Prakash Pharmacy and Others vs C. Thirupurasundari and Others

S.M. Abdul Wahab, J.—These three civil revision petitions have been preferred by three tenants in respect of three portions occupied by

them in door No. 22, N.S.C. Bose Road, Madras-1. The respondents, who are the landladies have obtained an order of eviction against the

tenant on the ground of demolition and reconstruction as contemplated by Section 14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control)

Act, 1960. On 6.7.1992, the XI Judge, Small Causes Court, Madras, the Rent Controller, has passed a common order in R. CO.P. Nos. 2222,

2223 and 2224 of 1984, ordered eviction of the tenants, the petitioners herein. As against the aforesaid petitions, the petitioners have preferred

R.C.A. Nos. 1015, 1016 and 1068 of 1992 on the file of the VII Judge, Small Causes Court, Madras. By a common order dated 3.1.1997, the

Appellate Authority has confirmed the order of the Rent Controller, thereby confirming the eviction. Therefore, the tenants have come up before

this Court.

When the matter came up for admission, since the eviction proceedings have been pending since 1984 and more than thirteen years have

lapsed, this Court directed the petitioners'' counsel as well as the respondents'' counsel, who was also present, as he has filed a caveat petition, to

argue the revision petitions themselves. Accordingly, the civil revision petitions were taken up for final disposal. Agreed to the directions of this

Court, the respective counsels addressed their argument.

The learned senior counsel Mr. G. Subramaniam, for the petitioners for Shah & Shah in C.R.P. Nos. 655 and 656 of 1997, vehemently

contended that there was no bona fide in the landlords requirement for demolition and reconstruction. He also contended that there was no means

for putting up the construction. He also contended that the permission obtained by the previous landlady expired on her death and did not ensure

to the present landladies.

The substance of the contention of the learned Senior Counsel for the petitioners is that the building is not old requiring demolition as contended

by the land-ladies. On the other hand, the learned Counsel for the respondents Mr. P.K. Sivasubramaniam, contended that since the Rent

Controller as well as the Rent Control Appellate Authority have concurrently found that the requirement of landlady for demolition is bona fide, this

Court need not interfere in the order of the Appellate Authority, which in turn confirm the order of eviction passed by the Rent Controller.

In the circumstances, the main question involved in the case is: as to whether the condition of the building requires demolition as contended by

the landladies. The learned Counsel contended that to show the condition of the building, video cassettes were exhibited, but neither the Rent

Controller nor the Appellate Authority chose to view the video cassettes. According to the learned Counsel for the petitioner, before proceeding

further, he brought to my notice that M.P. Nos. 906 and 907 of 1990 were filed for joint trial of all the three petitions. On 20.1.1990, an order

was passed for the joint trial. Since, the joint trial likely to cause prejudice to their individual case, a petition was filed to try each case separately.

In the said petition, an order was passed by the Rent Controller to the effect that the evidence recorded in one case will not be used for the other

cases. A reading of the common order shows that the evidence recorded in one case has been used for arriving at the finding in the other cases.

Hence, he contends, serious prejudice has been caused by the conduct of the Rent Controller and the Appellate Authority.

In the memorandum of grounds in ground No. 45, the above fact has been set out. In the light of the above submission, we have to analyse the

evidence in this case to find out the condition of the building in each case independently.

C.R.P. No. 655 of 1997 relates to the building occupied by M/s. Prakash Pharmacy, C.R.P. No. 656 of 1997 relates to a portion occupied by

Kota Krishnamurthy. C.R.P. No. 765 of 1997 relates to a portion occupied by M/s. N. Kasi Viswanatha Iyer and Sons. Out of four portions

occupied by four tenants, one tenant did not contest, therefore, only three ten-ants contested the case. Out of the three also M/s. Prakash

Pharmacy, the petitioner in C.R.P. No. 655 of 1997, and Kota Krishnamurthy, the petitioner in C.R.P. No. 656 of 1997 are the main contestants.

As regards the other petitioner M/s. N. Kasi Viswanatha Iyer and Sons; his Advocate did not advance any argument.

