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2020 DIGILAW 1508 (MAD)

D. Thirunavukkarasu Asari v. Virudhunagar Ayira Vysia Kasukkara

2020-09-15

S.S.SUNDAR

body2020
JUDGMENT : S.S. Sundar, J. 1. These three Civil Revision Petitions have been filed by independent Tenants in respect of different Shops owned by the First Respondent in C.R.P.(MD) No. 367 of 2018. The First Respondent in C.R.P.(MD) No. 367 of 2018 is the Landlord. The First Respondent in C.R.P.(MD) No. 367 of 2018 is also the Respondent in C.R.P.(MD) No. 45 & 61 of 2018. The Landlord in all the three Civil Revision Petitions filed R.C.O.P. No. 8 of 1996 on the file of the Rent Controller, Virudhunagar for eviction on the ground of Demolition and Reconstruction under Section 14(1)(b) and on the ground of act of waste under Section 10(2)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act. The Rent Controller allowed the Petition. As against the Order of Eviction, the Petitioner in C.R.P.(MD) No. 367 of 2018 preferred an Appeal before the Sub-Court, Virudhunagar in R.C.A. No. 4 of 2000 and the Appellate Authority also confirmed the Order of Eviction against, which the Tenant has preferred the Civil Revision Petition in C.R.P.(MD) No. 367 of 2018. 2. The Petitioner in C.R.P.(MD) No. 61 of 2018 is the Tenant, who suffered an Order of Eviction in R.C.O.P. No. 4 of 1996 on the ground of demolition and reconstruction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Eviction Petition was allowed and the Appeal filed by the Tenant in R.C.A. No. 3 of 2000 is also dismissed. Hence, the Tenant has preferred C.R.P.(MD) No. 61 of 2018. 3. The Respondent in C.R.P.(MD) No. 45 of 2018 is the Landlord, who filed a Petition in R.C.O.P. No. 3 of 1996 against the Petitioner in C.R.P. No. 45 of 2018 on the ground of demolition and reconstruction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act and on the ground of act of waste under Section 10(2)(iii) of Tamil Nadu Buildings (Lease and Rent Control) Act. The Eviction Petition was ordered on both grounds and the Tenant preferred an Appeal in R.C.A. No. 2 of 2000 before the Appellate Authority (Sub-Court, Virudhunagar) and the Appeal was also dismissed. Aggrieved by the same, the Tenant has preferred C.R.P.(MD) No. 45 of 2018. 4. The Eviction Petition was ordered on both grounds and the Tenant preferred an Appeal in R.C.A. No. 2 of 2000 before the Appellate Authority (Sub-Court, Virudhunagar) and the Appeal was also dismissed. Aggrieved by the same, the Tenant has preferred C.R.P.(MD) No. 45 of 2018. 4. Since the buildings, which are the subject matter in all these Civil Revision Petitions belong to a single person and the grounds on which eviction was sought for are common, all the Civil Revision Petitions are taken up for hearing and disposed of by this Common Order. 5. The case of the Landlord in all the cases are identical except the additional issue in C.R.P.(MD) No. 367 of 2018, where the Revision Petitioner claims that the tenancy was between the First Respondent and Second Petitioner as against the case of Landlord that the building was leased out to the Partnership Firm, namely, the First Petitioner consisting of the Second Petitioner and Respondents 2 to 4 in this Revision Petition. Except the cases in C.R.P.(MD) No. 367 of 2018, the tenancy and the quantum of rent is not in issue. It is the common case of the Landlord that the Schedule building, as described in the Petition, belongs to the Landlord absolutely and the Petitioner is a Society registered under the Societies Registration Act. It is further stated that the Petitioner's Sangam is purely private in character and that therefore, the provisions of the Rent Control Act is very much applicable to them. It is contended by the Landlord in all the cases that the building in the respective Petitions was leased out for nonresidential purposes to the respective Tenants and that the tenancy is as per English Calendar. It is further contended that the building is very old and the condition of the same is very poor. Since the stability of the building is weak and the building is more than 80 years, the Landlord contended that they want to construct Office building and community hall in the Schedule property. The Landlord stated that they had obtained proper permission and that they undertake to commence the demolition of building as required in law. Since the stability of the building is weak and the building is more than 80 years, the Landlord contended that they want to construct Office building and community hall in the Schedule property. The Landlord stated that they had obtained proper permission and that they undertake to commence the demolition of building as required in law. Except in C.R.P.