ORDER
Vilas V. Afzulpurkar, J.
1. This revision is preferred by the tenant against the order of eviction passed by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, in R.A. No. 4 of 2001, dated 15-2-2005, setting aside the dismissal order of the learned III Additional Rent Controller passed in R.C. No. 528 of 1996, dated 11-10-2000.
2. The tenant is the petitioner and the respondent is the landlady. The parties are herein after referred to as landlady and tenant, respectively, for the sake of convenience.
3. The brief facts of the case are as follows:
The respondent herein is the owner and landlady of the schedule premises, which was gifted to her by her mother under a registered gift deed, Ex.P-1, dated 27-12-1988. The tenant is in possession of the premises under a rental deed, Ex.P-3, in Urdu with its true translation being Ex.P-4, dated 16-01-1962. The case of the landlady in brief is that her husband who is a qualified civil engineer, has since retired and wishes to provide consultancy services in civil works, to maintain the family, and as such, the premises is bona fide required by her. She claims that she does not have any other premises. It is also claimed that the schedule mulgi is an old construction and is in dilapidated condition and as such it is necessary to demolish it and reconstruct a new building and for that the petitioner is prepared to comply with the terms of the requirement of law, if such requirement is upheld by the Court. It is also further alleged that the scheduled mulgi was given to the tenant for doing tailoring business only and without consent of the landlady, the tenant is using the mulgi for the business of 'Ice Creams and Cool Drinks'. Because of the use of refrigerator, the water flowing from melting by absorbing into the foundation and is causing damage of the walls of the building affecting the value and utility of the mulgi.
4. The tenant resisted the revision petition, inter alia, on the ground that the tenant has obtained mulgi about 40 years back from the mother of the landlady, and he has been doing the business in ice creams and cool drinks for several years, without any objection from the landlady. So far as personal requirement is concerned, it was alleged that the husband of the landlady is running function halls and hotels at Kamareddy and he primarily resides at Kamareddy getting very substantial rental income and there is neither need nor requirement as alleged. The tenant also denied that the mulgi is in dilapidated condition and since he is not using the refrigerator by keeping it nearer to the walls so that there is no damage to the property imparting the value and utility.
5. On the basis of the above pleadings, the learned Rent Controller examined P.Ws. 1 and 2 on behalf of the landlady and marked Exs.P-1 to P-5. Similarly on behalf of the tenants, R.Ws. 1 and 2 were examined and Exs.R-1 to R-17 were marked. In addition to that Ex.X-1 and X-2 were marked through P.W. 2.
6. On the question of change of user, the learned Rent Controller found that in terms of the rental agreement, Exs.P-3 and P-4 (translation of Ex.P-3), and in view of Clause-I in the rental agreement, the contention of the tenant that he can carry on any of the business of his choice is not tenable. However, the fact that the tenant is carrying on said existing business for the last 30 years and the landlady never objected thereto weighed with the learned Rent Controller. It was, therefore, found by the Rent Controller that since the eviction petition is filed in the year 1996 and since it is not stated in the petition as to when the tenant started using the premises for different business, the Rent Controller felt that the landlady, having knowledge of change of user, has not objected to the same for several years without taking any steps for eviction, cannot seek eviction on the said ground. To the extent of the aspect of causing damage and affecting value and utility of the building, the Rent Controller felt that material available on record is not sufficient to hold that any such damage to the property or acts of waste are committed by the tenant. To the extent of plea of the landlady that her husband is in need of the premises was also held against her, in the light of the evidence that she has number of other mulgis and in the light of the fact that up-stair portion is vacant and there was really in need, the husband of the landlady could have started consultancy there, the personal requirement is negatived.
7. Similarly, the other ground of the landlady viz., that she requires the building to demolish and reconstruct a house was, as a fact found that the landlady failed to prove that the building is in dilapidated condition requiring demolition and reconstruction, particularly, in view of the further fact that there are other mulgies in the building which belong to the sister of the landlady who had not taken any steps for eviction of the tenant, negatives such a requirement. Ultimately, therefore, the eviction petition was dismissed.
8. As against the said order, the landlady preferred an appeal in R.A. No. 4 of 2001 before the lower appellate Court, which has considered all the said grounds, in the light of the evidence on record, and the findings of the Rent Controller and the ground of bona fide requirement was concurrently rejected. Similarly, the ground of using the premises in the manner as to affect or damage the suit premises and amounting to acts of waste was also rejected by the lower appellate Court. The eviction on the ground of demolition and reconstruction was also concurrently rejected.
