Madras High Court
Ameeruddin And Four Ors. vs Premakumari on 28 February, 1995
Equivalent citations: 1995(1)CTC340
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. Both the revisions arise out of a common order passed by the Appellate Authority ordering eviction on the ground of demolition and reconstruction. The petitioners are the tenants. The respondent filed Rcop Nos. 285 and 287 of 1979 on the file of the Rent Controller/District Munsif, Coimbatore, against the two tenants/revision petitioners for eviction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act). Her contention was that the building was on old one and not in a good condition and that the same is required for the immediate purpose of demolition and reconstruction. Both the tenants contended inter alia, that the petition building was in a good condition and did not require demolition at all, that the landlady demanded fabulous rent and consequent upon her failure to get such enhanced rent, she had come to court with the vexatious petitions contending untenable grounds, that the need is not bonafide and that therefore, the petitions are liable to be dismissed in limine. The learned Rent Controller, after considering the documents and also the averments made in the petition and in the counter, held that the need of the landlady is not bonafide, and on this ground and on other grounds, dismissed both the petitions. The landlady thereupon preferred RCA Nos. 10 and 11 of 1989 before the Appellate Authority/subordinate judge, Coimbatore. The learned Appellate Authority allowed the appeals and ordered eviction. Against the common judgment of the Appellate Authority, the tenants have preferred the present revisions.
2. I have heard Mr. K. Sampath, learned senior Counsel for the petitioner in CRP No. 1119 of 1990, Mr. S. Rajasekaran, learned counsel for the petitioner in CRP No. 1334 of 1990 and Mr. G. Subramaniam, learned Senior Counsel for the respondent in both the revisions.
3. It is contended by Mr. K. Sampath that the appellate Authority has erred in reversing the well considered order of the Rent Controller without considering the fact that none was examined on the side of the landlady to show her alleged bonafide need for demolition and reconstruction of the petition building. The Appellate Authority also, according to the learned Senior Counsel for the petitioners, has erred in allowing I.A.No. 903 of 1989 in RCA No. 10 of 1989 for reception of additional evidence over looking the fact that there was no justification for not producing those documents before the rent Controller, Mr. K. Sampath raised the following contentions at the time of hearing:
a. The Appellate Authority has erred in reversing the well considered order of the Rent Controller without properly considering the averments in the petition, both oral and documentary evidence, and the law on the subject.
b. The Appellate Authority, has erred in allowing I.A.No. 903 of 1983 in RCA No. 10 of 1989 for reception of additional evidence over looking the fact that there was no justification for not producing them before the Rent Controller.
c. The Appellate Authority has failed to see that in assessing the bonafides of the landlord to undertake new construction, the existing condition of the building, age of the building and preparation was being made by the landlord by way of getting the plan for the new building from the municipal authorities, are relevant factors to be considered.
d. The Appellate Authority has also failed to see that there was no evidence let in on the side of the landlady before the Rent Controller to fix the age of the building and under Section 14(1) of the Act, the landlord who approaches the court alleging that the building was old and required immediate demolition, must discharge his onus by letting in independent evidence.
4. Per contra, Mr. G. Subramaniam, learned Senior Counsel for the respondent/landlady tried to support the finding of the Appellate Authority. I had been taken through the entire pleadings, evidence, both oral and documentary, report of the Advocate Commissioner and the documentary evidence let in at the appellate stage under Section 14(2) of the Act. Mr. G. Subramaniam contended that the Appellate Authority has got every right to receive additional evidence since, according to him, the landlady has obtained the licence and plan from the Coimbatore corporation even in the year 1979 but the same could not be renewed for more than two times as per the rules of the corporation. He further contends that the said licence and plan approved in the year 1979 were entrusted to the landlady's previous advocate Mr. Venkatesamurthi, who misplaced them and the same could not be traced by him. This fact is borne out by filing IA No. 284 of 1984 in RCOP No. 285 of 1979. The said documents, according to Mr. G. Subramaniam, are necessary for proper adjudication of the appeals and therefore, they were filed at the appellate stage.
5. In my opinion, the order of the appellate Authority in ordering eviction on the basis of the evidence available, both oral and documentary, is wholly irregular and illegal. I am of opinion that the Appellate Authority has erred is not properly considering the averments made in the petitions and the oral and documentary evidence in its proper perspective and also the law on the subject. The landlady in support of her claim under Section 14(1)(b) of the Act has in paragraph 4 of Rcop No. 285 of 1979 stated as follows:
"The petitioner submits that the petition building is an old building and is not in a good condition. The petitioner desirous to demolish and reconstruct a new building. In the circumstances, the petitioner requires the building for the immediate purpose of demolition and reconstruction".
In my opinion, there is no averment in the petition that the building is old and dilapidated and that it requires immediate demolition. Necessary averments which are required under the provisions of the Act have not been made in the petition.
