Tenants who have lost in both the forums below have come forward with this civil revision petition. Present respondent instituted R.C.O.P.No.10 of 1988 in the Court of Rent Controller (District Munsif), Mayiladuthurai seeking eviction under Sections 10(2) (ii) (b) and 10(2) (iii) of Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 on the allegations that the revision petitioners are using the building for a purpose other than that for which it was leased and that they have committed acts of waste as are likely to impair materially the value or utility of the building. It is the case of the landlord that the demised property is the ground floor measuring 10’X95’ of Door No.5, Second street, Mayiladuthurai Town. This non-residential premises was let out to the revision petitioner under Ex.P. 1 agreement dated 31-7-1978 for the purpose of running Textile shop, Jewellery shop and Medical shop for a period of 15 years from 1-7-1978 on a monthly rent ranging from Rs.1000/- to Rs.1238/- as specified therein. However, contrary to the terms of the tenancy revision petitioners are running a Pawn-broker’s shop in the premises without the knowledge and consent of the landlord. Besides they have carried out structural alteration in the building in respect of windows, doors, almirahs and angles. They have lowered the floor space below the road level. They have also raised a wall in the verandah thereby putting in a barricade between the verandah portion and the space leading to the staircase. Whereas the revision petitioners contended that they are running only Jewellery shop and Textile shop in this property under the name and style of Maharaja Jewellery and Maharaja Silk House. Ex.R.1 is the Invitation printed for the inauguration of the Jewellery shop. And only on the instructions of the landlord they have put up wall of 6 feet height and 4 feet length in the verandah near the access to the staircase.

2. Learned Rent Controller found that the revision petitioners have raised the wall without the knowledge and consent of the landlord and carried out structural alteration regarding door, window and almirah, and this constituted acts of waste. And by running Pawn-broker’s shop in the demised premises revision petitioners are using the building for a purpose other than that for which it was leased out. So he allowed the application and granted two months’ time to the tenants to vacate the premises. There upon the tenants preferred R.C.A.No.5 of 1991 before the Appellate Authority-Sub Judge, Mayiladuthurai, with no success. And these orders are challenged in this revision petition.

3. Regarding the claim of the landlord under Section 10(2) (ii) (b) of the Tamil Nadu Act 18 of 1960 the contention of learned counsel for the revision petitioners is two fold. First he submits that there is no express bar in Ex.P.1 lease deed in carrying on Pawn-broker’s business in the disputed premises. And secondly no such business is being carried on in the said premises. The relevant parts of Ex.P.1 read as under:

From this learned counsel for the revision petitioner wants to infer that the expression occurring herein enables the tenants to run any other business in addition to the three express trades namely Textiles, Jewellery and Medicals. Provash Chandra Dalui v. Biswanath Banarjee (A.I.R.1989 S.C. 1834) has laid down that the best interpretation of a contract is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ‘ex-antecedentibus to consequentibus’ every part of it may be brought into action in order to collect from the whole one uniform and consistent sence, if it is possible. In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply. It is significant to note that the three businesses mentioned in the lease deed not have any common feature and so there is no scope for invoking the rule of ejusdem generis is in considering the document. And the use of the word cannot take in running of Pawn Broker’s trade besides Jewellery shop, Textiles shop and Medical shop-Looking at the terms of the document as a whole the conclusion is irresistible that the lease was for conducting these three trades alone and not for running any other business. The expression in this context can only mean that there was a plurality of business.

