Madras High Court
Mrs. Nirmala Daga vs Loknath Rao on 7 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 07.08.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No. 324 of 2013 Harikrishnan Daga (Deceased) Rep. by his LRs 1. Mrs. Nirmala Daga 2. Vaibhav Daga ... Petitioners Vs. Loknath Rao Proprietor Udupi Hotel Sri Ganesh Bhavan No.11 Hanuman Koil Street West Mambalam Chennai 33. ... Respondent Civil Revision Petition filed against the judgment and decree dated 10.8.2012 made in R.C.A No. 569 of 2010 on the file of the VII Judge, Small Causes Court at Chennai against the order dated 21.7.2010 made in R.C.O.P.No. 399 of 2007 on the file of the XVI Judge, Small Causes Court at Chennai. For Petitioners:- Mr.N.Bakthavatsalam For Respondent :- Mr.Ashok Menon ORDER
The petitioners are the landlords and the respondent is the tenant. The original landlord, died after an order of eviction passed by the learned Rent Controller. Thus, these petitioners were brought on record before Appellate Authority as the legal representatives of the deceased landlord. For the sake of convenience, I refer the parties as landlords and tenant respectively.
2. The landlords filed R.C.O.P.No. 399 of 2007 on the file of the Small Causes Court, Chennai, seeking for eviction of the tenant on the grounds of wilful default, act of waste, act of nuisance, sub-letting and demolition and reconstruction. The leaned Rent Controller, though rejected the grounds of wilful default, act of waste, act of nuisance and sub-letting, has however, allowed the eviction petition on the ground of demolition and reconstruction. The said order dated 21.7.2010 was challenged by the tenant before the learned Rent Control Appellate Authority , Chennai in R.C.A.No. 569 of 2010. By his judgment and decree dated 10.8.2012, the Appellate Authority reversed the finding and dismissed the eviction petition. Thus, the aggrieved landlords are before this Court.
3. It was pleaded by the landlords that the building is fairly old and its structural condition is very bad and the same may crumble down in the near future thereby causing loss of lives and properties. It was also stated that sufficient funds to carry on the work of demolition and reconstruction were available and steps were taken to apply for getting sanction for such purpose.
4. The tenant disputed those contentions. It is his case that the building has three floors and there are number of tenants in occupation. The building is in a sound and good condition and will sustain for another 50 to 60 years. It does not require immediate demolition. The tenant is maintaining the petition premises in good condition. There is no bonafide requirement and the landlords had no sufficient means to construct a new building.
5. The learned Rent Controller allowed the petition by holding that the original landlord had proved his claim through adequate proof under Exs.P4, P5, P10, 14 and 15 and thus, the requirement is bonafide. The learned Rent Controller also taken into consideration of the subsequent events i.e. on 8.9.2008, during the pendency of RCOP, a portion of the building at second floor crumbled and fallen down on the roof of the first floor.
6. The aggrieved tenant filed an appeal before the Rent Control Appellate Authority, who in turn reversed the finding of the Rent Controller on the ground that the landlord has not proved his bonafide and the sufficient means. It is also found that the landlord had not given mandatory undertaking under Section 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent ) Control Act, in his petition, which is a condition precedent. Thus, the appellate authority rejected the petition for eviction.
7. Thus, the only question that arises for consideration in this Civil Revision Petition is as to whether the requirement of the landlord on the ground of demolition and reconstruction is bonafide and whether the petition for eviction can be rejected if no written undertaking as contemplated under Section 14 (2)(b) of the said Act is given in the petition.
