Rangaiah Chetty vs Feroz Khanoon (deceased) and Others

G. Rajasuria, J.—Inveighing the common order dated 26.08.2003 passed in RCA Nos. 89,90 and 88 of 2000 respectively by the learned

8th Small Causes Judge at Madras, confirming the common order dated 30.08.1999 passed in RCOP Nos. 2848, 2849 and 2846 of 1992

respectively by the learned 12th Small Causes Judge at Madras, these civil revision petitions are focussed by the tenants.

Heard both sides.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these three revisions would run thus:

The respondents herein filed as many as three RCOPs invoking Sections 10(2)(1) and Section 14(1)(b) of the Tamil Nadu Buildings (Lease and

Rent Control) Act [amended Act 23 of 1973] (in short ''the Act'') on the ground that there was willful default in payment of rent and that the

demised premises is required for demolition and reconstruction. The matters were contested and common enquiry was conducted. Ultimately the

Rent Controller ordered eviction, as against which appeals were filed for nothing but to be dismissed by the appellate authority. Being aggrieved by

and dissatisfied with the orders of both the Courts below, these revisions have been filed on various grounds.

The learned Counsel for the tenants placing reliance on the grounds of revision, would advance his arguments, the gist and kernel of them would

run thus:

(a) Absolutely there is no iota or shred, shard or molecular extent of evidence to show that the tenants committed willful default. Every default will

not amount to willful default.

(b) Despite the tenants demanded for the production of the copy of the sale deed evidencing the alleged transfer of ownership of the demised

premises in favour of the present landlord, there was no response and in such a case, the question of willful default would not arise.

(c) The tenants never resorted to Section 8(5) of the Act for the reason that there was no clarity as to who was entitled to receive the rent. Neither

Saraswathi Ammal the erstwhile landlord, nor the present landlord ever ventured to clarify it precisely. If at all the tenants resorted to Section 8 of

the Act, then strict adherence to Section 8 of the Act would arise.

(d) The cases relied on by the landlord are only to push the tenants within the mischief of willful default and they are not applicable to the facts and

circumstances of the case for the reason that in the decided cases the tenants resorted to some other mode of payment not in accordance with

Section 8(5) of the Act. Whereupon alone, the Courts held that non adherence to Section 8(5) of the Act was fatal, but here the facts and

circumstances are entirely different. For more than two years and odd the present landlord was adamant in not producing the copy of the sale

deed. Only after filing application under Order 11 Rule 3 of CPC, he did choose to produce before the Court the copy of the sale deed.

Whereupon alone the Rent Controller was pleased to order deposit of the rent and consequently, the entire arrears of rent were paid without any

demur and that would show the genuineness of the tenants and by no stretch of imagination, such non payment of rent during that period could be

taken as willful default.

(e) The law has not got water down to the extent that the landlord can simply file an application invoking Section 14(1)(b) of the Act and require

the demised premises for his requirement of demolition and reconstruction. Still the law is to the effect that the landlord should plead about the

dilapidated nature of the building.

(f) The only point in favour of the landlord is that there may not be any express proof that immediate demolition is required, but still the requirement

on the part of the landlord is that he should plead specifically about the dilapidated nature of the building and also his requirement for demolishing

the same and reconstructing a new one in that place. But in this case, the pleading was to the effect that the building required immediate demolition.

Even though in the litigative process itself nearly two decades have elapsed, the building did not get collapsed and that itself is indicative of the fact

that the intention of the landlord in requiring the premises for demolition and reconstruction is not genuine and bona fide.

(g) The undertaking given by the deceased landlord got expired and subsequently, the legal representatives failed to file a new undertaking.

(h) The financial wherewithal of the legal representatives of the deceased landlord also has not been proved before the Court. Hence, the

ingredients of Section 14(1)(b) of the Act were not established before the Court.

(i) Both the Courts below fell into error in not taking into account the current law and applied the same in the fact situation, warranting interference

by this Court in the present revisions.

Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the tenants, the learned Counsel for the

landlord would advance her arguments, the warp and woof of them would run thus:

(a) Candidly and categorically, the tenants admitted that they were put on notice about the change of ownership in favour of the deceased landlord.

