w w w . L a w y e r S e r v i c e s . i n



K. Somasundaram & Others v/s Arumugam (Deceased) & Others

    C.R.P. (NPD). NO. 831 OF 2011 & M.P. NO. 1 OF 2011

    Decided On, 10 July 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE G. RAJASURIA

    For the Petitioners: P. Valliappan, Advocate. For the Respondents: M. Venkatakrishnan, Advocate.



Judgment Text

(Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the fair and decreetal order of the Principal Subordinate Judge Court (Rent Control Appellate Authority) at Erode, dated 11.08.2010 in RCA No.13 of 2007 confirming the fair and decreetal order of the Principal District Munsif (Rent Controller) at Erode, dated 08.08.2007 in RCOP No.11 of 2006.)

ORDER

Animadverting upon the order dated 11.08.2010 passed in RCA No.13 of 2007, by the learned Principal Subordinate Judge (Rent Control Appellate Authority) at Erode, confirming the fair and decreetal order of the Principal District Munsif (Rent Controller) at Erode, dated 08.08.2007 in RCOP No.11 of 2006, this civil revision petition is focussed.

2. The parties are referred to hereunder according to their litigative status and ranking in the RCOP.

3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this revision would run thus:

(a) The original deceased landlord Arumugam filed RCOP No.11 of 2006 invoking Sections 10(2)(1), 10(2)(ii)(a), 10(2)(iii), 10(3)(a)(1), and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the following grounds:

1. Willful default

2. Subletting

3. Act of Waste

4. Own use and occupation

5. Demolition and reconstruction

(b) The petitioners/tenants contested the matter.

(c) During enquiry, on the side of the landlord, the original deceased landlord-Arumugam examined himself as P.W.1 and Exs.P1 to P13 were marked. On the side of the respondents therein, D.Ws.1 to 3 were examined and Exs.R1 to R8 were marked.

(d) Ultimately the Rent Controller ordered eviction on all the grounds, as against while the appeal was filed for nothing, but to be dismissed confirming the order of the Rent Controller.

3. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds.

4. The learned counsel for the petitioners placing reliance on the grounds of revision, would advance his arguments, which could pithily and precisely be set out thus:

(a) Absolutely there is no iota or shred, shard or miniscule extent of evidence to show that there was willful default in paying the rent on the part of the tenants in favour of the landlords.

(b) There is no specificity in specifying the period during which there was alleged default in paying the rent by the tenant.

(c) There is also no evidence to show that the first respondent/tenant sub leased the property in favour of other respondents in RCOP. Only on conjectures and surmises, both the Courts below held as though there was sub leasing of the demised premises by R1 in favour of R2 to R5.

(d) Relating to the plea of demolition and reconstruction, no evidence was adduced by the landlords. No plan was submitted and nothing was produced to show the financial wherewithal of the landlords to raise new building after demolishing the existing structure.

(e) Regarding the plea of owner's occupation, there are no adequate averments in the petition. There is nothing to indicate for what purpose the owners required the premises.

(f) No damage was caused by the tenants. However, placing reliance on the Commissioner's report filed in the earlier suit proceedings, both the authorities simply held as though the tenants caused damage to the property.

Accordingly, the learned counsel for the petitioners would pray for the dismissal of the RCOP and consequently for setting aside the orders of the Rent Controller as well as the appellate authority.

5. In a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the tenants, the learned counsel for the landlords, would pilot his arguments, which could tersely and briefly be set out thus:

(a) Even after issuance of notice by the landlords in the year 2002 relating to non payment of rent by the tenant, that is the chief tenant/R1, there was no payment of rent. There was no contractual connection between R2 and R5 and the landlords, as the former are sub-tenants under R1 in RCOP. Only after filing RCOP No.4 of 2006, the tenant started paying the rent and that too, for the period from November 2005 onwards for some time.

(b) When the matter was pending before the appellate authority, a lump sum amount of Rs.78,000/- towards arrears of rent was paid by the tenant to the landlord. The very factum of the tenant having allowed such huge arrears to accumulate, would bespeak and betoken that there was willful default in paying the rent pendente lite.

