Madras High Court
M.Gangabai Ammal vs M.Saraswathamma on 20 April, 2006
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 20/04/2006
Coram
The Hon'ble Mr.JUSTICE S.RAJESWARAN
C.R.P.(NPD) No.444 of 2005
and C.R.P.(NPD) No. 445 of 2005
M.Gangabai Ammal .. Petitioner in both
C.R.Ps.
-Vs-
M.Saraswathamma .. Respondent in both
C.R.Ps.
Revision Petitions filed against the judgments and decrees passed in
R.C.A.Nos.357/2002 and 1376/2003 on the file of the VIII Judge, Small Causes
Court, Chennai, dated 10.12.2004, confirming the order and decree passed in
R.C.O.P.Nos.372/1998 and 1695/2002, on the file of the XV and XI Judge, Small
Causes Court, Chennai, dated 14.2.2002 and 7 .8.2003 respectively.
!For Petitioner : Mr.S.Gopalaratnam
^For Respondent : Mr.S.Jagannathan
:COMMON ORDER
These Civil Revision Petition Nos.444 and 445 of 2005 have been filed against the judgment and decrees made in R.C.A.No.357/2002 and 1376 /2003 on the file of the VIII Judge, Small Causes Court, Chennai, dated 10.12.2004, confirming the order and decree made in RCOP Nos.372/1 998 and 1695/2002 on the file of the XV and XI Judge, Small Causes Court, Chennai, dated 14.2.2002 and 7.8.2003 respectively.
2. The petitioner herein is tenant under respondent herein in respect of two shop portions of premises at No.2, Gangai Amman Koil Street, Saligramam, Chennai.26 on a monthly rent of Rs.450/- for each shop portion. The respondent/landlady evolved a scheme to demolish the entire building including the petition shop portions and to reconstruct into high income yielding one by putting up flats, thereby she could augment the income derived from the said property. She has obtained necessary sanction from the corporation for demolition and reconstruction and she has also obtained planning permission and building plan. She has also got necessary funds. She issued notice to the petitioner herein, but the petitioner/tenant did not come forward to hand over possession. Hence she filed RCOP No.372/1998 under Sec.14(1)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 18/1960 ( hereinafter called 'the Act').
3. The petitioner herein resisted the RCOP No.372/1998 by contending that the requirement of the respondent herein is not bona fide, the petition premises is in good and sound condition, the landlady does not have enough funds for reconstruction and the RCOP has been filed only to coerce the tenant to accept the landlady's demand for enhancement of rent.
4. The learned Rent Controller by order dated 14.2.2002 allowed the RCOP, against which the petitioner herein filed an appeal and the appellate authority has also by a common order dated 10.12.2004 upheld the claim of the landlady and rejected the case of the petitioner herein. Hence this C.R.P.No.444/2005 has been filed by the petitioner/ tenant.
5. The respondent/landlady also filed two other petitions, i.e., RCOP.No.1757/2001 under Sec.10(2)(1) of the Act and RCOP.No.1695/2002 under Sec.4 of the Act which were also allowed by the Rent Controller. The petitioner herein filed appeals against these orders also. A common order was passed by the appellate authority in all these three appeals in which, as already mentioned, the order in RCOP.No.372/98 was confirmed in RCA.No.357/2002. The appellate authority has also confirmed the order in RCOP.No.1695/2002, but reversed the order made in RCOP.No.1751/2001 by holding that the landlady has not proved the wilful default on the part of the tenant. Against the order made in RCA No.926/2003 dismissing RCOP.No.1751/2001 (wilful default), the respondent has not preferred any Revision.
6. In RCOP.No.1695/2002 the respondent herein as landlady prayed for an order fixing fair rent of the shop portions situated at No.2, Gangai Amman Koil Street, Saligramam, Chennai.26 at Rs.3,624/- instead of Rs.450/- per month, from the date of petition. The petitioner herein resisted the same by contending that the landlady has already filed RCOP.No.372/98 for demolition and reconstruction and therefore the petition for fixation of fair rent is not maintainable. Even otherwise, according to the petitioner herein, the fair rent would be far less than the present rent paid by her. The Rent Controller by order dated 7.8.2003 passed an order fixing the fair rent at Rs.5,145/- per month, which was upheld by the appellate authority on 10.12.2004 in RCA No.1376/2003.
7. The petitioner/tenant filed the above Revision Petitions challenging the above said orders in RCA Nos.357/2002 and 1376/2003.
8. Heard the learned counsel for both parties and perused the records. Let me deal with RCA No.357/2002 first.
9. Learned counsel for the petitioner/tenant submitted that both the courts below miserably failed to establish the conditions required for obtaining permission under Sec.14(1)(b) of the Act. According to the learned counsel, the condition of the building was not proved by examining any independent, technical person and Exs.P1 and P2 should have been rejected by the courts below as the executants were not examined by the respondent-landlady.