Even after that they went to the extent of demanding a copy of the sale deed, which they were not expected to do so and that too when the

erstwhile landlord and the subsequent landlord namely the deceased landlord both informed the tenants about the said factum of the ownership

which got changed in favour of the deceased landlord himself.

(b) The law as laid down by the Hon''ble Supreme Court is so clear as clarity could be on the refusal of the rent to be received by the landlord, it is

mandatory on the part of the tenants to resort to Section 8(5) of the Act and no more it is at the option of the tenants.

(c) The argument as put forth on the side of the tenants, that if at all the tenants choose to resort to Section 8(5) of the Act, then strict compliance

with Section 8(5) of the Act is required as otherwise, it is not required, is neither here nor there.

(d) There is candid admission by all the tenants that the erstwhile landlord Saraswathi Ammal refused to receive the rent, whereupon as per the law

laid down by the Hon''ble Apex Court, non adherence to Section 8(5) of the Act will lead to ultimate and irresistible conclusion that there was

willful default on the part of the tenants in paying the rent.

(e) The undertaking given by the deceased landlord would hold good in view of the current law.

(f) The deceased landlord also marked exhibits to show his financial wherewithal. In fact, the legal representatives inherited the properties of the

erstwhile landlord and in such a case, the question of once again the legal representatives establishing their financial wherewithal before the Rent

Controller did not arise at all. As such, au fait with law and au courant with facts, both the Courts below correctly applied the law and decided the

lis, warranting no interference of this Court in the revision.

The points for consideration are as to:

(1) Whether both the Courts below correctly applied the law relating to willful default in payment of rent by the tenants in the fact situation?

(2) Whether both the Courts below applied the law relating to demolition and reconstruction in respect of this case?

(3) Whether there is any perversity or illegality in the order passed by both the Courts below warranting interference u/s 25 of the Act?

POINT NO. 1

At the outset I would like to fumigate my mind with the following decisions of the Hon''ble Apex Court:

(i) E. Palanisamy Vs. Palanisamy (D) by Lrs. and Others, , certain excerpts from it would run thus:

It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept

rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the

tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant

to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being

called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after

deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application

before the Rent Controller seeking permission to deposit the arrears of rent under Sub-section (5) of Section 8 of the Act.

Mr. Sampath, the learned Counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be

taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no

eviction order could have been passed against the appellant on that ground. According to the learned Counsel, the court should not take a

technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders

that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8

inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable

to accept this contention advanced on behalf of the appellant by the learned Counsel. The rent legislation is normally intended for the benefit of the

tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis

of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It

prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by

step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance

with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after

the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and M.

Bhaskar v. J. Venkatarama Naidu.

The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making

deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control

of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal held: (SCC p. 249, para 8)

In the present case, the appellant is seeking to avail of the benefit of the legal fiction u/s 19-A(4) of the Act. It is settled law that a legal fiction is

to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State

of Bihar (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs. 3600 made by him in the Court of Munsif

(South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment u/s 19-A(3)(c) so

as to enable the appellant to say that he was not in default in payment of rent. u/s 19-A(3)(c) the tenant can deposit the rent in the court only if the

conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present

case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance

with Clause (c) of Sub-section (3) of Section 19-A and the appellant cannot avail of the protection of Sub-section (4) of Section 19-A and he

must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction

has been rightly passed against the appellant on account of default in payment of rent for the period of six months.

Again in M. Bhaskar v. Venkatarama Naidu with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction)

Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed u/s 8

of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent

Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the

tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in

payment of rent on the part of the tenant.

Admittedly the tenant did not follow the procedure prescribed u/s 8. The only submission that was advanced on behalf of the appellant was that

since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the

conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking

Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. Sub-sections (2), (3) and (4) of Section 8.

Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of

default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference.

These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High

Court judgment.

