Madras High Court
C.Chellakoma vs Arunachalam on 22 September, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.09.2017 Date of Reserving the Order Date of Pronouncing the Order 20.09.2017 22.09.2017 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN C.R.P.(NPD) (MD) No.1246 of 2007 C.Chellakoma ... Petitioner -vs- Arunachalam ... Respondent PRAYER: Civil Revision Petition is filed, under Section 25 of the Tamil Nadu Buildings (Lease & Rent Control) Act, 18/1960, as amended by Tamil Nadu Act 23/1973, to set aside the fair and decreetal order passed in R.C.A.No.36 of 2005, on the file of the learned Appellate Authority (I Additional Sub Court), Tirunelveli, dated 27.04.2007, confirming the fair and decreetal order passed in R.C.O.P.No.16 of 2004, on the file of the learned Rent Controller (I Additional District Munsif Court), Tirunelveli, dated 19.11.2004. !For Petitioner : Mr.M.P.Senthil ^For Respondent : Mr.J.Ashok for M/s.Jeyapaul Associates :ORDER
Challenge in this civil revision petition is made to the fair and decreetal orders, dated 27.04.2007, passed in R.C.A.No.36 of 2005, on the file of the Rent Control Appellate Authority (I Additional Sub Court), Tirunelveli, confirming the fair and decreetal orders, dated 19.11.2004, passed in R.C.O.P.No.16 of 2004, on the file of the Rent Controller (I Additional District Munsif Court), Tirunelveli.
2. The parties are referred to as per the ranking in the rent control original petition.
3. The rent control original petition has been filed by the petitioner originally under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter, referred to as ?the Act?) and it is seen that when the matter was pending at the appeal stage, on the application preferred by the petitioner, the above ground of eviction had been altered as Section 14(1)(b) of the Act.
4. The case of the petitioner in brief is as follows:
4.1. The petition schedule property (hereinafter, referred to as ?the property?) belonged to the petitioner and the respondent is the tenant in respect of the property running his business of selling cassettes, on a monthly rent of Rs.300/- and the respondent had been sending the rent by way of money order and it is also stated that the respondent had filed a civil suit, in O.S.No.484 of 2003, seeking the relief of permanent injunction restraining the petitioner's son, namely, Kannan, from evicting him forcibly from the property. The petitioner had been demanding the respondent from July, 2001 onwards that she requires the property for her own use and the property leased out is only a temporary petty shop and located on the road side of the main building and the property is required as amenity for the main building to provide rainwater harvesting pit and also a staircase to the first floor of the main building and the petitioner had already informed the respondent about the above requirement, but the respondent had been evading to vacate the property on some pretext or the other. The above requirement of the property by the petitioner is bona fide and the respondent has no right to object the petitioner from demolishing the temporary petty shop located in the property and to put up the above constructions therein for improving the main building and hence, the eviction petition.
5. The case of the respondent in brief is as follows:
5.1. It is true that the petitioner is the landlady and the respondent is the tenant in respect of the property and paying the monthly rent at the rate of Rs.300/- by way of money order. The petitioner's son, namely, Kannan had forcibly attempted to evict the respondent from the property and therefore, the respondent had been constrained to institute O.S.No.484 of 2003 against him for the relief of permanent injunction. It is false to state that the property is required by the landlady for putting up rainwater harvesting pit and also a staircase so as to improve the main building. To the notice sent by the petitioner, the respondent had sent a detailed reply containing true facts. There is a lot of vacant site around the building for putting up rainwater harvesting pit. Therefore, the petitioner does not require the property for the said purpose and the same is not bona fide. In the notice, the petitioner has not sought for the requirement of the property for putting up staircase and the same had been made in the petition only to evict the respondent one way or the other. Already there is a staircase to the upper portion of the main building and the same has been used from time immemorial and the tenants in the upper portion are using the staircase for reaching the upper portion. Hence, the requirement of the property by the petitioner for putting up staircase is not bona fide. The petition has been laid only with oblique motive to evict the respondent from the property and if the respondent is evicted from the property, he would be put to irreparable loss and hardship and hence, the petition is liable to be dismissed.
6. In support of the petitioner's case, P.Ws.1 and 2 were examined and Exs.P1 to P3 were marked and on the side of the respondent, R.W.1 was examined and Exs.R1 to R5 were marked.