(c) The law is clear that before the Rent controller during RCOP stage, the landlord is not expected to produce the plan approval and also jingle the coins to show his financial wherewithal to raise construction after demolishing the existing structure. Undoubtedly and indisputably the landlords are doing business in textiles and they are having the financial wherewithal to demolish the building and reconstruct a new one and put it for beneficial use, for which the tenant cannot have any say, or dictate terms to the landlord.

(d) Regarding the ground of owner's occupation is concerned, the landlords are having no other building in that town concerned.

(e) The Commissioner's report marked as Ex.P7, would evince and evidence that a big pit measuring 12' x 10' was dug by the respondents in the demised premises and thereby caused damage to it. The building concerned was more than 75 years old and accordingly both the Courts below taking into account the pros and cons of the matter, allowed the prayer of the landlords, warranting no interference in the revision.

6. The points for consideration are as to:

(1) Whether without any basis or evidence, both the authorities held as though there was willful default in paying rent and that too, without specifying the specific period during which such alleged default in payment of rent occurred at the instance of the tenant?

(2) Whether there was no sub leasing of certain portions of the demised premises by the first respondent in favour of the other respondents?

(3) Whether in the absence of plan approval and documents showing the financial wherewithal of the landlords having been filed before the Rent Controller, both the authorities fell into error in ordering eviction on the ground of demolition and reconstruction?

(4) Whether both the authorities went wrong in ordering eviction on the ground of owner's occupation in the absence of adequate narration of relevant facts?

(5) Whether the authorities below held erroneously that damage was caused to the demises premises by the respondents by digging pits etc.?

(6) Whether there is any perversity or illegality in the order passed by the authorities below?

POINT NO.1:

7. A thumbnail sketch of the germane facts relating to the ground of default in payment of rent, would be to the effect that during the year 2002, Ex.P1 notice was admittedly issued by the landlords to R1, indicating that there was default in payment of rent. Thereafter, there is nothing to evince on the side of the tenants that rent was actually paid by the tenant to the landlords. No rent receipt was produced by the respondents, for which the learned counsel for the respondents would try to explain and expound by pointing out that the landlord was not in the habit of issuing rent receipts.

9. At this juncture, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:

(i) (2000)3 SUPREME COURT CASES 282- CHORDIA AUTOMOBILES V. S.MOOSA AND OTHERS.

'8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of the fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained the disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find the conduct of the appellant throughout in the past being not of a defaulter or irregular payer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter.

9. In S.Sundaram Pillai v. V.r.Pattabiraman this Court had occasion to consider the word 'wilful default' under Section 10(2) of the aforesaid Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 which is reproduced below:(SCC pp.605-06, paras 21-26)

'21. Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary of Law by L.B.Curzon, at p.361 the words 'wilful' and 'wilful default' have been defined thus:

'Wilful' – deliberate conduct of a person who is a free agent, knows that he is doing and intends to do what he is doing.

'Wilful default' – Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.

22. In other words, 'wilful default' would mean a deliberate and intentional default knowing full well the legal consequences thereof. In Words and Phrases, Vol 11-A (Permanent Edition) at p.268 the word 'default' has been defined as the non-performance of a duty, a failure to perform a legal duty or an omission to do something required. In Vol.45 of Words and Phrases, the word 'wilful' has been very clearly defined thus:

'wilful' – intentional; not incidental or involuntary;

- done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;

- in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.

p.296 – 'Wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.

23. In Vol.III of Webster's Third New International Dictionary at p.2617, the word 'wilful' has been defined thus:

governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed.

24.The word 'default' has been defined in Vol.I of Webster's Third New International Dictionary at p.590 thus:

to fail to fulfil a contract or agreement, to accept a responsibility; to fail to meet a financial obligation.

25. In Black's Law Dictionary (Fourth edn.) at p.1773 the word 'wilful' has been defined thus:

'Wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.

The word 'reckless as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'

26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wiful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or by other Acts referred to above.'

