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Duraisamy & Others v/s R. Sureshlal & Another

    C.R.P. (NPD) Nos.2301 to 2305 & 1698 of 2005 & C.M.Ps.No.20718 to 20722 & 15047 of 2005

    Decided On, 03 March 2006

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.R. SINGHARAVELU

    For the Petitioners: N. Manokaran, Advocate. For the Respondents: P. Valliappan, Advocate.



Judgment Text

Tenant is the revision petitioner in each revision petition. These civil revision petitions arise against the order dated 25.10.2004 and 26.10.2004 in R.C.A.Nos.4, 6, 10, 11, 12 of 2003 and 4 of 2004 by the Subordinate Judge, Bhavani, which themselves were preferred against the order dated 21.12.2001 and 22.9.2003 passed in R.C.O.P.Nos.24, 35, 28, 30, 42, 45 of 1999 by the Principal District Munsif, Bhavani.


2. Admittedly, one Lulla, who is now no mom, was the landlord and it seems that he expired in or around, 1988. The present respondent claiming to be the Power of Attorney Agent of the deceased landlord, after filing the document of Power of Attorney, has filed the eviction petitions on the ground of owner's occupation and bona fide requirement for demolition and recons

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ruction. He also claimed to be one of the legal representatives of the deceased. Be living that he is one of the legal representatives, the petitions become maintainable since it was also held in R. Perianne Asari and another v. Jayakumar, (1997) 1 L.W.727, that co-owner can maintain, petition on behalf of other co-owners if objection is not raised by the tenant in lower Courts. Without going into the objections, assuming that the petitions are maintainable, let us now go to the, question of bona fide requirement for owner's occupation as well as demolition and reconstruction. 3. Before ever the bona fides of demolition and reconstruction is analysed, it is to be mentioned that both the grounds of requirement for owner's occupation as well as demolition and reconstruction may not be simultaneously maintainable. Those grounds may be raised as alternative to each other. But both cannot survive simultaneously. It is so because one. Is destructive of the other. Before ever demolition is made if owner is to utilise, then demolition becomes frivolous. Similarly, if demolition is made, owner's occupation can be claimed only upon reconstruction, which is a prospective chance of existence. No claim could be based upon a prospective chance of existence of corpus. It is in that way, one is destructive of the other. It was so held in K.A.M.A.K. Nataraja Nadar and sons v. R. Kannan, (2005) 4 M.L.J.222:(2005) 5 C.T.C. 537.4. However, now let us go into the question of bona fide requirement of demolition and reconstruction. Even though the landlord has cited the following decisions reported in Vijay Singh v. vijayalakskmi Ammal, (1996) 2 C.T.C. 586: R. Perianne Asari and another v. Jayakmmar, (1997) 1 L.W. 727; S. Namagiri Lakshmi v. Pravin Harilal Mehta and others, (1998) 1 C.T.C. 595. Ultimately, we are guided, by the Division Bench judgment of the Supreme Court in Shakeelur Rahman v. Syed Mehdi lspahani, (2002) 4 C.T.C.753, wherein it was held as follows:"Age and condition of. building sought to be demolished are relevant factors to test bona fides of landlord but they are not determinative of bona fide requirement; Landlord could seek eviction on ground of demolition and reconstruction to construct new building for which necessary permission has been obtained and sufficient financial resources were available with landlord as then the bona fide requirement would be established.”5. But in the given circum stances, there is no plan filed for reconstruction and there is also no evidence, indicating the financial resources available with the present respondent. There is also no Engineer's report to show that the building is dilapidated and in a condition endangering human occupation. In this view of the matter, the requirement oft he building for demolition and reconstruction is not bona fide.6. Regarding owner's occupation also, there is no bona fide reasons stated nor was it discussed in the judgments of the rent control appeals. I have also perused the rent control original petitions. Para. 11 of rent control petitions states that eviction is sought for under Secs.14(1) and 10(3) of Rent Control Act and no substantial reason has been assigned for owner's occupation. Even in Para 11 of the order of Rent Controller in R.C.O.P.Nos.24, 28, 30, 35 and 42 of 1999, it is found that the request of owner's occupation is devoid of merits.7. Hence, the judgments of the Rent Control Appellate Authority in R.C.A.Nos.4 11 and 12 of 2003 are liable to be set aside.8. So far as C.R.P.Nos.2302, 2303 and 1698 of 2005 are concerned, besides above requirements, there is one more ground of willful default. In all these cases, it was urged that the landlord failed to show that he is the sole legal heir entitled exclusively for entire tenement. In the counter filed by tenants, it was mentioned that the document of Power of Attorney has not been verified and even if it is true, respondent herein cannot depose on behalf of the Principal. In the rent control petitions, it was mentioned that the executants of the document of Power of Attorney are only the legal heirs and nobody else is available which is a fact in dispute. It is for the legal representatives to get impleaded and only after all the legal representatives are impleaded, they can either appear in person or through counsel or by Power Agent. Here the facts do, not rule out the possibility that there are other legal heirs apart from the executants of the document of Power of Attorney. Therefore, the landlord cannot be taken as a representative of all the legal representatives of the deceased landlord.9. From the above circumstances, it is made clear that there is no competent landlord to receive the rent. Even if rent is paid to the respondent herein, it may not be a payment to the actual landlord. It is so because the present respondent is one among the legal representatives. Looking into his alternative case that he is the Power Agent, he is not the Power Agent of all the legal representatives; that is why I have already mentioned that the facts of the case do not rule out the possibility that there are other legal representatives apart from the executants of the Document of Power of Attorney. So long as other legal heirs of deceased landlord are available, the respondent herein may only be entitled to a fraction of the rent and he may not be entitled to the entire rent. Even such fraction is not made known precisely. That is why, the tenants are not able to make payment of rent to the landlord.10. In such an event, only remedy available for the tenants is in depositing the rent either under Sec. 8(5) or under Sec. 9(3) of the Rent Control Act. Sec. 8(5) can be invoked if the landlord has refuse d to receive the rent. That is not the contingency here. The other provision is Sec. 9(3). That may be implemented by the tenants only if there is available authority as contemplated therein. But the authority mentioned in the above proviso came into existence in much later date in January 2001, which was not in existence at the time these rent control original petitions were filed. By virtue of G.O.Ms.No.43, Housing and Urban Development (Audit) Department dated 25.1.2001; the authority was clothed with power. Till such time, the tenants had no remedy under Secs. 8(5) and 9(3) of the Rent Control Act for the reasons mentioned supra. It is in this manner, the default becomes not willful. Hence, on this ground, eviction cannot be ordered and the findings given by the Rent Control Appellate Authority are liable to be interfered with.11. For the reasons mentioned above:(i) C.R.P.(NPD) Nos.2301 to 2305 of 2005 are allowed, setting aside the order passed in R.C.A.Nos.4, 6, 10, 11 and 12 of 2003 by the learned Subordinate Judge, Bhavani.(ii) C.R.P.(NPD) No.1698 of 2005 is allowed, setting aside the order passed in R.C.A.No.4 of 2004 by the learned Subordinate Judge, Bhavani.No costs. Consequently, connected C.M.Ps. are closed.
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