7. The Rent Controller, on a consideration of the oral and documentary evidence and the rival contentions put forth by the respective parties, dismissed the petition. The appeal preferred by the landlady also ended in failure. Resultantly, the civil revision petition has been laid.
8. The following points arise for consideration:
i. Whether the landlady is entitled to evict the tenant from the property on the ground of demolition and reconstruction as claimed in the petition?
and ii. To what relief the landlady is entitled to? POINT NO.I:
9. It is not in dispute that the petitioner is the landlady of the property.
It is also not in dispute that the respondent is the tenant in respect of the property and paying the monthly rent of Rs.300/- and it is also admitted that the respondent is paying the rent by way of money order. There is no arrears of rent. It is also seen that the respondent laid a civil suit in O.S.No.484 of 2003 against the petitioner's son, namely, Kannan for the relief of permanent injunction to restrain him from evicting the respondent from the property unlawfully. Be that as it may, it is the case of the petitioner that the property is required for her to improve the main building that is to say it is stated that the property leased out to the respondent is located abutting the road side and it is only a petty shop and the same is required for the landlady for constructing rainwater harvesting pit and also a staircase for reaching the first floor of the main building and for the above said requirement, she had been requesting the respondent to vacate the property and inasmuch as the respondent had not acceded to her request and also even continued to remain in the property despite issuance of the notice with reference to the same and on the other hand, the respondent had sent a reply containing false allegations, it is the case of the petitioner that she had been necessitated to lay the petition for eviction of the respondent.
10. Per contra, it is the case of the respondent that the requirement of the property by the landlady is not bona fide and the case of the landlady that she requires the property for putting up a staircase cannot be accepted as already there is a staircase for reaching the upper portion of the building and the same has been used from time immemorial and it is also further stated that there are adequate space for putting up rainwater harvesting pit and therefore, the property is not required for the said purpose and it is the case of the respondent that only with a view to evict him from the property one way or the other, the above said reasons have been invented by the landlady and hence, it is the specific case of the respondent that the requirement of the property by the landlady is not a bona fide and hence, the petition is liable to be dismissed.
11. At the outset, it is to be noted that the in the pre-litigation notice sent by the landlady and marked as Ex.P1, there is no reference that the landlady requires the property for putting up a staircase to improve the main building. It is seen that the above said ground had been subsequently incorporated in the petition. As seen from the materials placed, it is found that already there is a staircase in the building for reaching the upper portion of the building and the same has been used from time immemorial by the parties concerned. Accordingly, it is seen that the landlady has also not set out the requirement of the property for putting up staircase in the notice marked as Ex.P1. In such view of the matter, the case of the landlady that she requires the property for putting up staircase as such cannot be readily accepted.
12. The petition has been laid by the landlady seeking eviction of the respondent from the property on the ground of putting up rainwater harvesting pit in the property. However, as rightly seen from the materials placed and also as determined by the Courts below, there is adequate space around the property of the landlady for putting up rainwater harvesting pit and therefore, it is seen that as rightly determined by the Courts below, the requirement of the property by the landlady for putting up rainwater harvesting pit is not bona fide.
13. In the notice marked as Ex.P1, it has been stated that the Corporation Authorities had directed the landlady to remove the petty shop located in the property, as the same is abutting the roadside and according to the landlady, the same had been intimated to the respondent so as to demolish the petty shop and to keep the property as vacant site so as to avoid the violation of any Corporation Rules. The above said case of the landlady is disputed by the respondent. Despite the above position, there is no material placed to show that the Corporation Authorities had directed the landlady to pull down the petty shop in the property and keep it as a vacant site as the existence of the petty shop is in violation of the Corporation Rules. When there is no material with reference to the same, it is found that the above aspect of the landlady's case that the existence of the petty shop in the property is in violation of the rules of the Corporation and that the Corporation had demanded the landlady to pull down the same as such cannot be accepted.
