ORDER
S.S. Subramani, J.
1. This revision is by the tenant in R.C.O.P. No. 5 of 1987, on the file of Rent Controller (Principal District Munsif), Karur. Both the Rent Controller as well as the Appellate Authority has directed the petitioner to vacate the demised premises on the ground that he has committed acts of waste, which have materially impaired the value and utility of the building.
2. In the eviction petition, in paragraph 10, the origi-nal landlady Michael Ammal has said that the tenant, petitioner herein, has made some alterations without permission and put the building into a different user and also committed acts of waste which have materi-ally impaired the value and utility of the building and, therefore, the tenant is liable to be evicted on that ground.
3. The said allegation is answered in paragraph 4 of the counter wherein the tenant has said that he has not made use of the building for any other purpose, nor has he committed any acts of waste. He has also said that he has not done any act which is likely to impair materially the value and utility of the building. The allegation that he has committed acts of waste is also denied.
4. During trial, the Rent Controller, on the application of the respondent herein, deputed a Commissioner to file a report. The Commissioner has filed a report and also a supplemental report. He has also given a plan of the building and the so called changes that were alleged to have been effected by the tenant. By way of oral evidence, the agent of the landlady was examined as P.W. 1. As against the oral evidence of P.W. I, petitioner (tenant) examined himself as R.W. 1 and denied having committed any act of waste and also the alterations which were alleged to have materially impaired the value and utility of the building.
5. On the above evidence, the Rent Controller held that the tenant is liable to be evicted on the ground that the construction put up by him was without the consent of the landlady, and because of the construction, the landlady is put to difficulties. Against that Order, an appeal was preferred by the tenant, which also met with failure. It is the concurrent orders of the Authorities below that are challenged in this re-vision.
6. During the pendency of the appeal, the landlady died, and her legal representatives were impleaded. Those legal representatives are the respondents herein.
7. Under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the jurisdiction of this Court is limited, and it is entitled to interfere only if the finding is illegal, improper or irregular. But, at the same time, if a finding is entered without taking into consideration the statutory provisions and to arrive at a finding for which there is no evidence at all, it cannot be doubted that such findings are perverse. If, on the basis of the available evidence, no reasonable man could arrive at such a finding, this Court, in exercising the power under Section 25 of the Rent Control Act, is entitled to interfere with such finding.
8. With the above introduction regarding the power of this Court under Sect. 25 of the Act, let us consider how far the Authorities below were justified in ordering eviction.
9. Section 10(2)(iii) of the Act says that the tenant is liable to be evicted if he has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building. The burden of proof is on the landlord to show that the unauthorised act of the tenant has caused damage to the building and such damage has materially impaired the value or utility.
(Italics Supplied)
10. The property from which the tenant is sought to be evicted is described in the Schedule thus:
Karur, R.D., West Karur Sub R.D., Karur Taluk, Karur Municipal Town, 1st Ward, 7th Division, Brahmatheertham Road (Lakshmipuram) within the following four boundaries:
On the south of the house of Chinnasamy Iyer; On the west of north south road;
On the north of the house of Arokkiasamy Mudaliar, and
On the east of Municipal lane, within these four boundaries, east-west 89
on the northern side and 87' on the southern side, north south 17 'with east facing terraced house, front yard, backyard, doors, door frames, almirahs, windows, electric connection, tap con-nection pathway and other easementary rights with right of taking drinking water from the northern property. For this old door No. 13 and new door No. 28, and 28-A old T.S. Nos. 1200 and 1201 new T.S. No. 3115.
East west length of the building is 89 ft. on the north-ern side and 87 ft. on the southern side. The building is facing on the east. It faces the road. According to the plan prepared by the Commissioner, it has got seven rooms. Portions of the same are terraced and the remaining portion has asbestos roof. The middle portion is a tiled portion. The finding of the Rent Controller as well as the Appellate Authority is that it is an old building. On the north eastern extremity and outside the 87 ft., a room has been constructed having a width of 10.8 ft. X 8 ft. That room is having an asbestos roof. It is said that the revision petitioner is making use of the room for the purpose of ghee business. It is a new construction. The said room, of course, touches the north eastern corner of the building. On the south western corner, there is a bathroom and latrine where the new roof has been provided.
