IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.06.2007 Coram The Honourable Mr.Justice M.CHOCKALINGAM CRP. NPD. No.266 of 2007 and M.P. No.1 of 2007 Kolla Ravindra (alias) K.Ravi ...Petitioner Vs Susheela Bai ...Respondent Civil Revision Petition against the order dated 16.10.2006 of the Rent Control Appellate Authority passed in RCA.No. 1340/2005 on the file of VIII Small Causes Court, Chennai confirming the order dated 11.11.2005 passed in RCOP.No. 2215/2004 by the Rent Controller on the file of XIV Small Causes Court, Chennai. For Petitioner : Mr.K.S.Viswanathan For Respondent : Mr.M.R.Murali ORDER
Challenge is made to an order of the learned Rent Control Appellate Authority, VIII Judge, Small Causes Court, Chennai made in RCA.No.1340 of 2005 affirming the order of the Rent Controller, XIV Judge, Small Causes Court, Chennai made in RCOP.No.2215 of 2004 by a common order dated 11.11.2005 along with other RCOPs.
2. The Court heard the learned counsel on either side.
3.The respondent/ landlady filed four RCOP Nos. 2193, 2194, 2215 and 2216 of 2004 against the tenants, four in number, who were occupying the four shops in the building belonged to her alleging that the property in question was old and in a dilapidated condition and that it required immediate demolition and reconstruction, which would yield more income to the landlady and she has also applied to the Corporation of Madras seeking approval for the purpose of demolition and reconstruction. Permission has also been granted and the plan has also been approved. Under the circumstances, she, bona fidely required the building for the purpose of demolition and re-construction and hence, eviction of the four tenants has to be ordered. The petitions were resisted by all the tenants by stating that the building was in a good condition, that there was no approval of any plan, that there was no necessity for demolition of the building and the intention of the landlady was to evict the tenants in one way or other. Thus, there was thoroughly lack of bona fide and hence, petitions were to be dismissed.
4. All these four petitions were taken up for enquiry jointly and on enquiry, the Rent Controller, XIV Judge, Court of Small Causes, Chennai passed an order of eviction on 11.11.2005. Aggrieved tenants took it on appeal in RCA.Nos.1339, 1340 and 1341 of 2005 respectively. On enquiry, the Rent Control Appellate Authority dismissed all the appeals. Aggrieved, the tenants took CRP.Nos. 265, 266 and 267 of 2007. While CRP.Nos. 265 and 267 of 2007 were withdrawn by the respective tenants, the above CRP.No.266 of 2007 is the only petition which was pursued before this Court.
5. Advancing the arguments on behalf of the revision petitioner/ tenant, the learned counsel would submit that in the instant case, the landlady filed RCOPs referred to above, four in number, against all the tenants on the ground that the building was required for immediate demolition and reconstruction and there was thoroughly lack of bona fide. Two Engineers were examined. One on the side of the petitioner and one on the side of the respondent. Thus both the courts have recorded the finding that the building was old and it has got to be demolished. But in the instant case, the respondent/ landlady has not proved her bona fide at all. In the year 2003, first RCOP was filed by the tenant in RCOP.No.508 of 2003 for depositing the rents under Section 8(5) of the Act, since there was denial to receive the rent on the part of the landlady. The said petition was dismissed. Therefrom, an appeal in RCA.No. 1381 of 2003 was also failed, which culminated in filing Civil Revision Petition in CRP.No. 1862 of 2004. It is alleged that even on this date the tenant has been continuing to deposit the rent in Court. While the matter stood thus, the landlady filed RCOP.No.2150 of 2003 on the ground of wilful default and also for demolition and reconstruction. Pending the same she filed an application under Section 11(4) of the Act for depositing the rental arrears and that application was dismissed. The appeal therefrom was also dismissed and the CRP therefrom, is pending in this Court. It is pertinent to point out that the said RCOP on both the grounds is pending even today before the Rent Controller. The landlady again filed RCOP.No. 954 of 2004 on the ground of subletting and damages. This application was dismissed. Thereafter RCA.No. 171 of 2005 was filed and it was also dismissed. It has become final since no challenge was made therefrom. RCOP.No. 1060 of 2005 was filed on the ground of change of user. The said RCOP was also dismissed. There was no appeal therefrom. Thereafter, RCOP.No. 2215 of 2004 was filed for the purpose of demolition and reconstruction. The said application having been allowed and also the Appellate forum having confirmed it, this revision has arisen. From the commencement of the proceedings till this date, there have been payments on rents by way of deposit and they have been given effect to. It is further to be pointed out that the earlier petition filed on two grounds viz., wilful default and demolition and reconstruction is pending. There is another application on the same ground and it would indicate that there was thorough lack of bona fide. Now she was having sufficient funds and the building is old. The important criterion is whether the building is required for immediate demolition since bona fide has not been established. What is the main factor that has to be taken into consideration is that the petition filed under Section 14(1)(b) of the Act should have been dismissed by both the authorities below, but not done so. Hence, the order of the authorities below have got to be set aside.