8. Mr. M.Bakthavatsalam, learned counsel appearing for the petitioner submitted that the very fact that the portion of the second floor got collapsed and had fallen down on 8.9.2008 would prove the bad condition of the building as well as the bonafide requirement of the landlords. He further submitted that pursuant to such incident, the Corporation of Chennai issued a demolition notice on the very next day to the original landlord as well as to all the tenants in occupation. It is further submitted that the original landlord in turn issued notice to the tenants on 12.9.2008 calling upon them to vacate the premises immediately. Out of seven tenants, five tenants have vacated during the month of October 2008 itself and the 6th tenant also vacated on 13.12.2011 in pursuant to an order made by the Hon'ble Apex Court in SLP No. 23379 of 2011. Only the present tenant is contesting the matter. Out of the total extent of the entire building, the present tenant is in occupation of only 2488 sq.ft. and running hotel business therein. The landlord had proved the bonafide requirement by marking Exs.P4, P5, P10, P14, P15 and P16. The Rent Control Act does not contemplate anywhere to prove the means as well as the age and condition of the building . Therefore, the interpretation of Section 14(1)(b) must be in accordance with the provision and not otherwise. The landlord need not jingle the coins before the Court to prove the means. When the statutory authority issued a notice for demolition, the law presumes that the building requires demolition. Absence of an undertaking under section 14(2)(b) in the pleadings is only a technical error and the same is curable at any stage of the proceedings. In fact, a request was made for giving such undertaking by the landlords before the appellate Court and the same was not considered. The tenant had not pleaded any prejudice regarding absence of such undertaking. P.W. 1 original landlord was doing finance business as it was elucidated during his cross examination. Therefore, the financial status is proved. Apart from that the present landlords have filed documents before this Court viz., Fixed Deposit Receipts with the Punjab National Bank showing that they are having about more than Rs. 1 crore in their hand which are going to get matured during March 2014. The building plan can be obtained only after the completion of the demolition and therefore non-filing of building plan cannot be construed the requirement as without any bonafide.
9. In support of his submissions, the learned counsel relied on the following decisions:-
1. 2004 (2) CTC 364 (P.S.Pareed Kaka and Others Vs. Shafee Ahmed Saheb)
2. 2006 (4) SCC 507 (S.Venugopal Vs. A.Karruppusami and Another)
3. 2000 (1) CTC 287 ( Akbar Ali and Others Vs. Donian Rodrigo and Another)
4. 2007 (2) CTC 518 (Lakshmi Vs. M.V.Balamurali and Another)
5. 1996 (1) L.W. 510 ( Chandanmal Mootha Vs. Hajee Mohideen and Others)
6. 2002 (2) CTC (SC) 549 (Harrington House School Vs. S.M.Ispahani and another)
7. 2006 (3) TLNJ 10 (Civil) (K.Sanjeevi Kumar Vs. P.Somasundaram )
8. 2004 (3) CTC 784 (K.S.Ramu (died ) and others Vs. Rukmani Sundaram and Another)
10. Per contra, Mr. Ashoka Menon, learned counsel appearing for the tenant submitted as follows:-
The very filing of eviction petition on five grounds would show that the landlord wanted to evict the tenant somehow or other and therefore there is no bonafide. The parapet wall alone got collapsed and fallen on the roof. Otherwise the building is in good condition. No evidence was produced to show the means for reconstruction especially when the tenant has disputed the same. The eviction cannot be granted under Section 14 (1)( b) on mere asking of the landlord. Except filing the demolition plan, nothing was filed to prove the reconstruction of the building. The landlord failed to give mandatory undertaking under Section 14(2)(b). It cannot be cured at a later stage since such undertaking is to be given as a condition precedent. In the absence of such undertaking, the right of tenant for repossession is deprived of. The original landlord died after the RCOP order and his legal heirs did not show any means even before the Appellate Authority.
11. In support of his submissions, the learned counsel relied on the following decisions:
1. 1997 MLJ 98 (SC) (Vijay Singh Vs Vijayalakshmi Ammal)
2. 1965 MLJ 12 (Sha Manakchand Vs. Sankarji Moolchand )
3. 1989 (1) MLJ 407 ( Thayammal Vs. K.Subramaniam )
4. 1999 (3) MLJ 43 (Krishnan and Others Vs.Ravindranath)
5. 2005 (4) MLJ 628 (M.Abu Tahir Vs. M.Rahamathulla)
6. 1996 (1) MLJ 657 (The Bishop in Office of CSI Vellore Diocese Vs. Jeyakaran Joseph and Others)
12. Heard the learned counsel for the petitioners as well as the respondent and perused the materials placed before this Court.
