Madras High Court
L.Jayakumar vs M/S.Young Men Christian ... on 4 January, 2023
C.R.P.No.1508 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.1508 of 2019
L.Jayakumar .. Petitioner
Vs.
M/s.Young Men Christian Association,
represented by its General Secretary,
YMCA Buildings, No.223, NSC Bose Road,
Chennai-600 001. .. Respondent
Prayer:- Civil Revision Petition filed under Section 25 of Tamil Nadu
Buildings Lease and Rent Control Act 18 of 1960 as amended by Act 23
of 1973 to allow Civil Revision set aside the Judgment and Decree dated
04.10.2018 in R.C.A.No.574 of 2015, on the file of the VIII Court of
Small Causes, Chennai, confirming the order and decree passed in
R.C.O.P.No.1074 of 2013 dated 29.04.2015 on the file of XI Court of
Small Causes, Chennai on the grounds of ceasing to occupy.
For Petitioner : Mr.P.B.Balaji
For Sole Respondent : Mr.D.Vijay
for Mr.S.Dharmakkan
Page 1 of 13
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C.R.P.No.1508 of 2019
ORDER
This Civil Revision Petition has been filed as against the Judgment
and Decree dated 04.10.2018 in R.C.A.No.574 of 2015, on the file of the
VIII Court of Small Causes, Chennai, confirming the order and decree
passed in R.C.O.P.No.1074 of 2013 dated 29.04.2015 on the file of XI
Court of Small Causes, Chennai, thereby ordered eviction, on the ground
of ceasing to occupy the petitioner premises.
2. The petitioner is the tenant and the respondent is the landlord.
The respondent filed a petition for eviction on the ground of willful
default and cease to occupy the petition premises by the petitioner herein.
The petitioner was a tenant under the respondent in respect of the petition
premises on payment of monthly rent of Rs.2,250/-. While being so, the
petitioner failed to pay the rent from May 2012 to April 2013. That apart,
the petitioner had sent a letter dated 15.02.2011 intimating that he had
opened a branch office at Bangalore and Chennai office will function as
and when he comes to Chennai. Therefore, the petitioner had ceased to
occupy the petition premises. The petition premises was under lock for
nearly 28 months.
3. Resisting the same, the petitioner herein filed a counter stating
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that he had never committed any default in payment of monthly rent. It
cannot be construed as willful default on the part of the petitioner. He is
a professional Advocate and he had started office at Bangalore. He is 84
years old and as such he used to come to Chennai once in a while. His
juniors are looking after his office at Chennai. After permission from the
respondent, the petitioner renovated the petition premises by spending
Rs.3.18 lakhs for wooden panelling of walls, false ceiling, flooring and
air conditioning the premises etc. When he moved to Bangalore, he
engaged one Kalaiselvan, to complete the renovation works and for
fixing appointments. The petitioner also suffered with age old ailments
from 2009. He was admitted in the hospital for renal stone, urinary
infection and prostrate enlargement. His wife was diagonalized with
Tumor in her brain, for which she had undergone operation at Apollo
Hospital, Madras. Therefore, due to his medical ailments, he was not
there in the petition premises for quite a period of time. Insofar as the
rent is concerned, he is very regular on payment of monthly rents.
Immediately, after coming to know about the default, he explained the
above facts and had sent a demand draft for a sum of Rs.36,000/- dated
01.08.2013. However, the letter was returned with an endorsement
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C.R.P.No.1508 of 2019
“refused”.
4. On the side of the respondent, he had examined P.W.1 and
marked Exs.P1 to 2. On the side of the petitioner, he had examined
R.Ws. 1 to 3 and marked Exs.R1 to 18. On a perusal of oral and
documentary evidences, the learned Rent Controller ordered eviction on
the ground of cease to occupy the petition premises. Aggrieved by the
same, the petitioner preferred an appeal before the learned Rent
Controller appellate authority and the same was also dismissed,
confirming the fair and decreetal order passed by the learned Rent
Controller. Aggrieved by the same, this present Civil Revision Petition.
