R. Alamelu vs Visalakshi

Ismail, J.—The landlady is the petitioner herein. She filed R.C.O.P. No. 13 of 1975 before the Rent Controller-cum-District Munsif of Melur for eviction of the respondent herein on the ground that the petitioner required the premises in question for demolition and reconstruction as well as on the ground that the respondent tenant had committed wilful default in the payment of rent. The Rent Controller by his order dated 29th November 1975, held that the respondent was guilty of wilful default in the payment of rent and that the requirement of the petitioner of the building for demolition and reconstruction was bona fide, and therefore ordered the eviction of the respondent therein. Against this order, the respondent preferred an appeal before the Appellate Authority (Principal Subordinate Judge, Madurai). The Appellate Authority by his order 8th November 1976 reversed the finding of the Rent Controller on the question of wilful default in the payment of rent on the part of the respondent herein. With regard to the requirement of the landlady under Sec. 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960) hereinafter referred to as the Act), the Appellate Authority did not go into the question as to whether the landlady bone fide required the promises since the landlady had not a given as undertaking as contemplated under S. 14 (2) of the Act and therefore on that ground itself the eviction petition filed by the petitioner had to fail. The Appellate Authority also pointed out that inasmuch as the appeal was being allowed on a technical ground, namely, the necessary undertaking as contemplated under the Act had not been given by the landlady, she would be at liberty to file a fresh petition for eviction after giving the necessary undertaking and the question would be decided afresh by the Rent Controller. It is to revise the order of the Appellate Authority, the present petition has been filed under S. 25 of the Act. Having regard to the nature of the finding with regard to the allegation of wilful default in the payment of rent on the part of the respondent herein, the learned counsel for the petitioner did not advance any argument to assail the same. However, the learned counsel contended that even when an undertaking as provided for in S. 14(2) was not given before the Rent Controller, it was certainly open to the petitioner to give the undertaking at any later stage and thereby cure the defect, and simply because no undertaking had been given before the Rent Controller, the petition of the petitioner should not have been dismissed. The learned counsel further contended that such a plea was not taken by the respondent in the grounds of appeal before the Appellate Authority, and therefore, the appellate authority ought not to have taken into account such a ground.

In this petition, I do not have the assistance of the respondent since the respondent remains un-represented. Consequently, I have to deal with the civil revision petition only on the basis of the orders of the tribunals below, the statutory provisions and the argument of the learned counsel for the petitioner.

Sub-Sec.(1) of S. 14 of the Act states as follows--

14(1): Recovery of possession by landlord for repairs or for reconstruction:-- Notwithstanding anything contained in this Act, but subject to the provisions of Ss. 12 and 13, on an application made by a landlord, the Controller shall it he is satisfied--

(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated, or

(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.

And we are concerned with S.14(1)(b). Sub-S. (2) of S. 14 states as follows--

14 (2) No order directing the tenant to deliver possession of the building under this section shall be passed--

(a) On the ground specified in clause (a) of sub-S.(1) unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under Sub-Sec. (1) for his re occupation before the expiry of three months from the dale of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow ; or

(b) on the ground specified in clause (b) of sub-S. (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 months 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.