13. The petitioners are seeking the premises on the ground of demolition and reconstruction. In order to find out as to whether such requirement is bonafide , the following facts and circumstances with dates and events are relevant. The RCOP was filed on 26.2.2007. Before filing the said eviction petition, the original landlord issued a notice on 29.1.2007 to the respondent to vacate by stating that the condition of the building was very bad and may crumble down in the near future thereby causing loss of lives of its occupants and their properties. The said notice was marked as Ex.P1. No doubt, the tenant denied that there was no bonafide on the part of the landlord as there were other tenants occupying the first and second floors of the same building. Now, it is claimed that all other tenants have vacated and such claim of the landlords is not disputed by the tenant.
14. With regard to the condition of the building, there are pleadings and counter pleadings by the respective parties disputing each other. Both of them have also let in evidence through their respective Engineers as P.W.2 and R.W.2. Their statements also contradict each other. But the undisputed fact is that a portion of the second floor got collapsed during the pendency of the RCOP i.e. on 7.9.2008 and had fallen down on the roof of the first floor. It is not the case of the tenant that said incident was the creation of the landlord. On the other hand, the fact remains that it had happened as an act of God. Even though it is stated by the learned counsel for the tenant that only the parapet wall had collapsed and fallen over the first floor roofing , such incident undoubtedly show that the building is not in good shape and condition. Such crumbling of a portion of the building can not be brushed aside or ignored as an irrelevant factor. In fact, it was noticed widely by the public and a press news was carried in "The Hindu", dated 8.9.2008 about the incidence. A perusal of the said news report marked as Ex.P4 shows that a portion of dilapidated building believed to be about 60 years old collapsed and the cracks in the building were widened by the roots of a peepal tree. It was also referred to therein that the debris that was left hanging dangerously on the second floor was cleared by seven firemen and two fire tenders. Consequent upon such incident, the Corporation of Chennai immediately issued notice under Section 258 of the Madras City Municipal Act IV of 1919. It was stated therein that on 7.9.2008 the portion of the building got collapsed and that the remaining part of the building was also in a dangerous state. Accordingly, the landlord was called upon to pull down the dangerous building immediately. The said notice further informed the landlord that any failure would result in further action under the said Act. This notice was marked as Ex.P5. Immediately, the landlord called upon all the tenants including the respondent herein to vacate, through his notice dated 12.9.2008 which has been marked as Ex.P6. He also filed a plan before the Corporation by paying necessary fees towards the demolition charges and the Corporation of Chennai received the said amount through the challan dated 28.2.2009. The said challan was marked as Ex.P14. Consequently, the Corporation of Chennai issued proceedings dated 24.8.2009 permitting the demolition in accordance with the provisions of Section 246 (A) of Madras City Municipal Corporation Act. The said proceedings of the Corporation was marked as Ex.P15. The demolition plan was marked as Ex.P16. All these facts and circumstances would prove without any doubt that the building is in a bad shape and requires immediate demolition. The tenant is not disputing any of these documents except by saying that only the parapet wall had collapsed and that the building is otherwise is in good condition. In my view, no prudent man will say so in spite of all these events and developments.
15. Thus, I am unable to accept the contention of the tenant that the building is in good condition in spite of the material evidences produced before the Court under Exs.P4, P5,P10, P15, P16 as referred to supra. No doubt those exhibits relate to the events that had taken place subsequent to the filing of the RCOP. But at the same time, when a petition is filed seeking for eviction on the ground of demolition and reconstruction, the condition of the building at every stage either before or after filing of the RCOP, is important and relevant for consideration and cannot be ignored. When the landlord comes to the Court by complaining that the building is in bad condition and requires immediate demolition, such contention cannot be rejected merely because the landlord had produced some evidence before the Court which are referable to subsequent developments. In my considered view, subsequent developments are also equally or in some cases, much more important than the original pleadings, especially while considering the application under Section 14(1)(b). So long as those developments are not proved to have taken place deliberately at the instance of the landlord, then those subsequent developments play a vital role in deciding the application under Section 14(1)(b). Unfortunately, the Appellate Authority rejected the petition without considering this aspect in a proper manner.
