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1991 DIGILAW 823 (MAD)

N. Janaki and another v. S. Jayalatchumi

1991-11-03

K.GOVINDARAJAN

body1991
Judgment :- The tenant who faced with eviction by the Appellate Authority filed the above revision. The landlady filed Petitions in R.C.O.P.Nos.284 and 285 of 1984 on the file of Controller, Tiruchirapalli for eviction under Secs.10(2)(ii), 10(3)(a)(iii) and 14(i)(b) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. According to the landlady, tenant has not paid the rent for two months namely, May and June, 1984 and such a default is wilful. With respect to the ground of owners occupation she has stated in the petition they are in occupation of a rented premises and running a Coffee Hotel. To have business in the premises in question, they require the same. With respect to the ground demolition and reconstruction, it is the case of the landlady that the municipality gave notice on 17.3.1984 asking the landlady to demolish the building in question that it was very dangerous condition. The landlady has stated that she requires the premises immediate purpose of demolition and reconstruction by creating a new terraced building having all modern facilities in order to suit her convenience in the vacant site. According her, she has got sufficient funds for the purpose of demolition and reconstruction. tenants contested the petition by filing a counter. The Rent Controller in his order dated 4.11.1991 dismissed the petition. It is relevant to mention here that with respect to wilful default, the landlady has not pressed the said issue. Aggrieved against the said order landlady filed an appeal in R.C.A.Nos.4 and 5 of 1992 on the file of Appellate Authority, Tiruchirapalli. The Appellate Authority after considering the oral and documentary evidence, allowed the appeals on both the grounds in his order dated 13.12.1993. 2. The landlady sought for eviction on the ground of owners occupation to run a Coffee which is carried on by her in a rented building which is situated just opposite to the premises in question. As rightly submitted by the learned counsel appearing for the petitioner, nothing has been stated in the petition as to why the landlady wants to shift the hotel to premises in question. The Rent Controller has found that though the municipality has given notice for increased rent, no notice was issued for eviction. But the Appellate Authority on the basis of the said notice issued by the municipality demanding enhanced rent, allowed the appeal. The Rent Controller has found that though the municipality has given notice for increased rent, no notice was issued for eviction. But the Appellate Authority on the basis of the said notice issued by the municipality demanding enhanced rent, allowed the appeal. The Appellate Authority failed to appreciate that the landlady has not given reason in the petition regarding the necessity to shift the shop. It is well-settled that asking for the premises for owner ’ s occupation, mere proving ingredients of the section not enough but more than that the bona fide intention should be proved. In this though the landlady has established the ingredients of the section, there is nothing on record to show that the intention of the landlady is a bona fide one. In the the absence of proof, the Appellate Authority is not correct in allowing the appeal on that ground. 3. With respect to the ground of demolition and reconstruction, it is the case of the landlady that the municipality has issued notice on 17.3.1984 to her. That is as marked as Ex.A Though the Rent Controller has not accepted her evidence with respect to the condition building, the Appellate Authority relied on the said document Ex.A-7 to come to a conclusion that the building is in a dilapidated condition. The learned counsel appearing for petitioner has submitted that in the reply notice, it is specifically stated that the said notice Ex.A-7 was issued at the instance of the landlady for the purpose of filing the petition. the said contention has not been established before the authorities. The Appellate Authority has relied on the said documents and came to a conclusion that the building is in a dilapidated condition. The Appellate Authority also has accepted the case of the landlady on the basis on Ex.A-10, that she is having sufficient funds for the purpose of constructing the building. The learned counsel for the respondent further submitted that in the petition, the landlady has not stated about the undertaking as required under Sec.l4(l) (b) of the Act. But P.W. 1 in the evidence has specifically stated that from the date of the order, the building will be constructed within three months. Though there is no such undertaking in the petition when the undertaking is available in the evidence, it cannot be said that the landlady has not complied with the statutory requirement at all. But P.W. 1 in the evidence has specifically stated that from the date of the order, the building will be constructed within three months. Though there is no such undertaking in the petition when the undertaking is available in the evidence, it cannot be said that the landlady has not complied with the statutory requirement at all. The Appellate Authority has appreciated the documents and came to a conclusion that the landlady requires the premises for demolition and reconstruction and such requirement is a one. In the petition, the landlady has stated that she wants to construct the new terraced building with all modern facilities in order to suit her convenience. The said reason cannot be rejected as she is having a bona fide intention to reconstruct the premises. In view of the factual finding given by the Appellate Authority, exercising jurisdiction under Sec.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, I am not inclined to interfere with the factual finding of the Appellate Authority. Hence, the order of eviction passed by the Appellate Authority is confirmed under Sec. 14(1)(b) of the Act. Hence, the civil revision petition is dismissed. 4. The learned counsel for the petitioner requests time for six months to vacate the premises. Six months time from this date is granted, to vacate the premises on condition that the petitioner should file an affidavit of undertaking on or before 17.11.1997 that she will vacate and handover the vacant possession of the premises before the said period, without dragging the landlady to the court for getting possession. If such an affidavit is not filed within the time, the order of eviction will come into operation immediately.