Here again, we are concerned only with S.14 (2) (b). Thus, it is clear that S. 14 (2) prescribes a condition precedent to be satisfied before the Rent Controller could pass an order directing the tenant to deliver possession of the building under S.14. These conditions are two in number, the one referable to the ground under S.14 (1) (a) and the other referable to the ground under S.14 (1) (b). The very language of S. 14 (2) will indicate that before passing an order directing the tenant to deliver possession of the building under S.14, the landlord should give 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 months from the date he recovered 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. The use of the expression "unless the landlord gives an undertaking" occurring in S.14 (2) (b) clearly indicates that the giving of such an undertaking is a condition precedent to the Controller passing an order directing the tenant to deliver possession of the building, and if no such undertaking is given, the Controller had no jurisdiction to pass any such order of eviction. In a particular case it may happen that the Rent Controller comes to the conclusion that the ground under S. 14 (1) (b), namely, that the landlord bona fide required the premises in question for the immediate purpose of demolition and reconstruction, had not been established, then on that ground itself the petition of the landlord was bound to fail, and therefore there would be no need for the Rent Controller to go into the question whether an undertaking as contemplated in S. 14 (2)(b) has been given or not. However, in such a case, on an appeal preferred by the landlord, if the Appellate Authority reverses the conclusion of the Rent Controller with regard to the requirement of the landlord under S. 14 (1) (b), then the question of directing the tenant to deliver possession of the building would arise and at that stage certainly toe landlord can give an undertaking before the Appellate Authority and on the basis of that undertaking the Appellate Authority could pass an order. However, if no undertaking has been given before the Rent Controller and on that ground the Rent Controller dismisses the petition notwithstanding the finding in favour of the landlord under S.14(1)(b), such an order cannot be assailed before the Appellate Authority because the Rent Controller had no jurisdiction to pass an order of the landlord even if the requirements of S.14(1)(b) were satisfied, if the landlord had not given the undertaking as contemplated in S. 14 (2) (b). It may also be possible that in a petition filed by the landlord under S.14 (1) (b) of the Act, the Rent Controller may first proceed to find whether the requirement of the landlord is bona fide or not, and having rendered a finding that the requirement of the landlord is bona fide he may adjourn the matter to enable the landlord to give an undertaking as required in S.14(2)(b) and then dispose of the petition finally after the landlord gives or does not give the undertaking. All that I am interested in pointing out is that simply as a matter of construction of the relevant statutory provision, it follows that if the Rent Controller finds that the requirements of S.14(1)(b) are satisfied and orders a petition in favour or the landlord without the landlord having given an undertaking as contemplated by S.14(2)(b), then the Appellate Authority, even if he agrees with the conclusion of the Rent Controller on the requirement of the landlord under S.14(1)(b), is bound to set aside the order for non-compliance with the requirements of S.14(2)(b).

This is what exactly has happened in this particular case. As I pointed out already, the Rent Controller recorded a finding in favour of the petitioner herein under S.14(1)(b) and passed an order in her favour without getting an undertaking from the petitioner as contemplated by S.14(2)(b). In fact, the order of the Appellate Authority states as follows--

Admittedly, such an undertaking has not been given in this case, and consequently the order passed by the learned Controller under S.14(1)(b) of the said Act has got to be straightway set aside.

It is clear that no undertaking as contemplated in S.14(2)(b) was given by the petitioner, and therefore, the order directing the tenant to put the petitioner in possession of the property could not have been passed by the Rent Controller, and consequently, the Appellate Authority was fully justified in selling aside the order of the Rent Controller.

However what Mr. S. V. Jayaraman, learned counsel for the petitioner, contends before me is that there are decisions of this court holding that such an undertaking could be given even before the Appellate Authority and even before the revisional authority, and therefore, when a petition filed by the landlord satisfies the requirements of S.14(1)(b), it cannot be dismissed solely on the ground that an undertaking as contemplated in S.14(2)(b) has not been given. As I have indicated already, the language of the statutory provision does not lend support to such a contention, and therefore, I have to see whether there are decisions of this court supporting the contention of the learned counsel for the petitioner herein.

The earliest order that has been brought to my notice is that of Sadasivam, J. d. 25th July, 1969 in Marudachala v. Rangammal C.R.P. 733 of 1969. That was also a petition for eviction under S. 14(1)(b) of the Act and the Rent Controller ordered eviction on the ground that the claim of the landlady that she wanted to demolish the roof and put up a concrete terrace was bona fide. But the Appellate Authority set aside the order on the ground that the landlady had not given the necessary undertaking as contemplated in S.14(2)(b) of the Act. The District Judge in revision also concurred with the courts below that the requirement of the landlady was bona fide and he allowed the revision on the ground that the undertaking given by the landlady before the Appellate Authority could be received as additional evidence by virtue of R.23(2) of the rules framed under the Act. The tenant filed the petition before this court. Sadasivam, J. held that there was really an undertaking before the Bent Controller, and therefore, the requirements of S.14(2)(b) had been satisfied. The learned Judge observed as follows--

There is nothing wrong in the order of the District Judge in directing the petitioners to deliver possession of the premises occupied by them on the ground that the respondent (landlady) required the same for demolition and reconstruction as contemplated in S.14(1)(b) of the Act. The necessary undertaking has been given prior to that order even before the appellate authority. What all S.14(2)(b) requires is that no order directing the tenant to give possession of the building under the section shall be passed on the ground specified in clause (b) of sub-S.(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 months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may allow. The appellate authority had vacated the order for eviction and before the District Judge passed the order for eviction under S.14(1)(b) the necessary undertaking was on record. Therefore, there is nothing wrong in the order of the District Judge in revision.