(ii) I would also like to cite one other decision of this court reported in 2000-3-L.W.634 [M/s.Guru Associates rep.by its Partner Mr.Lalithakumar Jain and Lalithakumar Jain vs. B.A.Balasubramaniam]. Certain excerpts from it would run thus:

"11. Under Section 11 (1) of the Act, it is the duty of the tenant to deposit all arrears of rent due in respect of the building upto the date of payment or deposit and continue to pay or to deposit any rent which may subsequently become due in respect of the building until the termination of the proceeding before the Controller or the Appellate Authority, as the case may be, Sub-Section (4) of Section 11 says, if any tenant fails to pay or to deposit the rent as aforesaid, the Controller or Appellate Authority, as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building."

10. A mere poring over and perusal of those decisions would indicate and exemplify that the tenant cannot take shelter by pointing out that the landlord refused to receive rent and that was why the rent was not paid or the landlord was not in the habit of issuing receipts and that made the tenant to pay rent without having any evidence in regard to payment of rent. Law enjoins the tenant to take initiative to pay rent in the following manner:

The tenant is expected to call upon the landlord to specify the Bank account in which he could deposit the rent and if there is no response, then the tenant should send the rent by Money Order and if the Money Order is refused, the tenant is enjoined to approach the Court with an application under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act for deposit of rent.

11. Obviously and axiomatically, pellucidly and palpably the tenant failed to resort to such a procedure referred to supra and that itself would fasten the tenant with liability and he cannot try to wriggle out of his legal obligations by putting forth some reasons, as R1, the tenant attempted to put forth in this case. The contention on the side of the respondents that there is no specificity in specifying the period during which the default in paying rent occurred, the authorities below giving a wide margin in favour of the tenants, held that there should have been atleast adequate evidence to establish that ever since the time of the filing of the suit by the tenant, there was payment of rent and since there was no evidence to that effect, it could safely be held that ever since 2004 till November 2005, there was default in payment of rent, which finding cannot be held or labelled as perverse or illegal. The fact remains that only on 17.01.2006 RCOP No.4 of 2006 was filed for getting the rent deposited and that too the rent from November 2005. The specious argument on the side of the respondents/occupiers is that had there been really huge arrears, the landlord would not have kept quiet and filed the RCOP for eviction belatedy. Such an argument fails to carry conviction with this Court, as the Court cannot turn its face from reality. Nowadays there are cases where RCOPs are filed after arisal of huge arrears, even such arrears of rent are barred by limitation and that is how the ball bounces. The Court, therefore, on conjectures and surmises as put forth by the respondents/occupiers, cannot decide the lis. As such, both the Courts below correctly held that there was willful default on the part of the tenants in paying the rent, over which no interference in the revision is warranted.

Accordingly, point No.1 is decided in favour of the landlords.

POINT NO.2:

12. The first respondent would vehemently contend that he did not take the entire premises on lease, but only a portion of the building concerned and in such a case, he cannot be labelled as a tenant for the entire premises and that he sub let certain portions in favour of R2 to R5. Such a contention stands torpedoed by R1's own averments in the suit O.S.No.175 of 2004 (Ex.P.6 copy of the plaint). The plaint filed by R1, the plaintiff therein, would proceed on the line that he was in the entire building in which all the respondents are now occupying, however at the time of filing the counter, in the RCOP filed by the landlord for evicting, the occupier, R1 would have a volte face and take up a plea as though he is in occupation of only in respect of a portion of a building and R2 to R5 are directly having leasehold relationship with the landlords. The prevaricative stands of R1 clearly expose the falsity and mendacity involved in the plea of the respondents/occupiers in toto.

13. Trite, the proposition of law, is that preponderance of probabilities would govern the adjudication in civil cases. Here, document wise it is clearly and palpably stood established that R1 sub leased certain portions of the premises as detailed in RCOP in favour of R2 to R5 and both the Courts below after considering the pro et contra, unambiguously and unequivocally held that there was sub leasing of such portion of the property by R1 in favour of R2 to R5.

14. The learned Rent Controller adverting to the oral depositions of R.W.1-Somasundaram, R.W.2-Mani and R.W.3-Sivasami and also Exs.P7, P8 and P9, would appropriately and correctly hold that the occupiers are having prevaricative stands and in order to camouflage and conceal the factum of R1 subleasing certain portions of the demised premises in favour of R2 to R5, have projected a case as though there was no sub lease. The Rent Controller also under paragraph No.7 of the order pointed out as to how there was absolutely no smidgeon or scintilla of evidence produced by R2 to R5, to show that they paid rent directly to the landlords. Had really R1 was not the chief tenant who unauthorisedly sublet the premises, he would not have in his plaint (Ex.P6) averred that he was the lessee of the entire building.