10. Learned counsel for the respondent-landlady supported the orders of the courts below and submitted that when the two authorities have gone into the matter in detail and after evaluating the evidence adduced, have concurrently held against the petitioner/tenant, which need not be upset by this court under its revisional jurisdiction under Sec.25 of the Act. He relied on the following judgments of this court:-
(1)1976-I-M.L.J.89 (Smt.C.B.Purshothamdass v. P.Mittalal); (2) 1978 T.L.N.J. 104 (A.Mohan Rao vs. Krishnan); (3) 1997-I-L.W.323 (Sherwood Educational Society, etc. v. Abid Namazie & others) and (4) 2000(I) CTC 287 (Akbar Ali v. Donian Rodrigo).
11. When eviction is sought for under Sec.14(1)(b) of the Act for recovery of possession for the immediate purpose of demolishing, the landlady is required to prove her bona fides for the immediate purpose of demolishing and such demolition is to be made for the purpose of erecting new building, the landlady is also required to give an undertaking that she would demolish the building within a month and shall complete the act before expiry of three months from the date she recovers possession of the entire building. In the light of the above, let me examine whether the landlady has fulfilled the requirements of Sec.14(1)(b) of the Act.
12. The building of the landlady contains 4 shops out of which two are in occupation of the petitioner herein. The case of the respondent is that she requires the building for demolition and reconstruction so that she would erect a new building containing flats to augment her income derived from the property. It is not her case that the building is very old and weak and it requires demolition and reconstruction. She has already obtained permission from the Corporation for demolishing the building and the landlady and her husband deposed before the Rent Controller as to how they would go ahead in demolishing the building and putting up a new construction. Even though the respondent-landlady has not submitted any report of the engineer, such report is not necessary when the other evidence let in by her would prove her bona fide requirement of the building for the purposes of demolition and reconstruction. She has also proved that she has got sufficient money in her bank and even otherwise, in the present day conditions, where the banks are advancing loan very easily for the purpose of building construction, it cannot be said that one has not proved the financial condition for doing such work. Learned counsel for the petitioner submits that the intention of the landlady is only to evict the petitioner and there is no bona fides in her requirement. Even assuming that the landlady has thought of this method of demolishing and reconstruction only to get rid of the petitioner, on that ground, it cannot be held that the landlady does not require the building bona fide for immediate purpose of demolition and reconstruction so long as the landlady's intention to demolish and reconstruct is real. Therefore, I am not in a position to countenance the submissions made by the learned counsel for the petitioner.
13. Insofar as Exs.P1 and P2 are concerned, they are the letters dated 3.12.98 and 13.1.99 respectively given by the landlady to the other tenants who are in occupation of the other two portions. In these two letters, the tenants in occupation have agreed to vacate. It is the case of the petitioner that these two letters are not admissible in evidence as they are not marked through the tenants who gave these letters. I am unable to accept this submission because the landlady has produced these two letters to prove that there is no need for her to file the eviction petition against those two tenants as they have agreed to vacate as and when required by her. Under rent control laws, the landlady is bound to prove her case beyond all reasonable doubts and the rigorous test of proof applicable to criminal proceedings cannot be applied to eviction proceedings. Sitting in revision, this court can exercise its powers under Sec.25 of the Act, only if it is shown that the judgment made by the appellate authority is in any way illegal, irregular or improper. Under Sec.25 of the Act, this court is not an appellate court and it cannot re-appreciate the evidence for the purposes of arriving at a different conclusion.
14. In 1976-I M.L.J. 89 cited supra, this court held as follows:-
"3. The learned Judges constituting the Division Bench made it clear that there is in-built in the section 14(1)(b) of the Act a safeguard under which the tenant could take shelter so as to thwart any pretences on the part of the landlord in the matter of the demolition of the building for purposes of reconstruction. The lever that is provided in the section is so obvious for, the tenant can seek for restitution if the landlord who has to peremptorily give an undertaking as provided for in section 14(2) fails to demolish the same within the prescribed time. The landlord should make it appear that his intention, ever since he entered his petition for eviction at the threshold of the Rent Controller's Court till the date when he physically and practically began to demolish his own property, was that the building has to be demolished for purposes of reconstruction. Whatever reason might prompt an individual to destroy his own property that cannot be the subject-matter of investigation by a Court of law. It is in this sense the halo of bona fides which plays a very prominent part in so far as petitions under the other sections of the Act are concerned, sinks, in my opinion, to more or less to an insignificant level. In view of the fact that the landlord comes forward openly and publicly to demolish and destroy his property, that would not be a case which is automatically illustrative of the mala fides of the landlord. In such circumstances, there cannot be any acid test to measure the bona fides of the landlord in the matter of such eviction. It is this which was made clear in the Division Bench Judgment. In spite of it the appellate authority thought that since the respondent was occupying only a part of the building and as the landlord has sought for eviction of the respondent only from that part of the building, it would be necessary to investigate further whether the landlord is inclined to demolish the other portions of the building which is not the subject-matter of the enquiry at all. Apparently, the learned Judge did not bear in mind the definition of a building in the Act as given out in section 2(2) of the Act which says 'building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes ..." The statute therefore recognises a part of a building as a building. If this unit which has been given out as a measure in the statute itself is borne in mind then the question whether the landlord is inclined to demolish the other portions of the building and whether he is going to file eviction petitions against the other tenants in the building is outside the purview of enquiry. In so far as the respondent is concerned, he is occupying a 'building' within the meaning of the Act and petitioners as landlord can under section 14(1)(b) file an application seeking for eviction of the tenant in occupation of that 'building' for purposes of demolition and reconstruction. This is so because a part of a building is also a building. The learned appellate Judge therefore did not bear in mind the fundamentals which govern the position in such circumstance, and he has erred in exercising his power of remit on the basis of the observations already referred to. The order of the appellate authority is therefore set aside and the revision petition is allowed. The counsel for the respondent requests time to vacate. Obviously his client is serious to vacate the premises. Taking this aspect into consideration the respondent is granted four month's time to vacate. No costs."
