ORDER
Prabha Sridevan, J.
1. The tenant has filed these revisions. Originally, the respondent filed for eviction on five grounds viz., wilfuldefault, sub-letting, acts of waste, change of user and denial of title. The respondent did not press the grounds of subletting and change of user. The Rent Controller granted eviction on the remaining three grounds viz., wilful default, acts of waste and denial of title. The Appellate Authority confirmed the order of eviction only on the ground of wilful default and denial of title. The arguments advanced by the counsel were only on the ground of wilful default, and acts of waste.
2. The quantum of rent itself is in dispute. According to the petitioner, the rent payable is Rs.1,500/-. According to the respondent, it is Rs.2,000/-. The period of default is from September 1997 to January, 1998. Admittedly, the respondent has received an advance of Rs.35,000/-. It is the case of the petitioner that originally, at the commencement of the tenancy, which is 15.2.1989, the rent was fixed at Rs.1,000/-. Thereafter, on 5.6.1992, it was increased to Rs.1,200/-. In March 1996, it was increased to Rs.1,500/-. According to the petitioner, thereafter, there was no increase. But according to the respondent, subsequently, it was increased to Rs.2,000/-.
3. Learned counsel for the petitioner would submit except Ex.A5, which is a xerox copy of two sheets in a book, there is nothing to show that Rs.2,000/- was the rent that was agreed to be paid by the petitioner. Learned counsel would submit that when the document itself is inadmissible in evidence, the rent cannot be fixed as Rs.2000/-. It was also submitted that, in the petition filed in the HRCOP, it has been stated that the hand book, which was the evidence of receipt of rents, was left in the custody of the respondent, and it was for the respondent to produce the hand book. Production of xerox copies of two sheets was not acceptable. Therefore, rent payable is only Rs.1,500/-. Learned counsel pointed out to Ex.A9 which is the notice issued by the petitioner in which he has referred to the refusal on the part of the respondent to receive the rent, wherein the respondent had also been called upon to disclose his bank account in any of the nationalised banks. Soon, thereafter, this petition was filed and during the pendency of the RCOP, the entire arrears had been deposited and was continued to be paid. Therefore, according to the learned counsel for the petitioner, there was no default muchless wilful default. Reliance was placed on (2000) 2 MLJ 202 (Mahalingam v. Pichaiammal) wherein it was held that the landlord is permitted to take only one month's rent as advance. The learned counsel contends that retention of Rs.35,000/- paid as advance was improper and that sum ought to have been adjusted towards the arrears of rent.
4. With regard to the acts of waste, it was submitted that many of the acts of waste referred to had taken place in 1996, or earlier and therefore, the case of the petitioner that the landlady had consented to the alteration must be accepted. Learned counsel for the petitioner also relied on the following decisions:
(i) 2002 II MLJ 65 ( Narayanasamy v. Govindaraj)
(ii) 1998 1 L.W. 796 (M. Karuppanna Gounder vs. C. Visuvasam and 4 others)
(iii) 1999 I MLJ 266 (Arumugam and others vs.Tuticorin Visvakarma Dharma Paripalana Sangam through its Secretary, Tuticorin.
(iv) (A. Gurusami vs. Dr (Mrs.)Jacob (died) and others
5. It was further submitted by the learned counsel for the petitioner that since there was an increase of rent some time in 1996, fresh tenancy must be deemed to have commenced as held in (Bhuneshwar Prasad v. United Commercial Bank). So the acts of waste, which were prior to 1996, cannot be sought as a ground for eviction. It was also submitted that the Rent Control being a beneficial legislation, should be construed in a manner that advances the purpose of the legislation. For this ( Liaq Ahmed v. Habeeb-Ur-Rehman) was relied on. Learned counsel also relied on 2000 1 LW 402 (The Special Tahsildar, L.A. v. K. Leelammal and others) wherein it was held that photocopies of the documents cannot be produced as evidence. It was also submitted that, even assuming, without admitting that the acts of waste had been proved, they relate only to Door No.341 and not to Door No.343. Therefore, the order of eviction was not justified.
