit in his argument that the principle laid down by this Court in the said judgment that the tenor of Section 11 of the Act could be applied even for the revision proceedings before this Court. Therefore, he would request the Court that on both the grounds, the petitioner / tenant is liable to be evicted and accordingly the https://hcservices.ecourts.gov.in/hcservices/ eviction order passed by the learned Rent Control Appellate Authority may be sustained and the revision may be dismissed. 13. Learned counsel for the petitioner / tenant would reply in his argument that the respondent / landlord cannot agitate his claim when he has not preferred any revision against the findings reached by the learned Rent Control Appellate Authority and the judgment of this Court in 1975 (2) MLJ 25 cited supra is not applied to the facts of this case. Even otherwise, he would submit in his argument that the quantum of rent was only Rs.1000/- per month and both the learned Rent Controller and the learned Rent Control Appellate Authority have not given any finding as to whether the rent was Rs.1000/- or Rs.3000/- as claimed by both parties and therefore, the non-payment of the arrears would not be considered as wilful. Therefore, he would request the Court that the judgment of the Hon'ble Apex Court in AIR 2005 SC 3389 cited supra is squarely applicable and the Revision may be allowed. 14. I have given anxious consideration to the arguments advanced on either side. 15. The undisputed facts are that the petitioner / tenant and the respondent / landlord have entered into a lease agreement for letting out the demised property to the petitioner / tenant for a monthly rent of Rs.450/- and it was subsequently enhanced to Rs.1000/- which is payable on monthly basis and the property was let out for doing a trade of hiring sound service in the said premises. 16. However, it has been stated by the respondent / landlord that the rent has been subsequently enhanced to Rs.3000/- per month and the petitioner / tenant did not pay the rent payable from the month of April 2002 onwards despite his notice issued in Ex.P1. Apart from that, the landlord had raised the ground of 'different user' by stating that the tenant had adopted a new business on hiring furniture, erecting shamiyanas, making light arrangements etc., in the same premises without any consent from the landlord. It has also been submitted by the landlord by using the demised property, the tenant had operated the amplifiers of the sound system and was causing 'nuisance' to the public as well as to the respondent / landlord. On these three grounds, the learned Rent Controller had conducted enquiry and after examination of witnesses and admission of the documents, he upheld the grounds of 'wilful default' and 'different user' and rejected the ground of 'nuisance' and ordered eviction against the petitioner / tenant. However, the petitioner / tenant preferred an appeal before the learned Rent Control Appellate Authority against those grounds and no appeal was preferred by the landlord over the rejection of the ground of 'nuisance'. In the said appeal, the learned Rent Control Appellate Authority had accepted the finding of the learned Rent Controller in respect of 'different user' and varied on the ground of 'wilful default'. 17. According to the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3389 cited supra, the object of the https://hcservices.ecourts.gov.in/hcservices/ 'different user' can be determined in context of Section 21 of the Act dealing with the conversion of tenancy. The relevant passage 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' 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, https://hcservices.ecourts.gov.in/hcservices/ the complaint of the respondent / landlord would be that the petitioner / tenant had switched over to hiring furniture, erecting shamiyanas, making light arrangements etc., along with continuing the sound service, which was the original purpose of tenancy. 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 guilty of 'different user' under Section 10(2)(ii)(b) of the Act and therefore on that ground he is liable to be evicted is not correct and liable to be set aside. 18. However, it has been brought to the notice of this Court that the learned Rent Control Appellate Authority has come to a conclusion in Paragraph 12 of his judgment that the petitioner / tenant had committed 'wilful default'. However, he had come to a conclusion on the question of law by following the judgment of the Hon'ble Apex Court reported in 2003-1-LW-134 cited supra that two months time is essential for concluding the 'wilful default' whenever a notice of demand had been sent to the tenant. No doubt a notice has been issued by the respondent / landlord in Ex.P1 terminating the tenancy by stating that the petitioner / tenant has committed 'wilful default' and had not paid the rent payable at the rate of Rs.3000/- per month to the demised premises. The said notice Ex.P1 was taken as the notice of demand by the learned Rent Control Appellate Authority and he had found that there was no completion of two months period before the filing of Rent Control Original Petition before the Rent Controller. The said finding has been reached on the fact regarding the 'wilful default' pleaded prior to the filing of the Rent Control Original Petition. But in the discussion held in Paragraph 12 of his judgment, the learned Rent Control Appellate Authority had come to a conclusion that the petitioner / tenant had himself filed a separate RCOP.No.100 of 2003 for depositing rent, but in the said petition also he did not continuously pay the rent and therefore he has committed 'wilful default' by not paying the rent during the pendency of the proceedings. The said fact is different from the fact in which the learned Rent Control Appellate Authority has applied the principles of the Hon'ble Apex Court reported in 2003 (1) LW 134 cited supra. The relevant passage would thus:- "6. The submission made on behalf of the landlord that even if two months' notice for payment of rent is given, still it will be open to the Controller under proviso to determine the question of default, was discarded by Fazal ali, J by placing on record his opinion that such a view, if accepted, would render the very object of Explanation otiose and nugatory. The same submission which was expressly discarded in the case of S.Sundaram Pillai (supra) has been advanced before us and obviously, we cannot entertain the same. In the case at hand, once the landlord gave a notice to the tenant claiming the https://hcservices.ecourts.gov.in/hcservices/ rent in arrears, he should have waited for a period of two months from the date of service of notice, and it is only on non-payment or non- tender of rent within the period of two months that the landlord could have initiated the proceedings for eviction on the ground of wilful default and then it would have been for the tenant to satisfy the Rent Controller that in spite of non-payment of rent for a period of two months from the date of service of notice, he was not a defaulter for reasons. In the present case, there is the additional fact that before the initiation of the proceedings for eviction,