4. Ex.P.2 is the report and plan of the Commissioner filed in O.S. No.112 of 1988 on the file of District Munsif of Mayiladuthurai. In this the Commissioner has observed that in the demised building on the outer wall the names Maharaja Jewellery and Maharaja Pawn-broker’s shop are written in paint. On the basis of this report of the Commissioner and on the evidence of R.W.1 that the tenants were formerly carrying on Pawn-broker business in a building in Nayarana Pillai Lane, that there was dispute between them and the landlord and that they had vacated the premises, the Courts below have concurrently found that the running of Pawn-broker trade in the demised premises is true. They have negatived the tenants’ claim that since Pawn- broker business requires licence and in the absence of the production of any such licence it cannot be said that the disputed building is used for the purpose of doing Pawn-broker trade also. It is the argument of learned counsel for the revision petitioners that Ex.P.2 the report of the Commissioner filed in another suit is inadmissible in evidence in the present action. Since this report has not been proved by the examination of the Commissioner, it cannot go in evidence. Under Order 26 Rule 9 CPC, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. And Order 26 Rule 10(2) provides that the report of the Commissioner shall be evidence in the suit in which the Commissioner has been appointed. And the report of the Commissioner filed in one action cannot form part of the record in another suit without the examination of the Commissioner and marking the report through him. In Sarat Chandra v. Sarala Bala Ghosh (A.I.R. 1928 Calcutta 63) a Division Bench of the Calcutta High Court has held that although a report and a map prepared by the Commissioner can be taken into evidence only in the suit in which he made the inquiry, yet they can be admitted in evidence in another suit under the Evidence Act on being proved by the person who made them. However, we find from the judgment of the appellate authority, herein that Ex.P.2 was marked by consent. In Jainab Bibi Saheb v. Hyderalli Saheb (38 M.L.J 532) a Full Bench of this Court has held that the consent of the parties to a suit can make admissible the evidence given in a previous judicial proceeding between them even in a case in which the conditions prescribed by Section 33 of the Evidence Act do not exist. The Full Bench further pointed out that the effect of Section 33 of the Evidence Act merely is that, while the presiding Judge in the course of trial may ask questions about irrelevant facts including under the scheme of the statements made to the witness by other parties or hearsay, he must base his judgment upon facts which are relevant to the issue and are fully proved. It does not throw any light on the question what facts should be considered to be duly proved. The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England and must now be taken to be the settled practice which is the law of the Court. There is no sufficient reason for holding that a different rule is applicable in India. So it is not open to the revision petitioners to assail Ex.P.2 forming part of the evidence in these proceedings.

5. Learned counsel for the revision petitioner contend that no notice was given to his clients when the Commissioner inspected the property on 19-2-1988 in I.A.No.365 of 1988 in O.S.No.112 of 1988 on the file of District Munsif, Mayiladuthurai. The report expressly reads that notice was issued only to the counsel for the landlord and there is no mention that any such notice was given to the tenants also. So the report cannot help the landlord in any manner. He based reliance on Seetharamappa v. Appaiah (A.I.R. 1962 Andhra Pradesh 84) wherein it has been held that where the local investigation is made behind the back of the defendant, no reliance can be placed on the report given by the commissioner. However, the same Ex.P.2 report discloses the presence of the present tenants on the premises at the time of commissioner’s visit. While so, there is no substance in the claim of the tenants that the-commissioner inspected the property and noted the physical features behind their back. And there cannot be any impediment in looking into Ex.P.2 for the purpose of deciding the controversy in this action.

6. As per Section 10(2) (ii) (b) of Tamil Nadu Act 18 of 1960, if the Controller is satisfied that the tenant has without the written consent of the landlord used the building for a purpose other that for which it was leased, he shall make an order directing the tenant to put the landlord in possession of the building. In the present case there is evidence to indicate carrying on Pawn-broker’s trade which is other than the one for which the building was leased. And this factor has weighed with the Court s below in ordering eviction. However, learned counsel for the revision petitioners argues that the materials on record do not disclose that a substantial part of the demised premises is utilised for the purpose of the Pawn-broker’s business. The user of a small portion of a big house for a purpose other than that for which it was let out would not squarely come within the mischief of Section 10(2) (ii) (b) of18 of 1960. In support of his claim he cited Mehta v. Subramaniam (1979 T.L.N.J.168). There Ramaprasada Rao, C. J. has held that if a landlord files an application on the ground of conversions about the user of a demised premises other than that for which it was let out, then it is incumbent upon him to establish not withstanding the nature of the defence in any particular case by the tenant, that such unauthorized user is substantial and the area in which such prohibited occupation is being carried on bears a substantial proportion to the totality of the area demised by the landlord to the tenant. However, in Bishwamber Dass Kohli v. Satya Bhalla (1993 (1) S.C.C.566) the Apex Court has taken the view that change in user may be even in respect of a small portion and need not be in respect of the entire building or a substantial part thereof. So, the ratio laid down in Mehta v. Subramaniam (1979 T.L.N.J.168) is no longer good law. What is important is that change in user must be a change in character of the user for which alone building had been let out.