(ii) Atma Ram Vs. Shakuntala Rani, , an excerpt from it would run thus:

It was then faintly submitted before us that the High Court ought not to have exercised its revisional jurisdiction under Article 227 of the

Constitution in view of the fact that the two courts below had concurrently found in favour of the appellant. The submission is misconceived. This is

not a case where the High Court interfered with concurrent findings of fact. The High Court interfered because there was a serious error of law

committed by the courts below and as a consequence thereof they failed to exercise jurisdiction vested in them by law. The exercise of revisional

jurisdiction in a case of this nature cannot be faulted.

A mere poring over and perusal of the those decisions which are governing the field would at once make the point clear that if there is refusal of

rent by the landlord, then it is the bounden duty of the tenant to resort to Section 8(5) of the Act. The contention on the side of the tenants that

whenever there is refusal of rent on the part of the landlord, the former is not bound to resort to Section 8(5) of the Act and if at all the tenants

resort to Section 8(5) of the Act, then strict adherence to it is absolutely necessary. Such an argument as put forth on the side of the tenants fail to

carry conviction with this Court. Nowhere it is stated that at the option of the tenant Section 8(5) of Act could be invoked. If the contention on the

side of the tenants is accepted, then it would amount to giving carte blanche to the tenants either to resort to Section 8(5) of the Act or not. The

Hon''ble Apex Court in the aforesaid two decisions clearly pointed out that if there is refusal to receive rent on the part of the landlord, then it is

mandatory on the part of the tenants to resort to Section 8(5) of the Act.

At this juncture, I recollect and call up the maxim:

Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud - When anything is prohibited, everything by which it is reached is

prohibited also. That which cannot be done directly shall not be done indirectly.

The law clearly envisages that there should not be any default on the part of the tenant in paying the rent. The law got developed that whatever be

the proceedings initiated by the tenants or as against the tenants, there should not be any arrears of rent. When such is the mandate of the law, it is

quite clear that the tenants cannot be heard to contend that they could either resort to Section 8(5) of the Act or not. In fact, the learned Counsel

for the tenants cited the Division Bench judgment of this Court reported in 1989 (1) LW 155 [Durgai Ammal v. R.T. Mani] , certain excerpts from

it would run thus:

Now the question is whether the respondent is liable to be evicted for non-payment of rent. As stated above, according to the petitioner, the

rent was Rs. 350 per month. The respondent has denied that at any time she paid Rs. 350 as rent and as a tenant under Radhakrishnan she was

paying Rs. 15 per month. Apart from the interested oral testimony of the petitioner P.W.1, there is absolutely nothing to show that the rent was Rs.

350 per month. The petitioner has not examined any of his predecessors to speak to the quantum of rent. Not a scrap of paper had been filed by

him in this regard. In this position it is rather impossible to believe that the rent was Rs. 350 per month as alleged by the petitioners. It is the definite

case of the respondent that she was paying only Rs. 15 to Radhakrishnan. In fact it appears from Ex.R3 in H.R.C.3006 of 1978, money order

coupon that the respondent sent a sum of Rs. 90 as six months rent. That has been refused by Radhakrishnan. This will give at least some credence

to the respondent''s case that the rent was Rs. 15. In this position of the evidence the case of the respondent is more probable than that of the

petitioner. The appellate authority has also held that the agreed rent is Rs. 15. Hence we have to proceed with the matter on the basis that the rent

payable by the respondent was Rs. 15 per month.

According to the petitioner, the respondent did not pay any rent to him. But without any basis whatsoever, informing the at he has purchased

the premises, he demanded rent at Rs. 350 per month. The respondent has requested in her reply letter the petitioner to enable her by sending

copies of documents to be satisfied that the petitioner is the present owner of the premises, but in disregard of her request the petitioner has

straightaway filed the petition for eviction. Thus on a mere information that the petitioner purchased the premises he expected the respondent to

pay the rent to him that too without any basis at the rate of Rs. 350 per month, while the rent payable according to the respondent is Rs. 15 per

month. In these circumstances, non-payment of rent to the petitioner cannot be taken to be wilful....

....

