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2010 DIGILAW 3453 (MAD)

K. Kunhi Moosa v. P. Sambandam Chettiar

2010-08-11

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 23.04.2008 passed in RCA No.453 of 2004 by the VIII Court of Small Causes, Madras, in confirming the order dated 06.02.2004 passed in RCOP No.807 of 1997 by the XIII Court of Small Causes, Madras, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: (i) The respondent herein filed the RCOP No.807 of 1997 invoking Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control), Act 1960 [hereinafter referred to as the Act] on the ground of requiring the premises for demolition and reconstruction. The matter was contested. (ii) On the side of the landlord, P.W.1 and P.W.2 were examined and Exs.P1 to P62 were marked. On the side of the tenant, R.W.1 to R.W.11 were examined and Exs.R1 to R23 were marked. Ultimately the Rent Controller ordered eviction, as against which appeal was filed for nothing but to be dismissed by the appellate authority. Being aggrieved by and dissatisfied with the orders of both the Courts below, this revision has been filed on various grounds. 4. The learned counsel for the revision petitioner placing reliance on the grounds of revision, would set forth and put forth his arguments, which could pithily and precisely be set out thus: (a) There is nothing to indicate that the building is in a dilapidated condition warranting demolition and reconstruction. (b) Even though the law got changed, it has not got changed to the extent that the Court should simply ignore the nature of the building. (c) The financial wherewithal of the landlord should be proved. Here the very landlord has not examined himself as a witness. On the other hand, his agent alone got himself examined and there is nothing to indicate that he had any personal knowledge about the condition of the building and the financial wherewithal of the landlord to put up new construction. (d) Earlier one other RCOP was filed by the same landlord on the ground of demolition and reconstruction and that was litigated up to High Court and it was dismissed and in such a case, once again on the ground of demolition and reconstruction the present RCOP would not lie and as such it is barred by res judicata. (d) Earlier one other RCOP was filed by the same landlord on the ground of demolition and reconstruction and that was litigated up to High Court and it was dismissed and in such a case, once again on the ground of demolition and reconstruction the present RCOP would not lie and as such it is barred by res judicata. (e) Both the Courts below without adverting to the salient features simply ordered eviction warranting no interference of this Court in this revision. Accordingly, the learned counsel for the petitioner prays for setting aside the orders passed by the Courts below. 5. Per contra, the learned counsel for the respondent would refute and challenge the contentions/arguments as put forth on the side of the revision petitioner/tenant and advance his arguments, the warp and woof of them would run thus: (a) The principal of res judicata even by phantasmagorical thoughts cannot be pressed into service, for the reason that the said earlier RCOP was filed by the landlord as against one other tenant in respect of the annexe building. However, the present tenant is occupying the main building relating to which the earlier RCOP was not concerned and as such, any finding in the previous proceedings cannot be pressed into service by the present tenant as against the landlord. (b) Adding fuel to the fire, the present tenant has not at all invoked the principle of res judicata before the Rent Controller and the Rent Controller framed one issue relating to res judicata only in respect of RCOP No.818 of 1997. However, the revision petitioner is the respondent in RCOP No.807 of 1997 relating to which there was no issue or point for consideration relating to applicability of principle of res judicata, raised. (c) The Fixed Deposit receipts marked on the landlords side bespeak the financial wherewithal of the landlord to raise new construction. Accordingly, the learned counsel for the landlord prays for dismissal of the revision. 6. The point for consideration is as to whether the concurrent finding given by both the Courts below suffer from perversity or illegality on the ground that they did not take into account the financial wherewithal of the landlord and the dilapidated nature of the building and also the principle of res judicata? 7. 6. The point for consideration is as to whether the concurrent finding given by both the Courts below suffer from perversity or illegality on the ground that they did not take into account the financial wherewithal of the landlord and the dilapidated nature of the building and also the principle of res judicata? 7. At the out set itself it is just and proper to fumigate my mind with the precedents relating to Section 14(1)(b) of the Act: (i) 2006(2) CTC 615 – S.VENUGOPAL VS. A.KARRUPPUSAMI AND ANOTHER, 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 story 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. 