ORDER
M. Thanikachalam, J.
1. The landlord, who had succeeded in his attempt to evict the tenant from the premises under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called as ‘Act’) failed before the Appellate Authority and the result is, he is before me as revision petitioner.
2. The petitioner as landlord, had filed a petition before the Rent Controller, Pudukkottai for the eviction of the respondent/tenant, contending that he had proposed to demolish the present old building and the same is required bona fidely for the purpose of demolition and construction of a new building, in order to have better investment for the augmentation of the income, since the income derived at present from the premises is not economical. It is also the case of the landlord, that the demised building is very old and the same is not in good condition, requiring immediate demolition and new construction. It is further stated that necessary approval was obtained by filing plans for approval. In this way, on the ground of demolition and reconstruction, giving undertaking also, as seen from para 10 of the petition, landlord filed a petition.
3. The respondent/tenant, tracing out the origin of tenancy and admitting, at present, the petitioner is the owner of the building, had opposed the eviction petition, on the ground that the building is in good state, which does not require immediate demolition and reconstruction. It is further pointed out, that the ground sought for, for the eviction of the tenant viz., demolition and reconstruction of a new model building and personal occupation for his business is not bona fide, since the petitioner is having several suitable buildings in Bazaar Street to occupy for him, if he wants.
4. In the additional counter, a contrary defence was taken diametrically opposite to the original counter regarding ownership, as if the petitioner is not the owner of the premises and therefore the petition is not maintainable.
5. On the above pleadings, the parties went on trial before the Rent Controller, where the petitioner is examined as P.W.1, and one engineer is examined as P.W.2, which is sought to be assailed by the examination of the tenant as R.W.1. On behalf of the petitioner, five documents were exhibited, whereas on behalf of the respondent/tenant, eleven documents were exhibited.
6. The learned Rent Controller appraising the facts and circumstances of the case, weighing the evidence and applying the provisions of law, as held by the Courts of hierarchy, came to the conclusion that the claim of the landlord is bona fide and thereby ordering eviction on 31.1.1997, she allowed the application, giving cause of action for the tenant to prefer appeal.
7. In R.C.A.No.5 of 1997 before the Appellate Tribunal, Pudukkottai, the order of the Rent Controller was put to test. The Appellate Authority, on the materials available on record, unable to agree with the findings of the Rent Controller, differed and the result is setting aside of the Rent Controller’s order, allowing the appeal and dismissing the R.C.O.P., thereby giving cause of action for the landlord to come to this Court, once again for the relief.
8. Heard Mr.A.J. Abdul Razak, learned counsel appearing for the petitioner and Mr.A.Muthukumar, learned counsel appearing for the respondent.
9. The point for determination is:
Whether the requirement of the landlord for the immediate purpose of demolition and reconstruction of a building on the site is bona fide, if so, whether an order of eviction could be passed ?
10. The petition mentioned property, measuring an extent of 13 x 34 feet situated at South Rajaveedhi, North Lane, Pudukkottai Town, belongs to the petitioner. This building is under the occupation of the respondent as tenant, a non-residential one. The landlord wants to demolish the building in order to put up a new building, so that he can have better investment of his money, in addition with an idea of running his own business. The tenant, in the counter, originally had not questioned the ownership of the building. In fact, he admits in para 3 of the counter that at present, the property stands in the name of the petitioner. But curiously, in the additional counter, a stand is taken that the petition is not maintainable, since the building is not registered in the name of the petitioner. The settlement deed under which the petitioner claims title, has not been challenged. The fact that there was no change of registration, in the revenue records could not be a ground to deny the title and on this ground, the contention of the tenant in the additional counter that the petition is not maintainable, is not acceptable. Both the Courts below have given a concurrent finding, regarding this aspect and that is why before me also, this ground of defence is not urged. Further as seen from the evidence also, which is supported by the pleadings, the tenant has admitted this petitioner as landlord and paid the rent also. Under the above circumstances, it is too late, for the tenant to say that the petition is not maintainable.
11. The learned counsel for the petitioner/landlord, submits that the Appellate Authority, without properly analysing the case, as well as the oral evidence of the tenant, had set aside the findings of the Rent Controller and the finding recorded by the Appellate Authority, is in fact against the evidence and in this view, the order passed by the Appellate Authority is liable to be set aside. It is the further contention of the learned counsel for the petitioner that the landlord, has made out a case of bona fide, not only proving the oldness of the building, but also proving the means, preparation done by him, for the construction of the building etc., but unfortunately, the Appellate Authority failed to appreciate the same, which resulted in miscarriage of justice.
12. Opposing the above arguments, a strenuous argument was made on behalf of the tenant, that the bona fide of the landlord has to be tested on the grounds alleged in the petition and in fact, none of the grounds alleged is proved and therefore the Appellate Authority is right, in allowing the appeal setting aside the order of eviction passed by the Rent Controller. By going through the orders of both the Courts, as well as by going through the documents and oral evidence as pointed out by either counsel, I am unable to persuade myself to accept the findings of the Appellate Authority, whereas I am constrained to accept the findings of the Rent Controller.
