Dorali Gounder v. Ganeshmal — 1997 DIGILAW 1211 (MAD)

Judgment :- 1. The tenant who suffered eviction before the authorities below has filed the above Revision. 2. The landlady filed the H.R.C.O.P. No. 53 of 1977 on the file of the Rent Controller, Tirupattur, to vacate the Petitioner and one Rangan, from the premises in question under Sections 10(2)(c), 10(2) (a) and 14(1)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act 1960. According to the landlady, the rent payable by the tenant was Rs. 45/- Per month. The petitioner was running a ‘Maligai’ business in the said premises. According to the landlady the petitioner herein committed default in payment of rent from October 1976. It is her further case that the petitioner is not running the ‘Maligai’ business in the said premises but he is running the said business in Cutchery Street and he had sub-let the northern portion of Door No. 27 to the second respondent in that R.C.O.P. on a monthly rent of Rs. 60/- without any consent of the landlady. According to the landlady, she wants to demolish the premises in order to construct a new building. According to her, she applied for necessary planning permission and obtained the same. She has al so stated that she is having necessary funds for the demolition and reconstruction. On that basis the landlady has alleged that she requires the premises for demolition and reconstruction. The Petitioner herein filed a counter contesting the said H.R.C.O.P. He has stated that the averments regarding the sub-lease is false. He has specifically stated that he was not doing business in Cutchery Street and he has been carrying on the business only in the petition premises. He denied the allegation regarding the sub-leases. Regarding the payment of rent it is the case of the petitioner that he has paid rent for December 1976 and January 1977. But the landlady refused to accept the rent for February 1977 and so he sent the same by Money Order which was refused by the landlady. So the petitioner filed petition under Section 8 (5) of the Act and had been regularly depositing the rent in the said petition. With respect to the requirement of the building for demolition and reconstruction it was the case of the petitioner that the premises is not in dilapidated condition and the question of demolition would not arise. So the petitioner filed petition under Section 8 (5) of the Act and had been regularly depositing the rent in the said petition. With respect to the requirement of the building for demolition and reconstruction it was the case of the petitioner that the premises is not in dilapidated condition and the question of demolition would not arise. According to him, the petition was filed only with an ulterior motive to raise the rent. Hence the petitioner prayed for dismissal of that H.R.C.O.P. 3. The Rent Controller in his order dated 30.07.1984 accepting the case of the landlady found that the petitioner has committed wilful default in payment of rent, that the landlady bonafide requires the premises for demolition and reconstruction and that the petitioner had sub-let the premises without getting consent from the landlady. The tenant filed Appeal in R.C.A. No. 30 of 1984 on the file of the Appellate Authority, Sub-Judge, Tirupathur. The Appellate Authority in his order dated 25.08.1992 found that the petitioner has not committed wilful default and that the premises does not require any immediate demolition. But the Appellate Authority confirmed the order of eviction on the ground that the petitioner had sub-let the promises, as contended by the landlady. Hence the petitioner/tenant has filed the above Revision. 4. The learned counsel appearing for the petitioner/tenant has submitted that the authorities below on the basis of the notice and summon served on the petitioners wifes address came to an erroneous conclusion that the petitioner had sub-let the premises. According to him, in the absence of any direct evidence to show that the petitioner has sub-let the premises to the second respondent in the H.R.C.O.P., the authorities below should not have accepted the case of the landlady. 5. On the other hand, the learned Senior Counsel appearing on the side of the respondents has submitted that the notice and summon served on the second respondent in the H.R.C.O.P. will clearly show that the petitioner has been carrying on the business in the said premises and not in the premises in question. So the orders of the authorities below cannot be said as illegal and they are based on some materials available before the Court. 6. So the orders of the authorities below cannot be said as illegal and they are based on some materials available before the Court. 