15. In the above case, this court held that there cannot be any acid test to measure the bona fide of the landlord in the matter of eviction under Sec.14(1)(b) of the Act. This Court has also pointed out that there is an in-built safeguard in section 14(1)(b) of the Act under which the tenant could take shelter so as to thwart any pretences on the part of the landlord in the matter of demolition of the building. The tenant can seek for restitution if the landlord who has given an undertaking failed to demolish the same within the prescribed time.
16. In 1978 T.L.N.J. 104 (supra), this court has held as follows:-
"I am of the opinion that this argument is misconceived. The Court is not concerned with the motive of a landlord for demolishing and reconstructing a building and that all that the law requires and all that the Court can take into account and consider is whether the requirement of the landlord to demolish the building and reconstruct the same is bona fide, in the sense that the landlord entertains a genuine and real intention to demolish and reconstruct the building; and the motive for the said act is totally irrelevant. Consequently, even assuming that the landlord has thought of this method of demolition and reconstruction only to get rid of the petitioner. On that ground it cannot be held that the landlord does not require the building bona fide for the immediate purpose of demolition and reconstruction so long as, as I pointed out already, the intention to demolish and reconstruct is real. Consequently the civil revision petition is dismissed."
17. The learned Judge of this court has held that this court is not concerned with the motive of the landlord for demolition and reconstruction of the building and the court has to consider whether the landlord entertained a genuine and a real intention to demolish and reconstruct the building and the motive for the said act is totally irrelevant.
18. In 1997-I-L.W. 323 (supra) this court has held as follows:-
"13. Sitting in Revision, this Court can exercise its powers under S.25 of the Tamil Nadu Buildings (Lease and Rent Control) Act only if it is shown that the judgment by the Appellate Authority is in any way illegal, irregular or improper. It cannot re-appreciate the evidence as a Court of Appeal. If the decision is based on materials and that reason could be arrived on those materials, for the purpose of arriving at a different conclusion, the evidence cannot be re-read or re-appreciated. Learned Senior Counsel for the petitioner was well aware of the jurisdiction of this Court and that is why he wanted this Court to take into consideration certain additional facts. He, therefore, filed C.M.P.No.16992 of 1994, seeking permission to adduce additional evidence in the C.R.P."
"19. S.14(1)(b) of the Rent Control Act says:-
"14(1) Notwithstanding anything contained in this Act, but subject to the provisions of S 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied,
(a) (Omitted)
(b) that the building 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, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date."
In this connection, the corresponding provision of the Kerala Rent Control Act is also relevant for consideration. It may also be noted that under Section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, ;the landlord is entitled to get eviction "if a building is in such a condition that it needs reconstruction and if the landlord requires bona fide to reconstruct the same and if he satisfies the Court that he has the plan and licence, if required, and the ability to rebuild and if the proposal is not made as a pretext for eviction". Interpreting this Section, V.R.Krishna Iyer, J., as he then was, has taken (Kalyani v. Madhavi 1970 K.L.T. 257) the following view:-
"Counsel, however, argues and rightly, that the building must be in such a condition that it needs reconstruction and this ingredient has to be made out apart from the landlord's bona fide intention to reconstruct. Here, it is argued that the stress is upon the physical condition of the building. I do not agree. If eviction can be had only on the Court being satisfied that the physical condition of the building is on the verge of collapse, there is no doubt that few buildings could be evicted before they have actually collapsed. Knowing the length of time taken in rent control litigation in Kerala, not unusual to find the period between the institution of an application and its ultimate disposal in the revisional court, lengthening into several years if a building perilously close to sinking alone can justify a petition under Section 11(4)(iv) in a State with heavy monsoons, I do not know what purpose would be served by such a course except to endanger the lives of tenants. It is obvious, therefore, that a wider and more realistic meaning must be given to the expression condition of the building. The social purpose of this provision is to remove the road blocks in the way of progress in building programmes. Old structures in newly developing areas may be like pimples on fair faces. Replacement and renewal of obsolescent and unsightly buildings to make room for larger, modern constructions is a social necessity, provided existing tenants are not thrown into the streets. The condition of the building is a larger concept which includes considerations of social surroundings and allied factors. Where the building is very old and incongruous with the social setting and the surroundings of the place, the Court has got to take a more liberal view in applying the provisions of law..." (Emphasis supplied)
20. In AIR 1963 S.C.499 (Neta Ram v. Jeewanlal), their Lordships held thus:-
"Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about the genuineness of his claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward and says that he entertains particular intention however strongly, said to be entertained by him. Section 13(3)(b) of the Pepsu Urban Land Restriction Ordinance speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and reerection must be bona fide, that is to say, honest in the circumstances. It is possible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. The intention must be honestly held in relation to the surrounding circumstances."
