Madras High Court
D.Venkatraman vs Hemraj Sethia on 31 August, 2006
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 31.8.2006 Coram: The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(NPD) Nos.2561 to 2569 of 2000 C.R.P.(NPD) No.2561 of 2000 D.Venkatraman .. Petitioner vs. Hemraj Sethia Prop.Umedhmal Sethia 5 Murugappan Street Sowcarpet, Chennai.600 079 .. Respondents C.R.P.No.2561/2000 filed against the order dated 6.6.2000, in R.C.A.No.53/1995 on the file of the VIII Court of Small Causes Judge at Madras, setting aside the order dated 20.12.1994 in R.C.O.P.No.3423/1992, on the file of the XVI Court of Small Causes Judge at Madras. For Petitioner : Mr.P.Sukumaran in all C.R.Ps. For Respondents : Mr.V.Ragavachari for respondent in CRPs.2563,2564, 2565 to 2569/2000. Mr.Arvindkumar in CRP.No.2561/2000 Mr.G.Veerapathiran in C.R.P.No.2562/2000 Mr.R.Suresh in CRP.No.2565/2000. COMMON ORDER
The unsuccessful landlord before the appellate authority is the revision petitioner before this court in all the above Civil Revision Petitions.
2. The landlord filed RCOP No.3422/1992 to 3428 of 1992 against the 7 tenants who are in occupation of the ground floor of the petition schedule property situated at No.5 Murugappan Street, Sowcarpet, Chennai.79. All the RCOPs., were filed under Sec.14(1)(b) of the Tamil Nadu Buildings (Lease & Rent) Control Act, 1960 (hereinafter called 'the Act'), except RCOP No.3427/1992 which was filed under Sec.14(1)(b), 10(2)(i) and 10(2)(ii)(a) of the Act and RCOP No.3428/1992 which was filed both under Sec.14(1)(b) and 10(2)(1) of the Act. The Rent Controller by a common order dated 20.12.1994 allowed all the RCOPs. as prayed for. The same landlord filed RCOP No.107/1994 against another tenant separately which is also in occupation of one of the shop portions in the ground floor of the very same building under Sec.14(1)(b), 10(2)(i) and 10(2)(vi) of the Act. By another order dated 20.12.1994, the Rent Controller allowed that RCOP also. All the 8 tenants filed appeals before the appellate authority in RCA Nos.47 to 58 of 1995 and the appellants in RCA Nos.47 and 48 of 1995 have also filed M.P.Nos.309 and 310 of 1999 to receive the additional documents. All the 8 appeals and the Miscellaneous Petitions were allowed by the appellate authority, thereby the orders of eviction passed by the rent controller were set aside. Aggrieved by the common order dated 6.6.2000, the landlord has filed the above Civil Revision Petitions.
3. The landlord is the absolute owner of the house, ground and premises bearing door No.5, Murugappan Street, Sowcarpet, Chennai.79 having purchased the same on 23.12.1991 from his vendor. Thereafter this fact was informed to all the 8 tenants who are in occupation of the respective shops in the ground floor of the property and the tenants attorned the tenancy in the name of the revision petitioner/landlord.
4. The landlord filed the eviction petitions against the tenants in RCOP Nos.3422 to 3426 of 1992 under Sec.14(1)(b) of the Act and against the tenants in RCOP No.3427 and 3428 of 1992 under Sec.14(1)(b), 10(2)(i) and 10(2)(ii)(a) of the Act and under Sec.14(1)(b) and 10(2)(1) of the Act. He also filed another RCOP No.107/1994 against another tenant occupying a shop in the ground floor of the very same property under Sec.14(1)(b), 10(2)(1) and 10(2)(vi) of the Act. The case of the landlord is that the building is more than 100 years old which is in a dilapidated condition and therefore it requires immediate demolition. He bonafidely requires the building for demolition and for reconstruction of a new building. According to him, the said premises is situated in Elephant Gate Street which is one of the strategic places in Sowcarpet and the income he would get after reconstruction would be much more than what he gets now. He has sufficient fund and he has also obtained demolition plan. He has also submitted the building plan for reconstruction. This is the common ground in all the 8 eviction petitions. In RCOP No.3427/1992 the landlord has also alleged that the tenant has committed wilful default in payment of rent for January 1992 and he has also sublet the property to the 2nd respondent in that R.C.O.P. In R.C.O.P.No.3428/1992, the landlord has also pleaded that the tenant has committed wilful default in payment of rents for the period from April 1992 to November 1992. In RCOP No.107/1994, the landlord has also pleaded that the tenant has committed wilful default and he is in arrears of rent from January 1992 to November 1993 and the tenant has ceased to occupy the demised shop for a continuous period of six months.
