R. Alamelu v. Visalakshi — 1977 DIGILAW 553 (MAD)

ORDER.-The landlady is the petitioner herein. She filed R.C.O.P. No.13 of 1975 before the Rent Controller-cum-District Munsif of Melur for eviction of the respondent herein on the ground that the petitioner required the premises in question for demolition and reconstruction as well as on the ground that the respondent tenant had committed wilful default in the payment of rent. The Rent Controller by his Order dated 29th November, 1975 held that the respondent was guilty of wilful default in the payment of rent and that the requirement of the petitioner of the building for demolition and reconstruction was bona fide and therefore ordered the eviction of the respondent herein. Against this order, the respondent preferred an appeal before the appellate authority (Principal Subordinate Judge of Madurai). The appellate authority by his order dated 8th November, 1976 reversed the finding of the Rent Controlleron the question of wilful default in the payment of rent on the part of the respondent herein. With regard to the requirement of the landlady under section 14 (1) (6) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) (hereinafter referred to as the Act), the appellate authority did not go into the question as to whether the landlady bona fide required the premises, since the landlady had not given an undertaking as contemplated under section 14 (2) of the Act and therefore on that ground itself the eviction petition filed by the petitioner had to fail. The appelate authority also pointed out that inasmuch as the appeal was being allowed on a technical ground, namely, the necessary undertaking as contemplated under the Act had not been given by the land-lady, she would be at liberty to file a fresh petition for eviction after giving the necessary undertaking and the question would be decided afresh by the Rent Controller. It is to revise the order of the appellate authority, the present petition has been filed under section 25 of the Act. 2. Having regard to the nature of the finding with regard to the allegation of wilful default in the payment on the part of the respondent herein, the learned counsel for the petitioner did not advance any argument to assail the same. 2. Having regard to the nature of the finding with regard to the allegation of wilful default in the payment on the part of the respondent herein, the learned counsel for the petitioner did not advance any argument to assail the same. However, the learned counsel contended that even when an undertaking as provided for in section 14 (2) was not given before the Rent Controller, it was certainly open to the petitioner to give the undertaking at any later stage and thereby cure the defect, and simply because no undertaking had been given before the Rent Controller, the petition of the petitioner should not have been dismissed. The learned counsel further contends that such plea was not taken by the respondent in the grounds of appeal before the appellate authority and therefore the appellate authority ought not to have taken into account such a ground. 3. In this petition, I do not have the assistance of the respondent since the respondent remains unrepresented. Consequently, I have to deal with the civil revision petition only on the basis of the orders of the Tribunals below, the statutory provisions and the argument of the learned counsel for the petitioner. 4. Sub-section (1) of section 14 of the Act states as follows: 14(1): Recovery of possession by landlord for repairs or for reconstructions :- Notwithstanding anything contained in this Act, but subject to the provisions of sections 12 and 13 on an application made by a landlord, the Controller shall, if he is satisfied:- (a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or (b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. 5. And we are here concerned with section 14 (1) (b). Sub-section (2) of section 14 states as follows:- 14(2): No order directing the tenant to deliver possession of the building under this section shall be passed. 5. And we are here concerned with section 14 (1) (b). Sub-section (2) of section 14 states as follows:- 14(2): No order directing the tenant to deliver possession of the building under this section shall be passed. (a) on the ground specified in clause (a) of sub-section (1) unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-section (1) for his reoccupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow; or (b) on the ground specified in clause (b) of sub-section (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow. Here again we are concerned only with section 14 (2) (ft). Thus it is clear that section 14 (2) prescribes a condition precedent to be satisfied before the Rent Controller could pass an order directing the tenant to deliver possession of the building under section 14, These conditions are two in number, the one referable to the ground under section 14 (1) (a) and the other referable to the ground under section 14 (1) (4). The very language of section 14 (2) will indicate that before passing an order directing the tenant to deliver possession of the building under section 14, the landlord should given an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovered possession of the entire building, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow. The use of the expression "unless the landlord gives an undertaking" occuring in section 14 (2) (ft) clearly indicates that the giving of such an undertaking is a condition precedent to the Controller passing an order directing the tenant to deliver possession of the building, and if no such undertaking is given, the Controller has no jurisdiction to pass any such order of eviction. In a particular case it may happen that the Rent Controller comes to the conclusion that the ground under section 14 (1) (b), namely that the landlord