Section 8 provides that in case the landlord refuses to receive rent tendered by the tenant the tenant can call upon the landlrod to name a bank

where she can deposit it and if he fails to do so the tenant can sent it by money order and if even that money order is not received, the tenant can

deposit the rent before the Rent Controller. But it is nowhere stated that if the tenant does not do so it will amount to wilful default. When a

landlord refuses to receive the rent sent by the tenant it is his fault. He cannot subsequently say that the tenant has not exercised his right given u/s

8, and, therefore, he must be taken to have committed wilful default. Similarly, if the tenant has not deposited the rent before the Rent Controller in

case of bona fide doubt as to the person who is entitled to receive the rent and the person concerned does not help to remove the doubt of the

tenant, the tenant cannot be said to have committed wilful default in payment of rent. Therefore, we find that the finding of the Appellate Authority

that the tenant committed wilful default in payment of rent is wrong and hence that finding has to be set aside.

The learned Counsel for the landlord would correctly and convincingly, explain and expound the dictum as found laid down in the cited Division

Bench judgment by pointing out that the facts and circumstances involved in that case were entirely different from the one involved in these cases.

Further more, the subsequent categorical precedents emanated from the Hon''ble Apex Court would be to the effect that when there is refusal to

receive the rent by the landlord, then the tenant is duty bound to resort to Section 8(5) of the Act and it cannot be left at the option or whims and

fancies of the tenant. As such, I would like to agree with the submission made by the learned Counsel for the landlord. Here in these cases the

tenants on coming to know of the refusal of the rent by the erstwhile landlord should have taken steps to file application u/s 8(5) of the Act.

Regarding the factual aspect is concerned, the learned Counsel for the landlord, would invite the attention of this Court to Ex.R3 which is the

reply notice given by Jambulingam, one of the tenants and it would clearly show that even on 16.01.1990 itself, such reply notice was given to

Fakhir Mohammed, the deceased landlord, who earlier gave communication as per Ex.P1 to the effect that he by virtue of the sale deeds acquired

the ownership over the property and that he was entitled to receive the rent from September 1989 onwards. The short point which falls for

consideration is as to whether the tenants had been put on notice as to whom they should pay the rent. The tenants would contend that precisely

they were not informed with documentary evidence, so to say, the copy of the sale deeds that Fakhir Mohammed acquired the demised premises.

However, the learned Counsel for the landlord would invite the attention of this Court to the deposition of R.W.1/Sriram Chetty the father of the

minor tenant Rangaiah Chetty and point out that during cross examination he candidly and categorically admitted that Saraswathi Ammal, the

erstwhile owner of the demised premises returned the rent sent to her on behalf of Rangaiah Chetty, on the ground that Saraswathi Ammal sold

that property in favour of Fakhir Mohammed. He would admit that up to August 1989 the rent was received by Saraswathi Ammal and thereafter

rent was not paid. As such it is crystal clear from the deposition of R.W.1 himself that Saraswathi Ammal informed the tenants that Fakhir

Mohammed became the owner of the property and despite that they had not chosen to pay the rent to Fakhir Mohammed despite demands for

over a period of more than two years and they have not also chosen to invoke Section 9(3) or Section 8(5) of the Act.

The learned Counsel for the landlord also invited the attention of this Court to the depositions of R.W.2 as well as R.W.3 and developed her

arguments on the aforesaid line, which could be accepted. Both the Courts below concurrently gave the findings on fact based on the evidence

available on record and it is a trite proposition of law that while this Court exercising its jurisdiction u/s 25 of Act cannot give any interpretation of

the depositions differently from the one interpreted by both the Courts below, unless there is perversity or illegality in interpreting and understanding

the oral and documentary evidence placed before the Courts below. The contention on the side of the tenants that simply on refusal of a landlord if

the tenants are mulcted with the liability to resort to Section 8(5) of the Act and if there is any default in adhering to it and consequently, if the

tenants are labelled or dubbed as a defaulter, then the very object of the Act itself would get frustrated.

I would like to hark back to the following maxim:

Verba ita sunt intelligenda, ut res magis valeat quam pereat : Words are to be so understood that the matter may have effect rather than fail.

The above maxim would unambiguously and unequivocally demonstrate and display, that no doubt the letter of the law should be understood as

such from a statute and if there is any doubt, the object of the Act should be looked into.