7. In support of his plea that running a Pawn-broker’s shop in a premises where he is permitted to carry on Textile shop. Medical shop and Jewellery shop will not amount to a different user learned counsel for the revision petitioners based reliance on Mohan Lal v. Jai Bhagawan (A.I.R. 1988 S.C.1034). There, the shop was let out for carrying on business of English Liquor Vend. The tenant changed over to general merchandise business. The Supreme Court took the view that change of user would not cause any mischief or detriment or impairment to the shop. In one sense it could be called allied business in expanding concept of departmental stores. Accordingly, it held that the tenant was not liable to be evicted under Section 13(2) (ii) (b) of Haryana Urban (Control of Rent and Eviction) Act 1973 which is in parimateria with Section 10(2)(ii)(b) of Tamil Nadu Act 18 of 1960. In Gurdial Batra v. Raj Kumar (A.I.R. 1989 S.C. 1841) premises let out for running of a cycle and rickshaw repairing shop was temporarily utilised for sale of televisions also along with repair business. Held that it was not change of user and such a small change of user is not actionable when the interest of the landlord is not prejudiced, in Ramasamy Gounder v. Ranganayaki (1990 T.L.N.J. 122) a Single Judge of this court following the above said Apex Court rulings held that carrying on business of arrack in the premises let out for textile business would not be actionable so long as the interest of the landlady is not prejudiced.

8. Whereas learned counsel for the respondent landlord brought to my notice the decision in Abdul Khader v. Rao (1964 II M.L.J.288) where the suit premises was let out for a residential purpose. A learned Single Judge of this Court upheld eviction ordered for having used the building for a non-residential purposes, contrary to the terms of the letting and in the absence of a written consent from the landlord. In Chidambara Nadar v. Ganapathia Pillai (94 L.W.777) a Single Judge of this court took the view that storing of soda manufactured elsewhere as a godown will amount to using the premises for a purpose other that for which it was leased, viz., for the purpose of soda factory. And hence, the tenant was liable to be evicted on an application by the landlord on that ground. In Murugesan v. The Chairaman, Ex-Servicemen Welfare (1993 I M.L.J.512) the premises was let out for a purpose of cycle shop business. Another single Judge of this Court held that even assuming that the original cycle business was not altogether abandoned, storing a very substantial quantity of liquor bottles in the demised building would amount to a different user. And the relevant clause in Section 10 of18 of 1960 would be satisfied. In Dashrath Baburao Sangale v. Kashimath Bhaskar Data (A.I.R. 1993 S.C.2646) the premises was leased out for sugarcane juice business. The tenant was found using the building for selling cloth and readymade clothes. It was pleaded by the tenant that since sugarcane juice business was seasonal one, it cannot be carried on throughout the year. And during the off-season he was doing the cloth business. Both the Rent Controller and Appellate Authority found that it amounted to using the premises for purpose other than the one for which he has taken the said premises on lease. The High Court too accepted the said finding. Their Lordship of the Supreme Court found no reason to disturb the findings of the Courts below. In Bishamber Dass Kohli v. Satya Bhalla (1993 (I) SCC 566) the building was let out solely for residence. When there was a change in user of a part of the premises as lawyer’s office without written permission of landlord, the Supreme Court held that this amounted to change in user and valid ground for eviction under Section 13(2)(ii)(b) of East Punjab Rent Restriction Act, 1949 which are practically similar to the relevant in Tamil Nadu Act 18 of 1960.