bona fide required the premises in question for the immediate purpose of demolition and reconstruction, had not been established, then on that ground itself the petition of the landlord was bound to fail, and therefore there would be no need for the Rent Controller to go into the question whether an undertaking as contemplated in section 14 (2) (b) has been given or not. However, in such a case, on an appeal preferred by the landlord, if the appellate authority reverses the conclusion of the Rent Controller with regard to the requirement of the landlord under sectionl4 (1) (ft), then the question of directing the tenant to deliver possession of the bunding would arise and at that stage certainly the landlord can give an undertaking before the appellate authority and on the basis of that undertaking, the appellate authority could pass an order. However, if no undertaking has been given before the Rent Controller and on that ground the Rent Controller dismisses the petition notwithstanding the finding in favour of the landlord under section 14 (1) (ft), such an order cannot be assailed before the appellate authority because the Rent Controller had no jurisdiction to pass an order in favour of the landlord even if the requirements of section 14 (1) (ft) were satisfied, if the landlord had not given the undertaking as contemplated in section 14 (2) (ft). It may also be possible that in a petition filed by the landlord under section 14 (1) (ft) of the Act, the Rent Controller may first proceed to find whether the requirement of the landlord is bona fide or not, and having rendered a finding that the requirement of the landlord is bona fide, he may adjourn the matter to enable the landlord to give an undertaking as required in section 14 (2) (b) and then dispose of the petition finally after the landlord gives or does not give the undertaking. All that I am interested in pointing out is that simply as a matter of construction of the relevant statutory provision, it follows that if the Rent Controller finds that the requirements of section 14 (1) (ft) are satisfied and orders a petition in favour of the landlord without the landlord having given an undertaking as contemplated by section 14 (2) (ft), then the appellate authority, even if he agrees with the conclusion of the Rent Controller on the requirement of the landlord under section 14 (1) (ft) is bound to set aside the order for noncompliance with the requirements of section 14 (2) (b). 6. This is what exactly has happened in this particular case. As I pointed out already, the Rent Controller recorded a finding in favour of the petitioner herein under section 14 (1) (6) and passed an order in her favour without getting an undertaking from the petitioner as contemplated by section 14 (2) (ft). In fact, the order of the appellate authority states as follows: "Admittedly, such an undertaking has not been given in this case and consequently the order passed by the learned Controller under section 14 (1) (b) of the said Act has got to be straightaway set aside." It is clear that no undertaking as contemplated in section 14 (2) (b) was given by the petitioner and therefore the order directing the tenant to put the petitioner in possession of the property could not have been passed by the Rent Controller and consequently the appellate authority was fully justified in setting aside the order of the Rent Controller. 7. However, what Mr. 7. However, what Mr. S.V. Jayaraman, learned counsel for the petitioner contends before me is that there are decisions of this Court holding that such an undertaking could be given even before the appellate authority and even before the revisional authority and therefore when a petition filed by the landlord satisfies the requirements of section 14 (1) (b), it cannot be dismissed solely on the ground that an undertaking as contemplated in section 14 (2) (b) has not been given. As I have indicated already, the language of the statutory provisions does not lend support to such a contention and therefore I have to see whether there are decisions of this Court supporting the contention of the learned counsel for the petitioner herein. 8. The earliest order that has been brought to my notice is that of Sadasivam, J. (Marudachalam and others v. Rangammal 1). That was also a petition for eviction under section 14 (1) (b) of the Act and the Rent Controller ordered eviction on the ground that the claim of the landlady that she wanted to demolish the roof and put up a concrete terrace was bona fide. But the appellate authority set aside the order on the ground that the landlady had not given the necessary undertaking as contemplated in section 14 (2) (6) of the Act. The District Judge in revision also concurred with the Courts below that the requirement of the landlady was bona fide and he allowed the revision on the ground that the undertaking given by the landlady before the appellate authority could be received as additional evidence by virtue of rule 23 (2) of the rules framed under the Act. The tenant filed the petition before this Court. Sadasivam, J. held that there was really an undertaking before the Rent Controller and therefore the requirements of section 14 (2) (b) had been satisfied. The learned Judge observed as follows: "There is nothing wrong in the order of the District Judge in directing the petitioners to deliver possession of the premises occupied by them on the ground that the respondent (landlady) required the same for demolition and reconstruction as contemplated in section 14 (1) (A) of the Act. The necessary undertaking has been given prior to that order even before the appellate authority. The necessary undertaking has been given prior to that order even before the appellate authority. What all section 14 (2) (b) requires is that no order directing the tenant to give possession of the building under the section shall be passed on the ground specified in clause (b) of sub-section (2) unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may allow. The appellate authority had vacatea the order for eviction and before the District Judge passed the order for eviction under section 14 (1) (A) the necessary undertaking was on record. Therefore there is nothing wrong in the order of the District Judge in revision." 