(MD) No. 61 of 2018, which is arising out of R.C.O.P. No. 4 of 1996, the Landlord pleaded an additional ground of Act of Waste as against the Tenants in R.C.O.P. No. 8 of 1996 and in R.C.O.P. No. 3 of 1996. It is stated by the Landlord in R.C.O.P. No. 8 of 1996 and in R.C.O.P. No. 3 of 1996 that the Tenants have committed act of waste as the Tenants had fixed a Spring Gate and Rolling Shutter before the wooden door and made certain alterations and additions in the Schedule building without the prior approval or permission of the Landlord. 6. The Revision Petitioner in C.R.P.(MD) No. 61 of 2018 is carrying on business by running a Stationery and Book Shop and the Petitioner in C.R.P.(MD) No. 45 of 2018 is carrying on a Jewellery Shop. The Petitioner in C.R.P.(MD) No. 367 of 2018 is carrying on Grocery business. 7. The Petition for eviction was contested by the Revision Petitioners by stating that the age of the building is less than 40 years and that its condition and stability is very good. Since the building does not require immediate demolition and construction, it was pleaded that there is no bona fide in seeking eviction on the ground of Demolition and Reconstruction. Regarding the act of waste, the Petitioner in C.R.P.(MD) No. 367 of 2018 & C.R.P.(MD) No. 61 of 2018 contended that the alteration by fixing a Rolling Shutter was done with the permission of the Landlord and that the fixing of Rolling Shutter has not deteriorated the stability of the building or damaged the building. It is also contended that the Tenant by the addition has improved the utility of the building apart from adding value to the building. In all the cases, a Commissioner was appointed and submitted a Report. A Civil Engineer also submitted a Report. The Petitioner, apart from examining the Secretary of the Society as P.W. 1, examined P.Ws. 2 & 3, who are all Engineers. In all the cases, a Commissioner was appointed and submitted a Report. A Civil Engineer also submitted a Report. The Petitioner, apart from examining the Secretary of the Society as P.W. 1, examined P.Ws. 2 & 3, who are all Engineers. Relying upon the documents of Title, the Rent Controller found that the building must be very old and Rent Controller also found that the requirement of the Landlord for putting up a new Community Hall and library, etc., are with bona fides and that therefore, Order of Eviction is inevitable. Regarding the acts of waste, it was found that the Tenants in the respective Petitions have committed act of waste by putting up Rolling Shutter and Spring Gate without permission of the Landlord. The Appellate Authority also fall in line with the Rent Controller and found that the Order of Eviction is justified on the respective grounds against all the Tenants against whom the relief was sought for. Aggrieved by the same, the Tenants preferred the above three Civil Revision Petitions. 8. In C.R.P.(MD) No. 367 of 2018, the First Petitioner and four other persons including the Second Petitioner were shown as Partners of the First Petitioner firm. It is stated that in Order to avoid any technical objections, the firm as well as the Partners are impleaded as parties to the Eviction proceedings. It is the specific case of the Landlord that the Schedule property was leased out to the First Petitioner-Firm and that the Respondents 2 to 4 are Partners of the Firm. However, the Counter Affidavit was filed by the Second Petitioner in C.R.P.(MD) No. 367 of 2018 and no other Partners contested the Petition for eviction. It is stated that the building was leased out to Second Petitioner and that therefore, the Petition as framed is not sustainable. The fact that the First Petitioner is a Firm and that the Second Petitioner is one of the Partners of the Firm is not disputed. The learned Counsel appearing for the Petitioners submitted that the Petition for eviction as against the First Petitioner-Firm is not maintainable since there is no relationship of Landlord and Tenant between the First Petitioner and the First Respondent/Landlord. It is also submitted by the learned Counsel appearing for the Petitioners that no document is produced by the Landlord to show that the Lease was between the First Respondent and the First Petitioner. It is also submitted by the learned Counsel appearing for the Petitioners that no document is produced by the Landlord to show that the Lease was between the First Respondent and