21. In view of the above settled position of law, I do not think the Appellate Authority has gone wrong in coming to the conclusion that the building requires reconstruction. I justify the reasoning of the Appellate Authority that the building in question requires reconstruction for the reasons stated herein.
23. A contention was taken that every year recognition of the school is renewed, and one of the conditions for continued recognition is safety of the building. It is the case of the petitioner herein that they have taken certificates from Engineer, and only on the basis of Engineer's report, recognition of licence is given by Government. The basis for giving such Certificate is not explained. The Engineer who has given the certificate has not been examined. Even if such a certificate is issued, it goes against the admission of the tenant. So, no reliance can be placed on the so called certificate. Further, the tenant who is interested in continuing in that locality, will also be interested in getting such a certificate. Whether that certificate itself was issued after inspection of the building is in doubt. Absolutely, no evidence has been let in in that regard. Admittedly, the landlords were not given notice before issuance of any such certificate by the so-called Engineer. It is admitted by both parties that even on the date of petition, the building was more than 50 years old. It has also come out in evidence and it is also alleged in the petition that in the nearby locality brand new buildings have come up and the area is developing to a great extent. If the present building is allowed to continue there, that will be a misfit in the locality. As V.R.Krishna Iyer, J. said, it will be like a pimple in the fair face. In this case, evidence has also been let in to show that the landlords have got the financial capacity to put up the construction. In fact, that was not a matter in issue till the order of remand. Before this Court, the only point agitated was, regarding the physical condition of the building. But, when the order was made, to verify the condition of the building, the financial capacity or the financial means of the landlords also became necessary for enquiry. The evidence of P.W.1 shows that he is a man of means. He has go assets of his own, and even the property in question which is more than 10 grounds will be sufficient to put up a multi-storeyed complex. It is well-known that any builder will be too glad to provide a construction in this vast area, even without any investment by the landlords. Even though the admissibility of Ex.P-4 was doubted, that by itself will not show that the landlords have no capacity to raise funds. They have got other properties within the City of Madras and also close to the schedule property. P.W.1 has further alleged and spoken that in the very same locality, multi-storeyed buildings have been put up by builders. It is also settled that for considering the financial capacity, the landlords need not produce/liquid cash before Court. It is sufficient if the landlords show that they have got the capacity to raise funds . Even without Ex.P-4, if the landlords approach any builder for implementing the building programme, it cannot be said that they have no intention in putting up the construction. Law also does not insist that the landlord alone should invest for putting up construction.
24. Regarding the plan and licence, petitioners/landlords themselves have stated that they cannot produce the approved plan at present. A very good reason has been stated therein. The Statute does not say that only if an approved plan is filed before Court, eviction could be ordered. It is only one item of evidence to prove the bona fides. In this case, the eviction petition was filed in 1983. Till date, the landlords are not in a position to get p ossession of the building. Even if the landlords had obtained plan in 1983, the same cannot be made use of at present. Again, the plan is necessary only for the purpose of putting up a construction. That can be had only after physical possession of the property is also obtained. Various changes both in the Laws, Regulations of the Development Authorities in the manner of construction, will have to be taken into construction before the landlords can produce an approval plan. According to me, if blueprints (Ex.P-1 to P-3) are filed and the landlords express their bona fide intention to put up a building on the basis of the approved plan unless there is some oblique motive to doubt their veracity, the same have to be accepted.
25. It was held in 94 L.W.102 (S.Balasubramaniam v. Gulab Jan), that "want of sanction plan or lack of preparation for the work of demolition and reconstruction by itself cannot negative the bona fides of the landlord. Each case has to be decided on its own facts. Under certain circumstances, it is futile to expect the landlord to make the preparations for demolition and reconstruction on the fond hope of succeeding in his proceedings for eviction. To insist upon such a factor as a sine quo non for initiation of proceedings for eviction on the ground of demolition and reconstruction, would drive the landlord to incur expenditure which may turn out to be futile depending upon the ultimate result in the proceedings for eviction."
27. The next question that arises for consideration is whether the bona fides have been proved. S 14(1)(b) of the Rent Control Act begins with the words"that the building is bona fide required by the landlord for the immediate purpose of demolishing it". The law is settled that in considering bona fides, it is not the intention of the landlord that has to be considered, but the proof must be, the genuineness of the claim. That is proved by establishing the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to more profitable use, the means of the landlord and so on. The intention must be honest and in relation to surrounding circumstances. If this is the criterion to arrive at a finding on bona fides, that also has got to be found in favour of the landlords, for, this point has already been found in favour of the landlords."