5. The learned counsel for the petitioner would submit that
admittedly, the petitioner suffered with his age old ailments. Therefore,
he was not in his office for some period of time. That apart, he had also
opened a branch office at Bangalore and he had engaged one care taker
to look after the office and also for getting appointments. Unfortunately,
the said person's whereabouts were not known and he also failed to pay
the rent. The petitioner also marked all the medical documents, discharge
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C.R.P.No.1508 of 2019
summaries to prove his ailments and his wife's ailments. His junior was
examined as R.W.1. He categorically deposed that the petitioner had
opened his branch office at Bangalore and he used to come to Chennai on
his appointment. The petitioner is the senior member of the Bar Council
and he is also practicing in Supreme Court. He had undergone 13 major
surgeries including removal of his larger intestine, prostrate gland, gall
bladder, stones in kidney and dilation of urinary track.
6. He also relied upon the Judgment of this Court reported in 2007
5 CTC 254 in the case of H.J.Siwani and another Vs. U.Ugma Bhai, in
which it was held that there is a clear distinction between carrying on
business and occupying the premises. So far as the second limb is
concerned, it is a case where persons ceased to occupy the premises.
There is nothing to indicate that they ceased to occupy the premises. But,
there was a plea that they are not carrying on the business. Therefore, not
actually carrying on business in a particular premises is different from
ceased to occupy the premises. In the instant case, evidence is available
that business was not carried on. But that cannot be termed as “ceased to
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C.R.P.No.1508 of 2019
occupy”. In the case on hand also there is no allegations that he is not
carrying his profession. He closed his office for some period of time.
7. He also relied upon the Judgment of the Hon'ble Supreme Court
of India reported in 2011 5 SCC 778 in the case of Dunlop India
Limited Vs. A.A.Rahna and another, in which it was held that initial
burden to show that the tenant had ceased to occupy the building
continuously for six months is always on the landlord. He has to adduce
tangible evidence to prove the fact that as on the date of filing the
petition, the tenant was not occupying the building continuously for 6
months. Once such evidence is adduced, the burden shifts on the tenant
to prove that there was reasonable cause for his having ceased to occupy
the tenanted premises for a continuous period of 6 months. In the case on
hand, the petitioner proved that there was reasonable cause for having
ceased to occupy the premises.
8. Per contra, the learned counsel for the respondent would submit
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that admittedly, the petitioner is an Advocate who was practicing at High
Court and thereafter he has shifted his practice Bangalore and started his
new office. He had engaged one person and his whereabouts were also
not known and he failed to pay any rent. The building premises was
ceased to be occupied by the petitioner for a long time. The medical
records produced by the petitioner would not amount to reasonable cause
for ceasure of the petition premises. Therefore, both the Courts below
rightly ordered eviction on the ground of ceased to occupy. He further
submitted that even before filing the Rent Control Appeal, possession
was taken over and the petitioner premises is in possession and custody
of the respondent. Therefore, nothing survives in this present revision.
9. Heard, Mr.P.B.Balaji, learned counsel appearing for the
petitioner and Mr.D.Vijay, learned counsel appearing for the respondent.
10. Admittedly, the petitioner is an Advocate. He was occupying
the petition premises for his office purpose. While being so, the
respondent filed an eviction petition on the ground of willful default and
ceased to occupy the petition premises. However, the learned Rent
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Controller ordered eviction on the ground of ceased to occupy and
dismissed the eviction petition on the ground of willful default.
Admittedly, the petitioner shifted his residence to Bangalore. Thereafter,
he used to come to Chennai office three to four times per month. The
petition premises was handed over to one Kalaiselvan for renovation.
However, whereabouts of the said Kalaiselvan was not known and he
failed to pay the rent. The petition premises was under lock and key.
Therefore, without any reasonable cause, the petition premises was under
lock and key.
11. The word "occupy" used in Section 11(4)(v) is not
synonymous with legal possession in technical sense. It means actual
possession of the tenanted building or use thereof for the purpose for
which it is let out. If the building is let out for residential purpose and the
tenant is shown to be continuously absent from the building for six
months, the Court may presume that he has ceased to occupy the building
or abandoned it. If the building is let out for business or commercial
purpose, complete cessation of the business/commercial activity may
give rise to a presumption that the tenant has ceased to occupy the
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C.R.P.No.1508 of 2019
premises. In either case, legal possession of the building by the tenant
will, by itself, be not sufficient for refusing an order of eviction unless
the tenant proves that there was reasonable cause for his having ceased to
occupy the building. The initial burden to show that the tenant has ceased
to occupy the building continuously for 6 months is always on the
landlord. He has to adduce tangible evidence to prove the fact that as on
the date of filing the petition, the tenant was not occupying the building
continuously for 6 months. Once such evidence is adduced, the burden
shifts on the tenant to prove that there was reasonable cause for his
having ceased to occupy the tenanted premises for a continuous period of
6 months.