6. Contrary to the above contentions, the learned counsel for the respondent/ landlady made submission that it is true that originally four applications are filed. All the four applications are ordered by the Rent Controller. Following the same, four RCAs were also filed. Again three RCAs are dismissed. Three Civil Revision Petitions are taken by three tenants. Out of which two have been withdrawn. This is the only CRP pending before this Court. All the three tenants have vacated the premises which would clearly indicate the bona fide of the respondent/landlady and the building would require immediate demolition. The learned counsel for the respondent brought to the notice of this Court that pending the RCOP, a letter was written by one tenant viz., Mr.Hari Shankar, which was filed before the Rent Controller and it has been marked as Ex.P6, wherein he has clearly mentioned that he was vacating the premises since it was required for the purpose of demolition and there were cracks in the building. The building was old and that it would require demolition. The corporation authorities made inspection and also advised him to vacate the premises. This was relied on by the authorities below and further the plan for approval was also made along with an application seeking permission to demolish the building. This permission has also been granted and the plan has also been approved. Further in the instant case, an Engineer has been examined on the side of the petitioner to show that the building is old. There are cracks in the building and that the building is required for the purpose of demolition. Under the circumstances, both the authorities have appreciated the case of the respondent/ landlady and they have arrived at the conclusion that it is a fit case where eviction has to be ordered. The eviction order has been passed. The learned counsel would further add that this is not a case where the landlady has deficiency of funds and under such circumstances, the necessary factor for an order of eviction and all the parameters for ordering eviction as envisaged under Section 14(1)(b) of the Act have been satisfied. Under the circumstances, the order of the authorities below have got to be confirmed.
7. This Court anxiously considered the submissions made by both the parties. It is not in controversy that the revision petitioner is occupying one of the shops which belonged to the respondent/ landlady situated in Habibulla Road, T.Nagar and originally four RCOPs were filed against the four tenants on the ground of demolition and reconstruction and they were all ordered. Four RCAs therefrom also failed, against which three CRPs have been brought forth by three tenants. Two CRPs have been withdrawn. Now, in the instant case, since the application was filed on the ground of demolition and reconstruction under Section 14(1)(b) of the Act, the Court is of the considered opinion that before going to the merits or otherwise of the rival contentions put forth, it would be apt and appropriate to reproduce the Section 14(1)(b) of the Act, which read as follows:-
"that the building 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, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date."
8. A reading of the provisions of Section 14(1)(b) of the Act, it would clearly reveal that the bona fide is the basic criteria for ordering eviction under Section 14(1)(b) of the Act. Here the provision of Section is that unless the desire or the intention to demolish the building is proved by the landlady, he should not be permitted to evict the tenant. In the instant case it has to be seen whether the landlady has actually bona fide for immediate demolition and reconstruction. It would differ from case to case. It has got to be assessed from the circumstances available. It has got to be viewed from the available circumstances in each cases. For this test, what is required is the availability of the bona fide. In the instant case, by going into the circumstances available, the Court is of the considered opinion that there was thorough lack of bona fide on the part of the landlady for the following reasons.