5. By a common order dated 20.12.1994, RCOP Nos.3422 to 3428 of 1992 were allowed by the rent controller by holding that the landlord has proved his case for getting an order of eviction. By another order dated 20.12.94 the rent controller allowed RCOP No.107/1994 by passing an order of eviction as prayed for by the landlord. Thus all the 8 RCOPs., were allowed and all the 8 tenants filed appeals before the appellate authority and the appellate authority by a common order allowed all the appeals and dismissed the RCOPs., on 6.6.2000.
6. The appellate authority reversed the findings of the rent controller on the grounds that -
(i) even though the building is undoubtedly 80 years old, that fact alone is not sufficient for ordering eviction under Sec.14(1)(b) of the Act.
(ii) that the additional documents namely, the photographs of the building will prove that the building is not in dilapidated condition requiring immediate demolition.
(iii) the landlord has not proved his means to put up a new building after demolition.
(iv) engineer's report submitted along with the commissioner's report is a biased one.
(v) the landlord failed to enter into the witness box to prove his bonafide requirement.
(vi) the default committed by the tenants are not wilful and
(vii) the sub-letting was also not proved.
7. Aggrieved by these findings, the landlord approached this court by filing the above Revision Petitions.
8. Heard the learned counsel for the revision petitioners as well as the counsel for the respondents. I have also perused the documents filed by them and also the judgments referred to by them in support of their submissions.
9. Learned counsel for the revision petitioners/landlord strenuously contended that all the findings of the appellate authority are contrary to the law laid down by the Apex Court and this court. He further drew my attention to para 20 and 21 of the order of the appellate authority wherein it was stated by the appellate authority that consequent upon the allowing RCA Nos.48 and 47 of 1995, M.P.Nos.309 and 310 of 1999 were also allowed. This, according to the learned counsel for the petitioner is erroneous and contrary to the settled law with regard to the receiving of the additional documents by the appellate court.
10. Learned counsel for the petitioner relied on the following judgments in support of his submissions:-
1) 1996(II) CTC 586 (Vijay Singh etc. etc. v. Vijayalakshmi Ammal) (relied on by both sides)
2) 2002(4) CTC 437 (R.V.E.Venkatachala Gounder v. Venkatesha Gupta)
3) 2000(1) CTC 287 (Akbar Ali v. Donian Rodrigo)
4) 2000(1) CTC 634 (Ispahani, S.M. v. Harrington House School)
5) 1997(1) M.L.J. 626 (Ammal Pillai v. M/s.Varadarajulu)
6) 1997(1) M.L.J. 418 (Sabura Begum v. Thangavelu)
7) 1997(1) L.W. 323 (Sherwood Educational Society, etc. v. Abid Namazie and others)
8) AIR 1999 SC 3089 (Ramkubai v. Hajarimal Dhokalchand Chandak)
9) 2000(1) M.L.J. 627 (Murugesa Nadar v. Kandasamy)
10) 1989(1) L.W. 228 (Thayammal v. K.Subramaniam)
11) 99 L.W. 272 (Punyakoti, A.G. v. M.Meera Bai)
12)1997(1) M.L.J. 376 (Sundaram Steel Co. v. Lakshmi).
11. Per contra, learned counsel for the tenants submitted that the appellate authority is the final authority of facts and therefore his findings based on facts need not be interfered with by this court in its revisional jurisdiction. Even otherwise, learned counsel for the tenants submitted that the landlord has failed miserably to make out a case under Sec.14(1)(b) of the Act. He re relied on the following judgments in support of his submissions:-
(i) 1984(2) SCC 590 (Jagdish Prasad v. Angoori Devi)
(ii) 1996(1) SCC 25 (Dev Kumar v. Swaran Lata)
(iii) 2001(4) SCC 26 (Vallampati Kalavathi v. Haji Ismail)
(iv) 2000(2) SCC 135 (Ramdoss v. K.Thangavelu)
12. Let me consider the citations relied on by both the parties to cull out the principles involved in all the decisions.