16. It is the finding of the Appellate Authority that filing of the eviction petition on six grounds is a clear proof to show that the landlord at any cost intended to evict the respondent/tenant. It is also found by him that the landlord had not opted to file any eviction petition as against the other tenants. I fail to understand as to how the learned Appellate Authority has come to such conclusion by totally ignoring those subsequent developments, which are proved before the learned Rent Controller, by marking Exs.P4 P5, P10, P15 and P16. Absolutely, the learned Appellate Authority has not given any finding on those material evidences. Therefore, I am of the view that the bonafide of the landlord is proved, more than what is required. In fact, by crumbling and falling down of its portion of the second floor over the roof of the first floor, the very building itself stood as a witness supporting the bonafide requirement. I don't think that such evidence of the nature can either be overlooked or brushed aside. There could be no better evidence than this.
17. Even otherwise, it is already a settled proposition that the condition of the building need not necessarily be in a dilapidated stage for seeking eviction on the ground of demolition and reconstruction as held by the Apex Court in the decision reported in 2004 (2) CTC 364 (P.S.Pareed Kaka and Others Vs. Shafee Ahmed Saheb), wherein it is held thus:-
"11. Law is well settled on this aspect . Even if the building is in a good condition, if it is not suitable for the requirement of the landlord, he can always demolish even a good building and put up a new building to suit his requirements. It is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition, particularly when the premises is required by the landlord. Therefore, it has to be held that the finding of the trial Court cannot be sustained and the High Court on re-appreciation of the evidence, rightly so, held that the landlord has established that his need for all the four petition schedule premises is bona fide and reasonable. "
18. It is also found in the said decision that it is not for the tenants to suggest that there is no need to demolish the existing building and construct the new building. The relevant paragraph 9 is extracted hereunder: -
"9. This brings us to the need for the petition schedule premises. It is in evidence that the premises is very old and the building therein is dilapidated and portions of the building have also collapsed. It is also in evidence that the rear outhouse building has already collapsed. In these circumstance, it cannot be said that the said need is not bonafide or unreasonable. It is not for the tenants to suggest that there is no need to demolish the existing building and construct the new building. The landlord, in our view, is entitled to make use of his property for any reasonable purpose. If the landlord chooses to use if for residential purpose, the tenants cannot say that he should not do so to using for commercial purposes. We, therefore, hold that the landlord has made out the need clearly. "
19. In the decision reported in 2006 (4) SCC 507 (S.Venugopal Vs. A.Karruppusami and Another) at paragraph 7, it has been observed as follows:-
"7. On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short 'the Act') contemplates a building which is bona fide required by the landlord for the immediate purpose of demolishing it, and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site."
20. While coming to the means of the landlord, it is contended by the learned counsel for the tenant that no document is filed to prove the means. True, the landlord has not marked any documents to prove their means but at the same time he has averred in his petition that he has sufficient means to carry out the work of demolition and reconstruction and also taken taken steps to get the plan for such purpose. When he was examined as P.W.1, he has stated that he was doing financial business and also wholesale business in electricals. In fact, the landlord has also paid the demolition charges to the Corporation in a sum of Rs. 57,130/- on 28.2.2009 and such receipt issued by the Corporation was marked as Ex.P14. The petitioners, now before this Court, have filed the xerox copies of Fixed Deposit Receipts dated 4.3.2011 and 23.3.2011 and 1.7.2011 for Rs.10,00,000/- Rs.10,00,000/- Rs.25,00,000/-, Rs.25,00,000/- Rs.33,34,675/- Rs.13,20,663/- Rs.2,00,000; Rs.15,96,520; and Rs.50,000/- thus, totalling for a sum of Rs.1,35,01,858/-. No doubt these Fixed Deposit Receipts were not marked before the Courts below. But, at the same time, this Court cannot shut its eyes and refuse to look into those documents especially when the petitioners are only trying to establish that they are having sufficient means to construct the building . Even in the absence of those documents, now a days, it is not a difficult task to get financial assistance from the banks or other financial institutions to meet the cost of the construction.
