C. Rajagopal vs Mrs. Mallika Begum

S.S. Subramani, J.—In both these Revisions, tenant is the revision petitioner. Both the cases were filed by the same landlord on the

allegation that she needs the building for immediate demolition and reconstruction. It is her case that the building is old and dilapidated, that it is

more than 60 years old, and that she has the necessary means to reconstruct the building. It is also stated that she has deposited the necessary fees

before the Local Authority towards demolishing charges. She has also given an undertaking that she will put up the construction within a very short

period as provided under the Statute.

The counter petitioner in both the cases is the same. He has raised a common contention that there is no bona fide in the claim of the landlady

for demolition and reconstruction. According to the tenant, there were prior proceedings between the parties, where in one case eviction was

sought on the ground of wilful default, and in another, fixation of fair rent was sought for. According to the counter-petitioner, in the petition seeking

eviction on the ground of wilful default, the landlady failed, and in the other which was for fixation of fair rent, the decision was not in favour of the

landlady though there was a marginal increase in the rent. According to the counter petitioner, the building is in good condition, and he himself has

made the necessary changes so as to strengthen the building, and therefore, it does not require any reconstruction.

Both the Authorities below held that the claim of the landlady is bona fide and also found that she has satisfied all the conditions provided under

the Statute. Eviction was, therefore, ordered. The concurrent findings are challenged before this Court.

It is admitted by the learned counsel appearing on both sides that the primary question to be decided is, the physical condition of the building in

a case where eviction is sought for demolition and reconstruction.

Exx.P-11, R-2 and P-21 are the three Reports filed in this case. Exx.P-11 and R-2 are the Reports that were filed in the earlier case for fixation

of fair rent. The authors of these two documents have been examined in this case and the Authorities below were reluctant to accept those

Reports. At any rate, Exx.P-11 and R-2 are by the same person, and, from a reading of his oral evidence, it is clear that the findings of the

Authorities below are in any way incorrect. We are only concerned with Ex.P-21, which is the Report filed by P.W.3 in this case. That Report

was accepted by the Authorities below. Serious objection was taken by the learned counsel for the petitioner regarding the acceptability of Ex.P-

It is a report filed in Court not under Orders of Court, but on the request of the landlady. The circumstances under which he prepared the

Report are not in evidence. Of course, in the Report Ex.P-21, he sates that the counter-petitioner was also present when he made the inspection.

Since it is a Report obtained at the instance of the landlady, naturally, he has to support the same, and even his oral evidence is not very much

convincing. It is not a Commissioner''s Report as enjoined under Law. It is only a Report made by P.W.3 regarding his inspection. Ex. P-21 was

also not put to the tenant in this case, nor their objections called for. The Rent Control Act provides for the issue of a commission and get a report

after local inspection. The said power was given to the Rent Control Court by virtue of an amendment by incorporating Section 18-A in the Act.

The purpose of incorporating the section is very clear. When there are two Reports by two person claiming themselves to be experts and the

Reports are conflicting, it will be difficult for the court to arrive at the correctness of the same. Both the Reports will be filed in Court at the instance

of either party, and so it cannot be treated as impartial. It was under such circumstance, the Act was amended incorporating Section 18-A of the

Act. By incorporating that Section, the entire procedure under Order 26 Rule 9 of the CPC is also impliedly incorporated in it. Once that power is

given, the Court is given the power to appoint a Commissioner and get a Report, and that will be legal evidence in the case under Order 26 Rule

10 of the Code of Civil Procedure. In the decision reported in 1991 - 2 Law Weekly 268 (A.K. Panchatchara Mudaliar v. A.N. Srinivasan), it

was held thus:-

.....As I have pointed out, the purpose of the section is to empower the Rent Controller to appoint a Commissioner for the purpose of gathering

evidence and submitting a report to the Court. If the Legislature had intended that the Commissioner should be examined for the purpose of

marking the report, the section need not have been introduced in the Act at all. That was the position prevailing before the introduction of the

section. When the section had been introduced, it had been done to alter the situation so that the Rent Controller can gather evidence through one

of its officers viz., the Commissioner. It is well-known that parties will adduce evidence conflicting in order to substantiate their respective cases. In

a case arising u/s 14(1)(b) of the Act the landlord will examine one engineer or an expert to prove that the building is in a dilapidated condition,

while the tenant will examine another expert to prove that the building is in a good condition. In order that the Court may have an impartial report

of the situation, the Legislature introduced Section 18-A enabling the Rent Controller to appoint Commissioner. That purpose will be defeated if

the section is interpreted to mean that it will not enable the Rent Controller to treat the report as part of the records or mark the report in evidence

without examining the Commissioner as a witness.

In this case, the lower Court has rejected one set of Commissioner''s Report for some reason. I do not find that Ex.P-21 is better in any way. The

effect will be, that there is no evidence regarding the physical condition of the building. If both the Reports are taken away, the only course open to

me is, to set aside the Orders of the Authorities below and remand the case to the Rent Controller for the purpose of ascertaining the physical

condition of the building. Both the learned counsel agreed for such suggestion.

I, therefore, set aside the Orders of the Authorities below and remand the case to the Rent Controller, directing him to depute an advocate-

Commissioner to be assisted by two competent Engineers from a panel to be submitted by both parties. On the submission of the panel which will

be done within a week from the date of receipt of records of this case in the Rent Control Court, it shall appoint the said persons as Joint

Commissioners and get their Report within two weeks therefrom. In case the Joint Commissioners seek any extension of time, the Court shall

consider the request on merits. After getting the Report the Rent Controller shall dispose of the Rent Control Petition a fresh in accordance with

law. The parties are allowed to adduce evidence which the think reasonable. All the findings of the Authorities below are set aside. The finding has

to be rendered by the Rent Controller a fresh. Learned Counsel on both sides agree that the parties will co-operate with the Rent Controller in

disposing of the eviction petition before the Court closes for summer vacation. The Rent Controller shall not insist upon a formal application for the

appointment of a Commissioner. We will appoint the advocate-Commissioner in pursuance of the direction given in this Revision. The parties shall

name the persons who are to be deputed.

The Civil Revision Petition is allowed as indicated above, with no order as to costs. The parties shall appear before the trial Court on 15-3-

1995.