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2004 DIGILAW 737 (MAD)

Santhanalakshmi v. Pushpa and another

2004-05-12

S.SARDAR ZACKRIA HUSSAIN

body2004
ORDER: The unsuccessful landlady before the Rent Control Appellate Authority is the revision petitioner in this civil revision petition. This civil revision petition is filed against the judgment passed by the Rent Control Appellate Authority allowing the Rent Control Appeal preferred by tenants, thereby setting aside the eviction of the tenants from the petition premises ordered by the Rent Controller on the ground of demolition and reconstruction. 2. The landlady as petitioner filed the Rent Control Original Petition seeking eviction of the respondents/tenants from the petition residential premises bearing door No.256 (old No.122), Ambalathadayar Madam Street, Pondicherry, which is partly terraced and partly tiled building. In the family arrangement, the property was given to the petitioner, which originally belonged to her father. Her father and junior paternal uncle leased the said building to one Gopal Pathar, who was a Goldsmith, the husband of the first respondent and father of the second respondent, for residential purpose. Gopal Pathar attorned tenancy to the petitioner since 1981 and has been paying the rent at the rate of of Rs.1,000 per month. Gopal Pathar handed over the front portion of the petition building to the petitioner for the purpose of demolition and to reconstruct a new building and it was demolished to an extent of 40 feet and the petitioner constructed a new building with RCC terrace and has put up rooms in the first floor. The front portion measuring 20’ X 10’ has been leased to a Hardware merchant and the remaining portion of the ground floor to an extent of 64 feet north - south continues to be very old and dilapidated. The remaining portion of the petition building is 100 years old and the entire structure is in a damaged condition. It is stated that the super structure of the building rests only on Palmirah rafters with country tiles. The petitioner requested Gopal Pathar to vacate the premises for the purpose of demolition and to put up new building since it is in an important commercial locality surrounded by several shops, markets and banks. The said Gopal Pathar promised to vacate and surrender vacant possession after the marriage of his only daughter, the second respondent, and also performed her marriage and thereafter, he died in 1995. The said Gopal Pathar promised to vacate and surrender vacant possession after the marriage of his only daughter, the second respondent, and also performed her marriage and thereafter, he died in 1995. It is further stated that the petitioner has obtained approved plan to put up new construction from the Pondicherry Planning Authority as per sanction dated 5.10.1998. The petitioner’s husband has retired and all the terminal benefits have been invested in the Bank for the purpose of demolishing the petition premises and to put up new construction. The petitioner also owns a separate building for residential purpose in Rainbow Nagar in 4th Cross bearing door No.29, a new brick built terraced and storeyed building and she is also getting a monthly rent of Rs.2,500 per month in addition to the petitioner living in the ground floor. The petitioner undertakes to construct a new building in the demised premises within a period of one year from the date of recovery of possession. On these grounds, the petitioner/landlady sought for eviction of the respondents/tenants from the petition premises. 3. The respondents as tenants filed counter stating that the petition building is in a sound condition being repaired then and there. The husband of the first respondent became tenant under one Kalidass, to whom originally the petition premises belonged to, and it was partly terraced and partly tiled for residential purpose and for the purpose of carrying on goldsmith business. The tenancy commenced in 1919 on a monthly rent of Rs.20 and the rent was being increased time and again. The petitioner demanded enhanced rent under the threat of need of the premises for demolition and reconstruction. It is stated that the husband of the first respondent tendered the rent of Rs.500 for the month of January, 1992 and the same was received by the petitioner and was also acknowledged by her by issuing the receipt dated 10.2.1992. Subsequently, the said rental amount was returned by her. It is stated that the husband of the first respondent sent the rent by Money Order on 13.2.1992 and it was also refused. Subsequently, the said rental amount was returned by her. It is stated that the husband of the first respondent sent the rent by Money Order on 13.2.1992 and it was also refused. So the husband of the first respondent issued lawyer’s notice dated 27.2.1992 to furnish the name of the Bank for depositing the rent in Court and to follow further procedures as contemplated under Secs.(4), (5) of Sec.8 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969 (hereinafter referred to as ‘the Act’). Reply notice was issued on 6.3.1992 by the petitioner/landlady in which it is admitted by the petitioner/landlady that the house was roofed by country tiles with the country lavatory block and in the year 1985, it was partially remodeled by Bombay terrace with Bombay lavatory block. The husband of the landlady has written a letter on 7.1.1992 to the husband of the first respondent for which the husband of the first respondent sent rejoinder notice for reply of the landlady through his Advocate on 6.3.1992. In the reply notice, it was stated that the front portion of the petition building was required by the petitioner/landlady to reconstruct and to put up new two rooms and promised to lease it to the husband of the first respondent. Believing the same, the husband of the first respondent handed over the front portion of the petition premises. But after the new construction of two rooms about 12 years back, it was leased out to third parties on a monthly rent of Rs.1,000 for each room situated in the ground floor bearing door No.258 as well as in the first floor respectively. 