19. In this elaborate judgment, the learned Judge has held that (1) if the decision of the appellate authority is based on materials and that reasons could be arrived at on those materials for the purpose of arriving at a different conclusion, evidence cannot be re-read or re-appreciated under Sec.25 of the Act. (2) The landlord under Sec.14 (1)(b) must satisfy about the genuineness of the claim and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation, the possibility of its being put to more profitable use after construction and the means of the landlord and so on. (3) The landlord need not produce liquid cash before the court and it is sufficient if it is shown that they have got the capacity to raise funds. (4) want of sanctioned plan or lack of preparation for the work of demolition and reconstruction cannot by itself negative the bona fides of the landlord. (5) In considering the bona fides, it is not the intention of the landlord that has to be considered but proof must be genuineness of the claim.
20. In 2000(1) CTC 287 (Akbar Ali v. Donian Rodrigo), this court has held as follows:-
"15. Now we have to take up for consideration the question of bona fide requirement of the building for demolition and reconstruction. It has been held in numerous decisions that the building need not be very old and decrefit. We have long catena of cases on this point. The decisions of this Court on this point can be listed as under:-
Mamboob Badsha v. M.Manga Devi and another, 1965 (II) MLJ 209, (2) Chandrasekara Chettiyer v. Kakumani Adikesavalu Chetty's Charities, 196 5 (78) L.W. 326, (3) Sha Manakchand v. Sankarji Moolchand, 1965 (2) MLJ 12, (4) Narasinga Konar v. S.A.C.Chirtambalam Chettiar, 1966(79) L.W. 21 (SN), (5) Lakshmanan and others v. Kanniammal alias Pattammal, 1995 (II) MLJ 178, (6) Sultan Sheriff alias Basha v. Hassan Mohideen and others, 1984 (97)L.W. 166, (7) Narayanaswami Iyer v. Ramakrishna Iyer 1965 (1) MLJ 78, (8) Daniel Parthasarathy v. Manickavasagam, 19 65 (78) L.W.24 (SN), (9) Bharath Trading Co.,v. Shanmugasundaram, 198 2 (1) MLJ 94, (10) 1985 (II) MLJ 151 and (11) Ammal Pillai and others, v. M/s.Varadarajulu Complex etc., 1997 (1) L.W.
364.
I do not think it, necessary to refer to all those decisions in view of the latest decision of the Supreme Court in Vijay Singh etc., v. Vijayalakshmi Ammal, 1996 (II) CTC 586 : 1997 (I) MLJ 98 (SC), where their Lordships of the Supreme Court have laid down the law as follows:-
"On reading Section 14(1)(b) of the Act along with Section16, it can be said that eviction of a tenant on the ground of demolition of the building for erection of a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time and to erect a new building on the same site"...
.... In the background, it has to be held that neither of the extreme positions taken by the respondent/landlord or the appellants/ tenants can be accepted. Permission under Section 14(1)(b) cannot be granted on mere asking by the landlord, that he proposes to immediately demolish the building in question to erect a new building, at this same time, it is difficult to accept the stand of the tenants that the building must be dilapidated, dangerous and unfit for human habitation. Therefore, as a question of law, it is clear that it is not necessary that the building must be actually in a dilapidated and dangerous condition. Now let us see in this case, what is the evidence adduced with regard the nature and condition of the building. Therefore in view of the judgment of the Supreme Court it is to be pointed out that it is not necessary for the landlords to prove that the condition of the building is such that it is dilapidated and dangerous and has to be demolished immediately. But even otherwise, as a question of fact in this case, it has to be held that there is evidence to show that the condition of the building is not sound. The specific stand of the landlords is that the building is more than 100 years old. But the tenants would contend that it is not 100 years old, and that the building is strong than any other new building and it is in good condition. When the first petitioner in RCOP No.48 of 1982 as P.W.1 has stated that in the course of chief examination that the building was 1 00 years old and the rear portion of the building has become dilapidated. It is to be pointed out that notice was also given by the landlords to the tenants. In the course of cross examination, there is no specific suggestion made to the witness suggesting that the building is in good condition. The front portion of the building is terraced while the back portion is tiled. This fact has brought out by P.W.1 . It is also stated by P.W. 1 in the course of cross examination that the walls are made up of mud. Thus in RCOP No.47 of 1982 the evidence of P.W.1 with regard to the condition of the building and the age of the building stand unchallenged. P.W.1 in RCOP No.48 of 1982, the power agent has stated in the course of chief examination that the building is 80 years old and a portion of the rear portion is in a dilapidated condition. It was not suggested to him that the rear portion has not fallen down and it is not dilapidated condition, nor any question has been put to suggestion that the building is not an old one. In this connection, an engineer was appointed as commissioner to inspect the building and note the condition of the building. The engineer has submitted in his report, which has been marked as Ex.P.2 in RCOP No.48 of 1982. Of course the report filed in RCOP.No.48 of 198 2 considers the entire structure. It is to be pointed out that both the petitions related to same building and what is the subject matter in RCOP.No.48 of 1982 is nothing but a part of the same building. The engineer has inspected the property on 27.8.1988 in the presence of the parties. He has stated that the building is about 80 years old and the walls of the building are of mud and there are cracks in the front and rear walls. He has also stated that some of the portions have been eaten by white ants. He has also noted that in some places rafters have become damaged and they have been supported by concrete pillars. Some wooden rafters and other beams were all damaged due to white ants. The tiles have been damaged in several places. The flooring is considerably damaged. Of course, he has not mentioned in the report that the building is 80 years old on the date of his inspection, which was in the year 1988. It is made of mud walls. Beams and rafters have become damaged. Flooring is also damaged in many places. Therefore, there is sufficient material available to show that the building is a very old building and is in a dilapidated condition. The word 'dilapidated' according to the dictionary meaning is, "state of bad repair". "to fall" or "cause to fall into partial ruin or decay". The section does not require that the building should be actually in a dilapidated condition. What all it says that the landlord can ask for possession of the building, if requires it bon fide for the purpose of demolition and construction. We have the evidence forthcoming from the side of the landlords that they require the building bona fide for the purpose of demolition and the said demolition is for the purpose of erecting a new building. The age and condition of the building further show that the requirement of the landlords is genuine and the building is in a dilapidated condition.