9. No doubt, in Mohan Lal’s Case (A.I.R.1988 SC. 1034) [LQ/SC/1988/192] the Supreme Court took the view that changing over to general merchandise business from the business of English Liquor Vend would not amount to a different user. However, the decision in Bishamber Dass Kohli’s Case (1993 (I) S.C.C.566) is to the effect that even user of a part of the premises let out for residential purposes a lawyer’s office would be a wrongful user. Union of India v. Subramanian (1977 (I) S.C.R.87) lays down that in dealing with a question considered by a Division Bench of the Supreme Court in two cases, the proper course for the High Court is to find out and follow the opinion expressed by the larger Benches in preference to those expressed by smaller Benches. This practice is followed even by the Apex Court and has crystallized into a rule of law. In Govindanaik v. West Patent Press Co. (A.I.R.1980 Karnataka 92) the five Judges Bench of the Karnataka High Court has held that if two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. If two decisions of the Supreme Court on a question of law cannot be reconciled and if both Benches of the Supreme Court consi st of equal number of Judges, the latter of the two decisions should be followed by High Courts and other Courts. So on the ratio laid down in 1993 (I) S.C.C. 566 which was rendered by the Bench of three Judges, I am of the view that carrying on Pawn- broker’s business in the present case where the building is let out for three other trades is an actionable one inviting eviction under Section 10(2)(ii)(b) of Tamil Nadu Act 18 of 1960. And the Courts below have rightly held in favour of the landlord.

10. The next submission of the learned counsel for the revision petitioners is that the Tribunals below have erred in holding that the tenants have committed acts of waste. The allegations on this aspect in the eviction petition are only to the effect that the revision petitioners have committed acts of waste which are likely to impair materially the value or utility of the building. The nature of the act committed by the tenants is not elaborated in the petition. No typed set of the notes of evidence of the petitioner has been filed. We are able to gather from the order of the Courts below that the landlord as P.W.1 has deposed in the witness box that (1) the tenants have altered the building, (2) they have altered windows, door frames and angles in almirahs, (3) the y have lowered the floor even beneath the road level and (4) they have constructed a barricade wall near the staircase. To substantial this claim the respondent has relied on the Commissioner’s Report filed in O.S.No.112 of 1988 in the Court of District Munsif of Mayiladuthurai which was between the same parties. It is seen from the Commissioner’s report that he has noticed only the existence of the new north- south wall put up on the eastern side of the veranda. The Commissioner has also found that an iron shutter has been put up in the door leading to the demised building. The report of the Commissioner further reads that when he visited the property the first revision petitioner was available there. He served notice on him and inspected the shop. The landlord represented to him that the tenants have removed one window inside the shop and put up a new thatched shed on the first floor. Since the tenant refused permission, he was not able to go inside to inspect the premises. Both the Courts below have drawn adverse inference from the conduct of the tenants in preventing the Commissioner from going inside. They have held that only because they have made the structural alteration as claimed by the landlord, they were not inclined to permit the Commissioner to go inside the find out the truth or otherwise of the claim of the landlord. Evidently, Courts below have acted erroneously in drawing inference on the representation stated to have been made to the Commissioner, when the latter had not gone into the witness box. In the absence of the Commissioner figuring as a witness and subjecting himself to cross-examination his report is relevant only for the purpose of what he has actually seen and reported. As it has been held in Seetharamappa. v. Appaiah (A.I.R. 1962 A.P.84) where the report of the Commissioner is founded on representation made to him or on matters brought to his notice by one party to suit alone, the report deserves to be ignored. So, we are now concerned only with the question whether raising of that wall on the eastern extremity of veranda in front of the shop would amount to an act of waste.