4. The husband of the first respondent caused rejoinder on 9.3.1992 to the reply of the petitioner dated 6.3.1992 stating that the occupancy area of tenant was reduced to small area of only a tiled portion and a Madras terraced small old room and that the tenant has been in possession of the vacant site on the Eastern side measuring 4’ X 25’ as part of lease and using for his business. In the letter dated 27.2.1995, the petitioner demanded 10% increase on the excessive rent of Rs.600 in every year and insisted to pay Rs.900 per month from 1.1.1995. In the letter dated 27.2.1995, the petitioner demanded 10% increase on the excessive rent of Rs.600 in every year and insisted to pay Rs.900 per month from 1.1.1995. The husband of the first respondent caused a reply notice on 27.2.1995 though his Advocate refusing to pay the rent of Rs.900 per month but accepted to pay only Rs.700 per month and also paid the same from January, 1995. The rent was further increased to Rs.1,000 per month. When the petitioner received the rent for the month of February, 1998 through Ganesan and Rajendiran, who are working in the shop of the son-in-law of the first respondent and husband of the second respondent by name Selvam, the daughter of the petitioner scolded him and asked him to vacate the petition premises. The petitioner/landlady went along with her husband to S.H.O. Grand Bazaar and lodged a false complaint against the first respondent and her son-in-law as if they have threatened the petitioner. It is further stated that due to the pressure applied by the petitioner, the S.H.O. Grand Bazaar called the first respondent and her son-in-law on 14.3.1998 and the first respondent was forced to give a letter to S.H.O. agreeing to vacate the petition premises within one year. The first respondent filed O.S.No.574 of 1998 and obtained interim injunction against the petitioner on merits in I.A.No.4566 of 1998 on the file of the Second Additional District Munsif, Pondicherry. It is denied that the remaining portion of the ground floor being 64 feet North to South is 100 years old and dilapidated and that the entire structure is in a damaged condition. It is denied that approved plan was obtained to put up new construction and that the landlady has not got sufficient means for the same. It is also denied that the husband of the petitioner is getting rental income of Rs.2,500 per month from his property at Rainbow Nagar, 4th Cross bearing door No.29. On these grounds, the respondent/tenant sought for dismissal of the petition. 5. Before the Rent Controller, the petitioner examined herself as P.W.1 besides examining one Kalidoss and Saravanan, who is a retired Assistant Engineer, as P.W.2 and P.W.3 respectively and to rebut such evidence, the first respondent examined herself as R.W.1 besides examining one Singaram as R.W.2. On these grounds, the respondent/tenant sought for dismissal of the petition. 5. Before the Rent Controller, the petitioner examined herself as P.W.1 besides examining one Kalidoss and Saravanan, who is a retired Assistant Engineer, as P.W.2 and P.W.3 respectively and to rebut such evidence, the first respondent examined herself as R.W.1 besides examining one Singaram as R.W.2. Exs.A-1 to A-18 were marked on the side of the petitioner while Exs.B-1 to B-39 were marked on the side of the respondents. The Rent Controller, after considering the evidence adduced on either side and the Exhibits marked, ordered eviction of the respondents/tenants from the petition premises recording finding that the requirement of the petition premises by landlady for the purpose of demolition and reconstruction is bona fide. In the appeal preferred by the tenants, such order of eviction passed by the Rent Controller was set aside by the Rent Control Appellate Authority by allowing the Rent Control Appeal. Aggrieved at the said judgment, the landlady as revision petitioner has come forward with this civil revision petition. 6. Heard the learned counsel for the revision petitioner/landlady and the learned counsel for the respondents/tenants. 7. The petitioner became owner of the petition premises bearing old door No.122, Ambalathadayar Madam Street, Pondicherry, as per the registered Settlement Deed Ex.A-18 dated 3.6.1981 executed in her favour by her brothers Kalidoss and Parasuraman. In the annexure to Deed, the extent of the site has been mentioned as East - West 11’ and South - North 84’ totally 924 sq.ft. tiled house and the age of the building is given as 60 years. Therefore, it is evident that at the time of filing the Rent Control Original Petition, the age of the building is more than 80 years. It is admitted by the first respondent R.W.1 in her evidence that the building is 100 years old. It is also admitted that the husband of the first respondent and father of the second respondent, who was tenant under the petitioner/landlady, handed over possession of the front portion of the petition premises to the landlady in which new construction has been put up. It is claimed by the revision petitioner/landlady that the petition premises is situated in the commercial locality surrounded by several shops, market and banks in Pondicherry. The petition premises, which is rear portion, is brick built building, partly terraced and partly tiled. It is claimed by the revision petitioner/landlady