13. The Honourable Supreme Court in Vijaya Singh, etc. etc. v. Vijayalakshmi Ammal, had given the guidelines, what are the relevant materials to find out whether the requirement of the landlord is bona fide or not. The Apex Court has ruled, that the Rent Controller has to consider:
1. bona fide intention of landlord far from sole object only to get rid of tenant
2. age and condition of building
3. financial position of landlord to demolish and erect new building, in addition to other attending circumstances.
14. At present, it is a settled position of law, that it is not necessary, in order to seek eviction of the tenant under Section 14(1)(b) of the Act, the building should be in a dangerous and dilapidated condition, requiring immediate demolition on that ground, though it is necessary to find out the condition of the building, since the landlord is not entitled to an order of eviction, for mere asking, labelling the building as old one and not in good condition.
15. It is also held by this Court, placing reliance upon the above Apex Court ruling in Kuttappan (died) v. Civil Advocates Clerks’ Association, that condition of the building is not so essential, and even if the building may not be that much dangerous and if it is shown, that the building is bona fide required by the landlord, for immediate purpose of demolition, the Rent Controller, satisfying himself has to order eviction.
16. In S. Saraswathiammal (deceased) and 2 Ors. v. R.S. Mallikarjun Raja and 2 Ors., , this Court has taken a view, that the building need not be in a dilapidated condition or in a dangerous state of affairs, for ordering a petition under Section 14(1)(b) of the Act, which is further affirmed by this Court in Mohammed & Sons v. Abbabhai Jodhpurwala, 2000 (1) MLJ 747. As of rule, when the landlord requires the building for demolition and reconstruction, building need not be so dangerous, unfit for human habitation, nor it should be on the verge of collapse. Further, it is held that if the landlord establishes, all the grounds under Section 14(1)(b), a presumption arises, in his favour that his claim is bona fide in this way, it is held as follows:
“It is clear that for the purpose of seeking demolition and reconstruction, building need not be dangerous or unfit for human habitation nor it should be on the verge of collapse. The Honourable Supreme Court has held that on mere asking of landlord that he proposes to demolish the building an order of eviction cannot be passed. It is the bona fides of the claim that has to be considered and for the said purpose, the Apex Court has given certain guidelines, which is not exhaustive. When landlords establish all the grounds under Section 14(1)(b), a presumption arises in his favour that his claim is bona fide. It is for tenants to disprove the presumption by adducing contra evidence.”
17. The learned counsel for the respondent/tenant, placing reliance on Sabura Begum, S.P. v. M.K. Thangavelu, urged, that the requirement of the landlord for demolition and erection of a new building should be considered, taking into account, the age and condition of building, financial position of landlord to demolish and erect new building, which cannot be in dispute since it is the dictum of the Apex Court also.
18. In S. Thangaswamy v. R. Vinayakamurthy, , this Court took the view, irrespective of the age and condition of the building, landlord is entitled to evict the tenant, if petition for demolition and reconstruction is genuine, on the basis of the means of the landlord, to carryout demolition and reconstruction. It is also held in the above decision, that the non-examination of engineer is not fatal to the case of landlord, to prove the condition of the building. The Section also does not contemplate that the building must be an old one, and it should be in a dilapidated condition causing insecurity to the occupants. Even the Section does not say that in order to sustain the petition under Section 14(1)(b), the landlord should possess, sufficient means or should have made preparation for the proposed construction such as getting approval, depositing the amount in a bank or something like that. The Section contemplates that building is bona fide required by the landlord. Only to test that bona fide, we have to see the basis, on which ground, the eviction is sought for, in order to satisfy that the requirement is a bona fide, and the satisfaction must be subjective satisfaction, and not to doubt about the bona fides of the landlord, always.
19. It is not mandatory that the landlord should show the cash, in order to prove his bona fide that he is a man of means. If it is shown, that he is capable of raising funds and he is having means to raise funds, that itself is sufficient, because of the fact, now a days, the banking institutions are ready, to provide required funds, at minimum rate of interest for the construction of buildings. The landlord, for his satisfaction can sought for demolition of the building, even though the existing building, is old or not, in order to put up a new construction, so as to suit his convenient occupation, and for better use in addition, to have extra income. In this context, we have to see on what grounds, the landlord wants to demolish the building, for the purpose of erecting the new building.
20. In para 7 of the petition, it is stated that he proposed to demolish the present building under the occupation of the respondent herein, in order to construct a new building, so that he can have better investment of his money, with an idea of running his own business. In para 8, it is further stated, that the building is old, even according to respondent’s submission, further stating the same is not in good condition and the condition required immediate demolition. Nowhere the petitioner/landlord claimed, that the building is in a dilapidated or in a dangerous condition, threatening to fall, causing insecurity, etc. Therefore, the oldness of the building and the condition of the building need not be gone into minute detail, by acid test and it is suffice, if the building is proved to be old.