11. Under Section 10(2)(iii) eviction could be ordered where the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building. In construing this provision as early as in Govindaswami Naidu v. Pushpammal (A.I.R. 1952 Madras 181) a Division Bench of this Court has pointed out that every act of waste by the tenant will not entitle the landlord to obtain an order of eviction under the provisions of Section 7 of Madras Buildings (Lease and Rent Control) Act 15 of 1946. A finding whether the impugned construction must necessarily be deemed to be an act of waste which is likely to impair materially the value or utility of the building must be based upon the particular facts as emerged from the evidence that is adduced in the case. Where there was almost complete absence of material relevant to the determination of this main question, except the evidence of the land lady’s husband who said that the act of the tenant would impair materially the value or utility of the building but did not choose to say how and why, Held it is difficult to hold that the demolition of the wall in that case has resulted in impairing the value or utility of the building. In Natarajan v. Thandavarayan (1969 II M.L.J. 19) Ramaprasada Rao, J as he then was has held that while considering the contents of section 10(2) (iii) of theit is necessary- that certain objective standards have to be set, before a tribunal or Court engaged, in the adjudication of rights of parties decisively concluded that the acts complained of is or has to be characterised as one impairing materially the value or utility of the building. Here rendering of subjective opinion may not be of any avail unless such opinion is backed by expert evidence. What is contemplated in the section is the lowering of the economic value of the building and not a possible mental inconvenience suffered subjectively by the landlord on a prima facie examination of the building. Unless there is clinching evidence to satisfy the conscience of the Court that the acts complained of have caused damage to the building or its utility, it would be in the region of wild speculation to conclude that the necessary ingredients or the sine quo non of the section have been satisfied. His Lordship took the view that drilling a hole 3” in diameter in the terraced portion of a building (leased for running a hotel) to let out smoke, and removal of a portion of the parapet wall on the terrace were not acts of waste which in any wise could be said to impair materially the value or utility of the building. The same learned Judge has held in Mesdames Tara Moolgaular v. Raja Mohan Rao (1979 II M.L.J. 504) that by using a garage as a room it could not be said that the tenant had committed acts of waste. In the absence of any evidence to show that by such user the utility of the building had been materially impaired, it could not equally be said that the tenant had committed any acts of waste which would come within the mischief or meaning of section 10(2)(iii) of the.

12. Learned counsel for the revision petitioners further submits that a particular act of waste as materially (sic) impairing or likely to impair the value or utility of the building cannot be a matter of concrete evidence. A bare and a bald statement that it has materially impaired or is likely to impair materially the value or the utility of the building also will not do. It must be established through proper evidence as to how and in what manner the reprehensible act has materially impaired or is likely to impair the value or the utility of the building. In support of his contention he has based reliance on Thandavarayan v. Lakshmi Ammal (98 L.W. 332) where it has been held that it is not as if any unauthorised act on the part of the tenant with reference to the building let out to and occupied by him, however reprehensible this act may be is made a ground for his eviction under the. It is only an act of waste and that too, one likely to impair materially the value or the utility of the building that is made a ground for eviction under Section (10)(2)(iii) of the. And however harsh it may look from the point of view of the landlord, the rigour of the provisions of the, being a beneficial legislation intended for the protection of tenants, could not be watered down by bringing in any extraneous considerations leaning towards the landlord. The act perpetrated by the tenant, if it does not come within the import and implications of Section 10(2)(iii) of the Act, cannot form a lever for eviction of the tenant, though other remedies may be open for the landlord, such as compensation, rectification of the offending works and restoration too, all at the cost of the tenant.

13. In Dinakaran v. Chinna Kuppuswami (99 L.W. 678) Natarajan, J. took the view that effecting improvements to the premises, by the tenant by replacing worn out roof, wooden pillars and mud walls with new roof and brick pillars and brick walls would not amount to acts of waste. Landlord is not entitled to say the tenant should keep the rented premises in “as is where is” condition. What is envisaged under Section 10(2)(iii) of the Rent Control Act is committing of acts of waste which are likely to impair materially the value or utility of the building. In other words, the act of the tenant must be such as would prejudicially affect the interests of the landlord by either lowering the value of the building or by reducing the utilitarian value for being let out for the same purpose for which it had been let out, for allied purpose. Therefore, it goes without saying that every act of a tenant, even if it is not permitted by the landlord, will not amount to an act of waste as contemplated under Section 10(2)(iii) of the. It is only a harmful act which is contemplated under Section 10(2)(iii) of the Act, namely an act of waste which impairs materially or affects adversely the value of utility of the building.