Thus it will be seen that the learned Judge did not hold that the undertaking could be given at any stage. All that the learned Judge held was that in fact there was an undertaking before the Rent Controller himself. If so, no other question could possibly arise in the civil revision petition. Apart from that, the learned Judge also held that the Appellate Authority had dismissed the petition filed by the landlady, but before the District Judge reversed that decision and directed eviction of the tenant, there was already the undertaking on record. Looked at from any angle, that decision of the learned Judge cannot be relied on as an authority that the undertaking can be given at any stage of the proceedings and the giving of such an undertaking does not constitute a condition precedent before the ordering of eviction by the Rent Controller.

Then my attention was drawn to the ruling of Ramaprasada Rao J. d. 15th October, 1976 in Subramanian v. Rajammal C.R.P. No. 2509 of 1975. That order is a brief one and reads as follows--

The respondent landlady had filed an undertaking as required by S. 14 of the Tamil Nadu Buildings (Lease and Rent Control) Act in this court. This has been held to be sufficient by the decisions of this court. The courts below found that the respondent required the premises in the occupation of the petitioner for the purpose of demolition and reconstruction. This is a concurrent finding of fact. There is no error of jurisdiction or material irregularity. The civil revision petition is dismissed.

It will be seen from the order that the learned Judge has not decided the question with reference to the language of S.14(1)(b) and 14(2)(b) of the Act. The learned Judge proceeds on the basis that in the decisions of this court it has been held that giving an undertaking before the High Court was sufficient I asked the learned counsel for the petitioner to produce any decision of this court holding that giving an undertaking before this court was sufficient. But the learned counsel expresses his inability to refer to any such decision even after having taken time to examine the position.

The next order relied on is that of Suryamurthy, J. d. 14th July 1976 in Shamsad Begum v. Doraiswami C.R.P. No. 1615 and 1177 of 1975, reported in (1976-2) M.L.J. 12 (S.N.). The relevant portion of the order reads thus--

The learned Rent Controller found that the requirement of the landlord for demolition and reconstruction of the building was bona fide. But the learned appellate authority did not agree with this view. This view of the learned appellate authority would appear to be based on the ground that without giving an undertaking as required by S.14(1)(b) these petitions for eviction have been filed. He also would appear to have thought that these petitions have been filed only as a ruse to evict the tenant, What is required is that the landlord should be in a position to demolish and reconstruct the building. that he should have the necessary resources to do so and that he should give an undertaking as required by the provisions of the Act. Merely because an undertaking was not given the petitions need not have been dismissed. The landlord might have been called upon to give such an undertaking. In these circumstances, it is necessary that the appellate authority should re-assess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective. Therefore, these two civil revision petitions are allowed and the orders of the learned appellate authority are set aside and the matter is remanded in each of the civil revisions to the learned appellate authority for fresh disposal after getting an undertaking from the landlords in accordance with the provisions of the Act. The learned appellate authority must, however, come to a conclusion independently of any observations made above.

Thus it will be seen that the order of Suryamurthy, J. does not throw any light on the question I am considering, because that was not the question considered by the learned Judge. In fact the observation of the learned Judge, namely, ''it is necessary that the appellate authority should re-assess the entire evidence and consider the question of the necessity for demolition and reconstruction from a proper perspective'', would indicate that the appellate authority had not dismissed the eviction petition solely on the ground that no undertaking was given as required by S.14(2)(b) of the Act, but even on merits.