14. The petition, as already adverted to, had been originally laid under Section 10(3)(a)(iii) of the Act and subsequently, at the appeal stage, the ground of eviction has been altered as Section 14(1)(b) of the Act. Now, according to the landlady, quoting of wrong provision of law would not in any manner affect her case and in this connection, the decisions reported in 1999 (I) CTC 396 [M.P.M.Hameed Ibrahim and another vs. V.S.Bagirathan and others] and 1999 (III) CTC 116 [S.Mohammed Iqubal vs. M.Padmanabhan] are relied upon. No doubt, quoting of wrong provision of law by itself would not disentitle a party to obtain the relief to which he / she is entitled to.
15. It has to be now seen whether the requirement of the property by the landlady for demolition and reconstruction as claimed by her is bona fide. It is the specific case of the respondent that the said ground is also not bona fide and only made as a ruse to evict him from the property. In the petition, the landlady has sought for the property for the purpose of putting up rainwater harvesting pit and staircase. As adverted to above, in the pre- litigation notice sent by the petitioner, the requirement of the property for the staircase purpose has not been averred. Be that as it may, now we have to see whether the requirement of the property as made out in the petition has been established by the landlady. In this connection, the evidence of P.W.2 ? Surveyor and the plan marked as Ex.P3 are pressed into service. It is found and also admitted that P.W.2 ? Surveyor is a tenant under the landlady. It is, therefore, seen that he is a more obliged witness to the landlady. Now, according to the landlady, the plan marked as Ex.P3 had been prepared and submitted to the Authority concerned for the purpose of putting up rainwater harvesting pit and staircase to reach the upper portion of the main building. It is seen that inasmuch as the rent control original petition has been originally instituted under Section 10(3)(a)(iii) of the Act and the requirement is sought only for the landlady's own occupation etc., the plan now marked as Ex.P3 has not been filed along with the petition. It is further seen that the rent control original petition has been filed on 11.03.2004. It is, therefore, seen that on the date of the petition, no step whatsoever has been taken by the landlady to put up any construction in the property after demolishing the existing shop. Therefore, it is seen that the case of the landlady as averred in the petition that she requires the property for putting up rainwater harvesting pit and staircase by demolishing the property is not a bona fide as on the date of the petition, no step towards the end had been taken by the landlady as such. Now, the landlady presses Ex.P3 into service for establishing the bona fide requirement of the property on the ground of demolition and reconstruction. In this connection, the plan is stated to be prepared by P.W.2 ? Surveyor, who is admittedly a tenant under the landlady. Further, a perusal of the plan marked as Ex.P3, it is found that it does not bear any date as to when it is actually prepared by P.W.2. In this connection, P.W.2, in his evidence, has also admitted that there is no indication in Ex.P3 as to the date on which it was prepared by him. It is, therefore, seen that Ex.P3 was not shown to be prepared prior to the institution of the petition. The receipt for the fee said to have been paid for the plan to the Authority concerned is found to be dated 17.09.2004. It is clearly now made out that the plan marked as Ex.P3 had come to be developed after the institution of the petition and the fee for the same has been remitted only on 17.09.2004 long after the institution of petition. After the remittance of the fee, it has not been established as to what further steps have been taken by the landlady for putting up the construction in the property as contended by her. That apart, it is also not clearly made out as to whether the fee receipt marked along with Ex.P3 had been issued by the concerned Authority as such. Therefore, it is seen that on the date of the rent control original petition, the landlady had not taken any step whatsoever to demolish the building i.e., the shop located in the property to put up rainwater harvesting pit or the staircase in the same. In such view of the matter, it is found that the landlady's requirement of the property cannot be termed as a bona fide one and it is seen that the above said documents marked as Ex.P3 had been brought out only after the laying of the petition with a view to evict the respondent from the property concerned. If really, the requirement of the property by the landlady is bona fide for demolition and reconstruction, as rightly argued by the learned counsel for the respondent, steps with reference to the same would have been taken by the landlady prior to the institution of the case and on the other hand, it is stated that only subsequent to the laying of the petition, Ex.P3 has come to be prepared by the obliging witness, namely, P.W.2 and more particularly to show some bona fide to the same, the fee receipt has been enclosed along with the plan. Whether the said plan marked as Ex.P3 had been really submitted to the Authority concerned and whether what further steps had been taken by the landlady in continuation of the same, there is no material forthcoming. Therefore, when Ex.P3 is found to have come into existence after the institution of the case and when the same is not established to be a true document or for the matter when the landlady has not placed any material to show that the same had been accepted by the authority concerned and further, permission had been granted to the landlady for the purpose of putting up constructions as stated therein and when it is found that the landlady's requirement of the property is not bona fide, it is seen that as rightly determined by the Courts below, merely on the basis of Ex.P3, we cannot infer that the landlady requires the property bona fidely for demolition and reconstruction.