13. In Vijay Singh's case (cited supra), a 5 Bench Judges of the Apex Court while observing that the framers of the Act, 1960 should have made their intention more specific and clear while enacting Sec.14(1)(b) of the Act, instead of leaving it to the courts to interpret the same from time to time, held as follows:-
"6. On reading Section 14(1)(b) along with Section 16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting 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. Sub-section(1) of Section 16 contemplates that permission has been granted by the Rent Controller under Section 14(1)(b) for demolition of the building, but if such demolition is not carried out in terms of the order and undertaking, then Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. If the building is dangerous and dilapidated requiring immediate demolition for 'safety, then there is no question of Rent Controller directing landlord to put the tenant in possession of such building on the original terms and conditions, on account of the failure of the landlord to commence the demolition within the period prescribed. Similarly, there was no occasion to link the demolition of such building with erection of new building and then to give the landlord freedom from the restrictive provisions of the Act for a period of five years from the date on which the construction of such new building is completed and notified to the local authorities concerned. In this background, it has to be held that neither of the extreme position taken by the respondent or the appellants can be accepted. Permission under Section 14(1)(b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the building in question to erect a new building. At the same time it is difficult to accept the stand of the appellants that the building must be dilapidated and dangerous unfit for human habitation. For granting permission under Section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not. For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into account: (1) bona fide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the building; (4) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1)(b). No court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other facts and then a conclusion one way or the other has to be arrived at by the Rent Controller."
14. In the above decision the Hon'ble Supreme Court held that-
(1) for erecting a new building, it need not be in a dilapidated or dangerous condition for human habitation.
(2) The rent controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord is bonafide or not and (3) for recording a finding that the requirement is bonafide, the rent controller has to take into account-
(a) bonafide intention of the landlord far from the sole object only to get rid of the tenant.
(b) the age and condition of the building
(c) the financial position of the building and
(d) the financial position of the landlord.
15. In 2002(4) SCC 437 (cited supra), the Hon'ble Supreme Court held that when new buildings with modern amenities have come up in the locality, naturally the building in question may become unsuitable to the surroundings and a liability in its present condition to the landlord and keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. For the purpose of proving his bonafide the landlord needs only to show that he has the capacity to raise necessary funds.
16. In 2000(1)CTC 287 (cited supra), this court held that-
(1) the rent control Act is meant to both the landlord and the tenant (2) the building need not be in a dangerous and dilapidated condition (3)the landlord need not produce currencies to show means and (4) the landlord is not bound to prove his case beyond all reasonable doubts as the rigorous of proof applicable to criminal proceedings cannot be applied to eviction proceedings.
17. In 2000(1) CTC 363 (cited supra) this court has held that-
(1) the landlord should establish that-
(a) the intention of the landlord is bonafide and far from sole objective of getting rid of tenants.
(b) the age and condition of the building is such as to warrant demolition and reconstruction and
(c) the financial position of the landlord is sufficient (2) The rent controller has to take into consideration the age and condition of the building along with the above factors to arrive at a conclusion (3)the landlord need not jingle coins before the court and (4) the court can interfere in revision if the authorities below did not apply proper test in arriving at the conclusion.
18. In 1997(1) M.L.J. 626 (1997(1)L.W.364) cited supra, this court has held that (a) condition of the building is a major requirement, but that itself alone is not enough.
(b)how far a particular area of the locality where a building is situate can be put to better use, if a modern building is put up is also a relevant consideration and if there are persons to assist the landlord financially, even that it can be said that the landlord has the capacity to raise necessary funds.
19. In 1997(1) M.L.J. 418 (cited supra) this court has also held that for allowing the petition under Sec.14(1)(b) of the Act, the court has to consider the bonafide intention of the landlord, the age and condition of the building and the financial position of the landlord.
20. In 1997(1)L.W. 323 (cited supra), this court has held that the statute does not say that only if an approved plan is filed before court, the eviction could be ordered.