Then my attention was drawn to an order of Gokulakrishnan, J. in B. C. Diocese of Madurai v. Ganapathi Iyer 89 L.W. 584. In that case, the Rent Controller ordered eviction under S.14(1)(b) on condition that the petitioners (landlords) gave the statutory undertaking under S.14(2)(b) within a period of one week from the date of the order. It is not clear from the report itself whether the order passed by the Rent Controller giving one week''s time for filing the undertaking was a final order or whether after the period of one week, the petition was called again and the eviction was ordered on the undertaking having been filed within the time given by the Rent Controller. However, the Appellate Authority in that case without going into the bona fides of the requirement of the landlords, dismissed the eviction petition holding that the eviction ordered by the Rent Controller on condition that the landlord should give the statutory undertaking within a period of one week from the date of order of eviction was not proper and legal, and could not therefore, be sustained. In the course of the order, the learned Judge points out thus--

Both the learned counsel appearing for the respective parties in these revision petitions agreed that the order passed by the appellate authority is not correct in view on the order passed by this court in C.R.P. 733 of 1969, d. 25th May 1969, by Sadasivam, J. Undertaking given before the Rent Controller even subsequent to the order of eviction passed by the Rent Rent Controller, can be taken into consideration by the appellate authority for ordering eviction and such undertaking has to be construed as full compliance of the direction contemplated under S.14 (2)(b) of the Act.

In the first place, the counsel appearing on both the sides agreed before the teamed Judge that the order passed by the appellate authority was not correct, and therefore, the question of the learned Judge himself going into the legal position did not arise. Secondly, as I have indicated already, the order of Sadasivam, J. in the civil revision petition referred to above did not hold that the undertaking need not necessarily be given before the Real Controller passed the order of eviction, and it could be given even subsequently. Therefore, this order also is not of any assistance to support the case of the petitioner herein.

Then there remains the order of N.S. Ramaswami, J. made in Rajagopol v. Tanjore Mambalam Rama Naick Charities C.R.P. 3100 of 1973, d. 19-6-1974 in which the learned Judge has directly considered this question. The order is a short one, and it reads as follows--

The appellate authority found that the claim of the landlord that he requires the building for demolition and reconstruction is not bona fide. The finding it that the landlord which is a trust has not proved that it has the necessary funds or it had made any preparation for demolishing and reconstructing the building. On revision, under S.25 of Act 18 of 1960, taken by the landlord, the revisional authority reversed the above finding and ordered eviction under S.14(2)(b) of the Act. The contention of the learned counsel for the tenant (revision petitioner before me) is that the revisional authority (District Judge) has exceeded its jurisdiction in reversing the finding of the appellate authority. However it is wholly unnecessary to into this aspect of the matter for I am satisfied that the order of eviction passed by the revisional authority is one made without jurisdiction for another reason. Under S.14(1)(b) an order of eviction can be passed only on the landlord giving an undertaking that the work of demolishing the building shall be substantially commenced by him not later than one month and shall be completed by the expiry of three months from the date of recovering possession of the building That is the provision contained in sub-sec.(2) clause (b) to S.14 of the Act. Admittedly, the landlord had not given such an undertaking. That means, the revisional authority had no jurisdiction to pass an order of eviction. On this short ground this revision petition filed under S.115, C.P. Code is allowed and the order of eviction set aside.

Thus, it will be seen that it is only the order of N.S. Ramaswami, J. that deals with the requirement as to the giving of an undertaking under S.14(2)(b) as one going into the jurisdiction of the Rent Controller to make an order directing the tenant to put the land lord in possession of the building. The learned Judge took the view that it goes to the root of jurisdiction of the Rent Controller to order eviction, and therefore, if the under taking had not been given, the Rent Controller had no jurisdiction to pass on order of eviction. I may say with respect that this view is in accordance with the construction which I have put on the relevant statutory provisions earlier in the course of this order.

I may also point out that the requirement of undertaking contemplated by S.14 (2) (b) is not a mere empty formality, and it is intended to prevent any abuse on the part of the landlord. From what I have extracted already, it will be seen that there are two limbs to this undertaking in S.14 (2) (b). One is that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one moth from the date of recovery of possession of the entire building. This time limit is an unalterable one. The second limb of the undertaking is that the the demolition shall be completed before the expiry of three months from the date the landlord recovers possession of the entire building. The time limit of three months in the second limb can be extended by the Rent Controller for reasons to be recorded in writing. Consequently, the undertaking with reference to both these limbs must be given before an order can be passed directing the tenant to put the landlord in possession of the building.