21. In the counter, the tenant has stated that the building is in good state, and nowhere he has stated that it is a new building and in a sound condition. It is the complaint of the tenant, that the landlord has, not even whitewashed the walls at any time. The tenant claims occupation of the building even from the year 1955, thereby saying, that the building is more than 40 years old, an ordinary madras terraced building, having tiled portion also as described in the description of the property, probably outliving at present. The building is in a commercial locality of the town, though it is in a lane. Therefore, nothing strange for the landlord to think, that such a building should be demolished and in that place, a new building should be erected, for the purpose of convenience, in order to augment the income also,
22. As far as the means is concerned, in para 7 it is said that the petitioner want to have better investment of his money, thereby indicating the means whether he is employed in a shop or not. The means of the petitioner is not questioned, whereas, as rightly submitted by the learned counsel for the revision petitioner, it is in a way admitted in para 8 of the counter. Para 8 of the counter reads, that the petitioner is having several suitable buildings in Bazaar Street and his father is having a profitable and more lucrative business at Malaysia. Therefore, there is every possibility for this son, to get aid of the father, who is having a lucrative business at Malaysia as conceded by the tenant. In this way, it should be concluded safely, the condition of the building viz., its oldness is not disputed and the means of the petitioner is also not in dispute. The petitioner has also filed a plan, before the Municipality and got it approved as seen from the documents thereby showing the preparation also. Considering all these facts, the Rent Controller has applied her mind, satisfied herself, that the requirement of the landlord is bonafide, which is unfortunately, reversed by the Appellate Authority, that too against the evidence and the pleadings.
23. The observation of the Appellate Authority, that the landlord has failed to prove that the building is in dilapidated and dangerous condition is unwarranted, and against the pleadings also. As aforementioned, it is not the case of the landlord, that the building is in dilapidated condition and on that ground, it requires demolition and reconstruction. Therefore, the comment that the petitioner has not taken steps, for the appointment of Commissioner is unnecessary in this case. The claim of the petitioner that after erection of the building, he want to have his own business, does not mean, that he is carrying on business, as on this date and therefore it is unnecessary for the petitioner, to prove that he is carrying on business on the date of filing of the application, as incorrectly observed by the Appellate Authority.
24. The case spoken by P.W.1, that he intended to construct a building at the cost of Rs. 1.3 lakhs is supported by his oral evidence regarding the possession of cash as well as jewellery, which cannot be doubted in view of the admission made by the tenant regarding the means of the landlord. The Appellate Authority unnecessarily laboured itself, to find out some mala fide in the contention of the landlord, which is not warranted on the basis of the pleadings as well as the evidence. In fact, the oral evidence of R.W. 1 itself is sufficient to accept the case of bonafide, requirement of the landlord.
25. The landlord as P.W.I has stated that he is having cash in the bank and he has also received Rs. 86,000 from his father. He has further stated that he is having separate account, in addition possessing 80 sovereigns also. The means so spoken are not challenged. The tenant as R.W.1 has given evidence in detail regarding the origin of tenancy, enhancement of rent, payment of rents, which are not germane to decide this case. During the cross-examination, he has stated, that he is willing to vacate the premises provided the ownership is made out and the relevant deposition reads as follows:
26. As aforementioned tenancy is admitted and on the basis of the settlement deed, the petitioner is the owner of the property, which is not liable to be challenged, by this tenant. As seen from the examination in chief also, I am unable to find out any semblance of evidence, questioning the oldness of the building or doubting about the means of the petitioner. Thus the oral evidence of P.W.1 coupled with R.W.1, prompt me to hold, unhesitatingly that the requirement of the petitioner/landlord, is bona fide and there is no slightest doubt, in my mind to entertain any mala fide, such as, this petition is intended to evict the tenant.
27. On the above facts, as well as on the basis of the settled position of law, I am fully satisfied, that the building in question is an old one, though not in a dilapidated or dangerous condition, that the petitioner is having sufficient means for demolition and erection of a new building on that site and he had also made every preparation for the same, thus satisfying the guidelines formulated by the Apex Court also. Unfortunately, the Appellate Authority without approaching the case from proper perspective, committed an error, not only on law but also on facts, thereby disturbing the legal finding of the Rent Controller compelling this Court, to interfere in this revision to set it right. Hence, the revision petitioner succeeds.
28. In the result, revision is allowed setting aside the order of the Appellate Authority in R.C.A. No. 5 of 1997 restoring the eviction order passed by the Rent Controller in R.C.O.P. No. 16 of 1995, directing the tenant to hand over possession of the premises, within four months from today. Under the facts and circumstances of the case, the parties are directed to bear their respective costs throughout.