BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 28/08/2007 Coram The HONOURABLE MR.JUSTICE A.SELVAM C.R.P.NPD.No.624 of 2003 G.Shanmugavel ... Petitioner Vs. P.N.Panchaili Ammal ... Respondent This appeal has been filed under Section 25 of Tamil Nadu Buildings (Lease and Rent Control) Act 1960, as amended by Act 23/73 and Act 1/80, against the judgment and decree dated 13.01.2003 passed in R.C.A.No.4 of 2002 by the Rent Control Appellate Authority (Subordinate Court) Kovilpatti, confirming the fair and decretal order dated 17.04.2002 passed in R.C.O.P.No.7 of 2000 by the Rent Controller (District Munsif Court) Kovilpatti. !For petitioner ... Mr.S.Subbiah ^For respondent ... Mr.S.Pon Senthil Kumar :ORDER
This civil revision petition has been filed against the concurrent orders
passed in Rent Control Original Petition No.7 of 2000 and in Rent Control Appeal
No.4 of 2000 by the Rent Controller (District Munsif Court), Kovilpatti and by
the Rent Control Appellate Authority (Subordinate Court), Kovilpatti,
respectively.
2. The respondent/landlady herein as petitioner has filed Rent Control
Original Petition No.7 of 2000 on the file Rent Controller (District Munsif
Court), Kovilpatti, under Section 14(1)(b) of the Tamilnadu Buildings (Lease and
Rent Control) Act, 1960 praying to evict the revision petitioner/tenant on the
ground of demolition and reconstruction.
3. It has been contended on the side of the petitioner that the demised
premises is a non-residential building and the same belongs to the petitioner.
The respondent is a tenant and monthly rent is Rs.150/- payable on or before 5th
day of following months. During 1990 the petitioner has demanded the respondent
to vacate the demised premises so as to demolish and reconstruct the same. The
said building is hundred years old. The respondent has also promised to vacate
the building, but he has failed to keep up his assurance. Under the said
circumstances, the present petition has been filed.
4. Per contra, it has been contended on the side of the respondent that
the respondent has never agreed to vacate the building. The building in
question has been constructed only by the respondent. The petitioner has
already filed Rent Control Original Petition No.5 of 2000. The respondent has
also filed Rent Control Original Petition No.6 of 2000. It is false to say that
the petitioner has decided to demolish and reconstruct the building and there
is no merit in the petition and the same deserves dismissal.
5. On the basis of divergent contentions raised by either party, the Rent
Controller has allowed the petition. Against the order passed by the Rent
Controller, the respondent/tenant has preferred Rent Control Appeal No.4 of 2002
on the file of the Rent Control Appellate Authority (Subordinate Court),
Kovilpatti. The first appellate Court after considering the rival contentions
raised by either party, has dismissed the Rent Control Appeal No.4 of 2002.
Against the concurrent orders passed by the Courts below, the present civil
revision petition has been filed.
6. The learned counsel appearing for the revision
petitioner/respondent/tenant has contended with great vehemence that as per
Section 14 (2)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960
(hereinafter referred to as “the Act”), the petitioner should have filed an
undertaking, but the petitioner has not done it and therefore, the present
petition is not legally maintainable and the Courts below without considering
the same, have allowed the petition and therefore, the orders passed by the
Courts below are liable to be interfered with.
7. The learned counsel appearing for the respondent/petitioner/landlady
has also equally contended that the respondent/petitioner/landlady has not filed
undertaking under Section 14(2)(b) of the Act and subsequently, she has filed
the same and even before recording delivery, the landlady is entitled to give
such undertaking and the failure on the part of the revision
respondent/petitioner/landlady to file undertaking as contemplated under Section
14(2) of the Act is not a flaw to the petition and the Courts below after
considering the contentions urged on the side of the revision
respondent/petitioner/landlady, has rightly allowed the petition and therefore,
the contention urged on the side of the revision petitioner/respondent/tenant is
not legally maintainable and under the said circumstances, the present civil
revision petition deserves dismissal.
8. On the basis of divergent submissions made by either counsel, the only
point that has now winched to the fore in the present civil revision petition
is;
whether failure of giving undertaking under Section 14(2)(b) of the said
Act, would pave the way for dismissal of the petition filed under Section
14(1)(b) of the said Act?
9. Section 14(2)(b) of the Act reads as follows;
“14.Recovery of possession by landlord for repairs or for reconstruction-
(1).. (a).. (b)..
