CRP NPD/75/2006 of GURUNATHAN Vs T. KRISHNAPPA on 22 December 2006

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.12.2006

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN

Gurunathan ... Petitioner/tenant

PRAYER: Civil Revision Petition is filed under Section 25 of theTamilnadu Buildings (Lease and Rent Control) Act 1960 as amended ofAct 1/1980 against the order and decretal order dated 13.11.2005 inR.C.A.No.1/2003 on the file of the learned Rent Control AppellateAuthority (Principal Subordinate Judge) Tiruvannamalai, confirmingthe order and decretal order dated 10.1.2003 in H.R.C.O.P. No.23/1999on the file of the Rent Controller (Principal District Munsif),Tiruvannamalai.

For Respondent : Mr.R.Karthikeyan

The order passed in R.C.A.No.1/2003 on the file of the PrincipalSub-Court, Tiruvannamalai, dated 13.10.2005 is challenged before thisCourt by the landlord. The landlord filed H.R.C.O.P.No.23/1999 underSection 14 (1) (b) of the Tamil Nadu Buildings Lease and Rent ControlAct, for eviction. The learned Rent Controller, Principal DistrictMunsif, Tiruvannamalai, after going through the rival contentions ofthe parties, after considering the oral and documentary evidence letin by both sides has come to the conclusion that thelandlord/petitioner is entitled to the relief as prayed for in thepetition and accordingly allowed the petition ordering evictionagainst the tenant giving four months time to vacate and hand overthe possession of the petition schedule property to thelandlord/petitioner.

2. Aggrieved by the orders of the learned Rent Controller, thetenant preferred R.C.A.No.1 of 2003 before the Appellate Authority

(Principal Sub-Juge, Tiruvannamalai) who has also dismissed theappeal confirming the order of the Rent Controller inH.R.C.O.P.No.23/1999 giving three months time for eviction.

3. Aggrieved by the orders of the Rent Control AppellateAuthority/ Sub Judge, Tiruvannamalai, the revision has been preferredby the tenant.

4. The learned senior counsel appearing for the revisionpetitioner would contend that both the Rent Controller as well as theAppellate Authority have erroneously come to the conclusion that thebuilding requires immediate repair on the ground that the building isin a dilapidated condition and that the building is 50 years old.

5. The learned senior counsel would focus the attention of thisCourt to Ex.C3 report filed by the Engineer appointed as theCommissioner by the Rent Controller to note down the physicalfeatures of the said building.

6. The learned Senior Counsel would contend that even in Ex.C3Engineer/ Commissioner's Report, the said building is said to be ingood condition and that only the country wood roof timber are lightlydamaged and the building requires any immediate repair or demolition.

7. The learned Senior Counsel would contend that under Section14 (1) (b) of the Buildings Lease and Rent Control Act, the landlordis entitled to get an order for eviction only if he proves that thecondition of the building requires immediate demolition, and thelandlord to prove that in case if the building is reconstructed anddemolished it will fetch more income than what he is getting now.

8. The learned Senior Counsel would represent that there isabsolutely no evidence on record to show that if the building isdemolished or reconstructed then it will fetch more income and thatthe condition of the building requires immediate demolition.

9. Per contra the learned counsel appearing for therespondent/landlord would draw the attention of this Court to anobservation made by the Appellate Authority in Paragraph 10 of thejudgment of the Appellate Authority wherein it has been observed bythe Appellate Authority that the wooden rafters in the said buildingare in a damaged condition and it has been further observed that theintention of the landlord to put up a new construction in order toaugment his income is a malafide one. But the above said observationthat the building if renovated will fetch more income is not based onany oral or documentary evidence. Even in the evidence of P.W.1 thereis no mention by him to show how much income the building will fetchafter renovation. The landlord has not even examined nearby shopowners to show the income their shops are fetching on the date of filing of the petition. Admittedly, so far, the landlord has notdemanded more rent or filed any petition for fixation of fair rent tothe building. On the other hand, a perusal of Ex.C3, the report ofthe Engineer, would show that the building is being maintainedperiodically, and it is in good condition. The walls on all sides arein good condition and white washed. The flooring area is in a goodcondition. The country tile roof was repaired and improved justbefore 10 years, and the condition is O.K. The Terrace roof requiressome patch works. The country wood roof timbers are slightly damaged.But they used 5"x5" size roof timbers and the span of the shop is6'9" only. It is O.K. Finally, the building is not in worst conditionand also not require any immediate repair or demolition and that itis O.K.

10. An advocate Commissioner was also appointed in this case tonote down the present condition of the said building. Ex.C.1 is theAdvocate Commissioners report. It also reports that the portion shownand marked as (A) in Ex.C2 plan is a Madras Terraced building. Therafters therein are slightly damaged. The walls on both sides are ingood condition. There is some cracks seen in one or two places on theflooring area. The room marked as (B) in Ex.C2 plan is having countrytile roof. The four walls to the said roof are also in a goodcondition. The wall is made of brick and lime mortar and the wallsseems to be painted four years back. There was no damage seen on therafters in room (B). The roof is in a good condition and according tothe Engineer's estimate, the age of the building would be 70 years.In Ex.C.3 the Engineer has stated that the approximate age of thebuilding would be 51 years.