16. As the requirement of the property by the landlady is not bona fide, it is found that at different stages, different reasons have been given by the landlady for getting the property from the respondent and in this connection, it is found that P.W.1, in his evidence, has stated that the property is required for the purpose of putting up a parking shed. When the same is not the case of the landlady, it is seen that one way or the other, the landlady seeks to evict the respondent from the property and been giving inconsistent reasons for the eviction of the tenant from the property. As seen above i.e., not mentioning the reasons given in the petition in the pre-litigation notice and giving new set of reasons during the course of evidence and also further not establishing that the reasons given for the requirement of the property are bona fide, accordingly, it is found that the landlady is unable to place acceptable and reliable material to substantiate her case and in such view of the matter, the Courts below have rightly determined that the requirement of the property by the landlady for demolition and reconstruction is not bona fide.
17. No doubt, the Rent Control Appellate Authority has also discountenanced the case of the landlady on the footing that she has not given the mandatory undertaking for the requirement of the property under Section 14(1)(b) as contemplated under the Act. In this connection, it is contended that the mandatory undertaking as contemplated under the Act could be furnished by the landlady even during the course of execution and in this connection, the decision reported in 2007 (2) CTC 518 [Lakshmi vs. M.V.Balamurali and another] is relied upon. The Rent Control Appellate Authority has taken into consideration the above ground also for not accepting the case of the landlady. In such view of the matter, the argument put forth by the learned counsel for the landlady as if the Rent Control Appellate Authority has rejected her case on the above ground alone as such cannot be accepted.
18. The learned counsel for the landlady has also placed reliance upon the decisions reported in 1999 (II) CTC 606 [R.Rajendran vs. E.M.Kuthurathullah] (2000) II MLJ 339 [Murugan Finance, Arni vs. Senthilnathan], 2001-1-L.W.153 [L.Puttalingam vs. L.Sivalingam] and 2015 (4) CTC 403 [Mariammal and another vs. Narayanan] as to the principles of law to be taken into consideration while deciding the petition for eviction on the ground of demolition and reconstruction. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
19. When it is found that the only document marked as Ex.P3 do not support the case of the landlady and on the other hand, it is found that the same had been brought into existence after the institution of the petition and when the landlady has not placed any material in furtherance of the above said plan and when the said plan has also not been established to be a genuine one prepared for the purpose of the need for the landlady as such, it is seen that the case of the landlady that she requires the building bona fidely on the ground of demolition and reconstruction as such cannot be accepted.
20. In the light of the above discussions, when it is found that the Courts below have, on the proper appreciation of the materials placed, both on facts as well as on the question of law, analyzed the issues in the proper perspective and their findings and conclusions for dismissing the petition of the landlady are not shown to be perverse or without consideration of the material evidence, it is seen that the decision relied upon by the learned counsel for the landlady reported in 2016 (2) CTC 292 [Kasthuri Radhakrishnan and others vs. M.Chinniyan and others] is not applicable to the case at hand.
21. In view of the above said reasonings, I hold that the requirement of the property by the petitioner on the ground of demolition and reconstruction is not bona fide and thus, she is not entitled to evict the respondent from the property on that ground. Accordingly, Point No.I is answered in favour of the respondent and against the petitioner.
POINT NO.II:
22. In conclusion, the fair and decreetal orders, dated 27.04.2007, passed in R.C.A.No.36 of 2005, on the file of the Rent Control Appellate Authority (I Additional Sub Court), Tirunelveli, confirming the fair and decreetal orders, dated 19.11.2004, passed in R.C.O.P.No.16 of 2004, on the file of the Rent Controller (I Additional District Munsif Court), Tirunelveli, are confirmed and resultantly, the civil revision petition is dismissed with costs.
To:
1.The I Additional Sub Judge, Rent Control Appellate Authority, Tirunelveli.
2.The I Additional District Munsif, Rent Controller, Tirunelveli.
.