6. Learned counsel for the respondent, on the other hand, would submit that there can be no dispute that the quantum of rent is Rs.2,000/- and the said fact had been admitted in Ex.A.13 which is the copy of the petitioner's evidence in a suit. Learned counsel would submit that when the petitioner had admitted that Ex.A.13 contains his rubber stamp, the contents therein should also be deemed to have been admitted. So, the rent was undoubtedly Rs.2,000/-. Ex.A2 was also pointed out. This is a letter from the respondent to the petitioner referring to the increase of rent Rs.2,000/- and also to the acts of waste. While the receipt of Ex.A.2 was acknowledged, there was no reply. Therefore, admittedly, the rent is Rs.2,000/- and the prevaricating stand taken by the petitioner would show that he is a deliberate defaulter in payment of rent.
7. As regards the acts of waste, learned counsel for the respondent would submit that the building was originally a single building, which was separated into two door numbers viz., 341 and 343. Each act of waste referred in the notice and in the pleadings are of such drastic nature that even without further proof it would be obvious that they would impair the utility of the building. Learned counsel also submitted that the respondent had never acquiesced in the acts of waste. The respondent had all along been taking whatever steps she could, to stop the petitioner. She had filed a suit for injunction restraining further damage. The suit was decreed. There is evidence to show that every time, she went to the petition-premises to complain, she was verbally abused and therefore, the evidence as well as the pleadings would show that all along she had protested to the various acts of waste and had not consented to them. Reliance was placed on the following decisions:
(i) (Associated Traders and Engineers Ltd., v. Alamelu Ammal
(ii) 1996 (2) LW 322 (M. Shanmugam v. C. Kannabiranand another
(iii) 2001 (4) CTC 710 (S.N. Vairavelu v. P.Sundaram)
(iv) (S.N. Bahadurmal v.Krishna Rao M. Nikan)
(v) 1996 (I) LW 714 (Panchavarnammal,E (Died) &6 others v. E. Saraswathiammal & 3 others
8. wilfulDefault:
The Act requires the tenant to obtain receipt for payment of rent. As per Section 8(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, every landlord shall issue a receipt duly signed by him and where a landlord refuses to accept rent or evidence receipt of rent, the tenant may require the landlord to specify within 10 days from the date of receipt of the notice, a bank into which the rent may be deposited. It has been held in several decisions of our Court that though the Act intends to protect the tenant, the duty cast on the tenant to obtain receipts cannot be ignored and if a tenant does not obtain receipt, the tenant will have to suffer the consequences.
9. Some of the decisions which have been referred to by the Appellate Authority have arisen out of the Tamil Nadu Act which is identical to the Pondicherry Rent Control Act, which applies to the present case. In Maruthachala Udayar vs. Dhandapani, it was held that, where wilful default in payment of rent is alleged by the landlord, and the answer of the tenant is that the landlord never issued receipts for payment of rents, the Court cannot ignore the implications of section 8 of the Act and that in the absence of any proof of payment of rent, it will not be in consonance with the provisions of the Act to presume that the tenant must have paid the rent and the landlord must have declined to issue receipts. Similarly, in Damodaran Naicker vs. Janaki Ammal, it has been held that when the land lord refuses to accept the rent or evade receipt of the rent, the tenant has to issue a notice in writing to the landlord to specify within 10 days from the date of receipt of notice by him to mention his bank account for deposit of the rent.
10. But in this case, the facts are slightly different. In the RCOP, the respondent has stated that receipts would be issued every month in the hand book maintained by the tenant. The extract from the petition in the HRCOP is as follows:
'Petitioner further states that in the 1st week of September 1997, the respondent brought the same hand book and paid the rent of Rs.4,000/- representing Rs.2,000/- for each premises for the month of August 1997 and obtained the signature of petitioner's sister Victoria who is living along with her and left the said hand book in the custody of the petitioner without taking back the same'.
Therefore, the pleadings show that the hand book was with the respondent herein. This was in August 1997.
11. In November, 1997, the petitioner had issued Ex.A.9-notice, claiming that the rent was only Rs.1,500/- and that there is no agreement to pay Rs.2,000/- as rent and that the refusal to receive the rent on the ground that the rent was enhanced was based on her presumption. He has indicated that he is willing to pay the present rent of Rs.1,500/- and called upon the landlady to name the bank account. The respondent/landlady, of course, refused to mention the bank account. Ex.A.10, copy of the reply notice also filed. When it is the respondent's own case that the hand book or the receipt was left with her by the petitioner, then it is her duty to produce the hand book. The Court cannot accept the xerox copies as proof that there was payment of rent at the rate of Rs.2,000/-. Ex.A.13, which is strongly relied on by the learned counsel for the respondent, is not an admission to the petitioner that Ex.A.5 is a genuine document. The petitioner has only stated that the rubber stamp shown is the photo copy of his office rubber stamp. This does not mean that the petitioner has accepted Ex.A.5. Therefore, when the respondent has the best evidence to show that what the rent that was payable to her as per the averments in the petition and still chooses not to produce the same, this Court must draw an adverse inference. Therefore, the respondent's case that rent was agreed to be paid at the rate of Rs.2,000/- is not proved. The rent agreed to be paid is Rs.1,500/- as contended by the petitioner.