17. It is not the requirement of law that the landlord should jingle the coins before court. In fact it has been held that it is not even necessary that the landlords would alone invest the amount and facilities from financial institutions can be availed of or from other persons. We find support for the position in the ruling reported in Vijay Singh etc., v. Vijayalakshmi Ammal, 1996 (II) CTC 586 and Lakshman, A and others v. Kanniammal @ Pattammal 1995 (I) L.W 632. It is alleged in the petition that the petitioners have got sufficient means to put up new construction. The tenant in the counter have stated that the petitioners are highly indebted and they do not have funds jointly and severally to put up new construction. While so, the first petitioner/Akbar Ali has stated in the course of his chief examination that they have sufficient means to demolish and reconstruct. In the course of his cross examination, it was not suggested to him that he has no means on the other hand it was only suggested that he has debts. P.W.1 replied it stating that he sold a house belonging to him situate in a different part of the Town, two years prior to the date of filing of the petition and discharged the debts. He has also stated that he has bank deposit. Of course he has not produced the bank passbook. That does not mean that he has no bank account. The suggestion made to him that the petitioners have no means and that the petitioners are in debt is denied by him. When the tenant was examined as R.W.1, he has admitted in the course of his chief examination that the petitioners 2 and 3 are employed in a reputed concern. He would say that it would cost about Rs.6 lakhs to demolish and construct and the petitioners do not have the funds to the extent. In the course of the cross examination he had made the statement that all the three petitioners are living abroad. He admitted that he does not know whether they had debts. In the RCOP No.48 of 1982 it is specifically urged in the petition that the petitioners have sufficient funds to put up new construction. It is only stated in the counter that the petitioners are indebted. Pw1 has stated in his evidence that the petitioners have the necessary funds to demolish and reconstruct. It is admitted that the petitioners have no other building, excepting the petition mentioned building. In the cross examination P.W.1 has stated definitely that they have got funds in the bank. The suggestion that they are indebted is denied by him. The only suggestion made to him was that as the petitioners are attempting to sell away the property to get possession of the property, they have filed this petition on the ground that they require the same for demolition and reconstruction. The tenant in RCOP No.48 of 1982 has only stated that the petitioners 1 to 3 have no means to demolish and reconstruct. In the course of cross examination, he admits that he does not know to whom all they are indebted. Therefore, in the above circumstances, I am unable to accept the submission made on behalf of the respondents that the petitioners have failed to prove that they got sufficient means. From the evidence adduced, it is clear that on the date of petition, they are not possessed any other building of their own in Miladuthurai. Three of the petitioners are employed abroad. The definite evidence on the side of the petitioners is that they are not indebted and they have got sufficient means. Merely because the tenant disputes the same, it dies not follow that the landlords have no means. It is not necessary that the landlords should produce the currencies before the court to show their means. In the circumstances, I find no reason to ignore the evidence adduced on the side of the landlords, with regard to means. They have submitted plans and obtained necessary sanctions from the Municipality. The other point that is urged by the learned counsel for the respondent is that this application is filed with ulterior motive and there is lack of bona fide in these application. Presently I would advert to the said contention. The tenants in both the applications would say that the landlords are attempting to sell away the property and therefore, with that view they have filed application to get possession of the building. This is emphatically denied by the landlords. It is not stated by the respondents as to the person in whose favour the petitioners are negotiating to sell the property. Admittedly the property is situate in the important locality in the Town of Mailaduthurai. It is also the case that they are not possessed of any other property in Mailadudurai. Therefore, in such circumstances, it is rather unnatural to contend that the petitioners are attempting to sell away the property. In the same breadth it is also alleged by them that the landlords demanded higher rent from the tenants and as the tenants were not agreeable, the present application is filed.
