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2006 DIGILAW 1071 (MAD)

K. Sanjeevi Kumar v. P. Somasundaram

2006-04-13

S.R.SINGHARAVELU

body2006
Judgment : Tenant in R.C.O.P. No.17 of 2004 on the file of the Rent Controller/District Munsif, Kovilpatti is the revision petitioner. Petition for eviction on the ground of owners occupation and demolition and reconstruction was dismissed by the Rent Controller by his order dated 1.6.2005, which was reversed in judgment and decree dated 15.11.2005 in R.C.A.No.6 of 2005. The ground for eviction is for owners occupation under Sec.10(3)(i) and for demolition and reconstruction under Sec.14(1)(b). 2. The contention of the landlord (P.W.1) was that he is running his business as tenant in a building belonging to his father; that he has no other building for occupation and that he wants to do his business in the suit premises and therefore, he requires the same for his own occupation. 3. By examining P.W.2 anEngineer, who filed a report through Ex.P-7 contending that the building is of 70 years old; that under Ex.P-4 a planning permission for reconstruction was granted on 25.5.2004 with a plan through Ex. P-2. On such ground the bona fides of his requirement for demolition and reconstruction was canvassed. There was no denial about the fiscal capacity of the landlord to reconstruct building. 4. Combining the two purposes of the requirement by the landlord for his own occupation and demolition and reconstruction will never render the requirement as mala flde and such was the position of law laid down on Periaswamy Nadar. S. v. T.M.P.N. Singaravel Periaswamy Nadar. S. v. T.M.P.N. Singaravel Periaswamy Nadar. S. v. T.M.P.N. Singaravel (1997)3 L.W. 731. Therefore the combined purposes of the requirement will not go against the landlord. 5. The Hon’ble Apex Court in P.S. Pareed Kaka and others v. Shafee Ahmed Saheb P.S. Pareed Kaka and others v. Shafee Ahmed Saheb P.S. Pareed Kaka and others v. Shafee Ahmed Saheb (2004)3 L.W.754, found that considering the question of comparative hardship, that it is not the case of the tenants that the landlord had any other premises of his own, the landlord will be put to hardship if he is not able to shift to the petition schedule premises. In this case also no other building was found to be in occupation of the landlord so as to nullify the requirement for his own occupation. 6. In this case also no other building was found to be in occupation of the landlord so as to nullify the requirement for his own occupation. 6. Evenin a case where the landlord was found running business in a joint family property when he wanted to occupy his own building on account of disputes in joint family, his claim was found maintainable and that was found so in E.Annamalai v. S.Nizar Ahmad E.Annamalai v. S.Nizar Ahmad E.Annamalai v. S.Nizar Ahmad (2000)2 MLJ.471. 7. It was also further held in A.L.O. Gopal Sah, Chennai and others v. K.P.M. Musthaffa and others A.L.O. Gopal Sah, Chennai and others v. K.P.M. Musthaffa and others A.L.O. Gopal Sah, Chennai and others v. K.P.M. Musthaffa and others (2004)2 MLJ.702, that the bona fides of the landlord contemplated under Sec.10(3)(e) of the Act need not have an acid test, creating unnecessary doubt then and there, compelling the landlord to answer each and every doubt raised by the tenant, in view of the inbuilt provisions in the Act, safeguarding the interest of the tenant, even after the eviction order is passed, provided, the conditions are not complied with. 8. So far as the failure of pleading is concerned, it was held in S. Mohammed Jamal v. Smt.Sureka S. Mohammed Jamal v. Smt.Sureka S. Mohammed Jamal v. Smt.Sureka (2002)1 C.T.C.65, that there is no need to plead specifically that landlord is not occupying any other building; pleading in rent control proceedings should be assessed in a practical manner. 9. I have gone through the judgment of the rent controller, who dismissed the plea of eviction on the ground of owners occupation also. It was found that non-production of the Rent Deed between the landlord and his father, to show that the landlord is in occupation of a premises belonging to his father only on rental basis may go against the landlord. Nowhere in the counter, it was disputed about the fact of running the business by landlord and that too in a building belonging to his father. So long as the other building in occupation was not belonging to the landlord, he may require his own building for his own occupation. It is pertinent to note that the tenant did not contend that the occupation of landlord in fathers premises is of his own right. So long as the other building in occupation was not belonging to the landlord, he may require his own building for his own occupation. It is pertinent to note that the tenant did not contend that the occupation of landlord in fathers premises is of his own right. When the landlord says that he is in occupation on rental agreement, it is for the tenant to prove that he is occupying on his own right. When that has not been established, the bona fides of the landlord cannot be doubted. So, the judgment and decree of the Rent Control Appellate Authority is to be sustained. 10. So far as the requirement under Sec.14(1)(b) is concerned, the engineer has been examined to establish the age of the building as 70, but the tenant who says that the age of the building is 20 and the same was not established by report of any engineer. The plan and the permit for reconstruction has been obtained by the landlord, whose fiscal capacity has not been seriously disputed. Thus, his bonafides for demolition and reconstruction has been established. 11. In fact the Hon’ble Apex Court in a case law reported in Vijay Singh etc., etc. v. Vijayalakshmi Ammal Vijay Singh etc., etc. v. Vijayalakshmi Ammal Vijay Singh etc., etc. v. Vijayalakshmi Ammal (1996)2 C.T.C. 586, it was held that to render finding on question of bonafide requirement the Rent Controller should consider: (1) bonafide intention of landlord far from sole object only to get rid of tenant; (2) age and condition of building; (3) financial position of landlord to demolish and erect new building. 12. In a case law reported in L. Puttalingam v. L. Sivalingam 2000 MLJ. (Supp.) 482, it was held that under Sec.14(1)(b) of the Act the production of plan and licence was not made a condition precedent. It is only one of the items of evidence that are necessary for ordering eviction and it was required proving the bonafides of the landlord. 