6. Though the landlady alleged in the petition that the petitioner herein has sub-let the premises to the second respondent in that H.R.C.O.P. no steps were taken to prove that contention except relying on the notice and summon. No other document or evidence is available before the Court to come to the conclusion that the petitioner has sub-let the premises. Even the said notice and summons were not put to any witness to establish the case of the landlady. In the cross examination of R.W.1 no question was put to him regarding the service of the said notice and the summons. The burden is on the landlady to prove that the tenant has sub-let the premises. Such burden has not been discharged in this case. Merely on the basis of service of notice and summon in a particular address it cannot be said that the second respondent in the H.R.C.O.P. has been carrying on business in the said premises. So, the findings of the authorities below in this regard cannot be sustained and the same is liable to be set aside. 7. At this stage, the learned Senior Counsel appearing for the land lady/respondents has submitted that the order of eviction can be sustained on the ground that the premises requires for demolition and reconstruction. According to him, though the Rent Controller ordered eviction on that ground on the basis of valid reasoning, the Appellate Authority reversed that finding erroneously. According to him, the order of the Appellate Authority regarding the finding of the Rent Controller on the basis that the premises is in dilapidated condition was not correct. In support of his submission, he relied on the decision reported in the case of S. Saraswathiammal (Deceased) and 2 others v. Mallikanijun Raja and 2 others (1997 2 L.W. 287). 8. The learned counsel appearing for the petitioner has submitted that since the landlady has not proved that the premises requires immediate demolition and reconstruction, it cannot be said that she has bonafide intention to demolish the premises. According to him, her intention is not to demolish the premises but to get more rent only. 9. 8. The learned counsel appearing for the petitioner has submitted that since the landlady has not proved that the premises requires immediate demolition and reconstruction, it cannot be said that she has bonafide intention to demolish the premises. According to him, her intention is not to demolish the premises but to get more rent only. 9. In the above said decision reported in, it has been held as follows: — “To maintain the petition under Section 14(1)(b) of the Act, the landlady should satisfy three conditions, namely (1) bonafide intention of the landlady, far from the sole object being only to get rid of the tenants (2) the age and condition of the buildings; and (3) the financial position of the landlady to demolish and erect a new building. It is well settled that the building need not be in a dilapidated condition or in a dangerous state of affairs for ordering a petition under Section 14(1) (b) of the Act. In this case, the landlady has proved that she is having sufficient money to construct the building and she has filed necessary plan to show that she is going to construct the building in the demolished portion so as to enable the sons to divide the properties” 10. In the present case, the Appellate Authority has reversed the finding of the Rent Controller only on the basis that the landlady has not proved that the premises is in dilapidated condition and requires immediate demolition and reconstruction. Though the landlady has produced the plan and the permission of the concerned municipality and established that she is having sufficient funds for demolition and reconstruction, besides giving an undertaking, to demolish and reconstruct the premises, as contemplated under the Act, the Appellate Authority has erroneously reversed the finding only on the ground that the landlady has not established that the premises requires immediate demolition and reconstruction as it is in dilapidated condition. Such an approach of the Appellate Authority is contrary to the decision of the Apex Court and this Court. Further, the landlady has given an undertaking that she would demolish and reconstruct the premises within three months, from the date she requires possession of the entire premises. If she fails to do so, the tenant can seek restoration under Section 15(2) of the Act. Further, the landlady has given an undertaking that she would demolish and reconstruct the premises within three months, from the date she requires possession of the entire premises. If she fails to do so, the tenant can seek restoration under Section 15(2) of the Act. Since the statute has given such a safeguard to the tenant the submission of the learned counsel appearing for the petitioner that the requirement of the landlady is not a bonafide one and it is only to get enhanced rent cannot be sustained. 11. In view of the above, the order of the Appellate Authority in so far as it relates to the requirement of the premises for demolition and reconstruction and on the basis of unauthorised sublease cannot be sustained and the same is set aside. Since the order of the Appellate Authority on the ground of demolition and reconstruction is set aside, the order of eviction passed by the rent Controller is to be sustained. Accordingly this Revision is dismissed. Consequently, C.M.P. No. 13493 of 1992 is closed. No costs.