Karruppusami v. S. Venugopal — 1997 DIGILAW 1164 (MAD)

Judgment :- 1. The tenants who faced eviction both before the Rent Controller and Appellate Authority have filed the above C.R.Ps. The respondent/landlord filed eviction petitions in R.C.O.P. Nos. 416 and 418 of 1982, on the file of the learned Rent Controller, Coimbatore against the petitioners under Sections 10 (2) (i), 10(3) (a) (iii) and 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. According to the respondent, the rent was Rs. 50/- per month which was not paid after 15.7.1982, in spite of notice. The building in question is aged about 60 years and is in dilapidated condition and so it has to be demolished. It is the further case of the respondent that the respondent is doing jewellery business in his house and the same is required for his own business. In the counter it is stated that the rent is only Rs. 25/- and not Rs. 50/- per month. Though Money Order was sent on 15.7.1982, it was returned. It is the further case of the petitioners that on 27.4.1983, the date of the first hearing, the entire amount for the period from 15.7.1982 to 15.3.1983 at the rate of Rs. 25/- was paid. With respect to the case of the respondent regarding demolition and reconstruction the petitioners have stated that the building need not be demolished and it does not require any reconstruction. With respect to the case of the respondent regarding owners occupation, the petitioners raised objection that such a requirement is not a bonafide one and it is made only for the purpose of eviction petition. The learned Rent Controller appointed an Advocate Commissioner to inspect the building and the Commissioner inspected the building and filed a report. On the basis of the evidence and the Commissioners report, the learned Rent Controller ordered eviction. Aggrieved against the same, the petitioners have filed R.C.A. Nos. 111 and 112 of 1990 on the file of the Rent Control Appellate Authority, Coimbatore. Even the learned Appellate Authority has confirmed the findings of the learned Rent Controller and dismissed the Appeals. Aggrieved against the same, the petitioners have filed the above Revisions. The premises in question originally owned by one Ammakannu Ammal. After her death one Pitchai, adopted son of Ammakannu Ammal was receiving the rent. After his death, his wife Kuppammal was receiving the rent from the tenants. Aggrieved against the same, the petitioners have filed the above Revisions. The premises in question originally owned by one Ammakannu Ammal. After her death one Pitchai, adopted son of Ammakannu Ammal was receiving the rent. After his death, his wife Kuppammal was receiving the rent from the tenants. According to the petitioners, they entered into an oral agreement with Ammakannu Ammal to purchase the property and paid a sum of Rs. 500/- and Rs. 1000/- as advance and the said amounts should be treated as advance for the same. When the said Kuppammal tried to sell the property, the tenants seem to have issued a notice on 8.12.1980 informing about the sale and also published in the newspaper ‘Thina Thandthi’ regarding the same. Ultimately, the said Kuppammal sold the property on 6.4.1981 to one Ramakrishnan and he in turn sold the same on 15.7.1982 to the present landlord. 2. On the basis of the abovesaid facts, the learned counsel appearing for the petitioners has submitted that the authorities have committed illegality in finding that the tenants have committed wilful default. The respondent under Ex.P-1 caused notice through his advocate asking the petitioners to pay the rent to him at the rate of Rs. 50/- per month, and later to vacate the premises on the ground that he requires the building for his own occupation, and for demolition and reconstruction. Immediately on receipt of the said notice, the petitioners sent a reply through their advocate stating that the rent is not Rs. 50/- per month as claimed, but it is only Rs. 25/- per month and had denied the fact that the building was required by the landlord for his own occupation and had disputed the intention of the landlord to demolish the building for reconstruction. Thereafter the petitioners tenants sent the rent from 15.7.1982 at the rate of Rs. 25/- per month by way of Money Order, but it was returned, and the same has been marked as Ex.R-6. From the records it can be seen that, on the date of the first hearing, namely, 27.4.1983, the entire amount towards rent from 15.7.1982 to 15.4.1983 was paid, calculated at the rate of Rs. 25/- per month. So, from the abovesaid facts, it can be seen that the petitioners have not committed any wilful default, if the rent is calculated at the rate of Rs. 25/- per month. 