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 that 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." (ii) 1997-1-L.W.218 – VIJAY SINGH AND OTHERS VS. VIJAYALAKSHMI AMMAL, certain excerpts from it would run thus: "14. It appears from the facts of the present appeals that the building in question was an old one and was situated in a very busy locality of the town where a number of buildings in and around the building in question had been demolished and shopping complex had been constructed with modern amenities. The respondent also wanted to demolish the entire building in order to construct a new shopping complex for which necessary permission from the municipal authorities had already been obtained. It had also been claimed on behalf of the respondent that she had sufficient financial resources for construction of the new building. An understanding had also been given on behalf of the respondent that the work of demolition of the building would commence within one month and would be completed before the expiry of the three months from the date the said respondent recovered possession of the building. Taking all the circumstances into consideration, the Controller had passed an order in terms of S.14(1)(b) of the Act directing the appellants who were tenants in the building in question to delivery possession of the building to the respondent. According to us, all relevant factors have been taken into consideration and there is no scope for any interference by this Court. As such, we are left with no option but to dismiss these appeals. The appeals are accordingly dismissed." 8. According to us, all relevant factors have been taken into consideration and there is no scope for any interference by this Court. As such, we are left with no option but to dismiss these appeals. The appeals are accordingly dismissed." 8. A mere poring over and perusal of those decisions would clearly exemplify and demonstrate that earlier the law was to the effect that unless the building is in a dilapidated condition, the question of ordering eviction on the ground of demolition and reconstruction would arise. However, in the subsequent decisions cited supra, the Honble Apex Court highlighted the fact that the Court even though has to see the nature of the building, that is not the only criterion. The Court also pointed out that the landlord for the purpose of augmenting his income could even demolish the building which does not require immediate demolition. Obviously and axiomatically, the demised premises is situated in a commercial locality and in such a case, any landlord would be inclined to demolish his own structure of forty years old admittedly and raise a new structure so as to augment his income. No doubt, with reference to Ex.R14, the Engineer/R.W.2 would depose that the said building is having forty five years of future age. However, P.W.2 the Engineer examined on the landlords side placing reliance on Ex.P55, would opine that the building is an old one warranting demolition and reconstruction. The nature of the building is also found described in Ex.P55. In Ex.P55, the Engineer on the side of the landlord would describe the building as under: "Present Condition of the Building Brick walls have damped, bulged and cracked in many places. Plastering has fallen out. Leaky and dampness patches too exist on walls and below II floor Madras Terrace ceiling, as well as in Rear portion below Ist floor RCC Terrace and II floor, RCC Terrace, and in ground floor ACC roof and plain Mangalore tiled roof. The wooden items in the building are damaged badly due to dry-rot and fungi action and become porous and cavity. Madras Terrace Joist-ends are eroded and Slided down, Causing the roof Slab bent or buckled down at center resulting roof cracks in Ceiling. Two of country wood Joist are missing and most of them bent and having gape between Ceiling. The shutters of Windows are damaged, warped and worn-out and not fitting in properly. Madras Terrace Joist-ends are eroded and Slided down, Causing the roof Slab bent or buckled down at center resulting roof cracks in Ceiling. Two of country wood Joist are missing and most of them bent and having gape between Ceiling. The shutters of Windows are damaged, warped and worn-out and not fitting in properly. At three places the Shutters are missing and hinges only exist. The Tin sheet toilet door Shutters are damaged at bottom, portion fallen out and existing portion is rusted. Because of badly damaged Country wood rafters, the ACC Sheet roof is bent uneven and broken. The Mangalore tiled plain roof too is uneven and damaged badly and leaky. ACC sheets are laid and spread over the Mangalore tiles as stopgap arrangement. This is an added load over the damaged Tiled structure and at two places Casurina posts support is given to prevent falling down. The Weathering Course on Top of Madras Terrace and RCC (open) Terrace are damaged badly and in bad Condition. The flooring too is worn out badly. As the buses and heavy Vehicles ply on this road, I felt Vibration on the Top of open Terrace. Condition : This building is Structurally unsound, unsafe, beyond repairs and in dangerous Condition and hence it requires immediate demolition and reconstruction." 9. In Ex.R14, R.W2/the Engineer on the side of the tenant would describe the building as under: "The entire building was inspected by me. Brickwork is in cement mortar. Doors and windows are in teak & country wood, Rolling shutters and collapsible gates. Roofing is in R.C. slab in ground and first floor and in Madras terrace in second floor. Flooring is in ordinary flooring, which is changed to other types by tenants. Plastering is in cement mortar. In the shop occupied by APSARA Ten Stall also, brickwork is in cement mortar. (Door is in teak and country wood. There is a collapsible gate at the entrance. These are provided by the tenants it is stated) Roofing is in R.G.slab. Flooring has been changed to Spartek tiles by the tenant. Plastering is in cement mortar. The tenant has provided wall dadoo upto 36" in the walls. Above that wooden veneering has been provided by the tenant it is stated. The entire portion has been painted – both walls and ceiling – and the portion is kept neat and attractive. ." 10. Plastering is in cement mortar. The tenant has provided wall dadoo upto 36" in the walls. Above that wooden veneering has been provided by the tenant it is stated. The entire portion has been painted – both walls and ceiling – and the portion is kept neat and attractive. ." 