15. The whole kit and caboodle of facts which stood transpired, from the perusal of the records would palpably and pellucidly expose the mendacity of the pleas of the occupiers as though there was no sub-leasing at all. Scarcely could be stated that there is any cogency or convincing narration of the alleged direct lease in favour of R2 to R5/the occupiers from the landlord, either in their counter filed in RCOP or in the deposition of the R.Ws.1 to 3. This crucial lacunae i.e. the incongruities in the evidence of respondents/occupiers were highlighted elaborately by the learned Rent Controller in the order and the appellate authority, which is the last forum to consider and analyse the facts also confirmed such findings, warranting no interference in revision.

16. The learned counsel for the petitioners cited the decision of this Court reported in 2001 (3) CTC 618 [M/s Bentool Steel Products Private Limited rep. By its Managing Director, G.K.Pattery v. O.M.A. Mohammed Omar and another]

17. I would like to observe that the said decision is out of context, as my discussion supra would show that here the factual matrix is different. I would like to suo motu cite the following decisions:

(i) (1984) 2 SCC 590 (Jagdish Prasad vs. Angoori Devi). An excerpt from it would run thus:

"2. .........................................As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant , sub-letting flowing from the presence of a person other than the tenant in the shop cannot be assumed. The Act does not require the court to assume a sub-tenancy merely from the fact of presence of an outsider......................"

(ii) (1988) 1 SCC 70 (M/s.Shalimar Tar Products Ltd. vs. H.C.Sharma and others). An excerpt from it would run thus:

19. ..................."In the instant case, exclusive possession was given to the sub-lessee and the tenant had transferred the right to possess in that portion. It is clear that sub-letting was done without the consent in writing of the landlord. If that is so, there was inevitably breach of the covenant."

(iii) (1989) 1 SCC 19 (Rajbir Kaur and another vs. M/s.s.Chokesiri and Co.). Certain excerpts from it would run thus:

"22. It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further, the grant be for consideration. While the definition of 'lease' in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a 'licence' under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an "easement" or involves a transfer of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz., easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English Law contemplates what are called 'Possessory Licences' which confer a right of exclusive possession, marking them off fromt he more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one fromt he other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties".

24. In Associated Hotels of India v. R.N.Kapoor this court referring to the classic distinction between a lease and a licence said:

There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore, a transfer of an interest in land. The interest transferred is called the lease-hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor.

28. In Dipak Banerjee v. Smt. Lilabati Chakraborty Sabyascahi Mukharji,J.,observed :(SCC pp.165-66,para 6)

But in order to prove tenancy or subtenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must be in lieu of payment of some compensation or rent.

33. In B.M.Lall case, this court observed:

The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not decisive ... though it is a very important indication in favour of tenancy."

(iv) 1997(I) MLJ 581 (S.K.Raffuddin and others vs. N.Yeswantha Rao and others)

"18. It is settled law that to prove sub-lease, initially the landlord will have to prove that the tenant is parted with legal possession and a stranger is in exclusive possession of the building. So long as the exclusive possession is not even spoken to by PW1, there cannot be any question of sub-lease. Both the authorities below have not entered a finding that the second respondent, Jaleel, is in exclusive possession of any portion of the building. Both the authorities below have come to the conclusion that Jaleel might be in possession on the ground that he is having independent business. According to the Authorities below, from his presence in the premises, such an inference can be had.

19. I do not think, law goes to the extent of saying that a mere presence of a person in a shop will amount to sub-lease.

21. What is sub-letting is also defined by the Supreme Court in the decision reported in (1988) 1 SCC 70 (M/s.Shalimar Tar Products Ltd. vs. H.C.Sharma and others). In paragraph 17 of that judgment (at page 78), their Lordships said thus:

"........................parting to the legal possession means possession with the right to include and also right to exclude others. That, in our opinion, is the matter of fact ......."