21. In AIR 1999 S.C. 3089 cited supra, the Hon'ble Supreme Court has held that the bonafide requirement could be established not only by the landlord but also by any one who is very close and who knows about the entire facts.
22. In K.A.Murugesa Nadar's case (cited supra), this Court held that case of sub-lease is always a matter for inference from the evidence.
23. In Thayammal's case (cited supra), this court observed that sending the arrears of rent upon the receipt of notice from the landlord will not absolve the tenant of the wilful default committed by him earlier.
24. In 99 L.W. 272 (cited supra), this court has held as follows:-
"9. At the outset, it is necessary to consider the arguments of the learned counsel for the tenant with regard to the admission of additional evidence which has been allowed to be produced, by the appellate authority. S.23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act provides for a right of appeal. Sub-S.(3) of S.23 reads as follows:
'The appellate authority shall call for the records of the case from the Rent Controller and after giving the parties an opportunity of being heard, and, if necessary, after making such further enquiry, as he thinks fit either personally or through the Controller, shall decide the appeal".
Sub-S.(3) of S.23 undoubtedly enables the appellate authority to make such further enquiry, as he thinks fit. This enquiry could be made by the appellate authority either personally or through the Controller. R.16 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974 deals with the procedure for the disposal of appeal under S.23. Sub.R.(2) of R.16 reads as follows:-
"If the appellate authority decides to make further enquiry, he may take additional evidence or require such evidence to be taken by the Controller."
S.23(3) of the Act read with R.16 of the Rules, therefore, clearly enables the appellate authority to take additional evidence, or he can direct evidence to be taken by the Controller. It must be pointed out that R 16(2), refers to the power of the appellate authority to take additional evidence. It does not create any right in a party to have additional evidence admitted as a matter of course. The power of permitting additional evidence to be produced at the stage of appeal must be exercised by the appellate authority judiciously, and before additional evidence is given, the appellate authority must be satisfied that such additional evidence is necessary for a proper disposal of the appeal. The provision for additional evidence as part of the further enquiry permitted to be made by the appellate authority does not imply that a party has a right to have additional evidence produced before the appellate authority without any valid justification. If any documents are to be produced, they could be permitted to be produced, by way of additional evidence only if the appellate authority is satisfied that it is necessary to make a further enquiry and that there was good justification for not producing those documents before the Rent Controller. In the instant case, the only ground which the landlady gave for the non-production of those documents was that she thought that she would be able to prove her case without these documents. This can hardly be a ground for production of additional evidence. The fact that some documents were not filed before the Rent Controller is not by itself sufficient for the appellate authority to make a further enquiry if the parties had enough opportunity to produce all the evidence in support of their respective cases before the Rent Controller.
10. The appellate authority must realise that parties who go to trial before the Rent Controller are normally required to produce all the available evidence on which they rely before the Rent Controller himself. However, in view of the specific provisions in S.23(3) of the Act, when the appellate authority has been given a discretion to admit additional evidence, before accepting those documents which are produced as additional evidence, the appellate authority must scrutinise those documents and decide how far they are relevant for the determination of the issue before him. If any additional evidence by way of documents is produced at the appellate stage, unless those documents are duly proved, they cannot automatically be accepted as evidence. If additional evidence is allowed to be produced by one party, the other party is also entitled to an opportunity to rebut the additional evidence. Whenever additional evidence is given by one of the parties before the appellate authority, the appellate authority is duty bound to given an opportunity to the other party to produce such additional evidence as may be necessary to rebut the additional evidence. This could be done either before the appellate authority himself or before the Rent Controller who could be directed by the appellate authority to admit or record the necessary evidence."
25. In the above decision, this court has held that before additional evidence is given, the appellate authority must be satisfied that such additional evidence is necessary and there was good justification for not producing those documents before the rent controller.
26. In 97(1) M.L.J. 376 (cited supra), this court has held that additional evidence cannot be entertained at the time of revision.
27. Now let me consider the decisions relied on by the learned counsel for the respondents/tenants.
(1) In Ramadas' case,(cited supra), the Hon'ble Supreme Court has held that the revisional jurisdiction conferred upon the High Court under Sec.25 of the Act is an appellate power and it is impermissible for the High Court to re-assess the evidence in a revision petition filed under Sec.25 of the Act. But the Hon'ble Supreme Court has accepted that the High Court under Sec.25 of the Act can call for and examine the record of the appellate authority in order to satisfy itself the conditions as to regulatory of such proceedings or the correctness, legality or propriety of any decision or orders passed thereon.