S. 16(1) of the Act confirms the necessity for an undertaking. That statutory provision reads as follows--

16 (1): Tenant to occupy if the building in not demolished: Where an order directing delivery of possession has been passed by the Controller under Clause (b) of sub-sec (1) of S.14 and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking under clause (b) of sub-sec. (1) of S. 14, the tenant may give the landlord notice of the intention to occupy the building the possession of which he delivered. If within 15 days from, the date of receipt of such notice, the landlord does not put him in possession of toe building on the original terms and condition the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions.

Thus it well be seen that this statutory provision naturally is concerned only with the first limb of the undertaking. If the first limb is satisfied, namely, the work of demolition of the material portion of the building has been substantially commenced within a month of recovery of possession of the entire building by the landlord as given in the under taking provided for in S. 14(2)(b) even though the completion of the demolition of the building was not over within the three months period or the extended period, then Sec. 16 (1) will not apply, because from the very nature of the case when once the demolition has been commenced, the tenant cannot occupy the building. In order to take care of the second limb of the undertaking, S. 33(3)(b) provides for a prosecution and punishment of the landlord in such a situation, S.33 (3) (b) of the Act slates as follows--

33 (3) (b): Any landlord who recovers possession on the ground specified in clause (b) of sub-sec (1) of S. 14 and fails to carry out the undertaking referred to in clause (b), of sub-sec. (2) of the said section without any reasonable excuse or fails to comply with the order of the Controller under sub-sec. (1) of S. 16, shall, on conviction, be punishable with fine which may extend to two thousand rupees.

I am referring to these statutory provisions only to emphasise the importance the Legislature has attached to the undertaking contemplated by S. 14 (2) (b) against the background of the nature of the ground on which an order for eviction can be passed under S. 14 (1) (b).

Taking all these circumstances into account. I am satisfied that the giving of an undertaking under S.14(2) (b) is a condition precedent for an order to be made by the Rent Controller under S. 14 (1) (b) directing the tenant to put the landlord in possession of the premises in question, and by the appellate or the revisional authority where the said authority for the first time orders eviction of the tenant without the lower authority or authorities having ordered such eviction, and the failure to give an undertaking cannot be cured by giving such an undertaking at a later stage before the appellate or the revisional authorities after an order of eviction has already been made by the Rent Controller without an undertaking having been given prior to such order of eviction. In this case, as I pointed out already and as the appellate authority points out, no such undertaking was given by the petitioner before the Rent Controller ordered the eviction of the tenant and therefore, the appellate authority rightly allowed the appeal preferred by the respondent herein.

I may also point out that this view of mine wilt not cause any undue hardship to the landlord. This question will arise only when the landlord satisfies the Rent Controller with regard to his requirement under S.14(1)(b) of the Act. If the landlord does not satisfy the Rent Controller with regard to the requirement of S.14(1)(b), then the question of giving an undertaking will not possibly arise. Consequently, once the landlord succeeds in satisfying the Rent Controller under S.14 (1) (b) that his requirement was bona fide, but fails on the ground that he had not given the undertaking there is nothing to prevent the landlord from filing a fresh petition for obtaining possession of the premises after giving an undertaking, since even S. 19 of the Act will not prevent or bar such a petition as that section bars a petition only on the ground that the petition rates substantially the same issues as have been finally decided between the same parties or between parties under whom they or any of them claim in a former proceeding under the Act. In this case, as I have pointed out already, the appellate authority dismissed the appeal without going into the merits of the claim of the petitioner herein and has observed that as he was allowing the appeal on a technical ground that the necessary undertaking as contemplated under the Act hat not been given by the landlady, she will be at liberty to file a fresh petition for eviction of the tenant alter giving the necessary undertaking and the question will be decided afresh by the Rent Controller. In the result, the civil revision petition fails and the same is dismissed. since the respondent has not entered appearance, there will be no order as to costs in this petition.