9. The lower appellate Court, however, found in favour of the landlady with respect to the ground of change of user as alleged by the landlady and differing with the learned Rent Controller has upheld the said ground. The present revision, therefore, concerns the said ground which alone is urged in support of the revision by the tenant.
10. Before the said ground is considered, it is necessary that the averments in the eviction petition relevant for this ground are set out. Para-5 of the eviction petition reads as follows:
It is submitted that the respondent was given the suit mulgi on rent for tailoring business the respondent without any consent from the petitioner has changed the use of suit mulgi by now carrying on business of Ice-Cream and Cool Drinks....
In para 5 of the counter of the respondent, relevant to the said ground, is in the following manner:
I did tailoring business under the name and style 'National Tailors.' The change in name and style as 'Vijaya Dairy Parlour' was 20 years back and since 3 years I am running the business by adding Ice cream under the name and style 'M/s. National Ice-cream Parlour and cool drinks Vijaya Dairy'. I submit that I am running the business within the knowledge of the petitioner who never objected for the change in business and name since the date of commencement. There is no specific agreement for carrying out any particular business. It was for this reason alone that the petitioner at no point of time objected for the change....
11. The rental deed which is marked as Ex.P-3 in Urdu and the undisputed and correct translation thereof, which is marked as Ex.P-4, would be crucial to consider the aforesaid aspect. The relevant portion of Ex.P-4 reads as follows:
I, Farooq Ali son of Shaik Dade, aged 22 years, Occupation: Tailor, Caste: Muslim, residing at Begum Bazar, Hyderabad, do hereby reduce into writing this deed for obtaining Mulgi for the purpose of setting up Tailoring firm on rent from Mrs. Hameeda Begum, wife of Mr. Mohammed Moinuddin....
1. I shall use the demised premises for the purpose for which I have obtained and shall not use it for any other purpose whatsoever.
2. ...to...8......Dated 16th January, 1962 A. D.
12. In the counter filed by the tenant, extracted above, it is evident that the tenant has raised a contention that there was no specific agreement for carrying out any particular business.
13. The above averment, therefore, is clearly contrary to the rental agreement as extracted above. Thus, the rental agreement, in this case, not only specifically says that the permission is obtained by the tenant for doing tailoring business, but it also contains covenant on behalf of the tenant that he shall use it only for that purpose and shall not use it for any other purpose whatsoever. Thus, a specific negative covenant is incorporated in Ex.P-4, which cannot be ignored.
14. In considering the said ground of change of user, the aforesaid covenants of the tenant, therefore, assume a significance which, as would be shown, hereinafter is very material.
15. The evidence of R.W. 1, the tenant, during cross-examination on 1-3-2001, specifically stated as follows:
It is correct to say that it is mentioned in Ex.P-3 that I shall use the petition schedule premises only for tailoring business. Ex.P-4 is the true translation of Ex.P-3. I did not obtain any permission from the landlady to run cool drinks and ice cream parlor business....
16. The above aspects on facts, therefore, clearly establish that the tenant was permitted to use the demised premises for specific business and that he never obtained any permission of the landlady for changing the use of the premises for altogether a different business.
17. The learned Counsel for the petitioner-tenant has contended that admittedly the present landlady has obtained the schedule premises under a gift deed, Ex.P-1, dated 27-12-1988 and long prior to that, the tenancy of the tenant had already commenced. The present landlady, therefore, cannot be said to be aware of the terms of the rental deed, which was only for a limited period and at least from the date when this present landlady became the owner, the present existing use of the premises by the tenant has not changed.
18. The learned Counsel also raised a question of law by urging that the requirement under the Act is with reference to using the premises for a different purpose. He, therefore, contends that the word 'purpose' used under the provisions denotes that the purpose may be either residential or non-residential and the word 'purpose' is different from the word 'business'. He, therefore, contends that the tenant has not been using the premises for a different purpose as envisaged under the Act but is using it for the same purpose, but for a different business and as such it does not come within the mischief of the provisions under the Act which entail an eviction.
19. The learned Counsel also contends that the fact that the tenant using premises for the last 20 years being not in serious dispute, it has to be inferred that the landlady, who has much later become the owner, has acquiesced into the said use by the tenant and rights, if any, to evict the tenant on the said ground, stand waived and is not enforceable in law. He, therefore, contends that the eviction order by the lower appellate Court, only on this sole ground, deserves to be interfered with. In support of his contention, he has cited the decision of the Supreme Court in Bharat Lal Baranwal v. Virendra Kumar Agarwal : AIR2003SC1056 , as well as the decision of this Court in A. Suryanarayana Rao v. C. Radhakrishnaiah : 1999(4)ALT684 .