28. In Jagdish Prasad's case (cited supra), the Hon'ble Supreme Court held that the findings of fact arrived at by the inferior court or tribunal are binding, though an error of law apparent on the face of the record could be corrected by a writ of certiorari.
29. In Dev Kumar's case, (cited supra), the Hon'ble Supreme Court held that sub-sec.5 of sec.15 of E.P. Urban Rent Restriction Act 1949 would entitle the High Court to examine the legality and propriety of a conclusion of the appellate authority and unless there is a perversity in the matter of appreciation of evidence by the appellate authority or unless the appellate authority has arrived at a conclusion which on the materials, no reasonable man can come to such a conclusion, High Court will not interfere with the same.
30. In Vallampatti Kalavathi's case (cited supra), the Hon'ble Supreme court held as follows:-
"13. As the language of the section suggests, the revisional power vested in the High Court is to be used for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and if satisfied that the order/orders suffer from any such vice the High Court may pass such order in reference to the proceeding as it thinks fit. The expressions "legality", "regularity" or "propriety" are undoubtedly wider than mere correction of jurisdictional error. But even such revisional power cannot be exercised to upset the concurrent findings of fact recorded by the forums below merely on the ground that the High Court is inclined to take a different view on the materials on record in the case. We should not be understood to be saying that the concurrent findings of fact can in no case be interfered with in revision. For such interference it has to be shown that the findings recorded by the forums below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such conclusion on the materials."
31. In the above decision, the Hon'ble Supreme Court reiterated the principle that the concurrent findings of fact by the authorities below cannot be interfered with by the High Court unless it is shown that the findings recorded by the forum below suffer from any inherent defect or are based on inadmissible or irrelevant materials or are so perverse that no reasonable person will come to such a conclusion on the materials.
32. In the light of the above legal principles, let me examine the legality of the common order passed by the appellate authority by reversing the order passed by the rent controller.
33. The appellate authority has also accepted the fact that the building is definitely 80 years old. But he comes to the conclusion that the building does not require immediate demolition as it is not in a dilapidated condition nor in a dangerous condition. He relied on the photographs filed by the tenants in M.P.Nos.309 and 310 of 1999 under Rule 16(2) of the Rent Control Rules to take additional evidence.
34. First of all, it is wrong on the part of the rent control appellate authority to observe that even though the building is 80 years old, it is not in a dangerous condition, requiring immediate demolition. The landlord need not prove that the building is so damaged and is on the verge of being collapsed. Further the rent control appellate authority came to his conclusion on the basis of the photographs sought to be filed by the tenants as additional document for the first time before the appellate authority. When an application has been filed under Rule 16(2) of the Rent Control Rules, seeking to file additional documents, the appellate authority has to first decide whether these documents are necessary to decide the appeal to find out what is the reason given by the applicant for not filing the same before the rent controller. Only when he is satisfied that those documents are necessary for effectively deciding the appeal and that the reasons given for not producing the same before the rent controller are acceptable, the appellate authority can permit those documents to be filed and to be considered only with the main appeal. But in the present case, the appellate authority has straight away relied on the photographs filed by the tenants and rendered a finding on the basis of those photographs. This procedure adopted by the appellate authority is illegal and is contrary to the law laid down by this court, in A.G.Punniyakoti's case. Apart from that the appellate authority has allowed M.P.Nos.309 and 310 of 1999 as he had already allowed R.C.A.Nos.45 and 47 of 1995, which is again illegal and against the letter and spirit of Rule 16(2) of the Rent Control Rules. The appellate authority has failed to see that the tenants have no right seeking to produce the photographs as additional document as a matter of course. What was sought to be produced is the photographs of the building and the reasons should have been given by the tenants for not filing them before the rent controller. A mere reading of the affidavit filed in support of M.P.No.309/99 in RCA No.48/95 and M.P.No.310/99 in R.C.A.No.47/95 will reveal that no reason whatsoever has been given by the tenants for not taking the photographs earlier and producing the same before the rent controller. If that be so, M.P.Nos.309 and 310 of 99 should have been dismissed by the appellate court. Apart from the photographs filed in M.P.Nos.309 and 310 of 1999, the report of the advocate commissioner was also relied on by the appellate authority to come to the conclusion that the landlord has not proved that the building requires immediate demolition. But the appellate authority has failed to advert to the fact that no objections were filed by the tenants for the report of the engineer, filed along with the advocate commissioner's report. The engineer's report forms part of the advocate commissioner's report and that cannot be excluded as the same is one sided as held by the appellate authority especially when no objections were filed by the tenants before the rent controller.