12. In (2000) II MLJ 202 (Mahalingam v. Pichaiammal), it was held that the landlady is entitled to retain only one month's rent as advance and when eviction petition is filed alleging wilful default, where the excess amount is not adjusted, the landlady will have no cause of action to file the petition. This squarely applies to this case. Further, the petitioner had sent Ex.A.9 wherein it is clearly stated that the rent is Rs.1,500/- and that the respondent had refused to receive the payment of rent and therefore, the respondent was called upon to name the bank. Immediately, the respondent had filed the RCOP without naming the bank. The petitioner had deposited the arrears. So, there is no wilful default. Eviction on the ground of wilful default is set aside.
13. Acts of waste: In Kailashchand Jain v. Mohamed Kasim, it was held, when tenant raised a wall besides other alteration and there is no evidence that it constituted material alteration, eviction cannot be ordered on the ground of acts of waste. In (Gurusami v. Dr.(Mrs.) A. Jacob, the tenant made a hole on the wall dividing two premises, the tenant being adjacent owner of the premises fixed a door putting plywood partition. There was no evidence of impairment of material and utility of the building. Therefore, it was held that there was no act of waste. In 2000 (2) MLJ 65 (Narayanasamy v. Govindaraj), it was held that all acts of waste did not amount to ground for eviction. It is only when the acts of waste would very probably impair the value of the building or its utility that it would provide a ground for eviction. Trivial damages will not entitle the landlord to obtain possession. In 1998 (I) LW 796 (M. Karuppanna Gounder vs. C. Visvasan and others), it was held that where the acts of waste are likely to diminish the quality, strength and value of the building, the intrinsic worth or fitness of the building is affected. In 1982 2 MLJ 376 (S.N. Bahadurmal v. Krishna Rao M. Nikan), it was held that changing the nature of the demised premises tantamounts to technical waste and the demolition or removal of the doors and shutter, pillars etc., are undoubtedly wilful and reckless action the part of the tenant. It could not be said that these actions were caused in the course of reasonable use of the premises and that they were definitely prejudicial to the interests of the landlord. In 1996 II LW 322 (M. Shanmugam vs. C. Kannabiran and another), it was held that though the tenant may plead that the changes that have been made have not impaired the utility and value of the building, on the contrary only enhanced the value, the same has to be determined and judged from the point of view of the landlord and not that of the tenant. For this, the learned Judge relied on : [1996]2SCR997 (Shri Gurbachan Singh and Another v. Shivalak Rubber Industries and others) wherein the Supreme Court held that 'The decrease or deterioration, in other words, the impairment of the worth and usefulness of the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else'. In (The Associated Traders and Engineers Ltd., by its Director, Incharge, New Delhi v. Alamelu Ammal) there is no dispute that the tenant had not obtained written consent from the landlord and it was held that opening a wall will definitely amount to acts of waste. In 2001 (4) CTC 710 (S.N. Vairavelu vs. P. Sundaram), it was found that for the construction of the plotform, cutting bottom of teak-wood door frames would certainly impair the value and utility of the building and therefore, on such fact of allegation by the landlord had been proved, the burden was shifted to the tenant to establish that those act did not impair material value and utility of the building. In 1996 (I) LW 714(K. Panchavaranmmal (Died) and 6 others v. E. Saraswathiammal and 3 others) this Court held while considering a revision against an order of eviction on the ground of splitting, acquiescence and willingness could not have taken place.