14. In Rajarani Silk Palace v. Murugan (1994 (1) M.L.J. 212) Thanikkachalam, J has held that in the absence of any evidence on the side of the landlord to show that the construction put up by the tenant impaired the value and utility of the building, eviction sought for under Section 10(2)(iii) of thecannot be granted. In Om Prakash v. Amar Singh (A.I.R. 1987 S.C. 617) the tenant constructed a partition wall in hall and tin shed in the open courtyard adjacent to the demised building. The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling instead. It was a temporary wall of 6 feet height converting the big hall into two portions for is convenient use. It could be removed at any time without causing any damages to the building. The Supreme Court held that the partition wall did not make any structural change of substantial character either in the form or structure of the accommodation. It was further held that taking into consideration the nature of the construction of the tin shed it could not be said to have altered the accommodation. On the ratio laid down in the decisions referred to above, it is evident that the impugned wall cannot give rise to an action under Section 10(2)(iii) of the Tamil Nadu Act. We have to bear in mind that the nature and character of change or alteration of the building must be of essential and important nature. In determination of the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. And it is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. Applying this test it is evident that the view taken by the Tribunals below is unsustainable.

15. Learned counsel for the respondent/landlord has cited the decision of Singaravelu, J. in Bhadurmal v. Krishna Rao (1982 I M.L.J. 376) where changing the shutters and doors with rolling shutters and removal of cement flooring and putting up Mosaic flooring all in the nature of remodelling, would tantamount to technical waste and are undoubtedly wilful and reckless act on the part of the tenant. They are certainly prejudicial to the interests of the landlord in that the tenant has made indiscriminate alteration sand addition unilaterally without the consent and approval of the landlord. The amounts to doing of an act which affects the utility of the building though the tenant might have added to the value of the building by putting up better appearance. This run contra to the trend of decisions indicated earlier and I am unable to agree with learned counsel for the respondent/landlord that the construction of the impugned wall is likely to impair materially the value or the utility of the building.

16. Learned counsel for the respondent/landlord submitted that the concurrent findings of the Courts below cannot be disturbed in the present proceedings which is only a revision. We find from Section 25 of Tamil Nadu Act 18 of 1960 that the High Court is entitled to go into the regularity of the proceeding or the correctness, legality or propriety of any decision or order passed by the Rent Controller or the Appellate Authority. In Ram Dass v. Ishwar Chander (A.I.R. 1988 S.C. 1422) the Apex Court has held that satisfaction of the “legality and propriety” of the order under revision is a much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not “a second court of first appeal, In Shiv Lal v. Sat Prakash (A.I.R. 1993 S.C. 275) while interpreting Section 15(5) of East Punjab Rent Restriction Act which was also the subject of interpretation in the earlier decision, the supreme Court has pointed out that while exercising the revisional jurisdiction, the High court should not act as a regular third appellate authority and can interfere only within the scope of the sub-section, discussed and defined in many reported cases by that Court. In the instant case the findings of the Court regarding erection of the new wall would be a finding of fact. But the question whether the construction has materially altered the accommodation is a mixed question of fact and law. It should be determined on the application of the correct principles.

17. In the result, the order of the Courts below in directing eviction under Section 10(2)(ii)(b) for putting the building to a different user is upheld even though the finding of acts of waste under Section 10(2)(iii) is set aside. Hence, the revision is dismissed. No costs. Time for eviction three months from this date. Revision Petitioners are directed to file an affidavit of undertaking within two weeks from today.