As regards the condition of the building, the petitioners have produced Ex. R-13 video cassette. The cassette was not played and viewed by the

courts below, According to the counsel for the petitioner, in spite of a petition filed by the tenants to view the cassette, the trial court did not do

that. The Appellate Authority has also failed to do so. The learned Counsel further states that as per the definition of the ''Building'' u/s 2(15) of the

Act, each portion of a bigger building occupied by each tenant has to be construed as a separate building for the purpose of the eviction

proceedings. The condition of one building need not be the same with reference to the other buildings. The courts below have erred in not

considering the buildings Of each petitioner in C.R.P. Nos. 655 and 656 of 1997 independently.

It is true that each building must be considered with reference to its condition but at the same time we cannot also fail to see the common

features of the building. As far as the age is concerned, it has been proved to be hundred years. As per Exs. P-3 and P-4 this is borne out. As

against the documents Exs. P-3 and P-4 there is no documentary evidence contra. Further, the Engineer examined on the side of the ten-ants i.e.,

P.W. 3 has simply stated that from the look, the building could have been built before 50 years. On this aspect, both the Rent Controller as well as

the Appellate Authority have found on evidence that the building is more than hundred years old.

Next we will consider the condition of the building. It is true that the building in occupation of the petitioners in C.R.P. Nos. 655 and 656 of

1997 appear to be in good condition outward only. The Appellate Authority has found that the outward appearance inside the building is due to

the fact that they have been decorated. However, P.W. 2 has categorically stated that when he tested the walls, he heard the sound of hollowness.

From that it is evident that though the outward appearance inside the petitioners building appears to be good, the walls are not strong. The

appellate court has considered Ex. R-4 also. Ex. R-4 shows the front portion and the outward appearance of the portion of the two buildings. Ex.

P-32, the video cassette was viewed by the Rent Controller, who was dealing with the cases earlier and he has made a note. As per his notes, on

the eastern side wall there is a crack, the plasterings above the window have come out. Further in the rear portion, the bricks in the roofs are

visible. The doors also in the rear portion are dam-aged. In the first floor, the line plasterings have come out and bricks are visible. There is also a

crack in the first floor.

Even though the learned Counsel for other petitioner contended that the video cassette was not viewed by the Rent Controller, who actually

passed the order, the notes of the Rent Controller who has viewed it can be taken into account. Ex. P-4 shows that on 22.11.1984, the neighbour

has warned the petitioners about the condition of the building. It is true that the petition for eviction was prior to the said letter. But the fact remains

that the neighbour Foamra have demolished the building and has put up a new construction from the foundation. This is also admitted by R.W. 1.

Another aspect is that the Engineer R.W. 3 examined on the side of the petitioners did not go to the first floor at all, he has admitted this in the

cross-examination. He is not in a position to speak anything about the first floor. P.W. 2, the Engineer examined on behalf of the respondents

herein have set out in detail the real condition of the building. He has corroborated the evidence of P.W. 1. His report is Ex. P-21. From it we find

that only two walls i.e., on the north and south alone bear the entire weight of the building. The report shows the growing of plants and the cracks

and the support given to the rear wall. Exs. P-22 to P-31 photos also show that the rear portion is likely to fall and to prevent it supports have

been set up. This is the condition of the building that we are able to gather from the evidence.

It is also admitted that the buildings occupied by the petitioners in C.R.P. Nos. 655 and 656 of 1997 are separate and independent portions.

A part of the same building, which is found to be hundred years old having cracks, growing plants and wall plasterings coming out and the rear wall

standing on support. That is why, the Rent Controller as well as the Appellate Authority have come to a definite conclusion that the condition of the

building require demolition.

The learned senior counsel for the petitioners further contended that the petitioners have no means to put up the construction. In this connection

he contended that only xerox copies are produced. The learned Counsel for the respondents represented that the originals were also produced

along with the xerox copies and only after scrutiny of the original, the xerox copies were marked. The document in that regard is Ex. P-25. As

regards the other documents Exs. P-36 to P-40, it is contended that since they are connected with Nithi, they are in a position to produce the

same. It is not denied that the original petitioner was a partner of the ""Ega Theatre"" in Chennai City and subsequently after her death, the present

petitioners are also partners in it. In addition to this, petitioners are owning another building also. R. Ws. 1 and 4 have admitted that they do not

know about the means of the petitioners for reconstruction of the building. Therefore, the contention that the petitioners have no sufficient means of

reconstruct the building is also untenable.