14. In this case, the specific acts of waste have already been referred to in para 3, 4 and 5 of Ex.A.2 dated 15.9.1997 and they include demolition of the floor, erection of a bore well inside the building, installation of an electric motor, damage to the front side, construction of a drainage canal, damage to the roof, installation of a zinc pipe, installation of a gas oven generating a high degree of heat damaging the building. Development of cracks all over the building is also mentioned. There is no denial of this in Ex.A.9 dated 1.11.1997. There are repeated in the petition. There is no denial of this in the counter. The petitioner merely states 'The respondent strongly denies that he damaged or caused waste to the schedule property. He had made alterations and improvements on the same for the betterment of his business. He did the same with the full awareness, consent, and agreement of the petitioner. The petitioner being unable to get her means of unduly enhanced rent is denying all these facts to suit her ends. There was no act of waste or damage as claimed by the petitioner. In fact the respondent has only increased the buildings strength. Hence, the petitioner must prove such tall allegations'. But the evidence is that there was no consent to his alterations or modifications. It is also the case of the petitioner that the respondent knew very well the nature of his business and those acts were required to be done to the building so that he could carry on his business and therefore, such acts cannot be considered as acts of waste. This seems to be a wrong impression of what is an act of waste.
15. While considering what is an act of waste, the Rent Control Authorities are not concerned with whether these alterations facilitate the tenant to carry on his business more effectively. The only question is whether those modifications or alterations will damage the building and impair the material value and utility of the building and as held in 1996 (II) LW 322, it should be seen from the point of view of the landlord. Here, the petitioner admits that he has done all those acts. The acts by their very nature would certainly affect the building materially. The petitioner maintains that they are necessary for his business. This is irrelevant. The petitioner claims he had the respondent's consent. This is incorrect. According to the petitioner the above acts will improve the value of the building. It is not his view that is relevant. Originally, there was a single building which was divided into two viz., Door No.341 and 343. There is no dispute that the two premises are quite small and adjacent to each other and therefore, all the acts of waste will affect the entire building. In addition, there is evidence to show that the arches of Door No.341 was also removed. However, as regards this, learned counsel for the petitioner would submit that admittedly, the removal of the arch took place in 1992. Even if the removal of the arch is ignored, it is seen that the balcony of Door No.341 is damaged and as stated all the so called improvements will affect the utility of the both buildings. Therefore, it is clear that the act of the petitioner have caused considerable damage to the building.
16. The petitioner seems to be under the impression that because he has taken the building on lease, it is open to him to deal with the premises as he pleased. In this case, evidence shows that each act has done something permanent to the wall or the building. It is very difficult to accept that these are trivial in nature and can be ignored or that the alteration is minimal. As regards acquiescence, it is clear that the respondent had made it known to the petitioner that she has strong objection to the unilateral and highhanded action of the petitioner. She has filed the suit. She has lodged a police complaint, she has again gone personally to the petition-premises and objected to it only to receive verbal abuse. When the buildings are being damaged by the tenant on the ground that these acts are necessary for him to carryon his Fast Food business, when there is absolutely no evidence to show that he had taken the permission of landlady for doing these acts, it is difficult to construe the provisions of the Act beneficially in order to give him protection.
17. As regards the very persuasive plea that a new tenancy had come into vogue because of the enhancement in rent and acceptance thereof, it must be rejected. It is not possible for the respondent to ignore the permanent structural damage and the impairment that has been caused to the building by the tenant merely because she received the rent from the tenant. Though there have been acts of waste, the respondent is entitled to receive rents. In fact, in 1996 (I) LW 714 (Panchavarnammal,E (Died) & 6 others v. E. Saraswathiammal & 3 others, the question was whether the landlady had consented to the subletting and whether silence on the part of the landlady would be equivalent to consent. It was pleaded that the landlady's receipt of rents would show that she had consented to the change of user. This Court held that 'even if the building was used for other purpose, the landlord is entitled to collect rent. Mere receipt of rent, which the landlord is entitled to, will not amount to consent'. Similarly, even if the building was being damaged by the tenant as it has been in the present case, the respondent is entitled to receive the rent. The finding of wilful default is set aside. But, the order of eviction on the ground of act of waste is confirmed.
18. The Civil Revision Petitions are dismissed. No costs. Consequently, CMP Nos. 7525 and 7526 of 2000 are closed.
Prabha Sridevan, J.
19. The learned counsel for the petitioner prays for time to vacate the premises. The learned counsel for the respondent submits that four months time can be given. Considering the fact that the petitioner is carrying on Fast Food business with a good clientele, it is necessary that he is given some time to shift his business. So, six months' time is granted on condition an affidavit of undertaking is filed into Court by the petitioner within two weeks after service on the counsel for the respondent, affirming that he undertakes - (a) to pay the rent without default after adjusting the advance, (b) not to cause any further damage to the petition-premises, and (c)to vacate both the premises Door Nos.341 and 343 upon the expiry of the six months period.