25/- per month. So, from the abovesaid facts, it can be seen that the petitioners have not committed any wilful default, if the rent is calculated at the rate of Rs. 25/- per month. But the case of the respondent is that the rent is Rs. 50/- per month. Now, we have to see whether such a claim by the respondent/landlord can be sustained in view of his own admission as P.W.1. He has categorically stated in his evidence that the monthly rent is only Rs. 25/-. He has also stated that he did not claim rent at the rate of Rs. 50/-pn month, in the notice. In view of the above admitted fact, the rent should be only Rs. 25/- per month. Immediately after receipt of notice Ex.P-1, the petitioners took steps to sent the rent for the period from 15.7.1982 to the respondent by way of money order. Since the respondent refused to receive the same, the petitioners had paid the entire amount, on the date of first hearing, namely, 27.4.1983 before the learned Rent Controller. The learned counsel appearing for the petitioners has relied on the decision in the case of A.M.A. Jabhar v. T.S. Abdul Barinad and 2 others (1997 2 L.W. 616). In the present case, since the tenants has paid the entire arrears before the effective date, namely, the first hearing on 27.4.1983, there is no wilful default on the part of the petitioner. In view of the abovesaid admission made by the respondent, the learned counsel appearing for the respondent is not in a position to support the findings of the Courts below regarding the wilful default. In view of the above, the abovesaid decision will squarely apply. Hence the findings of the authorities below that the petitioners have committed wilful default cannot be sustained. 3. The respondent/landlord requires the building for his own occupation. According to him, he is doing jewellery business and he has no other premises of his own. But, the said contention of the landlord has been denied by the petitioners/tenants. According to them, the requirement of the landlord is not bonafide. The learned Rent Controller on the basis of the evidence adduced by the landlord that he is not having any other building and he is doing jewellery business came to the conclusion that the requirement of the landlord is a bonafide one. According to them, the requirement of the landlord is not bonafide. The learned Rent Controller on the basis of the evidence adduced by the landlord that he is not having any other building and he is doing jewellery business came to the conclusion that the requirement of the landlord is a bonafide one. To disprove the said fact, the petitioners have not adduced any evidence and so the Appellate Authority also had confirmed the said finding. The landlord as P.W.1 in his evidence has deposed that Tamil He has further stated in his evidence that he is doing jewellery business and he wants the shop to start the jewellery business. The learned counsel appearing for the petitioners has submitted that the landlord has not produced any document to prove that he is doing jewellery business; that he was not even produced the sales tax assessment order to substantiate his case and that he has also not produced any licence nor any other documents to prove that he is doing jewellery business in his premises. But the petitioner in C.R.P. No. 2196 of 1992 has admitted in his evidence that he is doing jewellery business in the premises. So, the submission of the learned counsel for the respondent that the petitioner in C.R.P. No. 2196/92 had not proved by producing documents that he is doing jewellery business cannot be correct, in view of the above specific admission made by the petitioner in C.R.P. No. 2196 of 1992. When once it is admitted that the landlord has been doing jewellery business in the premises, and when it is not established before the authorities that he is not having any other non-residential premises of his own, the landlord is entitled to gel possession of his building for his own occupation. But, unfortunately, the case of the landlord as deposed by him is that even if he gets possession of the premises, he cannot do his jewellery business in the said shop. That being the case, the landlord cannot sustain his petition (under S. 10(3)(a)(iii)) that he requires the building for his own occupation. But, the lower authorities have not adverted to the specific admission made by the landlord in his evidence as stated above. That being the case, the landlord cannot sustain his petition (under S. 10(3)(a)(iii)) that he requires the building for his own occupation. But, the lower authorities have not adverted to the specific admission made by the landlord in his evidence as stated above. In view of the evidence adduced by the landlord, though he is not having any other non-residential building of his own, and is doing his jewellery business in the premises, he cannot sustain the said ground, since he himself has expressed that he cannot do the business in the premises under the occupation of the tenants, even if possession is given to him. So his requirement cannot be construed as bonafide one. Hence, the findings of the lower authorities on this ground cannot be sustained. 