So, the alleged sub-tenant must be in a position to exclude others from interfering with his enjoyment of the building. The entire premises must be under his control and only under him the other person can be included within the premises. Evidence in this regard is absolutely lacking in this case.

22. In Dev Kumar v. Swaran Lata (1996) 1 SCC 25, the only evidence that was let in was, a Commissioner's Report....................................Apart from the Commissioner's report, a cash bill under the so-called name of the sub-tenant was also produced. Considering these two evidence, their Lordships of the Supreme Court said thus:

".................At the most, the conclusion can be that while the tenant was continuing his own business as well as a business of Commission Agent of M/s.Ram Saran Bhola Nath, respondents 2 to 4 have also been permitted to continue their business in the name of Ram Saran Rattan Chand. But that does not establish either the exclusive possession of respondents 2 to 4 or that the tenant has parted with his possession. The exclusive possession of the premises being the first criterion for establishing sub-letting and the same not being established, the conclusion of the Hig Court about sub-letting is vitiated.

In our considered opinion the landlady, respondent No.1 has utterly failed to establish the plea of sub-letting ......"

In paragraph 9 of the judgment, their Lordships said thus:

".........the conclusion on the question of subletting is a conclusion on a question of law derived from the finding on the materials on record as to the transfer of exclusive possession and as to the said transfer of possession being for consideration. ......."

23. Similar is the case reported in Rajbir Kaur vs. S.Chokesiri and Co., (1989)1 SCC 19, wherein also, their Lordships reiterated that

"if exclusive possession is established, and the version of the tenant as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, as in the present case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of sub-letting in the guise of licences are in their vary nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence. It is not, unoften, a matter for legitimate inference."

The burden of making good a case of subletting and establishing facts and contentions which support the party's case is on the party who takes the risk of non-persuasion, viz., the landlord. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial."

24. So, the basic ingredient to prove the case of sub-lease is 'parting with possession'. The alleged sub-lessee must have the right to include and exclude others. If evidence on that aspect is lacking, as held in the decisions cited supra, a finding on subletting can only be considered as illegal. Since the conclusion on sub-letting is a question of law, even though the finding of the authorities below is concurrent, this Court is competent to reverse that finding.

(v) 1998-1-L.W.690 – M/S.BHARAT SALES LTD., VS. LIFEH INSURANCE CORPORATION OF INDIA, certain excerpts from it would run thus:

"Delhi Rent Control Act, S.14(1)(b)/Subletting – What constitutes subletting- Giving up possession of the tenanted accommodation wholly or in part by the tenant and putting another person in exclusive possession – Mutual agreement or understanding, in which landlord is kept out of the scene – Difficult to prove by direct evidence by landlord – Law does not require that payment should be proved by affirmative evidence – Inference from facts permissible."

In concinnity and in consonance with the aforesaid precedents, the authorities below decided the lis warranting no interference.

As such I could see no illegality or perversity in the order passed by the Courts below with regard to subleasing of the property.

Accordingly, point No.2 is decided in favour of the landlords.

POINT NO.3:

16. Relating to the ground of demolition and reconstruction is concerned, I would like to fumigate my mind with the following decisions:

(i) (2002)3 M.L.J.130(S.C.) - HARRINGTON HOUSE SCHOOL VS. S.M.ISPAHANI AND ANOTHER, certain excerpts from it would run thus:

8. ..........................." A procedure can be devised to protect the interest of both the tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying unconstructed inspite of being vacated by the tenant and followed by demolition if the plans for proposed construction are not sanctioned by the local authority. The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plans of re-construction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Execution Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord-decree holders. Till then the tenant shall remain liable to pay charges for use and occupation of the suit premises at the same rate at which they are being paid along with teh plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of Sub-Sec.(2) of Sec.14 of the Act."

(ii) 2006(2) CTC 615 – S.VENUGOPAL VS. A.KARRUPPUSAMI AND ANOTHER, certain excerpts from it would run thus:

"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.

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-storied 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."