18. On the materials placed before court it is not possible to hold that there is some oblique motive in filing this application. In this connection, it was suggested that already some applications were filed and after accepting higher rent, the landlord did not pursue the said application. Hence, it is argued that it would show that this application is filed with a view to extract more rent and as the tenants were not prepared to comply with the demand for enhancement of rent. In the counter filed in RCOP No.47 of 1982 it is stated that the respondent did not agree to pay huge demanded rent of Rs.1,000 and therefore, the present application has been filed. It is also stated that previously number of applications were filed against the respondent to coerce the respondent to pay more rent and the respondent was thus compelled to pay more rent for building. While that is the stand taken in the counter, when P.W.1 was in the witness box, it was not suggested that any rent much less at the rate of Rs.1,000 per month was demanded and the same was refused by the tenant. On the other hand the suggestion was that excess rent was demanded. Further the suggestion was that the landlords want to sell away the property and therefore, they have filed this application. In the counter filed in RCOP No.48 of 1982 it was stated that there was a demand for Rs.400, since it was not complied with, the present application has been filed. But when P.W.1 was in the box, a suggestion was made that there was a demand for higher rent. When RW1, the tenant was examined, he has mentioned about the demand for rent at the r ate of Rs.400 per month. He has also stated that the landlords' plan to sell away the building. He has admitted that there was no prior eviction petition filed against him. According to him, the demand was made orally in the year 1982. As regards the tenant, in RCOP No.47 of 1982, when he was examined as RW1, he has stated that a demand was made by the petitioners 1 to 3 as rent of Rs.1,000 and he refused to comply with the request. It is stated by him that only Akbar Ali demanded a sum of Rs.1,000 as rent, whereas in the course of chief examination, it is stated that the petitioners 1 to 3 demanded the said amount. He further admitted that in the reply to the notice issued by the petitioners, he did not make mention of any demand. It is no doubt true that with reference to the subject matter of RCOP No.47 of 1982, the petitioners 1 to 3 filed petitions for eviction. The petitions were dismissed and an appeal was preferred against the same and when the appeal was pending, a compromise memo was entered into between the parties, whereunder the landlords agreed to receive the rent at the rate of Rs.300 per month and did not pursue the appeal. Merely, from the above circumstances, it would not transpire that the request of the landlords is mala fide. In pursuance of the compromise, the appeals were not pursued further by the landlord and the matter was settled. In such circumstances, it cannot be contended that this application has been filed with a view to use it as a lever for getting higher rent. It has been held by this Court in the decision reported in M/s.P.ORR & Sons Limited v. M/s. Associated Publishers, 1990 TLNJ 194 that merely because, the landlord on an earlier occasion, initiated proceedings, that by itself will not render the requirement of the landlords as one activated by oblique motive. The motive of the landlords is irrelevant. If there is an intention, and if there is no suspicion about the requirement, the landlords will be entitled to an order of eviction. Thus, the motive is not the criteria or a relevant factor to be taken into consideration 1978 TLNJ 108, Lakshman, A and others v. Kanniammal @ Pattammal 1995 (1) L.W 632 and Thangaswamy v. R.Vinayakamurthy, 199 6 (II) MLJ 322. Now with regard to the report of the engineer to which the tenants have not filed any objection, in the absence of any suggestion to show that the engineer adopted a partisan attitude, the report of the engineer has to be accepted as providing satisfactory evidence with regard to the condition and nature of the building. Here, in this case, the engineer had noted the age of the building and the condition of the building. It is also clear that it is not necessary that the landlords should have made all the necessary arrangements for demolition and reconstruction on the date when they filed the application. Even assuming that there were some earlier proceedings with regard to the building initiated by the landlords and those proceedings ended in compromise between the parties, whereby landlords agreed to accept higher rent, on that account, no stigma can be attached to the request of the landlords. As pointed out by this Court in the decision reported in Narayanaswami Iyer v. Ramakrishna Iyer, 1965 ( I) MLJ 78, it cannot make any difference at all. As held by the Supreme Court in its decision reported in Sabura Begum v. Thangavelu, 1997 (I) CTC 95 : 1997 (I) MLJ 418, the rent controller has to take into account (1) bona fide intention of the landlord. It should not be solely to get rid of the tenant; (2) the age and condition of the building; and (3) the financial position of the landlord to demolish and erect a new building. As to the age and condition of the building, there is sufficient materials to which I have already referred to and which show that the age and condition is such it requires to be demolished and reconstructed. With regard to the financial condition of the landlords, I have already held that the landlords have satisfied that they are financially in a portion to undertake the work of demolition and reconstruction. I am unable to hold that there is any material to suggest that this application has been filed by the landlords as a tool to get possession with any oblique motive. On the other hand, from the circumstances, it is clear that the request of the landlords is bona fide and the requirement is genuine.