20. The aforesaid two decisions, according to the learned Counsel for the tenant, squarely apply to the case in hand in favour of the tenant.
21. The learned Counsel for the respondent-landlady apart from emphasizing the factual aspects, has also relied upon the following decisions of the Hon'ble Supreme Court and this Court:
Dashrath Baburao Sangale and Ors. v. Kashimath Bhaskar Data : AIR1993SC2646 , M. Arul Jothi and Anr. v. Lajja Bal (Deceased) and Anr. : [2000]2SCR1 , Smt. K. Rachamma v. Smt. Bimal Bai and Anr. : 1996(2)ALT111 , Motamarri Surya Kameswara Rao v. Namburu Satyanarayanamma (Died) and Ors. : 1997(3)ALT209 , Majeti Butchi Viswandham and Ors. v. Bathula Suryanarayana Murthy : 2001(6)ALD355 and Y.V. Krishna Rao v. T.S.R. Anjaneyulu : 2006(1)ALD241 .
22. The point for consideration, therefore, is whether on the facts and in the circumstances of the case, the order of eviction passed by the lower appellate Court on the ground of change of user deserves to be interfered with?
23. So far as the legal position is concerned, which is covered by the various citations, referred to above, on behalf of both the parties, the following distinguishing features need to be kept in mind.
24. In Bharat Lal Baranwal's case, the learned Counsel for the petitioner relied upon paragraphs 11 and 12 thereof, which are extracted hereunder:
11. Broadly speaking a building can be let out for three purposes:
1. Residential
2. Business
3. Manufacturing.
12. If the dominant purpose for which a building is let out is maintained, a tenant may not become liable to be evicted. But if the building is let out for residential or business purposes and the tenant starts manufacturing activity or vice versa, then it would amount to change of user subject to the provisions of the Act in reference.
The facts of that case are that the suit premises consisting of three rooms was let out for business purpose for selling of copies and books in the year 1970 by the father of the appellant to the respondent-tenant. In the year 1976, the respondent started manufacturing copies, registers, sweet-meat boxes made of cardboard. In the year 1982, he installed a printing machine and started printing work without obtaining the written consent of the appellant. It is on those facts that the landlord had instituted proceedings for eviction and one of the grounds was that the tenant had started using the premises for the purpose other than for which it was let out, without written consent of the landlord. In the paragraphs 11 and 12, extracted above, the Hon'ble Supreme Court broadly classified the buildings, which are let out for the purposes of residential, business or manufacturing. In para-12, held that if the dominant purpose is maintained, the tenant is not liable to be evicted. In para-17, the Hon'ble Supreme Court found that the premises was let out for business purpose and came to conclusion that the tenant has changed the use of the building from business to manufacture without written consent and ordered eviction.
25. In A. Suryanarayana Rao's case (supra), this Court was dealing with an eviction petition also on the ground of change of user. In the said case, the premises in question was leased out for the purpose of running a wine shop, but on the date of filing of the petition, it was being used for commission business. This Court specifically found in paragraph-7 of the Judgment as follows:.At any rate, it is not the case of the respondent-landlord that the premises was let out for running a wine shop. The petitioner, having taken the premises on lease for a non-residential purpose, commenced his business as a dealer in wines. It does not mean that the petitioner should continue his business in wines and cannot put the premises to use for any other business purpose. It would have been totally a different story, if it is the case of the landlord that the petitioner is using the premises for residential purpose. The finding recorded by the Appellate Authority that the petitioner herein is not doing any commission business is of no consequence. Suffice it to notice that there is no finding whatsoever by the Appellate Authority that the petitioner has been using the premises for residential purpose. Obviously, there cannot be any such finding because it is nobody's case. The Appellate Authority was under an erroneous impression that the tenant is under a legal obligation to continue the very same business and purpose for which the premises was let out. That is not the requirement in Law. The tenant cannot be evicted as long as he continues to use the premises for the purpose for which it was let out. Purpose has no relation to the nature of business. The purpose for which a premises is let out may be residential or non-residential. A tenant can be evicted from the premises only if he changes the use from residential to non-residential and vice versa. As long as the tenant uses the premises for non-residential purpose, the nature of business is of no consequence....
and consequently the said ground was disallowed.