(iii) (2002) 4 SCC 437 [R.V.E.Venkatachala Gounder v. Venkatesha Gupta and others]; certain excerpts from it would run thus:

"13. ........However, in view of the time that has already been lost in the litigation and to protect the interest of the tenants and certain to allay their fears, it is directed that the executing court shall, before directing the tenants to be evicted and possession being given to the landlord, direct the landlord to file plans of proposed construction, duly approved by the local authority, and give an undertaking in terms of Section 14(2)(b) of the Act. No order as to costs."

17. A plain reading of those decisions would highlight and spotlight the point that there is no necessity on the part of the landlords to file approved plan during enquiry in the RCOP itself. It could be filed before the Executing Court and satisfy the Executing Court about the factum of the landlords having obtained the approved plan; whereupon the Executing Court if got satisfied, could issue delivery order; wherefore, such a plea taken by the tenants falls to the ground, as the one having no legs to stand in view of the current legal position.

18. Regarding the financial wherewithal of the landlords is concerned, the whole kit and caboodle of facts and figures placed before the Court, would show that they are monied people and running textile business. The precedent cited supra also would refer to the fact that the landlord is not expected to have the full amount required for erasing the building and raise a new construction in that place, because nowadays it is not too difficult for a landlord to avail loans from various Banks and also raise constructions. However, that fact also could be satisfied before the Executing Court before obtaining the order of delivery. Hence in this view of the matter, I do not think that there is any male fide attitude on the part of the landlords in seeking eviction on the ground of demolition and reconstruction. Even if the building concerned is not down at heels or in a dilapidated condition, yet the landlord for the purpose of augmenting his income, could demolish the existing building and raise a new one. Here in a paragraph No.14 of the RCOP, it is stated that the landlords thought fit to demolish the existing old building and raise a multi storied building so as to get more rental income, which cannot be found fault with by the tenants or even by the Court. Hence I could see bona fide intention on the part of the landlords in seeking eviction on the ground of demolition and reconstruction.

Accordingly, point No.3 is decided in favour of the landlords and no interference in the revision is required.

POINT NO.4:

19. Regarding owner's occupation is concerned, ex facie and prima facie it is clear that the petition is vague as vagueness could be and except for one sentence, that the landlords required the premises for their own occupation, nothing more could be seen in that. Further more, in paragraph No.14 of the RCOP, they would at the first instance state that they wanted the demised premises for raising multi storey building so as to augment their rental income, however, at the lower portion of the same paragraph, the landlords would aver as though they wanted the property for owner's occupation. As such, I do not think that the landlords established their case under the ground of owner's occupation. My mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court in this regard:

"1.(1999) 7 SCC 275[T.Sivasubramaniam v. Kasinath Pujari]

"4.From the aforesaid decisions it is clear that mere desire of the landlord to live separately from his father cannot be attributed to his need for the premises occupied by the tenant. It is often seen that a desire often takes its origin from what one likes and dislikes and necessarily it is not dependent upon his need. But we cannot lose sight of the fact that sometimes the desire may be the outcome of one's need. So when a landlord desires a premises, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bona fide. The need must be bona fide, genuine, honest and conceived in good faith. In the present case what we find is that, it was not pleaded by the landlord in his petition that he for certain compelling reasons desired to live separately from his father and for that reason he required the premises."

2. (2003) 1 SCC 672 [Lingala Kondala Rao vs. Vootukuri Narayana Rao]

"6.To disentitle the landlord from claiming eviction under Section 10(3)(a)(iii) of the Act it must be shown that the landlord is in occupation of a non-residential building in the city, town or village concerned and that such building is his own or to the possession of which he is entitled under the Act or otherwise. In case of occupation of property by members of joint Hindu family wherein the interest of a member remains fluctuating depending on the increase or decrease in number of members of the family, it cannot be said that the landlord is in occupation of a non-residential building which expression, in the setting in which it has been used, would mean his own occupation in his own right. On the same reasoning, the non-residential building owned by the joint Hindu family cannot be called a non-residential building 'which is his own'. The expression 'to the possession of which he is entitled' has to be construed as an immediate entitlement to possession so as to satisfy his requirement as stated in (a) and (b) parts of sub-clause (iii). A landlord cannot be expected to dislodge the members of the joint family from their possession over the joint family premises simply because the landlord requires the premises for his own exclusive use. He is not 'entitled' to possession over joint family premises unless he claims partition whereat the suit premises are also allotted to him. In a partition he may or may not be held entitled to possession over the non-residential building pointed out by the tenant as an alternate accommodation and relied on by him for defeating the claim of the landlord. Therefore, a non-residential building owned by the joint Hindu family and in its occupation would not be included within the meaning of the expression 'which is his own or to the possession of which he is entitled'. A non-residential building said to be owned or being under entitlement to possession by the landlord under Section 10(3)(a)(iii) of the Act cannot be just any non-residential building without regard to other relevant factors including the extent of the ownership of the landlord and the remoteness between his entitlement and the occurrence of event when he would actually get possession. In taking this view, we find support from a few decisions of this Court.