13. (Supp.) 482, it was held that under Sec.14(1)(b) of the Act the production of plan and licence was not made a condition precedent. It is only one of the items of evidence that are necessary for ordering eviction and it was required proving the bonafides of the landlord. 13. Even in a case law reported in R.V.E. Venkatachala Gounder v. Venkatesha Gupta and others R.V.E. Venkatachala Gounder v. Venkatesha Gupta and others R.V.E. Venkatachala Gounder v. Venkatesha Gupta and others (2002)2 C.T.C.248, the Hon’ble Apex Court has directed the executing Court in order to protect the interest of the tenant and to alley his fears, before evicting the tenant, direct the landlord to file plans of proposed construction, so that landlord cannot protract the time under the guise of getting plan. But in this case plan and permit have already been obtained by the landlord. So, the bonafides for demolition and reconstruction has been proved. 14. The last and only objection of the tenant is that the landlord has failed to file undertaking as envisaged under Sec.14(2)(b) of the Act. It was held in a case law reported in Shamshed Begum v. D.P. Doraiswami Shamshed Begum v. D.P. Doraiswami Shamshed Begum v. D.P. Doraiswami (1976)2 MLJ.12, in the following lines: “Merely because an undertaking was not given, the petitions need not have been dismissed. The landlord might have been called upon to give such an undertaking. In the circumstances, it was necessary that the appellate authority should reassess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective. The matter was remanded to the appellate authority for fresh disposal after getting an undertaking from the landlord in accordance with the provisions of the Act”. 15. Similar view was taken in Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath (1999)1 L.W. 612 , that was based upon the following lines observed in Alamelu v. Visalakshi 91 L.W.423: “... 15. Similar view was taken in Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath (1999)1 L.W. 612 , that was based upon the following lines observed in Alamelu v. Visalakshi 91 L.W.423: “... 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 Sec.14(1)(b) are satisfied and orders a petition in favour of the landlord without the landlord having given an undertaking as contemplated by Sec.14(2)(b), then the appellate authority, even if he agrees with the conclusion of the rent controller on the requirement of the landlord under Sec.14(1)(b), is bound to set aside the order for non-compliance with the requirements of Sec.14(2)(b).” That is why, Justice K. Govindarajan (as he then was) in Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath Krishnan and others v. Ravindranath (1999)1 L.W.612, set aside the order passed by the appellate authority where an undertaking was received for the first time. 16. In M. Abu Tahir v. M. Rahmathulla (2005)5 C.T.C. 585 , it was held that Sec.14(2)(b) as mandatory and “no order directing the tenant to deliver possession of the building under this section shall be passed on the ground specified in Clause (b) of Sub-sec.(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.”[Italics supplied] 17. Although the apex Court has observed in a case law reported in Harrington House School v. S.M. Ispahani Harrington House School v. S.M. Ispahani Harrington House School v. S.M. Ispahani (2002)2 C.T.C. 549, that along with the plan the landlord shall also file an undertaking as required by Sub-clause (b) of Sub-sec.(2) of Sec.14, it was found in M. Abu Tahir v. M. Rahmathulla (2005)5 C.T.C. 585 , that the apex Court has not considered total absence of undertaking before an eviction order has been passed and the effect of Sec.14(2)(b) of the Act and the non-compliance of the same has not been considered in the context of the facts before the Supreme Court and therefore that observation was not taken into consideration. 18. But as early as in B.C. Diocese of Madurai v. Ganapathy Iyer B.C. Diocese of Madurai v. Ganapathy Iyer B.C. Diocese of Madurai v. Ganapathy Iyer (1976)89 L.W.584, this Court found as follows: “An undertaking given before the Rent Controller, even though given subsequent to the order of eviction passed by the Rent Controller, can be taken into consideration by and such undertaking has to be construed as full compliance of the direction contemplated under Sec.14(2)(b) of the Act.” 19. Without going into the effect of the mandatory provision under Sec.14(2)(b) which seem to be hyper-technical, as and when there is opportunity for an erring landlord to correct himself and file an undertaking before ever an eviction is implemented, then there is no prejudice or harm caused in permitting him to oblige the mandate of Sec.14(2)(b). It is in that view of the matter the apex Court in the case law in Harrington House School v. S.M. Ispahani Harrington House School v. S.M. Ispahani Harrington House School v. S.M. Ispahani (2002)2 C.T.C. 549, at the end of the judgment observed as follows: “Along with the plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of Sub-sec.2 of the Sec.14 of the Act.” 20. From the above judgment of the apex Court it is made clear that even erring landlord in not filing an undertaking can be given an opportunity to rectify the error and file an undertaking before ever an order of eviction is passed and that same can be done in appeal or revisional stage. 21. From the above judgment of the apex Court it is made clear that even erring landlord in not filing an undertaking can be given an opportunity to rectify the error and file an undertaking before ever an order of eviction is passed and that same can be done in appeal or revisional stage. 21. In this case as it was found that the order of eviction is proper, I deem it fit to grant opportunity for the landlord to give an undertaking under Sec.14(2)(b) before ever the order of eviction is implemented. 22. For the reasons stated above, I find no merit in this civil revision petition. This civil revision fails and is dismissed. The judgment and decree dated 15.11.2005 made in R.C.A.No.6 of 2005 on the file of the Rent Control Appellate Authority (Subordinate Judge), Kovilpatti, reversing the order and decretal order dated 1.6.2005 made in R.C.O.P. No.17 of 2004 on the file of the Rent Controller (District Munsif), Kovilpatti are confirmed subject to filing of undertaking under Sec.14(2)(b) by landlord. No costs.