the First Petitioner. The First Respondent/Landlord has impleaded both the Partnership Firm as well as the Partners including the Second Petitioner as parties to the Eviction Petition. No specific motive can be attributed to file a Petition against the Firm and its Partners, if the Lease of the building was only in favour of the Second Petitioner and individual. The Revision Petitioners have not produced any document to show that the Lease was only in favour of the Second Petitioner. In all these cases, the Landlord has stated that the lease of the building was as per the unregistered Lease Agreement. The fact that there was an unregistered Lease of Agreement is not disputed in the Counter Affidavit. Since the unregistered Lease Agreement is not admissible in evidence, it appears that the Petitioners in C.R.P.(MD) No. 367 of 2018 want to take advantage of that by pleading that the tenancy is between the Landlord and the Second Petitioner. It is also admitted that the Partnership Firm is carrying on the Grocery business in the demised premises. Hence, it can be presumed that the Partnership Firm is in possession of the property as a Tenant. In the absence of any other independent evidence to show that the tenancy was only between the Landlord and the Second Petitioner, this Court has no reason to disbelieve the case of the Landlord or to interfere with the findings of Authorities below. 9. It is to be noted that there is specific pleading as to the stability of the building and the age of the building in the Petition. Further, it is also stated that the Petitioner wants to construct an Office building and Community Hall in the Schedule building. Therefore, the condition of the building as well as the proposal to put up new building for the convenience of Landlord has been pleaded. The Rent Controller relied upon the original Title Deed of the year 1895 and found that the building was in existence from 1895 and that the building was very old. Therefore, the condition of the building as well as the proposal to put up new building for the convenience of Landlord has been pleaded. The Rent Controller relied upon the original Title Deed of the year 1895 and found that the building was in existence from 1895 and that the building was very old. Regarding the condition of the building, the Court below have relied upon the Commissioner's Report and the report of the Private Engineers, who were also examined as P.W. 2 & P.W. 3. Though the Courts below have not rendered the findings purely on the evidence of Private Engineer, had discussed the evidence precisely and came to the conclusion that the requirement of building for demolition and reconstruction is bona fide. When the Landlord seeks eviction on the ground of Demolition and Reconstruction for putting up new building to have more utility and income, the same cannot be doubted as the Landlord wants to demolish the building especially when the building is more than 80 years old. 10. Learned Counsel for the Petitioner submitted that relying upon the evidence of P.W. 1 to show that he has not visited the building and that therefore, he has no locus standi to state about the condition of the building. The learned Counsel then pointed out that the Landlord had demanded that the rented premises forms part of the larger building and the portion of the same building belongs to yet another Sangam, which has nothing to do with the Petitioner-Society. Since P.W. 1 has admitted that a single plan has been submitted to the local body for reconstruction of the building, it was submitted by the learned Counsel for the Petitioner that the undertaking given by the Petitioner for demolition and reconstruction cannot be accepted as the other joint-owner of the larger building has not given any undertaking. Further, it is also submitted that a building work can be commenced only by the Landlord along with other Sangam jointly and that there is no evidence regarding any joint decision to demolish the building and to put up new building. The learned Counsel then submitted that the Engineer is a paid professional of the Landlord and hence, his evidence cannot be believed. It is further stated that P.W. 3 has not even tested the basement of the building to certify about the structural stability of the building. The learned Counsel then submitted that the Engineer is a paid professional of the Landlord and hence, his evidence cannot be believed. It is further stated that P.W. 3 has not even tested the basement of the building to certify about the structural stability of the building. The submission