7.In M. Padmanabha Setty v. K.P. Papiah Setty1 the Constitution Bench, interpreting the expression 'entitled to possession' in a pari materia provision contained in a Mysore Act held that the expression would not include another tenanted accommodation wherefrom the landlord could evict the tenant by making out a ground for eviction nor would the expression include a building where the landlord has a right to stay till he is evicted. The Constitution Bench held that the object of the Act is to prevent unreasonable eviction of tenants. It cannot be said that the legislature considered it unreasonable for a landlord to shift to his own premises while he is in occupation of the tenanted premises over which he has not an absolute right of possession but only a right to remain in possession.

8.In Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 this Court held that the aspect of quality, size and suitability of the building cannot be totally put out of consideration else the purpose of the Act would be frustrated.

9.In G. Kaushalya Devi v. Ghanshyamdas3 it was held that the expression 'to the possession of which he is entitled' would not mean possession otherwise than as an owner or in that capacity. Tenanted premises in which the landlord was already having his business and hence of which he was in possession and another shop purchased by the mother of the landlord with the amount loaned by him were held not to be buildings which could disentitle the landlord from seeking an order to be put in possession of the tenanted building.

11.It was submitted by the learned counsel for the appellant that the respondent's requirement cannot be said to be bona fide. It was submitted that a Full Bench of the Andhra Pradesh High Court rendered its decision in Vidya Bai v. Shankerlal4 on 24-9-1987 wherein the Court took the view that availability of a non-residential building belonging to a joint family was a relevant factor for denying recovery of possession by the landlord under Section 10(3)(a)(iii) of the Act and shortly thereafter on 24-6-1988 the late father of the respondent executed and registered the deed of settlement conferring title on the respondent. In the year 1991, the father of the respondent died and then the present proceedings were initiated by the landlord. This shows that exclusive ownership over the suit premises vesting in the respondent landlord is a manipulation pointing out to the mala fides. Suffice it to observe that it is too far-fetched an inference to draw that the object behind execution of the registered deed of settlement was the eviction of the appellant tenant, more so, when there is no material available on record to base such an inference. The execution and registration of the deed of settlement is not disputed. In an eviction suit between the landlord and the tenant the motive behind execution of the document conferring title on the landlord cannot be allowed to be gone into so long as the document has been executed and registered in accordance with law and the transaction is otherwise legal. It is pertinent to note that no member of the family adversely affected by the deed of settlement has chosen to lay any challenge to it. Incidentally, it may be noted that the Full Bench decision in Vidya Bai case4 was cited with approval before a two-Judge Bench of this Court in D. Devaji v. K. Sudarashana Rao5. However, the correctness of the decision of this Court in D. Devaji case5 was doubted by another two-Judge Bench (see Boorgu Jagadeshwaraiah and Sons v. Pushpa Trading Co.6) whereafter the matter came to be considered by a three-Judge Bench in Boorgu Jagadeshwaraiah & Sons v. Pushpa Trading Co.2 In D. Devaji case5 the view taken by this Court was that the landlord should not be in possession of another non-residential building or of which he is entitled to be in possession in the city, town or village concerned. The intendment of the legislature was that the landlord who is in occupation of a non-residential building which is his own or to the possession of which he is entitled to under the Act or any other law should not be permitted to recover a possession of another non-residential building belonging to him by evicting the tenant therefrom. In Boorgu Jagadeshwaraiah case2 the three-Judge Bench held that the view so taken in D. Devaji case5 was an extremely narrow and literal construction placed on the provision which had the effect of scuttling the intention of the legislature. The view of the law taken by the High Court of A.P. in Vidya Bai case4 becomes, therefore, of doubtful authority."