21. In so far as the issue with regard to the sufficient means to construct the building is concerned, it is held in the decision reported in 2000 (1) CTC 287 (Akbar Ali and Others Vs. Donian Rodrigo and Another) at paragraph 17 as follows.
"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 positionin the ruling reported in Vijay Singh etc., V.SijayalakshmiAmmal 1996 (2) CTC 586 and Lakshman A and Others V. Kanniammal @Pattammal 1995 (1) LW 632. It is alleged in the petition that the petitioners have got sufficient means to put up new construction.
..... ...... .....
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 does 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. "
22. Likewise, the Apex Court in the decision reported in 2006 (4) SCC 507 (S.Venugopal Vs. A.Karruppusami and Another) at paragraph 11 has held as follows:
"11. In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storyed building which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact that the landlord has himself indicated that he was willing to invest a sum of Rs. One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs."
23. In a decision reported in 2007 (2) CTC 518 (Lakshmi Vs. M.V.Balamurali and Another) a learned single Judge of this Court at paragraph 28 has observed as follows:
"28. In the case in hand, the rent controller after going through Exs.C1 and C2 which are Commissioner's report and plan and Exs.A9 and A10 which are the approval of the Salem Municipal Commissioner for the proposed construction came to the conclusion that the landlord has means to reconstruct the building and he has also taken some positive steps towards reconstruction. Therefore in the light of the above Supreme Court judgment reported in 2006(2) CTC 615 (cited supra) and also in the light of the change in scenario in this country where loans are easily available for a property owner to put up a new construction, I am of the view that the appellate authority is wrong in holding that the landlord has not established his means to put up a new construction.
Thus, from the reading of the above referred case laws, it is crystal clear that the landlord need not exactly show his financial condition that he has got sufficient means to put up the construction.
24. At this juncture, it is also useful to note that the Act does not contemplate that the landlord should prove his means to put up the construction. A perusal of Section 14(1)(b) only requires that the landlord should prove his bonafide of his requirement for the immediate purpose of demolishing the building and reconstruction of the same. The "bonafide" contemplated under Section 14(1)(b) cannot be held as not proved merely because the landlord had not shown the sufficient means. As already stated, means to construct the building need not necessarily be available instantly with the landlord at the time of filing the petition. It can be raised from any financial institutions or banks, once he gets the planning permission after evicting the tenants from the premises. In this case, as found supra, the landlords have proved their means.
25. Above all, when a statutory authority had issued a notice of demolition of the building and also threatened the landlord to face penal consequences if he does not demolish, the law presumes that the building is in a bad shape and requires immediate demolition, in the absence of any other material to prove that such issuance of notice was bad or unwarranted. Thus, the Courts, have to take serious note of such statutory notices especially when the eviction is sought for under the ground of demolition and reconstruction.
26. At this juncture, let me refer to the decision reported in 1996 (1) L.W. 510 (Chandanmal Mootha Vs. Hajee Mohideen and Others) wherein the learned Judge had observed as follows:-
"30. P.W.2 is an Expert Engineer, who has inspected the building and has submitted a Report. Even before that Report, the Corporation of Madras has issued a notice to the landlords, asking them to demolish the building in question, in view of its dangerous condition. That notice has been marked as Ex.A-5. When a Statutory Authority issues a notice, law presumes that before issuing that notice, the Authority was satisfied about the condition of the building. "
27. Now let me consider the next issue regarding absence of statutory undertaking under Section 14(2)(b). It is stoutly contended by the learned counsel for the tenant that eviction cannot be ordered under Section 14 (1)(b) in the absence of statutory undertaking given under Section 14(2)(b), which reads as follows:-
"14(2) No order directing the tenant to deliver possessions of the building under this section shall be passed;
(a) .... .... .....
(b) on the ground specified in clause (b) of sub-section (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow."