Immediately east of the bathroom and latrine, there are two water-tubs which are movables. They are kept in open air. These are the additions to the building as seen from the Report. The tenant, while he was examined as R.W. I, has said in chief-examination that long before he took the building on rent, the sched-ule building was used as a hotel and the alleged new construction on the north-eastern corner was really a bunk. He further went on and said thus:
The Rent Controller, accepting the evidence of the tenant, held that the above acts are acts of waste. The Appellate Authority, without further discussing the matter, accepted the conclusion. I have already said that the burden of proof is on the landlady to prove that the alleged alterations have materially impaired the value and utility of the building. The landlady did not enter the box. Her Secretary or Clerk was examined as P.W.I. This is all what he has stated in chief-examination:
He has not stated even one sentence about the previous condition of the building and how far the acts of the tenant have affected the utility of the building. In cross-examination also, he does not say anything about the previous condition of the building. What are the changes that were effected by the tenant, and how far those changes affected the utility, have not been stated. The Report of the Commissioner also does not say anything how far the utility of the building is affected. No expert evidence is available. In the eviction petition, no details of alterations have been given. The alleged construction is on the eastern corner in the front portion of the building. If that is a new construction, nothing prevented the land-lady from alleging about the same, because it could be seen even from the road. When there is absence of pleading, the case of the tenant that it was originally a bunk which was in existence long before he came to occupy the building and when the thatched roof became old, he provided the same with asbestos roofing, and it is not a new construction could have been accepted. The other Act alleged is that the tenant has provided roof to the bathroom and latrine and a new door with tin sheets has been provided in the toilet. It is also explained by the tenant that the roof got dam-aged, and there was no door for the bathroom and he had to provide the same. The two water tubs kept outside the building are movables. When the land-lord has not said anything about the original position of the building, and when the tenant says that such constructions were in existence even before he came to occupy the building, the Rent Controller should have accepted the evidence. In fact, there is no counter evidence adduced by the landlord. Unless the land-lord proves the original condition of the building, he cannot get an order of eviction on the simple allegation that the tenant has put up additional constructions.
11. Assuming that the tenant has put up the construction on the north eastern corner, the further question that arises for consideration is, whether the value and utility have been ma erially affected. A mere reduction in the value and utility is not sufficient. The value and utility of the buil ing must have been materially impaired. To decide whether the value has been affected materially, the Court has to consider and form an opinion in the light of the views of the landlady and not of the tenant. But, even in spite of the same, there must be evidence available from the landlady.
12. In a decision of the Supreme Court reported in Om Pal v. Anand Swarup : (1988)4SCC545 , their Lordships said that 'it is not every construction or alteration that would result in material impairment to the value or the utility of the building'. Their Lordships were considering a similar provision under the E.P. Urban Rent Restriction Act, 1949, and held thus:
It is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairement must be of a material nature i.e., of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairement is on the landlord. In the present case the appellanttenant examined an expert, a retired engineer, to prove that the parchhati was only a temporary wooden fixture which would be readily removed at any time without any damage being caused to the walls of the building. Having regard to the nature of the temporary construction put up by the appellant and the evidence of the expert witness examined by him which remains uncontroverted by any expert's evidence on the respondent's side, it must be held that there was no material impairment to attract Section 12(2)(iii). There was no basis for contrary as well as the Appellate Authority and the High Court erred in accepting those findings without applying the correct principles of law under-lying Section 13(2)(iii).
In paragraph 6 of the judgment, their Lordships considered and accepted the argument of learned Counsel for the petitioner as to what is meant by 'material impairement' and 'impairement'. The argument was that the words 'materially impaired' have a distinct connotation and as such any and every alteration made in a building will not necessarily constitute material impairment to the building. The meaning of the word 'impair' as giver in the Law Lexicon by P. Ramanatha Iyer was accepted. The meaning given in that Lexicon reads thus:
Impair: To diminish in quality, value, excellence or strength of a thing.
The word 'impair' means to make worse; to weaken; to enfeeble. To make or become worse or less; to lessen, reduce or diminish the quantity or quality.
13. In Pratap Narain v. District Judge (1995) 3 S.C.C. (Supp.) 459 in paragraph 4 of the judgment, while considering a corresponding provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, held thus:. A perusal of Clause (c) of Sub-section (2) of Section 20 of Act 13 of 1972 would indicate that a suit for eviction is maintainable only if the tenant is found to have made any structural changes without the consent of the landlord and that such changes resulted in diminishing the value of the building. Therefore, even if it is held that the structural changes were made by the appellant without the consent of the landlord, the suit could not be decreed unless it was further found that the changes resulted in diminishing the value of the building.
14. The decision in Gurbachan Singh v. Shivalak Rubber Industries : [1996]2SCR997 is also in re-lation to a case under East Punjab Rent Restriction Act, 1949. Their Lordships have considered in that decision the meaning of the words, 'impair', 'impair materially' and 'value'. It was held in that case that it is the version of the landlord that we have to take into consideration. Their Lordships further went on and said that to consider whether the tenant is liable to be evicted on that ground, the nature of construction made by him is a relevant consideration. It was held thus:
Section 13(2)(iii) of the East Punjab Rent Restriction Act contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression 'to impair materially' in common par-lance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word 'impair' cannot be said to have a fixed meaning. It is a relative form affording different meaning in different context and situations. Here in the context the term 'impair materially' has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or effected suggesting impairement. Further the use of the word 'value' means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2)(iii) of the Act if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility or 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.
On going by these decisions, it is clear that if the land-lord wanted to get eviction of the tenant, he has to prove that the act has considerably decreased the quality which has to be measured with reference to the antecedent state of things as it existed early in point of time as compared to later stage after the alleged change was made or effected sub-stantial impairment. The act complained of must also be such that it is likely to diminish the quality, strength and value of the building. In such a case, the intrinsic worth or fitness of the building is affected. I do not think the Authorities below have taken into consideration any of these legal implications before passing the order of eviction. Rent Controller as well as the Appellate Authority has only considered that the tenant has committed certain acts without the consent of the landlady. In my opinion, that by itself will not give the Rent Controller jurisdiction to order eviction.