19. The lower appellate court has proceeded to discuss the case rather putting the odds against the landlords. The Rent Control Act is meant to the benefit both the tenant and the landlord. The idea is to protect the tenant from unjust eviction. It does not mean that the legitimate request of the landlord to recover possession should be turned down. The idea that the tenant is a victimised person, and he is a weaker section of the society no longer holds good. If certain circumstances are established, then the landlord is entitled to get an order of eviction. It is not open to the Rent Controller or the Appellate Authority to place an unwarranted rigidity and construe the request of the landlord too narrowly. As held by the Supreme Court in a recent decision the court must place itself in the armchair of the landlord and construe the request. A pedantic approach is unwarranted. The approach must be to see whether under circumstances, he is entitled to an order of eviction. The approach of the lower appellate court as though it is a criminal proceeding it is trying and that the landlord must prove it beyond reasonable doubt is an approach unjust and uncalled for. The approach and the discussion by the lower appellate authority is as though they are deciding criminal proceedings. It is not a proper approach. By such approach, the appellate authority would be placing the landlord only at a disadvantage. The law does not intend to place such a handicap upon the landlord. Just as a tenant is entitled to be protected from unreasonable eviction, the landlord is equally entitled to get possession on reasonable ground. That benefit should not be deprived by placing a too narrow and to pedantic interpretation. The approach by the lower appellate court is more to pick holes in the case of the landlord, then to consider broadly whether the need is genuine or not. As a result, the lower appellate court has committed a grave error which has led to miscarriage of justice. In adopting such a rigid stand the lower appellate court has committed grave error. Therefore, in such circumstances, I have no hesitation in holding that the order of the lower appellate court has to be set aside, restoring the order of th e Rent controller. In other words, I am satisfied that the landlords have established that the requirement is genuine and therefore, they are entitled to an order of eviction."
21. In the above judgment, this court held that (1) it is not necessary that the building must be actually in a dilapidated and dangerous condition and the landlord seeks possession of the building if he requires it bona fide for the purposes of demolition and reconstruction. (2) it is not necessary for the landlord to produce currencies before the court to show means. (3) rent control authorities should not place unwarranted rigidity while considering the request of landlord for eviction and the landlord is not bound to prove his case beyond all reasonable doubts.
22. If these judgments are considered along with the facts and circumstances of the case in hand, I find no infirmity or illegality in the order of the appellate authority in rejecting the appeal filed by the petitioner herein. It is a case wherein the building has got 4 shop portions with vacant land behind the shop portions and both the courts below on the basis of the evidence let in have concurrently held that the respondent has made out a case for eviction under Sec.14(1)(b) of the Act. In the absence of any apparent error or illegality, infirmity, perversity or irregularity, this court cannot interfere with the concurrent findings of both the courts below by exercising its power under Sec.25 of the Act. Hence I find no merits in the above Civil Revision Petition. Therefore C.R.P.No.444/2005 is dismissed.
23. Insofar as R.C.A.No.1376/2003 is concerned, the learned appellate authority has upheld the order of the learned Rent Controller fixing the monthly rent of Rs.5145/-. Learned counsel for the petitioner contended that the appellate authority has fixed the value of the land without any basis and considered some AC sheet roofing which does not belong to the respondent landlady. He also questioned the extent of the property which was considered by the courts below in fixing the fair rent. Learned counsel concluded his argument stating that the respondent herein has prayed for a sum of Rs.3,624/- to be fixed as fair rent, whereas both the authorities below fixed the fair rent at Rs.5,145/- which is patently wrong and the same is to be set aside in this Revision Petition. Insofar as the constructed area is concerned, evidence has been let in both oral and documentary by the respondent herein, but the petitioner herein did not raise any objection with those evidence. The report of an engineer submitted on behalf of the petitioner herein did not speak about AC sheet light roof measurements. Therefore, the appellate authority decided the issue on the basis of the evidence let in by the respondent herein and this cannot be challenged for the first time before this court after having failed to do so before the authorities. As such, I do not find any infirmity nor illegality in the order of the appellate authority.
24. It is true that the prayer in RCOP.No.1695/2002 is to pass an order fixing the fair rent at Rs.3,624/-. But the learned Rent Controller has granted the relief by fixing the fair rent at Rs.5,145/- per month which was also confirmed by the appellate authority. Both the courts below fixed the fair rent on the basis of evidence let in by the parties by applying the formula contained in the Act. In the absence of any contra material to disprove the fair rent fixed by the appellate authority, confirming the order of the Rent Controller, this court cannot interfere with the order of the appellate authority under Sec.25 of the Act.
25. Therefore, I do not find any merit in C.R.P.No.445/2005. Consequently, the same is dismissed. No costs. C.M.P.Nos.2811 and 2812 of 2005 are also dismissed.
To The Registrar, Small Causes Court, Chennai.104 C.R.P. (NPD) Nos.444 & 445 OF 2005 S.RAJESWARAN, J.
Learned counsel for the petitioner/tenant seeks time for the tenant to vacate. Three months time is granted to the petitioner/tenant to vacate the petition premises. The petitioner/tenant is directed to file an affidavit of undertaking to that ef before this Court within a period of one week from today after serving a copy to the learned counsel for the respondent. If it is not filed within one week from today, both the parties shall work out the remedies open to them under law.
20.04.2006 vri