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2010 DIGILAW 2549 (MAD)

Valli v. B. V. Rangaraj

2010-06-28

G.RAJASURIA

body2010
Judgment Inveighing the order dated 30.9.2009 passed in R.C.A. No. 3 of 2006 by the Appellate Authority (Sub Court), Bhavani confirming the order dated 1. 2006 passed in R.C.O.P. No.2 of 2005 by the Rent Controller (Principal District Munsif, Court), Bhavani, this civil revision petition is focused. 2. Niggard and bereft of unnecessary details, the necessary and germane facts for the disposal of this revision would run thus: (i) The respondent, being the landlord, filed the R.C.O.P.No. 2 of 2005 under Section 14(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, for demolition and reconstruction of the building concerned. The matter was contested by the revision petitioner/tenant herein. (ii) Ultimately, the Rent Controller ordered eviction, as against which, the appeal filed by the tenant was dismissed. 3. Being aggrieved by and dissatisfied with the order of both the Courts below, this revision has been filed setting out various grounds, which could precisely and pithily be set out thus: .(i) Both the Courts below failed to consider that the landlord failed to prove his bona fide requirement of the demised premises for demolition and reconstruction. (ii) The respondent/landlord examined himself as P.W.1 and exhibited the documents but there is nothing to indicate that the building was in a dilapidated condition, warranting demolition. (iii) Both the Courts below failed to take note of the fact that there was no landlord and tenant relationship between the respondent and the petitioner herein and the respondent herein did not adduce any evidence to prove such relationship. (iv) Except the oral evidence of P.W.1 there is no evidence to prove the case of the landlord. (v) Exhibit P-1 also would indicate that the Northern side of the building involved in this matter does not belong to the respondent/landlord and the same is owned by his brother B.V.Muniraj. 4. Placing reliance on the grounds of revision the learned counsel for the revision petitioner/tenant would develop his argument, the warp and woof of them would run thus. (i) The brother of the respondent/landlord was not examined so as to prove and establish before the Court that the landlord and his brother inclined to demolish the building concerned and raise a marriage hall, so as to name it in memory of their illustrious father. (i) The brother of the respondent/landlord was not examined so as to prove and establish before the Court that the landlord and his brother inclined to demolish the building concerned and raise a marriage hall, so as to name it in memory of their illustrious father. (ii) The Courts below thought as though in was a petition for eviction on the ground of willful default in payment of rent, but in fact, it was not so. Not even application under Section 11 of the Act was filed; however the Courts below misdirected themselves and on misinterpretation of law ordered eviction. Accordingly, the learned counsel prays for allowing the revision by setting aside the order of both the Courts below and ultimately for dismissing the R.C.O.P. 5. Whereas by way of co0untering the arguments as put forth on the side of the revision petitioner/tenant the learned counsel for the respondent/landlord would advance his arguments, the quintessence of the same would run thus: (i) Much water has flown under the bridge, so to say the law got changed as it is no more imperative on the part of the landlord to prove, by showing bank account etc that he is having financial wherewithal for raising new construction, after demolishing the demised premises. .(ii) The respondent/landlord is a bus operator end having financial wherewithal to raise new construction after demolition of the existing structure and it is not necessary that accounts should be produced to prove his financial ability. (iii) Admittedly and indubitably, indisputably and unassailably, the said building was constructed in the year 1927 and in such a case it could rightly be understood that the said building is required to be demolished and it would be quite unsafe to keep; that building any more. (iv) The respondent/landlord’s deceased father was a Township Chairman for three times in Bhavani and accordingly, the respondent/landlord and his brother want to construct a ‘Kalyana Mandapam’ in memory of their illustrious father, which cannot be doubted by the tenant. (v) Thee are also arrears of rents after the filing of the RCOP and if at all the tenant could produce any receipt then the same could be verified by the Court. In the absence of any receipt, it will not lie in the mouth of the tenant to contend that he has been regularly paying the rents and that there are no rent arrears at all. In the absence of any receipt, it will not lie in the mouth of the tenant to contend that he has been regularly paying the rents and that there are no rent arrears at all. Accordingly, the learned counsel for the respondent/landlord prays for dismissal of the revision. 6. The points for consideration are as under: (i) Whether the respondent/landlord requires the building for his bona fide requirement for demolition and reconstruction as found set out in the R.C.O.P.? (ii) Whether there is any illegality and infirmity in the order passed by both the Courts below in view of the grounds as found set out in the revision? 