6. The tenant have denied in toto the requirement of the landlady as false and unfounded. According to them, the building is not old, that the same is in good condition and that it does not require repairs much less there is a need for demolition for putting up a new building. The landlady, according to the tenants, has come to court with a false averment that the building is not in a good condition. They would contend that the landlady has come to court with an imaginary contention of demolition with a view to evict them from the petition premises on some pretext or other so that the same can be let out to some third parties on enhanced rent.
7. During the pendency of the rent control proceedings, the landlady took out an application for appointment of an Advocate Commissioner to inspect the property in regard to the nature and soundness of the building. The advocate Commissioner has filed his report in K.A.No. 71 of 1982 in RCOP.No. 285 of 1979 stating that the portion in occupation of the tenants was found locked with three locks on the northern side and therefore, he could not see the nature of the building inside. It is useful to extract paragraph 5 of his report, which is as follows:-
"On the northern side and the eastern side, the said building is covered by wooden planks, as shown in the plan, on the said plans, cinema posters have been found pasted. On some parts of the walls, the plasterings have found fallen. Since the building is kept under lock and key, I could not see the nature of the building inside. On the western wall, I found in number of places, plasterings found fallen.
The Commissioner has only said that on some parts of the walls, the plasterings have fallen. In my opinion, the report of the Advocate Commissioner will be of no assistance to the court to come to any conclusion in regard to the condition of the building.
8. The landlady in her petition though specifically contended that she has applied to the municipality for necessary licence and has obtained the plan, etc., she has not filed the same before the Rent Controller. She has filed only Exs.A1 to A-4, which are the notice issued through lawyer and the acknowledgments received from the tenants. In order to prove the condition of the building, the landlady has not examined herself but only examined her clerk who joined the services of the landlady during 1983. He would not say anything in his evidence in regard to the nature and condition of the building but only says that the building is old and if demolished, the landlady would get more income. He has further deposed that the landlady has not filed the licence and plan obtained by her from the Municipal Corporation. However, in cross-examination he would say that he has applied for plan only a day prior to his examination as a witness viz., on 5.10.1988. Thus, I am of the view, that the oral evidence tendered on the side of the landlady will be of no assistance to the court in arriving at any conclusion in regard to the nature and condition of the building. As rightly pointed out by Mr. K. Sampath, the mere allegation in the petition that the building was old not sufficient for invoking the provisions of Section 14(1)(b) of the Act. The non examination of any other independent witness on the side of the landlady to support her claim, in my opinion, was fatal and in the circumstances, the ratio laid down in the decisions reported in Metalware & Co., v. Bansilal Sharma and J.D. Devadoss v. N. Srikantiah (1986(1) MLJ 93) are applicable to the facts of this case.
9. Likewise, I agree with the contention of Mr. K. Sampath that the Appellate Authority has erred in allowing I.A.No. 903 of 1989 for reception of additional evidence overlooking the fact that there was no justification for not producing the documents before the Rent Controller. In my view, the Appellate Authority has failed to see that these documents, unless they were duly proved, could not be automatically accepted as evidence. The landlady alleges in her affidavit filed in support of I.A.No. 903 of 1989, that the licence and plan obtained in the year 1979 were entrusted to her previous counsel Mr. Venkatesamurthi who misplaced them and since they could not be traced by him she obtained the necessary building licence and approved plan from the Coimbatore Corporation for her proposed new construction with estimate and that the said documents are necessary for proper adjudication of the appeals.
10. It is settled law that the negligence of a pleader in not producing the evidence, which ought to have been produced in the lower court, does not amount to substantial cause within the meaning of Order 41 Rule 27 (b) CPC. In the instant case, sufficient cause is not shown as to why the documents even though obtained as early as in the year 1979, could not have been produced in the lower court. As already stated, the Commissioner's report will be of no assistance to the landlady to prove her claim in the lower court as to the nature and condition of the building. The Commissioner himself has stated in his report that he could not see the nature of the building inside since the building was kept under lock and key. He only stated that in some parts of the walls, the plastering have found fallen.
11. It is argued at the time of hearing that the Commissioner could not inspect since he was prevented by the tenants from doing so. Nothing prevented the landlady from taking out another application for re-issue of the warrant with police aid, if necessary, if the allegations of the landlady are true. Admittedly, the Commissioner was appointed only for the purpose of inspecting the building and to submit a report in regard to its physical condition such as age, condition and other features of the building. In the absence of any report in regard to the nature and condition of the building, the court is not in a position to come to any conclusion or to give a finding in regard to the nature and condition of the building.