11. For the purpose of getting possession for demolition andreconstruction, the landlord must prove that the condition of thebuilding is so bad requiring immediate demolition. But from Ex.C1 andC3, reports of the Commissioner, it cannot be inferred that thecondition of the building requires immediate demolition andreconstruction, As I have already indicated earlier, there isabsolute no evidence on record to show that if the building isdemolished and reconstructed, it will fetch more income.

12. Under such circumstances, this Court has necessarilyinterfere with the orders of the learned Appellate authority inR.C.A.No.1/2003, who has confirmed the orders of the learned rentController in H.R.C.O.P.No.23/1999.

13. The learned counsel appearing for the respondent relying on2002-1-L.W.796 Manickkampillai Versus 1.A.Sakuntala 2.Selvi 3.Janaki4.Uma 5.Vijayalakshmi and contended that if a tenant is able to provethat the building in occupation of the tenant is more than 30 yearsof age and on modification it will fetch more income than it will bea ground for order eviction. But in the dictum relied on by the

12. Under such circumstances, this Court has necessarilyinterfere with the orders of the learned Appellate authority inR.C.A.No.1/2003, who has confirmed the orders of the learned rentController in H.R.C.O.P.No.23/1999.

13. The learned counsel appearing for the respondent relying on2002-1-L.W.796 Manickkampillai Versus 1.A.Sakuntala 2.Selvi 3.Janaki4.Uma 5.Vijayalakshmi and contended that if a tenant is able to provethat the building in occupation of the tenant is more than 30 yearsof age and on modification it will fetch more income than it will bea ground for order eviction. But in the dictum relied on by the learned counsel for the respondent, the application was filed by thelandlord under Section 10(2) (i) and 14(1) of the Tamil NaduBuildings Lease and Rent Control Act wherein it has been held thatfailure to state the period of default cannot result in rejectingthe petition. It was proved by the landlord in that case the tenanthad committed willful default in paying the rent for more than 15months and it has been held that the conduct of the tenant willamount to indifference and there was also evidence let in by thelandlord to show that if the land is renovated and let in, it willdefinitely fetch higher rent and hence the landlord had filed thepetition for eviction only under Section 14 (1) (b) of the Tamil NaduBuildings Lease and Rent Control Act for eviction on the ground thathe requires the building for demolition and reconstruction on theground that the building is in dilapidated condition. So the dictumrelied on by the learned counsel appearing for the respondent willnot be applicable to the present facts of the case. The ratio laiddown in 1997 (1) L.W.364 Ammal Pillai and others V. M/s.Varadarajulu Complex etc., relied on by the learned counsel for therespondent will also be not applicable to the present facts of thecase because in that case the tenant has denied the very title of thelandlord in respect of the super structure. Since the tenant hasdenied the title of the landlord it has been held in the said dictumthat eviction can be granted on the ground of denial of title aloneunder Section 14 (1) (b) of the Tamil Nadu Buildings Lease and RentControl Act. But that is not the case herein. The tenant alwaysadmits the ownership of the landlord in respect of the said building.The case in 2000 (IV) CTC 585 Syed Mehadi Ispaphani V. Shakeel Ur-Rehman respondent also will not be applicable to the present facts ofthe case because in the said case, the commissioner/Engineer hadfiled a report stating that the age of the building is 50 years oldand the condition of the building is so bad requiring immediatedemolition and reconstruction. But both the commissioners reportEx.C2 and C3 herein clearly would show that the condition of thebuilding is good and does not require immediate demolition andreconstruction. Only on the basis of surmise, and conjecture that incase the building is demolished and reconstructed, it will fetch moreincome, the learned Appellate Authority has ordered eviction of thetenant. No doubt as per Ex.C2 and C3, some of the rafters in thebuilding require repair. The learned Senior Counsel appearing forthe revision petitioner agrees that if an undertaking is given by thelandlord that if he completes the required repair work within threemonths from the date of receipt of handing over of the possession bythe tenant and deliver the property to him, the revision petitioneris prepared to vacate and hand over the possession to the landlord.Even though, the learned counsel appearing for the respondent ispresent before this court, the respondent/landlord is not presenttoday in the Court to make an endorsement to that effect.

14. Under such circumstances, this Court is of the view that the

findings of the learned Appellate Authority in R.C.A.No.1/2003 on thefile of Principal Sub Judge, Tiruvannamalai, is liable to be setaside and accordingly it is set aside dismissing the H.R.C.O.P.No.23of 1999 and the CRP is allowed. If the landlord gives an undertakingto get the building repaired within three months from the date ofhanding over of the possession by the tenant, the tenant shall vacateand hand over possession to the landlord. After completing the repairwork, the landlord shall deliver the property to the tenant/ revisionpetitioner. No costs.

akv

Sd/Asst. Registrar

/true copy/

Sub Asst.Registrar

1. The Principal Subordinate Judge,(Rent Control Appellate Authority)Tiruvannamalai.

2. The Principal District Munsif(Rent Controller), Tiruvannamalai.

3. The Section Officer, VR Section, High Court, Madras.

ONE CC TO MS. AL. GANDHIMATHI, ADVOCATE SR NO 65157

ONE CC TO MR.R. KARTHIKEYAN, ADVOCATE SR NO 64942

C.R.P. (NPD) No.75 of 2006

JRG(CO)

22.12.2006

BP/25.1