28. Before referring the case laws submitted by either side on this issue, let me consider the scope and ambit of Section 14(2)(b). A bare perusal of the said provision shows that when an application for eviction under section 14(1)(b) is filed, no order directing the tenant to deliver possession of the building shall be passed unless the landlord gives an undertaking that the work of demolishing of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date when he recovers possession of the entire building. Thus, the provision of law only contemplates of filing such an undertaking, before passing an order of eviction by the Rent Controller. It does not contemplate that such undertaking is a condition precedent for filing an application. If that was the intention of the legislature, then such condition should have been incorporated or stipulated under Section 14(1)(b) itself. A perusal of Section 14 (1)(b) shows that the Rent Controller shall pass an order directing the tenant to deliver possession of the building to the landlord if he is satisfied that the building is bonafidely required by the landlord for the purpose of demolition and reconstruction.
29. Under Section 14 (1)(b), it is required that the petitioner / landlord should only show his bonafide and if such bonafide requirement is proved and found satisfied by the Rent Controller, then he can order eviction. No doubt, Section 14 (2)(b) contemplates that no such order of eviction can be passed unless the landlord gives an undertaking as stated supra. In my considered view, requirement to furnish such undertaking would arise only when the Rent Controller is satisfied with the bonafide requirement of the landlord under Section 14(1)(b) and before ordering such eviction or while passing the order of eviction, he can call upon the landlord to give such an affidavit of undertaking as contemplated under Section 14(2)(b), if the landlord had not given the same already in his petition. The Act does not say anywhere that no petition shall be filed by the landlord without such an undertaking. But on the other hand, it only contemplates that no order of eviction shall be passed by the Rent Controller without such an undertaking. Thus, in my considered view, such an undertaking, even if not given in the original petition, can be given at a later stage by the landlord. Therefore, an omission or failure to give such undertaking in the original application, does not vitiate the proceedings or defeat the claim of the landlord.
30. No doubt, the undertaking contemplated under Section 14(2)(b) is for protecting the interest of the tenant to seek repossession under Section 16 of the said Act, if the landlord fails to demolish the building within the time stated in his undertaking. The intention of legislature seeking undertaking under Section 14(2)(b) is to order repossession under Section 16, in case of failure of the landlord to adhere to the time frame action. Thus, repossession should be the net result in case of default under Section 14(2)(b). At the same time, it has to be seen as to whether such repossession is possible or would it be in the interest and safety of the tenant in all cases of failure under Section 14(2)(b), more particularly, when the Court finds that the building is in such a dilapidated condition and requires immediate demolition. The answer should be, certainly, in negative. It would be a different matter if the intention to demolish and reconstruct is for augmentation of income alone. Therefore, wherever the demolition is sought for on the reason that the building is in dilapidated condition and the court also finds so, then in respect of those cases, repossession is not practicable, even assuming that the landlord has not commenced the demolition work within the stipulated time. Thus, the absence of giving such undertaking in those cases may not have any relevance or significance as the object behind seeking such undertaking itself cannot be achieved. Thus, in my considered view, the requirement of Section 14(2)(b) compliance or its failure has to be judged by taking note of the facts and circumstances of each case and cannot be applied uniformly in strict sense in all cases under Section 14(1)(b) .
31. In fact in a decision relied on by the learned counsel for the petitioners and reported in 2002 (2) CTC (SC) 549 (Harrington House School Vs. S.M.Ispahani and another) the Hon'ble Supreme Court has permitted the landlord therein to file an undertaking before the executing court as required under clause (b) of Section 14(2).
32. In another decision reported in 2006 (3) TLNJ 10 (Civil) (K.Sanjeevi Kumar Vs. P.Somasundaram ) a learned single Judge of this Court at paragraphs 18,19, and 20 has held as follows:-
"18. But as early as in B.C. Diocese of Madurai Vs. Ganapthy Iyer (19767 (vol. 89) L.W. 584), this Court found as follows:- " An undertaking given before the Rent Controller, even though subsequent to the order of eviction passed by the Rent Controller, can be taken into consideration by and such undertaking has to be constructed as full compliance of the direction contemplated under Section 14(2)(b) of the Act ."