(2) No order directing the tenant to deliver possession of the building
under this Section shall be passed- (a)….
(b) on the ground specified in clause(b) of sub-section (1), unless the
landlord gives an undertaking that the work of demolishing any material portion
of the building shall be substantially commenced by him not later than one month
and shall be completed before the expiry of three moths from the date he
recovers possession of the entire building or before the expiry of such further
period as the Controller may, for reasons to be recorded in writing allow.”
10. From the close reading of the provision mentioned supra, it is
needless to say that the petitioner who has filed a petition under Section
14(1)(b) of the Act should also give an undertaking inconsonance with the
provisions of 14(2)(b) of the said Act.
11. In the instant case, as rightly pointed out by the learned counsel
appearing for the revision petitioner/respondent/tenant that the landlady has
failed to file an undertaking as envisaged under Section 14(2)(b) of the Act,
but in the appellate forum, she has filed such undertaking to that effect.
12. The main contention urged on the side of the revision
petitioner/respondent/tenant is that such undertaking should be given along with
the main petition filed under Section 14(1)(b) of the Act. The learned counsel
appearing for the revision petitioner/respondent/tenant has accentuated the
Court to look into the decisions referred to infra.
(a) The first and foremost decision is reported in 1999(1) CTC 657
(Krishan and two others Vs. Ravindranath) wherein this Court has held that
Section 14(2)(b) clearly contemplates giving of undertaking before ordering
eviction and not later.
(b) The second decision is reported in 2005 (5) CTC 585 (M.Abu Tahir and
M.Rahamathulla) wherein the also this Court has held that landlord cannot give
undertaking either in appeal or in revision under Section 14(2)(b) of the said
Act.
13. In order to controvert the decisions accited by the learned counsel
appearing for the revision petitioner/respondent/tenant, the learned counsel
appearing for the revision respondent/petitioner/landlady has accentuated the
Court to look into the following decisions;
(a) The first and foremost decision is reported in 2002 (4) Supreme Court
Cases 437 (R.V.E.Venkatachala Gounder Vs. Venkatesha Gupta and others) wherein
the Honourable Apex Court has held that 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.
(b) The second decision is reported in 2006 (2) M.L.J. 524 (K.Sanjeevi
Kumar Vs. P.Somasundaram) wherein this Court has held that in this case as it
was found that the order of the eviction is proper, the Court deem it fit to
grant opportunity for the landlord to give an undertaking under section 14(2)(b)
before ever the order of eviction is implemented.
(c) The third decision is reported in 2007(2) C.T.C. 518 (Lakshmi Vs.
M.V.Balamurali and another) wherein this Court has held that landlord can be
given opportunity to rectify error by giving fresh undertaking before eviction
order is implemented and eviction petition cannot be rejected on the ground that
no undertaking was given as contemplated under Section 14(2)(b) of the Act.
14. Therefore, from the cumulative effect of reading of the decisions
accited by the learned counsel appearing for the revision respondent/petitioner
/landlady, the Court can easily discern that there must be an undertaking as
contemplated under Section 14(2)(b) of the saud Act and if the landlord has
failed to give the some, he can file the same even at the stage of execution
before eviction order is implemented. Simply because, such undertaking has not
been given along with the main petition, the main petition cannot be rejected on
the part of the failure of the landlord. Therefore, it is manifestly clear that
an undertaking as contemplated under Section 14(2)(b) of the said Act, can be
given even at the stage of execution proceedings. Since the Honourbale Apex
Court has given the dictum as mentioned supra and the same has been followed by
this Court in subsequent decisions, this Court is in a position to follow the
dictum given by the Honourable Apex Court.
15. In view of the discussion made earlier, it is very clear that the
arugment advanced by the learned counsel appearing for the revision
petitioner/respondent/tenant is sans merit and whereas the argument advanced by
the learned counsel appearing for the revision respondent/petitioner/landlady is
really having subsisting force.
16. In fine, this civil revision petition deserves dismissal and
accordingly, is dismissed with costs. The order passed in Rent Control Original
Petition No.7 of 2000 by the Rent Controller (District Munsif Court) Kovilpatti,
upheld in Rent Control Appeal No.4 of 2002 by the Rent Control Appellate
Authority (Subordinate Court), Kovilpatti is confirmed. The revision petitioner/
respondent/tenant is directed to vacate the demised premises within two months
from today.
gcg
To.
1. The Rent Control Appellate
Authority, Subordinate
Judge, Kovilpatti.
2.The Rent Controller,
District Munsif,
Kovilpatti.