3. One other decision of this court reported in 2000-3-L.W.901 [Nazeer vs. N.T.Thayammal] also could be fruitfully cited:

"9. The question whether building is required for bona fide own occupation of landlady or not is purely a finding of fact. Both the authorities below have found that landlady is no

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t having any building of her own and she is now residing along with her relatives and her claim is bona fide. Landlady has asserted that she intends to occupy the scheduled building since her relations are also residing closeby. Even during the lifetime of her husband, she was residing with one Putta Gounder and after his death, she went and resided with her brother-in-law temporarily. Now, she is residing with some of her relatives. It is clear from the evidence that only because she is not in a position to occupy scheduled building, she had to reside along with others. A feeling that one is under his own roof and as of right, is a comforting only duly recognised and protected by law and legal institutions. Even if one need not be apprehensive that a close relation like a father or mother, brother or sister may not drive him out of the house owned by any of them, the need felt by the individual to have a separate establishment is a perfectly justified one. Landlady wants to occupy her own building and there is nothing to doubt her bona fide claim." 12. In 1969 K.L.T.133 [Sarada v. Kumaran] a similar question arose for consideration where landlord wanted to make use of building for own occupation for the purpose of converting the same as pathway. Learned Judge in that case held that occupation does not necessarily mean residence. A owner can occupy the building in any manner. Learned Judge said that converting of existing building into a pathway for the use of landlord is also a need and coming under bona fide own occupation. Once landlord gets possession of the building for his own occupation it is not the concern of the court whether it is used as it is or after reconstruction or after making material alterations in the same. 13. Similar view was taken in the decision reported in 1987(1) K.L.T.671 [Devaky v. Krishnankutty), wherein it is held thus: "Once the landlord establishes that he bona fide requires the building for his occupation or the occupation of any member of his family, he can recover possession of the building from the tenant irrespective of the fact whether he would occupy the same with or without making any alterations". 14. Once it is found that the claim of landlady is bona fide, inconvenience or lack of amenities is a matter in which tenant has no say. It is for landlady to look out whether the building is sufficient or whether it should be used after making such alteration, etc." Accordingly if viewed that ground has to be rejected and both the Courts below fell into error in upholding that ground and ordering eviction on the ground of personal occupation. Accordingly, point No.4 is decided as against the landlords. POINT NO.5: 20. Relating to the ground of having caused damaged to the building, what I would like to observe is that there is no malafide intention found established on the part of the respondents/occupiers in digging pit and also carrying out repairs. It is an old building and the occupiers undoubtedly exceeded their power in carrying out repairs unauthorisedly, but that itself cannot be labelled as one detrimental to the building or they had no intention to cause damage to the building. The occupiers since they carried out such repairs without the written authorisation from the landlords, cannot seek for reimbursement of the expenses which they do not claim also. However, the digging of the pit is concerned, it is found detailed and delineated in Ex.P.11. What I would like to remark is that there is no clarity. There is no knowing of the fact whether the occupier deliberately for the purpose of causing damage to the property and put the landlords into loss, dug such pit. 21. The learned counsel for the respondents/occupiers, would explain and expound by pointing out that earlier there was an old sump, so to say ground water tank and that got dilapidated and some repair works were carried out and that was projected as though the respondents caused damage to the property. In view of lack of evidence, or in view of weak, meek and bleak evidence in that regard, I do not want to fasten the occupiers with liability under the ground of having caused damage to the demised premises. As such, both the Courts below were not justified in upholding the said grounds as against the tenants. Accordingly, point No.5 is decided as against the landlords. 22. In the result, in view of the fact that there was willful default in paying the rent by the tenants and also in view of R1 having subleased the premises in favour of R2 to R5 and that the demised building is required for demolition and reconstruction, eviction could be ordered and accordingly it was ordered by the authorities below, which are hereby confirmed warranting no interference by this Court and in respect of the other grounds, the order of the Courts below shall stand set aside. Accordingly this civil revision petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.
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