9. Thus it will be seen that the learned Judge did not hold that the undertaking could be given at any stage. All that the learned Judge held was that in fact there was an undertaking before the Rent Controller himself. If so, no other question could possibly arise in the civil revision petition. Apart from that, the learned Judge also held that the appellate authority had dismissed the petition filed by the landlady, but before the District Judge reversed that decision and directed eviction of the tenant, there was already undertaking on record. Looked at from any angle, that decision of the learned Judge cannot be relied on as an authority that the undertaking can be given at any stage of the proceedings and the giving of such an undertaking does not constitute a condition precedent before the ordering of eviction Jay the Rent Controller. 10. Then my attention was drawn to the ruling of Ramaprasada Rao, J. dated 15th October, 1976 made in (M. Subramanian v. Rajammal alias Adhirupavalli Ammal).1 That order is a brief one and reads as follows: “The respondent landlady has filed an undertaking as required by section 14 of the Tamil Nadu Buildings (Lease and Rent Control) Act in this Court. This has been held to be sufficient by the decisions of this Court. The Courts below found that the respondent required the premises in the occupation of the petitioner for the purpose of demolition and reconstruction. This has been held to be sufficient by the decisions of this Court. The Courts below found that the respondent required the premises in the occupation of the petitioner for the purpose of demolition and reconstruction. This is a concurrent finding of fact. There is no error of jurisdiction or material irregularity. The Civil Revision Petition is dismissed.” It will be seen from the order that the learned Judge has not decided the question with reference to the language of sections 14 (1) (b) and 14 (2) (A) of the Act. The learned Judge proceeds on the basis that in the decisions of this Court it has been held that giving an undertaking before the High Court was sufficient. I asked the learned counsel for the petitioner to produce any decision of this Court holding that giving an undertaking before this Court was sufficient. But the learned counsel expresses this inability to refer to any such decision even after having taken time to examine the position. 11. The next order relied on is that of Suryamurthy, J. (Shamsed Begum v. D.P. Doriaswami and another.)2 The relevant portion of the order reads thus:- “The learned Rent Controller found that the requirement of the landlord for demolition and reconstruction of the building was bone fide, but the learned appellate , authority did not agree with this view. This view of the learned appellate authority would appear to be based on the ground that without giving an undertaking as required by section 14 (1) (6) these petitions for eviction have been filed. He also would appear to have thought that these petitions have been filed only as a ruse to evict the tenant. What is required is that the landlord should be in a position to demolish and reconstruct the building, that he should have the necessary resources to do so and that he should give an undertaking as required by the provisions of the Act. Merely because an undertaking was not given the petition need not have been dismissed. The landlord might have been called upon to give such an undertaking. In these circumstances, it is necessary that the appellate authority should re-assess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective. Merely because an undertaking was not given the petition need not have been dismissed. The landlord might have been called upon to give such an undertaking. In these circumstances, it is necessary that the appellate authority should re-assess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective. Therefore these two civil revision petitions are allowed and the orders of the learned appellate authority are set aside and the matter is remanded in each of the Civil revisions to the learned appellate authority for fresh disposal after getting an undertaking from the landlords in accordance with the provisions of the Act. The learned appellate authority must, however, come to a conculsion independently of any observations made above.” 12. Thus it will be seen that the order of Suryamurthy, J. does not throw any light on the question I am considering because that was not the question considered by the learned Judge. In fact the observation of the learned Judge namely, “it is necessary that the appellate authority should re-assess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective” would indicate that the appellate authority had not dismissed the eviction petition solely on the ground that no undertaking was given as required by section 14 (2) (b) of the Act, but even on merits. 