9. The application was filed by the tenant in RCOP.No.508 of 2003 for depositing the rental arrears when the rents were refused to be received by the landlady. It is true that originally the application was dismissed and RCA.No.1381 of 2003 was filed by the tenant. It was also dismissed and then it came to this Court by way of CRP in CRP.No. 1862 of 2004. It is not in controversy that the entire amount has been deposited till this date. The RCOP.No.2150 of 2003 was filed by the landlady on two grounds, one as regards wilful default under Section 10(2)(1) of the Act and the other as regards demolition and reconstruction under Section 14(1)(b) of the Act. It is not in controversy that the said RCOP is pending. Pending that RCOP, MP under Section 11(4) of the Act has been filed, it has culminated by way of CRP which is pending before this Court. At this juncture, it is to be pointed out that the original RCOP 2150 of 2003 on the two grounds including the ground of demolition and reconstruction is pending and the contention put forth by the learned counsel for the respondent that there was an endorsement made in the application filed under Section 11(4) of the Act that the petitioner landlady would not be pressing the ground of demolition and reconstruction at the time of final disposal of the RCOP. It remains to be stated that the said RCOP is pending and no endorsement of not pressing the ground of demolition and reconstruction is made. Under the circumstances, while that RCOP is pending, RCOP.No. 2215 of 2004 along with three RCOPs on the same ground of demolition and reconstruction have been filed. There was no impediment for the landlady for making an endorsement of not pressing that ground in the earlier RCOP and bringing the present RCOP to file. But that was not done. At this juncture, the court has to point out that there is a technical flaw in filing a new RCOP, that too, on the same ground of demolition and reconstruction while the earlier RCOP for demolition and reconstruction is pending. Further contention put forth by the learned counsel for the landlady that bringing another RCOP like this does not cause any prejudice to the other party, viz., tenant cannot be countenanced in law. The first RCOP is pending on the same ground. The later RCOP filed on the same ground cannot be proper. It is not for the convenience of the party, but the party should satisfy the law. Further while the RCOP.No.2150 of 2003 on the two grounds was pending, RCOP.No. 954 of 2004 filed seeking eviction on the ground of subletting and damage by the landlady was dismissed and therefrom, the landlady took RCA.No.171 of 2005 and the same was also dismissed. It was not challenged thereafter. Not satisfied with the same, the landlady filed RCOP.No. 1060 of 2005 on the ground of change of user and the same was also dismissed. There was no appeal therefrom. Thereafter, having raised all these grounds in the earlier RCOP, the present RCOP.No. 2215 of 2004 was filed on the ground of demolition and reconstruction. At this stage, it has to be pointed out that during the pendency of the first RCOP.No.2150 of 2003, on two grounds including the demolition and reconstruction, bringing another RCOP. No.2215 of 2004, cannot be proper in law. Further, the RCOPs on different grounds were repeatedly filed and they were also dismissed. It would be indicative of the fact that frame of mind of the landlady was to see the eviction of the tenant. Further both the forums have actually relied upon a letter of one Dr.K.Harishankar, which is marked as Ex.P6. Both the courts below also relied on the letter to state that it would also be indicative of bona fide of the landlady. The Court is of the considered opinion that it creates a doubt. Firstly, Ex.P6 is the letter written by one Hari Shankar who was actually the respondent in RCOP.No. 2294 of 2004 and as found in Ex.P6, earlier there was no reason to continue to pay the rent in the RCOP. No. 2194 of 2004. Thereafter, the RCOP was continued and the order has also been passed on enquiry by the Rent Controller. Apart from that, in so far as the letter was concerned, the said Hari Shankar was not examined before the Court. At this juncture, the learned counsel for the respondent would submit that Mr.Hari Shankar, has not filed any counter. One cannot expect the opposite party to prove the letter produced by the landlady and a duty is cast upon the her to prove the letter of Hari Shankar, who was not examined. It is pertinent to point out that he was one of the respondents in RCOP, out of four, which have arisen, and also orders were passed on merits of the matter. It is pertinent to point out that RCOP.No.2194 of 2004 was not pressed by the petitioner/ landlady. Even after the receipt of such letter, she has pursued the RCOP against the said Harishankar for the reasons best known to her. Apart from this, Ex.P6 letter reads:
" I am a tenant of the portion running a medical clinic is not in a good and safe condition. The entire building is in a state of disrepair and the corporation people inspected my portion and advised me to shift to another building, since the building developed cracks allowing ants and insects to come in"
10. The tenor of the letter would clearly indicate that this cannot be a letter written by a tenant, who has vacated and handed over the possession to the landlady. A said letter is found written in such a way, that too, to satisfy the legal requirements as contemplated under the provisions of law would indicate the fact that the building is not in a good condition. The narration that the entire building is in a state of disrepair and the corporation people inspected the portion and advised him to shift to the new building would clearly reveal that the letter should have been prepared for the purpose of case. At no stretch of imagination any reliance can be placed on the letter for the purpose of indicating the bona fide of the landlady. Thus, in the instant case, it is not in controversy that the landlady in order to proceed with new construction, planned for demolition and reconstruction. Under Section 14(1)(b) bona fide of the landlady for immediate demolition and reconstruction must be satisfactorily proved. But in the instant case, the Court is of the considered opinion that it has not been done. The above circumstances would indicate that the bona fide was lacking clearly in this case. Even for construction, means were to be available and the plan for demolition and construction should also be approved by the Corporation concerned. They would not satisfy the bona fide what is required under the Act. So long as bona fide of the landlady is not satisfactorily shown, application under Section 14(1)(b) of the Act cannot be ordered on the ground of demolition and reconstruction.
11. Accordingly, the orders of the authorities below are set aside. The Civil Revision Petition is ordered accordingly. No costs. Consequently, connected MP is closed.
1. The Judge VIII Small Causes Court Chennai
2. The Judge XIV Small Causes Court Chennai.