19. Without going into the effect of the mandatory provision under Section 14(2)(b) which seem to be hyper technical, as and when there is opportunity for an landlord to correct himself and file an undertaking before ever an eviction is implemented, then there is no prejudice or harm caused in permitting him to oblige the mandate of Section 14(2)(b). It is in that view of the matter the Apex Court in the case law in Harrington House Vs. S.M.Ispahani (2002 (2) CTC 549) at the end of the judgment as follows:-
"Along with the plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of sub-section 2 of the Section 14 of the Act.
20. From the above judgment of the Apex Court it made clear that even erring landlord in not filling an undertaking can be given an opportunity to rectify the error and file an undertaking before ever an order of eviction is passed and that same can be done in appeal or revisional stage. "
33. Further, in the decision reported in 2007 (2) CTC 518 (Lakshmi Vs. M.V.Balamurali and Another), the learned single Judge of this Court at paragraphs 29 and 30 has held as follows:-
29. Coming to the question of the landlord's not giving an undertaking under Sec.14(2)(b) of the Act, it is true that if no such undertaking is given it is not in consonance with the provisions of the Act. But what is to be decided is whether not giving an undertaking is a rectifiable error or not. This court has already held in 2006(2) M.L.J. 524 (cited supra) that it is only an error and the landlord can be given an opportunity to rectify the error and file an undertaking before the order of eviction is passed and the same can be done in appeal or revisional stage. 30. I am in respectful agreement with the above decision and if the above said decision is applied to the facts of this case, the appellate authority is certainly wrong in not giving an opportunity to the landlord to rectify the error by giving an undertaking before him, instead of rejecting the prayer on the ground that no undertaking was given. Therefore now I am giving an opportunity to the 1st respondent/landlord to give an undertaking under Sec.14(2)(b) of the Act before the order of eviction is implemented."
34. From the perusal of these decisions, it is also made clear that non-furnishing of such undertaking is only a technical error and the same is curable at any stage of the proceedings. If such is not the interpretation, then it would defeat the object and scope of Section 14 (1)(b) itself. For instance, let us presume that the building is undisputedly in a dilapidated condition and it requires immediate demolition and that the landlord, by oversight or otherwise failed to give an undertaking in his petition. Let us presume further that the bonafide of the landlord was also found proved by the Court. In spite of all these things, can it be said that the landlord is not entitled to an order of eviction and that he cannot demolish and reconstruct the building, merely because he has not given an undertaking under Section 14(2)(b) ? Certainly, the answer should be in negative. No court could say that in spite of the bad shape of the building the tenant should be permitted to continue therein and the landlord cannot demolish and reconstruct. The requirement under Section 14(2)(b) though prima facie appears to be mandatory, in strict sense, it could be construed only as directory and thus it cannot be stated as a condition precedent. Even if it is a condition precedent, any omission to mention the same in the original petition would have to be further construed only as a technical error curable at any stage of the proceedings.
35. Let me consider the case laws relied on by the learned counsel for the respondent.
In 1997 MLJ 98 (SC) (Vijay Singh Vs Vijayalakshmi Ammal ) the Apex Court has held that for recording a finding that requirement for demolition was bonafide, the Rent Controller has to take into account the bonafide intention of the landlord , the age and condition of the building; and the financial position of the landlord. I don't think that this decision will help the tenant in any manner, in view of the subsequent decison of the Apex Court in the cases of P.S Pareed Kaka and S.Venugopal cited supra, where the above view has been either changed or diluted. Apart from that the facts and circumstances coupled with subsequent events of the present case would prove the bonafide of the landlord and his financial position.
36. Learned counsel for the respondent relied on the decision reported in Sha Manakchand Vs. Sankarji Moolchand ( 1965 MLJ 12) to contend that in the absence of any evidence except a plan, the order of eviction under Section 14(1)(b ) cannot be granted. The facts of that case is totally different and distinguishable. In that case only the plan was obtained and filed. Therefore, the learned Judge had come to the conclusion that mere filing of the plan itself would not entitle eviction . In the very same decision, the learned Judge has observed that each case has to be judged upon the totality of its facts, and it may be impossible to lay down any hard and fast rules. Therefore, taking note of the facts and circumstances of the present case, the above said case law does not help the tenant in any manner.