13. Then my attention was drawn to an order of Gokulakrishnan, J. in B.C. Diocese of Madurai v. Ganapathy Iyer 3. In that case,the Rent Controller ordered eviction under sectionl4(l) (b)oncondition that the petitioners (landlords) gave the statutory undertaking under section 14 (2) (b) within a period of one week from the date of the order. It is not clear from the report itself whether the order passed by the Rent Controller giving one week’s time for filling the undertaking was a final order or whether after the period of one week, the petition was called again and the eviction was ordered on the undertaking having been filed within the time given by the Rent Controller. It is not clear from the report itself whether the order passed by the Rent Controller giving one week’s time for filling the undertaking was a final order or whether after the period of one week, the petition was called again and the eviction was ordered on the undertaking having been filed within the time given by the Rent Controller. However, the appellate authority in that case without going into the bona fides of the requirement of the landlords, dismissed the eviction petition holding that the eviction ordered by the Rent Controller on condition that the landlords should give the statutory undertaking within a period of one week from the date of order of eviction was not proper and legal and could not therefore be sustained. In the course of the order, the learned Judge points out thus:- "Both the learned counsel appearing for the respective parties in these revision petitions agreed that the order passed by the appellate authority is not correct in view of the order passed by this Court in C.R.P.No. 733 of 1969 dated 25th July, 1969, by Sadasivam, J. Undertaking given before the Rent Controller even though subsequent to the order of eviction passed by the Rent Controller, can be taken into consideration by the appellate authority for ordering eviction and such undertaking has to be construed as full compliance of the direction contemplated under section 14 (2) (b) of the Act." 14. In the first place, the counsel appearing on both the sides agreed before the learned Judge that the order passed by the appellate authority was not correct and therefore the question of the learned Judge himself going into the legal position did not arise. Secondly, as I have indicated already, the order of Sadasivam, J. in the civil revision petition referred to above did not hold that the undertaking need not necessarity be given before the Rent Controller passed the order of eviction and it could be given even subsequently. Therefore, this order also is not of any assistance to support the case of the petitioner herein. 15. Then there remains the order of N. S. Ramaswami, J. (S. K. Rajagpoal v. Tanjore Mambalam Rama Naick Charities by it Trustee)1 in which the learned Judge has directly considered this question. Therefore, this order also is not of any assistance to support the case of the petitioner herein. 15. Then there remains the order of N. S. Ramaswami, J. (S. K. Rajagpoal v. Tanjore Mambalam Rama Naick Charities by it Trustee)1 in which the learned Judge has directly considered this question. The order is a short one and it reads as follows: "The appellate authority found that the claim of the landlord that he re quries the building for demolition and reconstruction is not bone fide. The finding is that the landlord which is a trust has not proved that it has the necessary funds or it had made any preparation for demolishing and reconstructing the building. On revision under section 25 of the Act XVIII of 1960 take a by the landlord, the revisional authority reversed the above finding and ordered eviction under section 14 (1) (A) of the Act. The contention of the learned counsel for the tenant (revision petitioner before me) is that the revisional authority (District Judge) has exceeded its jurisdiction in reversing the finding of the appellate authority. However, it is wholly unnecessary to go into this aspect of the matter for I am satisfied that the order of eviction passed by the revisional authority is one made without jurisdiction for another reason. Under section 14 (1) (b) an order of eviction can be passed only on the landlord giving an undertaking that the work of demolishing the building shall be substantially commenced by him not later than one month and shall be completed by the expiry of three months from the date of recovering possession of the building. That is the provision contained in subsection (2), clause (b) to section 14 of the Act. Admittedly, the landlord has not given such an undertaking. That means, the revisional authority had no jurisdiction to pass an order of eviction. On this short ground this revision petition filed under section 115 of the Civil Procedure Code, is, allowed and the order of eviction set aside." Thus it will be seen that it is only the order of N.S. Ramaswami, J., that dealt with the requirement as to the giving of an undertaking under section 14 (2) (6) as one going to the jurisdiction of the Rent Controller to make an order directing the tenant to put the landlord in possession of the building. The learned Judge took the view that it goes to the root of the jurisdiction of the Rent Controller to order eviction and therefore if the undertaking had not been given, the Rent Controller had no jurisdiction to pass an order of eviction. I may say with respect that this view is in accordance with the construction which I have put on the relevant statutory provisions earlier in the course of this order. 16. I may also point out that the requirement of undertaking contemplated by section 14 (2) (b) is not a mere empty formality and it is intended to prevent any abuse on the part of the landlord. From what I have extracted already it will be seen that there are two limbs to this undertaking in section 14 (2) (b). One is that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month from the date of recovery of possession of the entire building. This time-limit is an unalterrable one. The second limb of the undertaking is that the demolition shall be completed before the expiry of three months from the date the landlord recovers possession of the entire building. The time-limit of three months in the second limb can be extended by the Rent Controller for reasons to be recorded in writing. Consequently, the undertaking with reference to both these limbs must be given before an order can be passed directing the tenant to put the landlord in possession of the building. 