4. The remaining issue is whether the building in question requires demolition and reconstruction. It is the case of the landlord that the building is 60 years old and it is in a dilapidated condition and he has given an undertaking about his requirement regarding demolition and reconstruction. The tenants have filed counter stating that the building is not in a dilapidated condition and does not requires any demolition at this stage. The landlord as P.W.1 has stated in his evidence that the building is 80 years old and it is in a dilapidated condition and he is having a financial resources to reconstruct the building. He has also stated that he is having a (sic). should constructed Rs. 4,00,000/-. In the cross examination he has stated that he is going to construct the building by investing Rs. 1-1/2 lakhs. But the learned counsel appearing for the petitioners has submitted that there was no expert appointed to inspect the premises to find out the nature of the construction. Only an Advocate-Commissioner was appointed. He filed a report. Admittedly, he was not examined, to support his report. According to the learned counsel for the petitioners, in the absence of any report by an expert, the authorities below are not correct in holding that the building is in a dilapidated condition and it requires demolition and reconstruction. But the authorities below had relied on the evidence of the tenant in C.R.P. 2196 of 1992 in support of their finding. One of the tenants admits in his evidence that the building is in a dilapidated condition. But the authorities below had relied on the evidence of the tenant in C.R.P. 2196 of 1992 in support of their finding. One of the tenants admits in his evidence that the building is in a dilapidated condition. So the submission of the learned counsel for the petitioners cannot be sustained on that basis. His further submission is that the landlord has not proved himself regarding the means for construction of the building. In the petition filed for eviction, the landlord has not given any details about his means. But in his evidence he has stated that the is having a house at Edayar Street. However, he has not stated as to how he is going to raise funds for reconstruction. The learned counsel has relied on the decision in the case of Vijay Singh Etc., Etc. v. Vijayalakshmi Ammal (1996 (II) CTC-586 = 1997 1 L.W. 218) wherein the Apex Court while considering the bonafide requirement under Section 14 (1) (b) of the Act has held as follows: — “For granting permission under Section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bonafide or not. For recording a finding that requirement for the demolition was bonafide, the Rent Controller has to take into account (1) bonafide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the building; (4) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14 (1) (b). No Court can fix any limit in respect of the age and condition of th e building. The factor has to be taken into consideration along with other facts and then a conclusion one way or the order has to be arrived at by the Rent Controller.” In the present case, the landlord has stated merely about the existence of the property and not stated both in the petition and in his evidence as to how he is going to mobilise funds. The authorities below had accepted the case of the landlord mainly on the basis of the age of the building and the existence of the other property of the landlord. Such a finding cannot be sustained unless the landlord comes forward with the specific plea about the manner in which he is going to mobilise funds and also establishes the same in his evidence. That is wanting in this case. Hence it cannot be said that the requirement of the landlord is a bonafide one. The age and condition of the building alone are not the only criteria for consideration of the petition for demolition and reconstruction. The other factors as held by the Apex Court have also to be taken into consideration while considering the issue. In this case, the landlord has not established that he is having sufficient financial resources for reconstruction of the building. The learned counsel appearing for the respondent/landlord has submitted that the landlord need not produce the entire money into Court to show his means and he has established the capacity to complete the construction. According to her it is enough to show that he is having bonafide intention to demolish and reconstruct the building. In support of her submission, the learned counsel has relied on the decision in the case of Kattappan. S. v. Civil Advocate Clerks Assn. Dindigul (1997 (II) CTC -41 = 1998 1 L.W. 53). There cannot be any dispute about the proposition laid down in the said case. In the said case, evidence was available to who that P.W.2 has offered financial assistance to the landlord. Moreover, the landlord is an association of Advocates Clerks. Taking into consideration of those aspects, the learned Judge held that the landlord is having capacity to mobilise the fund for the proposed construction. So, the learned counsel appearing for the respondent cannot rely on the said decision which will not apply to the facts of the present case. 5. In view of the above discussions, the finding of the lower authorities cannot be sustained. Accordingly, the orders of the authorities below are set aside and these Revisions are allowed. No costs.