37. In a decision reported in Thayammal Vs. K.Subramaniam ( 1989 (1) MLJ 407) , in fact, a learned single Judge of this Court has held that the landlord giving evidence on oath undertaking to demolish and reconstruct the building is sufficient to satisfy the requirement of the Section and separate undertaking is not necessary. In the very same decision, the learned Judge has observed at paragraph 6 that the undertaking has to be given before passing the order of eviction. The relevant portion is extracted hereunder:
"6. ...... In my view , that statement in the deposition is an undertaking sufficient to satisfy the requirement of S.14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control ) Act 23 of 1973. Neither in the Act nor in the Rules any form is prescribed for the undertaking mentioned in the Section. When the party gives evidence on oath and particularly when he signs the deposition, that will be a sufficient undertaking within the meaning of the section. There is no necessity to file a separate undertaking apart from such evidence. Under the Section, the undertaking has to be given before passing of the order of eviction. In this case, apart from the affidavit filed at the time of the filing of the eviction petition, the landlord has also made the statement in his deposition in the course of the trial. That is certainly prior to the passing of the order of eviction. Hence, the contention that there was no undertaking as required by the section has to be rejected. "
A perusal of the above said finding of the learned Judge would in fact support the case of the landlord herein instead of supporting the case of the tenant. Therefore, the said decision is also not helping the tenant in any manner.
38. No doubt, in two decisions reported in Krishnan and Others Vs.Ravindranath (1999 (3) MLJ 43) and in M.Abu Tahir Vs. M.Rahamathulla (2005 (4) MLJ 628) this Court has held that the landlord cannot be permitted to file the affidavit of undertaking pending appeal by the tenants. But, a subsequent decision as referred to supra reported in 2007 (2) CTC 518 ( Lakshmi Vs. M.V.Balamurali and Another) rendered by another learned single Judge, is in support of the landlord, wherein after following the earlier decision reported in 2006 (2) MLJ 524 (K.Sanjeevi Kumar V.P.Somasundaram) the learned Judge has observed that it is only an error and the landlord can be given an opportunity to rectify the error and file an undertaking before the order of eviction is passed and the same can be done even in Appeal or revisional stage. I respectfully follow the latter decision made in Lakshmi's case in this aspect, as my view is supported by the said decision. Even otherwise the peculiar facts and circumstances of this case would show that non-compliance of Section 14(2)( b) should not be a bar for granting the relief to the landlord.
39. In The Bishop in Office of CSI Vellore Diocese Vs. Jeyakaran Joseph and Others ( 1996 (1) MLJ 657), a Division Bench of this Court has held that when by subsequent events, if the prayers become infructuous and nothing survives in the suit, the Court ought to take the same into account and pass appropriate orders. This decision is relied on by the learned counsel for the respondent / tenant to contend that after the death of the landlord the legal representatives who were brought on record have not shown the sufficient means. On this aspect, I have already found that the petitioners have established their sufficient means by placing materials before this Court viz., Fixed Deposit Receipts to the tune of Rs. 1 crore and more, which are not disputed or denied by the tenant. Therefore, the said decision is also not supporting the case of the petitioner in any manner.
40. For all the reasons stated above, I am of the view that the revision petitioners have made out a case for eviction under Section 14(1)(b) and consequently, the order of the Appellate Authority in reversing the order of the learned Rent Controller is not sustainable in the eye of law. Accordingly, the Civil Revision Petition is allowed and the judgment and decree made by the Appellate Authority in dismissing the eviction petition are set aside. Consequently, the order of the Rent Controller is restored. The respondent/ tenant is directed to vacate and hand over vacant possession to the petitioners within a period of three months from the date of receipt of copy of this order. No costs.
07.08.2013 Index:Yes/No Internet:Yes/No krr/ To The Registrar Small Causes Court Chennai.
K.RAVICHANDRABAABU,J.
krr/ Pre-Delivery Order in C.R.P.(NPD) No. 324 of 2013 Dated:- 07 .08.2013