The learned senior counsel for the petitioners contended that the permit granted to the petitioner/landlady is personal to her, but she died on

29.5.1991. Further Exs. P-16 and 17 permit has not been renewed, which expired on 2.8.1988. He has also cited a decision reported in Chinnan

and Ors. v. Ranjithammal 60 M.L.J. 709 : AIR 1931 Mad 216 in support of his contention to show that a licence to a person is not heritable. As

far as permit for demolition and reconstruction is concerned, assuming that it is not heritable that will not mean that the petitioners, who are the legal

representatives of the original holder of the permit, cannot apply and get a new one on the basis of the earlier permit. Further, it is also not a

condition precedent for filing an application for eviction u/s 14(i)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Permits and

plans are only some of the ingredients, which go to constitute bona fide of the petitioner, who moves the Court for permission for demolition u/s 14

of the Act. Invariably, in most of the cases, it is a fact that the sanction and permission for demolition and reconstruction expire during the

pendency of the rent control proceedings. Merely because, they are not renewed that will not mean that the proceedings have to be closed on that

ground. That apart, there is no provision to give an undertaking for reconstruction of a building within a particular time. On the other hand, the

undertaking is insisted for demolition only. Here, in this case, it is not disputed that the legal representatives have given undertaking. In the

circumstances, I am not in a position to agree that the permits for demolition and reconstruction issued by the Corporation expired and hence there

is no bona fide.

In A. Lakshmanan and Others Vs. Kanniammal alias Pattammal, this Court has held as follows:

It is settled law that a concrete and immediate proposal or scheme to demolish an existing building and reconstruct it into a bigger, more,

productive and higher income yielding one, cannot, by any means, be said to be mala fide.

It is only in the arguments, the learned Counsel contended that the new construction would not be economically productive. That is not the point

raised before the lower court and there was no occasion for them to consider said contention. Hence I am not inclined to consider the same in

these civil revision petitions. Therefore, in the absence of any concrete evidence with reference to the extent of the new building and the rent that is

likely to be fetched, I am not a position to permit the petitioners to raise the contention. The size of construction to be made cannot be a ground to

presume lack of bona fide. If the building is very old, it is for the landlord to reconstruct, it within his economic limits. It is incorrect to contend that

only when the landlord constructs a bigger building and the building so constructed necessarily fetched higher rent, bona fide may be inferred.

I have already dealt with the contentions raised by the counsel for the petitioners that the Rent Controller as well as the Appellate Authority

found that the rear portion and the first floor were in bad condition and require demolition but as they have found that the condition of the building,

namely, the portions occupied by the petitioners are good and therefore the courts below ought not to have taken note of the conditions of the

other portions and ought not to have ordered eviction. I have already indicated that the outward appearance of the building in two cases alone are

good and they are part and parcel of the old dilapidated building. In such circumstances, the entirety of the building should be taken into account

otherwise the landlords will be prejudiced by being forced to construct smaller buildings whenever they are able to vacate portions in bigger

building. Further, the courts below have found that by decoration alone the outward appearance of the buildings is good. In such circumstances, I

do not agree with the contention that the Courts below have not considered the condition of the building involved in the above civil revision

petitions and on that ground the matter should be remanded back to the Appellate Authority.

For the foregoing reasons, I am of the view that there is no substance in the civil revision petitions. Accordingly, they are rejected.

The other Civil Revision Petition No. 765 of 1997 relates to another portion of the big building occupied by the tenant, the petitioner herein.

The learned Counsel for the petitioner did not advance any argument and he simply represented that the arguments advanced by the learned Senior

Counsel would be sufficient. In the circumstances, this civil revision petition is also rejected. There will be no order as to costs. Consequently,

C.M.P. Nos. 3292, 3293 and3813 of 1997 are dismissed. The petitioners are given a month''s time for vacating the portions.