35. Further, before the appellate authority, the tenants filed an application for an appointment of advocate commissioner to inspect the petition premises and to submit a report relating to the nature of the building and the same was dismissed by the appellate authority against which the revision petitions were filed and the same were also dismissed by the High Court. This itself would prove that the tenants themselves were not satisfied with the earlier report of the advocate commissioner and that is why they sought for advocate commissioner before the appellate authority. But very curiously this report was relied on by the appellate authority to come to a conclusion that the landlord has not proved that the building is in a bad condition requiring immediate demolition.
36. The appellate authority has also held that the bonafide of the landlord could be proved only when he himself enters into the witness box to speak about his bonafide requirement of the building for immediate demolition and reconstruction. As the landlord himself has not deposed before the rent controller, according to the appellate authority, he has failed to prove his bonafide. This proposition of the appellate authority is clearly erroneous as the Hon'ble Supreme Court in AIR 1989 S.C. 3089 (cited supra) has clearly observed that the bonafide requirement could be established by other persons also and it is not necessary that the landlord alone should establish the same.
37. The appellate authority has rendered a finding that the landlord has not established his financial capacity to put up a new building. He arrived at these findings on the basis that the deposits and the bank pass books produced by the landlord before the rent controller are not standing in the name of the landlord. This finding is also erroneous as law does not insist that for putting up a construction, the landlord alone should invest the amount and that he must prove that he has means. If there are persons to assist him financially even then it can be said that the landlord has got the capacity to raise necessary funds as held by this court in Ammal Pillai's case (cited supra). By producing the deposits and passbook, the landlord has proved that he has means either through himself or through other persons to put up a new construction. Further, the F.D. Receipts certificate and the passbook stand in the name of the proprietorship firm which is owned by the landlord and in such circumstances it cannot be said that the landlord has not proved his financial capacity to put up the new construction. Even otherwise, in the changing scenario and in the modern trend, it is very easy for any proprietor/ owner to approach the banks or financial institutions to get financial assistance to put up new construction. This escaped the attention of the appellate authority. It is also admitted by both the landlord and the tenants that the building is situate in a very busy locality in Elephant Gate Street, Sowcarpet, Chennai and if the building is 80 years old, which is demolished and a new building is put up, it would definitely augment the income of the landlord from the building and it would also be more fruitful to the landlord if a modern building is put up in the place where the building of 80 years old is existing. In fact this was also pleaded by the landlord in all the RCOPs. The financial position of the building is also one of the factors to be considered by the landlord for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bonafide or not as held by the Hon'ble Supreme Court in Vijay Singh's case (cited supra), but the appellate authority miserably failed to consider this factor.
38. Thus the appellate authority is wrong in coming to the conclusion that the landlord has not proved a case for eviction under Sec.14(1)(b) of the Act. When the appellate authority has ;not followed the authoritative decisions of this court and the Hon'ble Supreme Court and has failed to apply the correct legal principles governing the Sec.14(1)(b) of the Act, this court can certainly interfere with this findings under the revisional jurisdiction.
39. Insofar as the eviction sought for under the additional ground of sub-letting and wilful default in RCOP No.3427/1992 is concerned, the Rent Controller on the basis of oral evidence let in on behalf of the tenant held that the sub-letting was proved. The oral evidence is undoubtedly to the effect that the chief tenant is not in occupation of the petition premises and the sub-tenant who deposed before the rent controller alone is occupying the petition premises. Putting another person in possession of the rented premises exclusively will definitely prove that the original tenant has sub-let the rented premises. But the appellate authority has simply ignored his categorical statement of the witness who deposed before the rent controller and rendered a finding that the sub-letting was not proved. This finding of rent control appellate authority is contrary to the oral evidence let in before the rent controller and therefore the same is liable to be set aside. Hence the landlord in RCOP No.3427/1992 is entitled to evict the tenant on the ground of sub-letting also.