10. However, in Ex.R14 a picturesque description of the building is not found spelt out, whereas in Ex.P55, I could see a clear picture of the building. One thing is clear that the building is an old one and it is not a modern building. It cannot also be stated that it is so strong, that it does warrant demolition and reconstruction. 11. In view of the fact that the said building is admittedly of forty years old and not a modern building and that income yielding resources of the building is bleak, I could see no mala fide intention on the part of the landlord in seeking eviction on the ground of demolition and reconstruction. As such, both the Courts below after adverting to the facts placed before them, arrived at a conclusion which does suffer from perversity or illegality. Accordingly, Point No.1 is decided in favour of the landlord and as against the tenant. POINT NO.2: 12. Regarding the financial wherewithal of the landlord is concerned, absolutely Ex.R9 is having no connection, as it was pertaining to the erstwhile landlord and it cannot be pressed into service as against the present landlord who is armed with Fixed Deposit receipts, viz., Ex.Ps, 51 to 53 and P56, totalling Rupees Sixty three lakhs and odd. Further more, in Harringtons case reported in (2002)3 M.L.J.130(S.C.) - HARRINGTON HOUSE SCHOOL VS. S.M.ISPAHANI AND ANOTHER, the Honble Apex Court even went to the extent of pointing out that nowadays for raising commercial buildings Banks are vying with each other to lend money and as such the contention as raised on the side of the tenant fails to carry conviction with the Court. 13. I would also recollect the following decisions of the Honble Apex Court emerged in respect of Section 25 of the Act: (i) JT 2000 (SUPPL.3) SC 83 – D. RADHAKRISHNAN AND ANOTHER VS. M.LOORDUSWAMY & OTHERS, certain excerpts from it would run thus: "5. 13. I would also recollect the following decisions of the Honble Apex Court emerged in respect of Section 25 of the Act: (i) JT 2000 (SUPPL.3) SC 83 – D. RADHAKRISHNAN AND ANOTHER VS. M.LOORDUSWAMY & OTHERS, certain excerpts from it would run thus: "5. The requirement of Section 14(1)(b) of the Act for the purpose of demolition and reconstruction has been considered and dealt with elaborately by a constitution Bench of this Court in the case of Vijay Singh & Ors. v. Vijayalakshmi Ammal (JT 1996(9) SC 408 = (1996) 6 SCC 475 ). The only question that arises for our consideration is, whether the findings arrived at by the Rent Controller and affirmed by the appellate authority, could have been interfered with by the High Court in exercise of revisional jurisdiction under Section 25 of the Act. Though the power of revision of the High Court under Section 25 cannot be held to be similar to the power of civil court under Section 115 C.P.C., but at the same time, the same cannot be held to be conferring appellate power on the High Court. The High Court is only required to examine and satisfy, whether the procedure followed by the forum below is regular or not and whether there has been any illegality or impropriety of the decisions arrived at. 6. . . . . . While exercising revisional jurisdiction, to find out illegality with the findings or illegality of any procedure, it was not open to reappreciate the evidence, in the light of the object of the Act. In that view of the matter, we set aside the impugned order of the High Court and affirm the decision of the Rent Controller as affirmed by the appellate authority. Respondent No.1 is granted six months time to deliver the vacant possession of the premises to the landlord subject to the usual undertaking being filed in this Court within four weeks from today. The appeals stand disposed of accordingly." (ii) 2001(2) CTC 95 – VALLAMPATI KALAVATHI V. VAJI ISMAI, certain excerpts from it would run thus: "11. . . . The finding recorded by the High Court in the revisional proceedings amounts to taking a view different from those recorded by the Forums below on the evidence available on the record. The appeals stand disposed of accordingly." (ii) 2001(2) CTC 95 – VALLAMPATI KALAVATHI V. VAJI ISMAI, certain excerpts from it would run thus: "11. . . . The finding recorded by the High Court in the revisional proceedings amounts to taking a view different from those recorded by the Forums below on the evidence available on the record. Was this permissible within the purview of the revisional power vested in the High Court under Section 22 of the Act? The said section reads as follows: "22. Revision: (1) The High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or of propriety gof such order or proceeding, and may pass such order in reference thereto as it thinks fit. 2) The costs of and incident to all proceedings, before the High Court under sub-section (1), shall be in its discretion." 12. As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expression legality, regularity or propriety are undoubtedly wider than mere correction of jurisdictional error. But even such regional power cannot be exercised to upset the concurrent findings of fact recorded by the Forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the material." 14. For such interference it has to be shown that the findings recorded by the Forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the material." 14. Accordingly, my discussion supra would demonstrate that as against the concurrent findings of both the Courts below, no interference is required. Accordingly, this revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 15. Inasmuch as the tenant has been occupying the premises for about thirty five years and that he would find it difficult to vacate the premises all of a sudden, I would like to grant six months time to vacate the premises, subject to payment of rent regularly and an affidavit to that effect shall be filed within a period of fifteen days from the date of receipt of a copy of this order.