that the petition premises is situated in the commercial locality surrounded by several shops, market and banks in Pondicherry. The petition premises, which is rear portion, is brick built building, partly terraced and partly tiled. It is seen from Exs.B-15 to B-39, rental receipts, that the husband of the first respondent and father of the second respondent has paid rent to the petitioner and as such, attorned tenancy to her and on his death, the respondents, being his legal heirs, have become tenants under the petitioner. Learned counsel submitted that the super structure of the petition premises rests only on the Palmirah rafters with country tiles. Therefore, it is clear that the building is more than 80 years old and is in a dilapidated condition in view of the fact that the super structure rests only on Palmirah rafters with country tiles and as such, the requirement sought by the landlady for demolition and reconstruction is bona fide. Such claim of the revision petitioner/landlady was resisted by exchange of notice between the parties. It is submitted by the learned counsel for the tenants that the landlady and her husband have been periodically increasing the rent, that the respondents/tenants refused to pay the enhanced rent and that the rent tendered was refused, which made the husband of the first respondent to cause notice to the landlady requesting to name the Bank for deposit of rent in Court. There have been exchange of notices between the parties as seen in Exs.B-2, B-3, B-5, B-7 and B-9. However, it is clear that the landlady has sent the notice with an intention to demolish and to put up new construction in the petition premises. Therefore, there is no force in the contention of the learned counsel for the respondents/tenants that since they refused to pay the enhanced rent, the Rent Control Original petition was filed. In that view, the requirement of the petition premises sought by the landlady on the ground of demolition and reconstruction cannot be said to be mala fide. That apart, the building is more than 80 years old and it is not in sound condition and in fact, the super structure rests only on the Palmirah rafters. 8. In that view, the requirement of the petition premises sought by the landlady on the ground of demolition and reconstruction cannot be said to be mala fide. That apart, the building is more than 80 years old and it is not in sound condition and in fact, the super structure rests only on the Palmirah rafters. 8. In the Rent Control Original Petition, the petitioner/landlady has given undertaking that she would construct a new building within one year from the date of recovery of possession but there is a defect still. As per the Act, necessary affidavit has to be made by the landlady that the work of demolishing any material portion of the building shall be substantially commenced by her 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 expiry of such further period granted by the Rent Controller. Since the landlady has not given the undertaking as per the provisions of the Act, the eviction sought on the ground of demolition and reconstruction cannot be said to be mala fide. 9. As regards means, satisfactory evidence has been let in on the side of the landlady. The husband of the landlady, P.W.3, served and retired as Superintendent and got sufficient funds, which have been invested in fixed Deposits under Exs.A-8 to A-15, to the extent of about Rs.1,50,000. It is also her evidence that she owns a bungalow in which she is getting rent of Rs.2,500 per month. As such, the landlady and her husband have got capacity to raise funds in case more amount is required to put up new construction after demolishing the petition premises. Approved plan and sanctioned plan have been obtained from the Planning Authorities under Exs.A-6 and A-7. It is well settled that eviction can be ordered as sought for by the landlord for demolition and reconstruction if the intention of the landlord is bona fide and if the building is old and condition of the building is not sound provided the landlord has got sufficient means and has capacity to raise funds. 10. The guidelines issued by the Apex Court in Vijay Singh and others v. Vijayalakshmi Ammal, (1997)1 M.L.J. 198 (S.C.): (1996)6 S.C.C. 475 have been satisfactorily proved by the landlady. 10. The guidelines issued by the Apex Court in Vijay Singh and others v. Vijayalakshmi Ammal, (1997)1 M.L.J. 198 (S.C.): (1996)6 S.C.C. 475 have been satisfactorily proved by the landlady. It is also evident that the petition premises is situate in a very important commercial locality surrounded by several shops, market and banks in Ambalathadayar Madam Street, Pondicherry. The Rent Control Appellate Authority has not considered all these facts in refusing to the order of eviction made by the Rent Controller and has recorded improper finding taking into consideration that the rent was periodically enhanced, that the tenants have filed a suit for permanent injunction that possession should not be disturbed except by due process of law and that only with a view to evict the respondents from the petition premises, the Rent Control Original Petition was filed. As such, the finding recorded by the Rent Control Appellate Authority that the requirement of the petition premises by the landlady as not bona fide, being erroneous, has to be set aside. 11. In the result, this civil revision petition is allowed with costs setting aside the judgment passed by the Rent Control Appellate Authority and the order of eviction passed by the Rent Controller is ordered to be restored. The revision petitioner/landlady is directed to file undertaking before the Executing Court as required under Sec.14(2)(b) of the Act.