40. Insofar as the allegation of wilful default raised in RCOP Nos.3427/1992 and 3428/1992 is concerned, no doubt the default was admitted by the tenants but the same was sought to be explained as not wilful. Even though the rent controller did not accept the explanation offered by the tenants and rendered a finding that the tenants are guilty of wilful default, this aspect was dealt with in detail by the rent controller to come to that finding. Therefore the appellate authority is correct in stating that the rent controller has failed to examine this issue in detail before holding that wilful default has been committed by the tenants. Hence the findings of the appellate authority insofar as the wilful default is concerned are confirmed and the landlord is not entitled to evict the tenants in RCOP No.3427/1992 and 3428/1992 on the ground of wilful default.
41. Regarding RCOP No.107/1994, it was filed on the ground that the building was required under Sec.14(1)(b), 10(2)(i) and 10(2)(vi) of the Act. I have already held that the landlord is entitled to evict the tenants in all the RCOPs., under Sec.14(1)(b) of the Act including the tenants in RCOP No.107/1994. Insofar as the wilful default is concerned, in his oral evidence the tenant admitted that the rent for the month of October 1994 and November 1994 was very much delayed and was sent only at the time of giving the evidence before the rent controller and even after filing the RCOP the rent was not paid in time and was paid only with the delay. Based on this admission of the tenant before the rent controller, it was held that wilful default has been committed by the tenant. But this was not considered by the rent control appellate authority and the appellate authority came to the conclusion that the default is not wilful. The findings of the appellate authority is clearly erroneous as it is the duty of the tenant to pay the rent then and there on the due date. This condition becomes more stringent especially when the tenant is facing eviction proceedings for committing default. The tenant cannot lightly deal with the payment of rent to the landlord and pay the same irregularly and only when he finds time to do so. Therefore the landlord is entitled to evict the tenant in RCOP No.107/1994 on the ground of wilful default also.
42. RCOP No.107/1994 was also filed on the ground of Sec.10(2)(vi) of the Act also, but no finding whatsoever was given by the rent controller with regard to the allegation that the tenant ceased to occupy the demised shop for a continuous period of 6 months. Even though a specific issue in issue No.3 was framed by the rent controller, no finding was rendered in that aspect. Therefore the appellate authority has also considered this aspect. Hence it is to be considered that the landlord has not really pressed that Sec.10(2)(vi) of the Act for evicting the tenant in RCOP No.107/1994.
43. In the result, CRP No.2561/2000 to CRP No.2564/2000, CRP No.2568/2000 and 2569/2000 are allowed by holding that the landlord is entitled to evict the tenants under Section 14(1)(b) of the Act. CRP No.2565/2000 is also allowed and the landlord is entitled to evict the tenant under Sec.14(1)(b) and Sec.10(2)(i) of the Act and CRP No.2566/2000 is allowed and the landlord is entitled to evict the tenant under Section 14(1)(b) and 10(2)(i)(a) alone. CRP No.2567/2000 is allowed and the landlord is entitled to evict the tenant under sec.14(1)(b) alone. No costs. All the connected C.M.Ps. are closed.
sks To The Registrar, Court of Small Causes, Chennai.104.
After the pronouncement of the order, the tenant/ the petitioner in C.R.P.No.2568 of 2000 Mr.Champalal Bothra took time to file affidavit of undertaking. Though the affidavit of undertaking has not been filed earlier, he has filed the same on 19.9.2006.
2. According to him, he seeks three months' time to vacate and hand over the premises to the landlord and he has given affidavit of undertaking to that effect.
3. However, the other tenants in respect of C.R.P.Nos.2566,2567 and 2569 of 2000 are already granted time to vacate the premises and hand over possession to the land lord on or before 30.11.2006 on the basis of their undertaking. Similarly, recording the undertaking given by the petitioner Mr.Champalal Bothra, the petitioner herein, time is granted till 30.11.2006 to the petitioner herein to vacate the premises and hand over vacant possession to the landlord.
tsv.
[PRV/8069]