17. Section 16 (1) of the Act confirms the necessity for an undertaking. That statutory provision reads as follows:- "Section 16(1): Tenant to occupy if the building is not demolished: Where an order directing delivery of possession has been passed by the Controller under clause (b) of sub-section (1) of section 14 and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking under clause (b) of sub-section (2) of section 14, the tenant may give the landlord notice of his intention occupy the building the possession of which he delivered. If within fifteen days from the date of receipt of such notice, the landlord does not put him in possession of the building on the original terms and conditions the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions." 18. Thus it will be seen that this statutory provision naturally is concerned only with the first limb of the undertaking If the first limb is satisfied, namely, the work of demolition of the material portion of the building has been substantially commenced within a month of recovery of possession of the entire building by the landlord as given in the undertaking provided for in section 14 (2) (6), even-though the completion of the demolition of the building was not over within the three months period or the extended period then section 16(1) will not apply because from the very nature of the case when once the demolition has been commenced, the tenant cannot occupy the building. In order to take care of the second limb of the undertaking, section 33 (3) (b) of the Act provides for a prosecution and punishment of the landlord in such a situation. Section 33 (3) (6) of the Act states as follows:- "Section 33 (3) (6): Any landlord who recovers possession on the ground specified in clause (b) of sub-section (1) of section 14 and fails to carry out the undertaking referred to in clause (6) of sub-section (2) of the said section without any reasonable excuse or fails to comply with the order of the Controller under sub-section (1) of section 15, shall, on conviction, be punishable with fine which may extend to two thousand rupees". 19. I am referring to these statutory provisions only to emphasise the importance the legislature has attached to the undertaking contemplated by section 14 (2) (b) against the background of the nature of the ground on which an order for eviction can be passed under section 14 (1) (b). 20. 19. I am referring to these statutory provisions only to emphasise the importance the legislature has attached to the undertaking contemplated by section 14 (2) (b) against the background of the nature of the ground on which an order for eviction can be passed under section 14 (1) (b). 20. Taking all these circumstances into account, I am satisfied that the giving of an undertaking under section 14 (2) (b) is a condition precedent for an order to be made by the Rent Controller under section 14 (1) (b) directing the tenant to put the landlord in possession of the premises in question, and by the appellate or the revisional authority where the said authority for the first time orders eviction of the tenant without the lower authority or authorities having ordered such eviction, and the failure to give an undertaking cannot be cured by giving such an undertaking at a later stage before the appellate or revisional authorities after an order for eviction has already been made by the Rent Controller without an undertaking having been given prior to such order of eviction. In this case, as I pointed out already and at the appellate authority points out, no such undertaking was given by the the petitioner before the Rent Controller ordered the eviction of the tenant and therefore the appellate authority rightly allowed the appeal preferred by the respondent herein. I may also point out that this view of mine will not cause any undue hardship to the landlords. This question will arise only when the landlord satisfies the Rent Controller with regard to his requirement under section 14 (1) (b) of the Act. If the landlord does not satisfy the Rent Controller with regard to the requirement of section 14 (1) (b), then the question of giving an undertaking will not possibly arise. This question will arise only when the landlord satisfies the Rent Controller with regard to his requirement under section 14 (1) (b) of the Act. If the landlord does not satisfy the Rent Controller with regard to the requirement of section 14 (1) (b), then the question of giving an undertaking will not possibly arise. Consequently, once the landlord succeeds in satisfying the Rent Controller under section 14 (1) (b) that his requirement was bona fide, but fails on the ground that he had not given the undertaking, there is nothing to prevent the landlord from filing a fresh petition for obtaining possession of the premises after giving, an undertaking since even section 19 of the Act will not prevent or bar such a petition as that section bars a petition only on the ground that the petition raises substantially the same issues as have been finally decided between the same parties or between parties under whom they or any of them claim in a former proceeding under the Act. In this case, as I have pointed out already, the appellate authority dismissed the appeal without going into merits of the claim of the petitioner herein, and has observed that as he was allowing the appeal on a technical ground that the necessary undertaking as contemplated under the Act has not been given by the landlady, she will be at liberty to file a fresh petition for eviction of the tenant after giving the necessary undertaking and the question will be decided afresh by the Rent Controller. In the result, the Civil Revision Petition fails and the same is dismissed. Since the respondent has not entered appearance, there will be no order as to costs in this petition.