7. Both these points are taken together for discussion as they are interlinked and entwined, interwoven and interconnected with each other. 8. At the outset itself, I would like to refer to the following decision of the Honourable Apex Court governing the matters like this: (i) Harrington House School v. S.M. Ispahanl and Another (2002) 3 MLJ 130 (SC), certain excerpts from it would run thus: 8. ….”A procedure can be devised to protect the interest of both the tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying unconstructed inspite of being vacated by the tenant and followed by demolition if the plans for proposed construction are not sanctioned by the local authority. The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plans of reconstruction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Execution Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord-decree holders. Till then the tenant shall remain liable to pay charges for use and occupation of the suit premises at the same rate at which they are being paid along with the plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of sub-section (2) of Section 14 of the Act” (ii) S. Venugopal v. A. Karuppusami and Another (2006) 3 MLJ 29 : 2006 (2) CTC 615, certain excerpts from it would run :thus: “7. On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short ‘the Act’) contemplates a building which is bona fide required by the landlord for the immediate purpose of demolishing it, and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site. 11. In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storied building, which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact the landlord has himself indicated that he was willing to invest a sum of Rs. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact the landlord has himself indicated that he was willing to invest a sum of Rs. One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs.” A mere perusal of the above excerpts, including the entire judgment would leave no doubt in the mind of the Court that the Landlord, who seeks eviction on the ground of demolition and reconstruction need not necessarily examine an Engineer to prove the dilapidated condition of the building. As per the present day concept, a landlord can even demolish his building for the purpose of augmenting his income. 9. At this juncture, the learned counsel for the revision petitioner/tenant would submit forcibly and vehemently that it is not the case of the respondent/landlord in this case that he wants to augment his income and that for which he wants to demolish the building and reconstruct it and in such a case, he ought to have examined the Engineer to prove the alleged dilapidated condition of the building. 10. The perusal of the chief-examination and cross-examination of P.W.1 would reveal and cannot that there is no serious challenge as to the age of the building and in that aspect the learned counsel for the respondent/landlord is correct in his contention that virtually it is an admitted fact that the building is an old one. As of now, the tenant is carrying on with his hotel business in the said building which is a single storied one of the year 1927. 11. P.W.1 being the owner of the building would depose about the necessity to demolish the building and in such a case I am of the considered view that this Court need not doubt that the building requires demolition and reconstruction. There is nothing to indicate that in the year 1927 a Fort like building or an architectural building of great stability was erected by the landlord’s ancestors, that it still continues and that it has to be protected etc. Ordinary buildings of 1920’s, by this time would certainly be requiring demolition and reconstruction. 12. There is nothing to indicate that in the year 1927 a Fort like building or an architectural building of great stability was erected by the landlord’s ancestors, that it still continues and that it has to be protected etc. Ordinary buildings of 1920’s, by this time would certainly be requiring demolition and reconstruction. 12. My discussion supra would expatiate and convey that the building which is under the occupation of the revision petitioner/tenant is an ordinary building of the year 1927 and the Court cannot turn its face away from realities and assume or presume that such a building might not require demolition and reconstruction. As such, both the Courts below cannot be found fault with in giving a finding that the said building requires demolition and reconstruction. 13. Regarding financial wherewithal is concerned, the analysis of the entire evidence shows that the landlord belongs to a wealthy family and that still he is operating buses. At this juncture, the decision of the Honourable Apex Court in S. Venugopal v. A. Karruppusami and Another (supra) could be recollected. 14. The Hon’ble Apex Court in their wisdom thought fit to observe that now-a-days the banks are vying with each other in lending loans for putting up commercial buildings like Kalyana Mandapams and in such a case, the Court cannot expect that the respondent/landlord should produce accounts in detail to prove his financial wherewithal to raise such construction. 