26. In Dashrath Baburao Sangale's case (supra), the premises was let out for sugarcane juice business, but the tenant started using the premises for selling cloth and readymade clothes. Clause 3 of the rental agreement in the said case read as follows:
We have taken on rent the said premises with the help of an ox for our sugarcane crushing and for the shop thereof and we shall get constructed thereon a temporary shed of tin-sheet at our own costs....
The Hon'ble Supreme Court found that the tenant had obtained the premises for doing the business which he chose, but contrary to the purpose for which it was leased out, he started using it for a different use. His eviction on the said ground of change of use was upheld.
27. In M. Arul Jothi's case (supra), the Hon'ble Supreme Court was also dealing with a similar question wherein the premises was let out for carrying on business dealing in radios, cycles, fans, clocks and steel furniture. But the premises was being used by the tenant for trade in provisions such as spices and dals. The tenancy of the tenant in the said case was governed by rent agreement which is extracted in para-2 of the judgment, which is also extracted herein:.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 abovesaid business.
The provisions contained under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which were considered in the aforesaid decision, are similar to the provisions under our Act also. After considering the decisions cited above, the Hon'ble Supreme Court, pointed out the distinction between the cases where there is a specific restrictive clause in the rental agreement relating to use of the tenanted premises and other cases where there is no specific prohibition with respect to the user. Para-10 of the judgment of the Supreme Court, which is extracted below, is therefore, crucial in deciding the said issue.
10. Having heard learned Counsel 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 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 business... and 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 intent 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, if permits contract to the contrary mentioned under that section.
28. To the similar effect is the decision in Rachamma's case (supra), where this aspect of change of user was dealt with in para-14 of the judgment. The rent note executed by the tenant was for the purpose of general merchandise and kirana business, it was changed to textile business by the tenant. It was held to be contrary to the user permitted under the Rent Control Act and the same being without written consent of the landlord, eviction was ordered.
29. In Motamarri Surya Kameswara Rao's case (supra), where the tenant had obtained the permission for residential use started doing business without the consent of the landlady and was held liable for eviction.
30. In Majeti Butchi Viswanadham's case (supra), the premises was let out for running cloth business but it was changed as kirana business and was held to be amounting to change of user and the eviction order of the lower Court was upheld. To the same effect, there is another decision of this Court under Y.V. Krishna Rao's case (supra), wherein also the premises was taken for carrying on meals hotel, but the said business was closed and the premises was being used for running a lodge. The change of user alleged by the landlord was upheld and the decisions cited supra were also cited therein. It is also held that there cannot be a plea of waiver against the landlord even if the landlord had not taken proceedings for eviction earlier.
31. Apart from the decisions cited above, there is one another decision of the Supreme Court which needs to be referred viz., Hari Rao v. N. Govindachari and Ors. : AIR2005SC3389 , which clearly makes distinction between two sets of cases. The said distinction is better appreciated by looking at the following paragraph of the above decision.
Para-7: Learned Counsel for the landlord placed considerable reliance on the decision in M. Arul Jothi and Anr. v. Lajja Bal (Deceased) and Anr. : [2000]2SCR1 . That case also arose under Section 10(2)(ii)(b) of the Act. The transaction between the parties was governed by a lease deed. The tenant covenanted that the premises, 'shall be used by the tenant for carrying on his own business and the tenant shall not carry on any other business than the above said business'. The business intended was dealing in radios, cycles, fans, clocks and steel furniture. Subsequently, the tenant also started a trade in provisions (spices and dais etc.) The landlord sought eviction and the Courts below ordered eviction under Section 10(2)(ii)(b) of the Act. The tenant had appealed to this Court. This Court referred to the earlier decisions of this Court including the one in M.K. Palaniappa Chettiar v. A. Pennuswami Pillai : (1970)2SCC290 . It also referred to Section 108(o) of the Transfer of Property Act. This Court distinguished the various decisions brought to its notice under other sister enactments and took the view that the covenant in the rent deed not to use the premises for any purpose, other than the one referred to in the rent deed, brought the user by the tenant within the mischief of Section 10(2)(ii)(b) of the Act and, therefore, the order for eviction was justified. With respect, as we see it, their Lordships rested their decision on the existence of the negative covenant in the lease deed and on the view that a breach of that covenant, would attract Section 10(2)(ii)(b) of the Act, and make the user, one coming within the mischief of that provision. In this case, as observed, there is no covenant as the one involved in Arul Jothi's case. In M.K. Palaniappa Chettiar v. A. Pennuswami