of the learned Counsel for the Petitioner cannot be accepted if the evidence as a whole is analysed in this case. The Petitioner has produced enough evidence in this case to prove that the building was very old (more than 80 years old). The Petitioner had already submitted a Plan in the year 1995 and obtained approval for the proposed building. The Report of the Engineer though cannot be believed as such, it will have some relevance in the absence of any evidence to the contrary. An Advocate Commissioner appointed by the Court has submitted a Report and the Report along with the Report of the Engineer, who has independently assessed the building has spoken about the age and the bad condition of the building, which requires demolition. The proposed Plan indicates that the demolition of the old building is for constructing a new building, which would be also to augment the income of the Landlord. In such circumstances, the bona fides of the Landlord to seek eviction on the ground of Demolition and Reconstruction cannot be doubted. 11. Regarding act of waste, the case of the Landlord is that the material alteration, namely, installation of Rolling Shutter and Spring Gate was done without the permission of the Landlord. When the Tenant makes some alterations, he is expected to seek permission, as the Landlord is the best Judge to decide whether the alteration can add value to the building or utility of the building. In this case, there is no evidence to suggest that the additional construction of Rolling Shutters and Spring Gate has deteriorated the value and utility of the building. However, the fact that the structure as it exists with Doors have been removed and Rolling Shutters and Spring Gate has been fixed. This is a material alteration and hence, there is nothing to suggest that the Landlord will be convinced to accept the alteration as one that will improve the structural stability or utility or value of the building. However, the fact that the structure as it exists with Doors have been removed and Rolling Shutters and Spring Gate has been fixed. This is a material alteration and hence, there is nothing to suggest that the Landlord will be convinced to accept the alteration as one that will improve the structural stability or utility or value of the building. In the absence of any permission, the development is an unauthorised alteration and hence, if it is not required or against the will of the Landlord, it is an act of waste from the point of view of the Landlord. Hence, this Court find no reason to interfere with the Order of the Appellate Authority in R.C.A. No. 4 of 2000. 12. In C.R.P.(MD) Nos. 45 & 61 of 2018, identical grounds are raised by the Revision Petitioners. This Court as pointed out earlier, is unable to agree with the points used by the learned Counsel appearing for the Petitioner challenging the Order of Eviction on the, ground of Demolition and Reconstruction. Similarly, the ground of eviction on the ground of Act of Waste is also established in respect of the premises in C.R.P.(MD) No. 45 of 2018. As pointed out earlier, the bona fides of the Petitioner seeking eviction on the ground of Demolition and Reconstruction and on the additional ground of Act of Waste (in C.R.P.(MD) No. 45 of 2018) cannot be assailed as the conclusions of the learned Rent Controller and Appellate Authority are well founded. Hence, this Court does not find any merits in both the Civil Revision Petitions. 13. It is also pointed out in this proceedings that the Tenants in all the cases raised a legal issue regarding maintainability of the Petition for Eviction under the Rent Control Act on the ground that the Petitioner is a Public Charitable Trust. Though the Rent Controller came to the conclusion that the Society is a Private Trust and that therefore, the building is not exempted, the findings of the Rent Controller was challenged and the matter was ultimately settled by this Court by holding that the Eviction Petition filed by the Landlord are maintainable. The delay was on account, of objection relating to the maintainability of the Eviction Petition. The delay was on account, of objection relating to the maintainability of the Eviction Petition. The Petition for eviction was filed in 1996 and it is unfortunate to notice that the Landlord is unable to get possession due to pendency of the proceedings for more than 24 years. Hence, this Court is not inclined to give any time. 14. As a result, all the Civil Revision Petitions are dismissed. No Costs. Consequently, the connected Miscellaneous Petitions are closed.