12. The landlady filed an application for reception of additional documents at the appellate stage. According to her, her previous lawyer, to whom the documents were entrusted, has misplaced those documents. If so, nothing prevented her from summoning the Municipal Corporation records even at the time of enquiry by the Rent Controller. In my opinion, in assessing the bonafides of the landlord, the existing condition of the building age of the building and the preparations made by the landlady by way of getting the plan for construction of new building from the Municipal Corporations, are relevant factors to be considered, which evidence is absolutely lacking in this case. The reports of the Advocate Commissioner filed in these proceedings neither specify the petition building as old nor say that there was any necessity for immediate demolition and reconstruction.
13. It was contended on the side of the landlady that it was conceded in evidence by the tenant that the building was more than thirty years old and therefore, the authorities below ought to have come to the conclusion that the building was old and required total demolition. As pointed out by Supreme Court in the decision reported in M/S. P.ORR 7 Sons (P) Ltd., v. M/S Associated Publishers, (Madras) Limited (1990 (II) L.W., 547), the requirement for demolition can be regarded as genuine and bona fide only when the condition of the existing building is such that a reasonable and prudent landlord would regard it to be uneconomical to repair it rather than demolish it and construct a new building, and what Section 14 of the Act speaks of is a requirement emanating from the condition of the building and the bona fide character of a requirement is decided with reference to that condition as well as other factors germane to that requirement, such as the ability of the landlord to carry out the repairs or reconstruction, the location of the building and other conditions indicating the reasonableness of the demand for recovery of possession for further investment; BUT THE OVER RIDING CONSIDERATION,WHETHER IT IS A CASE OF REPAIR OR RECONSTRUCTION, IS THE CONDITION OF THE BUILDING ITSELF.
14. In the decision reported in J.D. Devadoss v. N. Srikanthiah (1986(1) MLJ, 93), K.M. Natarajan J., has held as follows:-
"The mere fact that the building is old in itself is not sufficient for invoking the provisions of Section 14(1)(b) of the Act and ordering eviction. It is desirable that the petitioner should let in evidence by examining a qualified engineer or commissioner to show that the building is in a dilapidated condition and that it requires immediate demolition and reconstruction. The mere fact that the landlord has got sufficient funds and has taken steps by obtaining the sanction of plan for demolition and reconstruction would also not be sufficient".
In the instant case, the landlady has neither examined herself nor examined a qualified engineer or the officials of the Coimbatore Corporation to show that the building is in a dilapidated condition and that it requires immediate demolition and reconstruction.
15. The Supreme Court in the decision reported in Metalware & Co., v. Bansilal Sharma has observed that the existing condition of the building is a vital factor which will have to be considered while pronouncing upon the bona fide requirement. In my opinion, in the present case, the Appellate Authority has totally ignored this vital factor. His finding on the bona fide requirement of the landlady deserves to be set aside.
16. In the decision reported in Vinod Kumar Arora v. Surjit Kaur , the Supreme Court while considering the scope of interference within revisional jurisdiction of the High Court observed as follows: -
"The rule that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court, is not entitled to disregard those findings and come to a different conclusion of its own would apply only where the findings have been rendered with reference to facts. In the instant case, the Appellate Authority has reversed the finding of the Rent Controller and rendered a finding with reference to non- existent materials and baseless assumptions. As pointed out by me earlier, there is absolutely no material to show the dilapidated condition of the building in question. The Appellate Authority has simply based its conclusion on the basis of additional documents filed at the appellate stage, which have not been proved in accordance with law. Even those two documents, in my view, would not be of any assistance to come to any conclusion in regard to the nature and condition of the building except to state that they have been issued by the Municipal Corporation by way of planning permit.
17. The decision reported in V.D. Murugesan v. V. Raj Mohammed (1995 (I) M.L.J., 84) has been cited to show that the High Court can interfere with concurrent findings if it results in mis- carriage of justice. The decision reported in A.M. Dhanapal Chettiar v. T.D. Sundaram (1991 (I) MLJ 490) was also cited at the Bar to show that the High Court can interfere even with a reversing judgment if the findings have been rendered on the basis of non-existent materials.
18. The infirmity in the Judgment of the Appellate Authority in the instant case is that it failed to draw proper inference from the evidence available on record and failed to apply the principles laid down by this court in various decisions in deciding the issue involved in this case. Therefore, I have no hesitation in holding that the judgment of the Appellate Authority is liable to be set aside. The Rent Controller has clearly found that there is nothing to show that the building is in a dilapidated condition. The Advocate Commissioner has also not found that the building is in a damaged condition. Therefore, in my opinion, there is no bona fide on the part of the landlady in invoking the provisions of Section 14(1)(b) of the Act.
19. For the fore-going reasons, I am obliged to interfere with the judgment of the Appellate Authority in these revisions. Therefore both the Civil Revision Petitions allowed and the Judgment of the Appellate Authority is set aside and that of the Rent Controller is restored. However, there will be no order as to costs.