Pillai : (1970)2SCC290 , the tenant, while continuing the business for which the building was taken on rent, was using a negligible portion of the building for the purpose of cooking. This Court held that the High Court was in error in reversing the decision of the Rent Controller and the Appellate Authority to the effect that no ground for eviction under Section 10(2)(ii)(b) of the Act was made out. This Court dismissed the petition for eviction. In Mohan Lal v. Jai Bhagwan : [1988]3SCR345 , this Court, interpreting the corresponding provision in Haryana Urban (Control of Rent and Eviction) Act, 1973, held that when a tenant who had taken a building on lease for the purpose of running a business in liquor, converted the business into that of general merchandise, in the absence of a negative covenant, the user did not amount to user for a purpose other than that for which the building was leased. The same position was adopted in Gurdial Batra v. Raj Kumar Jain : [1989]3SCR423 , where the premises was let out for repairing business and the tenant along with the repairing business, also carried on sale of television sets for a while. This Court held that there was no change of user which would attract the liability for eviction under the corresponding provisions of the East Punjab Urban Rent Restriction Act, 1949. It was clearly stated that the concept of injury to the premises which form the foundation of Section 108(o) of the Transfer of Property Act is the main basis for a provision similar to the one in Section 10(2)(ii)(b) of the Act. We think that the case on hand is governed by the principles recognized in the latter decisions and the ratio of the decision in Arul Jothi has no application in the absence of a negative covenant as the one obtaining in that case. Dashrath Baburao Sangale and Ors. v. Kashinath Bhaskar Data : 1994CriLJ2097 was a case where the premises was taken on rent for 'sugarcane crushing with the help of an ox and for the shop thereof' and the tenant was to get constructed a temporary shed of tin-sheet for that purpose. The tenant started a cloth business in the premises. The Courts below found that this was a user for a purpose other than that for which the premises was leased and this Court found no ground to interfere. This decision only re-offirms the position that everything would depend on the terms of the letting and the facts of the case. Obviously, the cloth business started, had no connection with crushing of sugarcane. The decision in Ram Gopal v. Jai Narain and Ors. 1995 Supp (4) SCC 648, shows that the user by the tenant of a building taken on rent for the purpose of running a shop (commercial), for a manufacturing purpose, would entail his eviction on the ground of change of user. The tenant, in that case, installed on Atta Chakki and on Oil Kolhu, in the shop. The case on hand is not one of that nature. In other words, in the present case, there was no change of user, from non-residential to residential or from business to manufacturing or industrial. As emphasized already, there was also no negative covenant as was available in Arul Jothi's case. In such a situation, we are satisfied that the High Court was clearly in error in interfering with the decision of the Appellate Authority that there was no change of user in the case on hand attracting Section 10(2)(ii)(b) of the Act. Merely because a tenant, who has taken a building for the purpose of running a trade, alters the commodity in which he was trading when he took the building on lease or trades in other commodities also, he could not be held to be using the premises for a purpose other than the purpose for which it was let. The purpose has to be understood, as the purpose of trade and in the absence of a convenant barring the using of it for any other trade, it will be open to the tenant to use the premises for expanding his trade or even for taking up other lines of trade as befits a prudent trader....
32. The facts of the present case show that it falls into class where specifically permissible use is mentioned in the rental deed, coupled with a negative covenant against any other use. In the light of the above, therefore, there is no escape from the conclusion that the impugned order under appeal ordering eviction of the tenant on the ground of change of user is clearly justified and requires no interference.
33. In the result, the Civil Revision Petition is dismissed, confirming the eviction order of the learned Additional Chief Judge, City Small Causes Court, Hyderabad, passed in R.A. No. 4 of 2001, dated 13-02-2005. No costs.
34. However, to offset the hardship, if any, that may be caused to the tenant in vacating the petition schedule premises, I deem it appropriate to grant time till 31st December, 2008 to vacate the petition schedule premises subject to following conditions:
(1) That the tenant shall file an undertaking before the Rent Controller on or before 20th October, 2008 that he shall vacate the schedule premises by or before 31st December, 2008, pay the arrears of rent, if any, and shall continue to pay the monthly rents to the landlord during the period of occupation and file the receipts thereof before the Rent Controller or deposit the rents to the credit of RCC before the Rent Controller; and he shall also undertake that
(a) That the tenant shall not alienate, transfer or otherwise part with the possession or create any third party interest over the schedule premises, and;
(b) That the tenant shall handover peaceful and vacant possession of the schedule property to the landlord on or before 31st December, 2008;
(2) That in default of fulfilling of any of the above conditions, the landlord shall be free to approach the executing court for execution of the decree.