15. In respect of the contention of the learned counsel for the petitioner/tenant that the respondent’s brother was not examined to prove and establish that he is also going to part with his property for demolition and reconstruction is concerned, I am of the view that the entire reading of the evidence of P.W.1 would exemplify and demonstrate that P.W.1 and his brother are having similar views to construct ‘Kalyanamandapam’ in memory of their illustrious father. Once such an averment was coming forth from the mouth of P.W.1, there should be something to indicate that it was challenged seriously by effective suggestions. No doubt, cross-examination was focused on that line, but effective denial or suggestions or counter suggestions have not been put to falsify such claim of the landlord. 16. At this juncture I recollect and call up the following maxim: ‘Acta exteriora indicant interiora secreta’ – External acts indicate undisclosed thoughts. 17. No doubt, cross-examination was focused on that line, but effective denial or suggestions or counter suggestions have not been put to falsify such claim of the landlord. 16. At this juncture I recollect and call up the following maxim: ‘Acta exteriora indicant interiora secreta’ – External acts indicate undisclosed thoughts. 17. As such, in matters of this nature where the building itself is an old one and the landlord is having financial wherewithal to construct the ‘Kalyanamandpam’ after demolishing the old structure, the Court from the objective circumstances could infer that the intention of the landlord is not mala fide but bona fide. 18. The learned counsel for the revision petitioner/tenant cited the following two decisions of this Court: (i) Ravindranath v. Samuel Asirvatham (1994) 11 MLJ 98. (ii) Arumugha Chettiar v. Jayaraman (1995) 11 MLJ 282. 19. With due deference to the authors of those decisions, I respectfully submit that the said decisions and the current decisions of the Honourable Apex Court cited already might not go hand in hand in all aspects to say the least. 20. The learned counsel for the respondent/landlord would cite the decision of this Court in Pappathiamal v. Nachammal and 13 Others (2000) Supp MLJ 551 : (2001) 1 LW 814 . 21. I am of the view that in view of the decision of the Honourable Supreme Court in Harrington House School v. S.M. Ispahani and Another (supra) the judgment cited by the learned counsel for the respondent/landlord may not have much significance in the facts and circumstances of this case. 22. The learned counsel for the revision petitioner/tenant would submit that both the Courts below allowed their mind to be carried away by the mere suggestion made by the landlord as though the revision petitioner/tenant is a chronic defaulter in paying the rents which is quite antithetical and contrary to the reality. For that, the learned counsel for the respondent/landlord would convincingly put forth his argument that until filing of the RCOP there was no arrears,. For that, the learned counsel for the respondent/landlord would convincingly put forth his argument that until filing of the RCOP there was no arrears,. But after that the tenant has started defaulting in payment of rent and if at all the tenant is regular in paying the rents, he should be in a position to produce rent receipts, for which, the learned counsel for the tenant would try to ward off the said suggestion and also expound by saying that bus conductors of the landlord’s buses were in the habit of getting rents without issuing receipts. 23. Once parties got themselves locked up in litigation and they cannot see eye to eye and they are at logger heads, and each one is trying to cut the ground under the feet of other, naturally the tenant should be diligent enough in insisting for rent receipt. The tenant could have even paid the rents by Demand Drafts or Money Orders, but he has not chosen to do so. No doubt, my learned predecessor in the interim order dated 23. 2010 added the term ‘arrears if any’, perhaps to be on the safer side and not to give an impression as though this Court has finally held that the tenant is a defaulter. 24. Be that as it may, now this Court is not very much concerned with that. But this Court is laying down the legal proposition to the effect that in proceedings under the Rent Control Act there should not be any arrears of rent. 25. In view of my discussion supra, I am of the considered view that no interference with the findings of both the Courts below, based on the facts, is required in this revision. 26. To the risk of repetition without being tautalogous, I would like to reiterate that before obtaining delivery through Court by filing E.P., it is the duty of the landlord to produce the necessary approved plan and also an undertaking as contemplated in Harrington House School v. S.M. Ispahani and Another (supra), and at that time, it is open for the tenant to seek for some more time for vacating the premises and it is for the Executing Court to consider the same depending upon the circumstances. Over and above that as of now while dismissing this revision I would like to grant three months time to the revision petitioner/tenant subject to his payment of rent, including the past arrears, if any. In the result, the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.