15. A lease contemplates right of enjoyment. If the tenant has no right of enjoyment, it cannot be considered as a lease. Enjoyment contemplates certain rights on the part of the tenant. In this case, the building is used both for residential and non-residential purposes. Originally the building was being used as a hotel. As a tenant, he is entitled to have privacy. When there was no door for the bathroom and toilet, they cannot be made use of. They are amenities to the building. Naturally, the tenant can insist that he is entitled to privacy. If the landlord is not providing the tenant with those amenities, the tenant makes arrangement for himself and fixes a door where there was already a door. By this, it cannot be said that the tenant has violated the terms of tenancy. If it is a business place, the tenant is entitled to have necessary protection. A roof has already fallen down in the north eastern portion and the tenant, for the purpose of his business, has provided asbestos roof. These matters go along with the term of enjoyment for which the building has been let. Under Section 108 of the Transfer of Property Act, a tenant is entitled to enjoy the property, of course, without materially affecting the landlord's right. He can make use of the property leased as a man of ordinary prudence.
16. In Viswanathan v. Porichu (1985) K.L.T. 551, a tenant, for the purpose of his business, fixed collaps-ible shutters in the place of ordinary shutters. The question was, whether that would amount to material alteration. The Kerala High Court rejected the contention and held thus:
A user of the leased property as a person of or-dinary prudence is a right of the tenant. The possession of the property itself vests with the ten-ant. He could, in relation to the lease premises, exercise such acts as a person of ordinary pru-dence, provided, however, that no material alteration is affected in the building by such acts. This is implicit in the proviso to Section 17(1) of the Rent Control Act itself. To replace a broken tile, or to fill up the void in the place of a missing one, or to patch up a damaged window or a door would all be acts which the tenant would be fully entitled to carry out. Material alterations are important alterations such as those which materially or sub-stantially change the front or the structure of the premises. The background in which the tenant was forced to reinforce the security for his shop room in which costly articles had been stored cannot be forgotten in this context. He had not altered the form or structure of the shop room. The specific averment in his objection and written statement is that collapsible shutters can be removed without any difficulty and without causing any damage to the building. Only, minimal alterations such as digging two pits on either side, of comparatively small dimensions are undertaken. The pits will be filled up when the collapsible shutters are affixed. The extent of the alterations can be gauged from the statement of the Commissioner that the expenses for the restoration of the room to its earlier condition. would come to a meager sum of Rs. 50. It follows 'that the acts complained of would not constitute a material or structural alteration of the building.
17. In Shanmugam v. Rao Saheb (1988) 1 K. L T. 86, K.T. Thomas, J., as he then was, in paragraph 6 of the judgment held thus:
To attract Clause (ii) of Seb-section (4) of Section 11 the Act proof of mere reduction or even destruction of utility or value would not be sufficient. The words 'materially and permanently' have much importance in the context because the leg-islature was not inclined to allow a tenant to be dislodged from the building on proof of even destruction of utility or value of the building. Al-most a similar expression is used in Section 108, Clause (e) of the Transfer of Property Act that when the property leased is destroyed or 'sub-stantially and permanently' rendered unfit, due to the wrongful act of the tenant, the lease becomes void. Courts have held that the damage caused must be so great as to involve reasonably sizable expense to 'testify the damage. While dealing with the expression 'materially altered the accommodation or is likely to substantially diminish its value' in Section 3 of the U.P. (temporary) Control of Rent and Eviction Act, 1947 the Supreme Court observed in Man Mohan Das v. Bishun Das : [1967]1SCR836 that it would depend upon facts and circumstances in each case. The expression 'materially and permanently' in Clause (ii) of Sub-rule (4) of the Act would certainly indicate that a landlord cannot get an order of eviction on that ground by mere proof of minor destruction, or alteration, even if it results in marginal reduction of value or utility. As the expression was used conjunctively the leg-islature has indicated that even material alterations of a temporary nature would not help the land-lord in getting an order of eviction. The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude.
18. The Rent Controller as well as the Appellate Authority has ordered eviction when there is lack of evidence in this regard totally. There is no finding that the acts of the tenant have materially affected the value and utility of the building. From the plan drawn by the Commissioner, under no stretch of imagination, can it he said the the acts of the tenant have materially impaired the value and utility of the building in any way. When the decisions of the Authorities below were based on no evidence, the decision can only be treated as perverse, and this Court will be justified in interfering under Section 25 of the Rent Control Act.
19. In the result, setting aside the concurrent findings of the Authorities below, I hold that the tenant is not liable to be evicted.
20. There is another ground for eviction put forward by the landlords, namely, willful default in payment of rent. But this did not find favour with the Rent Controller as well as Appellate Authority. Conse-quently, by allowing this Revision Petition, I dismiss the rent control eviction petition. Revision Petitioner is entitled to his costs in this revision.