12. In this regard, the Hon'ble Supreme Court of India reported in
2011 5 SCC 778 in the case of Dunlop India Limited Vs. A.A.Rahna
and another, in which it was held as follows:-
“ 23. No strait- jacket formula can be evolved for
determining as to what is the reasonable cause and each case is
required to be decided keeping in view the nature of the lease,
the purpose for which the premises are let out and the evidence
of the parties. If the building, as defined in Section 2(1), is let
out for industrial or commercial/business purpose and the same
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is not used for the said purpose continuously for a period of six
months, the tenant cannot plead financial crunch as a ground to
justify non occupation of the building unless cogent evidence is
produced by him to prove that he could not carry on the
industrial or commercial/business activity due to fiscal reasons
which were beyond his control. If the tenant does not use the
building for the purpose for which it is let out, he cannot be said
to be occupying the building merely because he has put some
furniture or articles or machinery under his lock and key.
24. At this stage, we may notice some precedents which
throw some light on the true interpretation of the expressions
"occupy" and "reasonable cause" used in Section 11(4)(v) of the
1965 Act. In Ram Dass v. Davinder (2004) 3 SCC 684, this
Court interpreted Section 13(2)(v) of the Haryana Urban
(Control of Rent and Eviction) Act, 1973 in terms of which an
order of eviction could be passed against the tenant if he is
shown to have ceased to occupy the premises continuously for a
period of 4 months without reasonable cause. Respondent
Davinder was tenant in the shop belonging to appellant-Ram
Dass. The appellant filed a petition for eviction of the
respondent on the ground that he had ceased to occupy the shop
for a continuous period of 4 months without any reasonable
cause. The Rent Controller analysed the pleadings of the parties
and evidence produced by them and held that the appellant has
been able to prove that the respondent had ceased to occupy the
premises for a continuous period of more than 4 months and
there was no reasonable cause for doing so. The plea of the
respondent that he had kept the shop closed intermittently due to
sickness was not accepted by the Rent Controller. The Appellate
Authority, on an independent evaluation of the evidence,
confirmed the finding of the Rent Controller. The High Court
allowed the revision filed by the respondent and set aside the
orders of the Rent Controller and the Appellate Authority. This
Court reversed the order of the High Court and restored the one
passed by the Rent Controller.”
13. In the case on hand, the petitioner himself categorically
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admitted that he was not occupying the petition premises for a long
period. Though, he produced medical records and submitted that due to
his sickness he could not occupy the petition premises, it would not
amount to reasonable cause and as such the Courts below rightly ordered
for eviction on the ground of ceased to occupy the petition premises.
That apart, already vacant possession of the petition premises was taken
over by the respondent and this Court finds no infirmity or illegality in
the order passed by the Court below and this revision is liable to be
dismissed.
14. Accordingly, this Civil Revision Petition is dismissed. No
costs.
15. The learned counsel for the petitioner would submit that
though possession was taken over in respect of the petition premises by
the respondent, the articles which are kept in the petition premises are not
returned to the petitioner so far.
16. The learned counsel for the respondent would submit that
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when the petition premises was taken over by the respondent, there was
no article found in the petition premises. If anything is found in the
inventories, they are ready and willing to return the same.
17. Considering the above submission, if any inventories is made
or found in the petition premises, the respondent is directed to return the
same.
04.01.2023
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
mn
G.K.ILANTHIRAIYAN,J.
mn
https://www.mhc.tn.gov.in/judis
C.R.P.No.1508 of 2019
To
1. The VIII Court of Small Causes, Chennai.
2. The XI Court of Small Causes, Chennai.
C.R.P.No.1508 of 2019
04.01.2023
https://www.mhc.tn.gov.in/judis