To the risk of repetition and pleonasm, without being tautologous, I would like to point out that the legislators without minching words clearly

and categorically pointed out that the tenants are entitled to statutory benefits, provided the tenants adhere to the letter of the law. The Hon''ble

Apex Court also in the two decisions cited supra clearly pointed out that the right conferred on the tenants'' is a statutory right and not a common

law right; once such statutory right is conferred on the tenants subject to certain conditions, then those conditions should be taken as mandatory

and non-adherence of those provisions would disentitle the tenants from reaping the benefits conferred under such beneficial special enactment.

Here, the evidence on record would clearly demonstrate and display that the tenants'' were put on notice both by Saraswathi Ammal the erstwhile

landlady as well as the subsequent landlord viz., Fakhir Mohammed and in such a case, their insistence that a copy of the sale deeds were not

produced to them, fails to carry conviction with this Court. The tenants have got certain rights, but they cannot extend the rights ad infinitum and ad

nauseam so as to make the court to look askance at their conduct.

The learned Counsel for the tenants would also correctly point out the proposition of law, that at the time of assessing the willful default the

Court has to consider the conduct of the tenants. Here the conduct of the tenants bespeak that they for more than two years were dilly-dallying

and shilly shallying with the matter instead of paying rent. It is clear that from January 1990 onwards, the tussle started between Fakhir Mohammed

and the tenants'' and Fakhir Mohammed was insisting for rent. In such a case, I am at a loss to understand as to what prevented the tenants either

to deposit the rent by invoking Section 9(3) of the Act or by invoking Section 8(5) of the Act.

However, the other decisions of this Court cited on the side of the respondents relating to willful default also are referred to here under:

(i) 1987 (2) MLJ 27 [Selavaraj alias Subbaramma Reddiar v. K. Mumtaz Begum]

(ii) J.A. Nainmal Vs. Kanniappan (deceased) and Others, .

In view of the aforesaid two decisions of the Hon''ble Apex Court reported in Atma Ram Vs. Shakuntala Rani, and E. Palanisamy Vs. Palanisamy

(D) by Lrs. and Others, , I am of the view that the other decisions need not be given much significance as the Apex Court decision is binding on all

Courts as per Article 141 of the Constitution of India. As such, it is a clear case of willful default and both the Courts below correctly appreciated

the facts placed before them and held that the ground of willful default was established warranting no interference by this Court.

Accordingly, Point No. 1 is decided in favour of the landlord and as against the tenants.

Point No. 2:

At the first instance I would like to refer to the following decisions of the Hon''ble Apex Court:

(1) 1997 (1) L.W. 218 [Vijay Singh and Ors. v. Vijayalakshmi Ammal], an excerpt from it would run thus:

It appears from the facts of the present appeals that the building in question was an old one and was situated in a very busy locality of the town

where a number of buildings in and around the building in question had been demolished and shopping complex had been constructed with modern

amenities. The respondent also wanted to demolish the entire building in order to construct a new shopping complex for which necessary

permission from the municipal authorities had already been obtained. It had also been claimed on behalf of the respondent that she had sufficient

financial resources for construction of the new building. An understanding had also been given on behalf of the respondent that the work of

demolition of the building would commence within one month and would be completed before the expiry of the three months from the date the said

respondent recovered possession of the building. Taking all the circumstances into consideration, the Controller had passed an order in terms of

Section 14(1)(b) of the Act directing the appellants who were tenants in the building in question to delivery possession of the building to the

respondent. According to us, all relevant factors have been taken into consideration and there is no scope for any interference by this Court. As

such, we are left with no option but to dismiss these appeals. The appeals are accordingly dismissed.

(ii) S. Venugopal Vs. A. Karruppusami and Another, certain excerpts from it would run thus:

On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of

the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a

dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition

because Section 14(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short ''the Act'') contemplates a building which 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. Therefore, Section 14(1)(b) does not contemplate that the building sought to be

demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose

of erecting a new building on the same site.

In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial

value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storied building, which may fetch him

higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking

into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one.

Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are

willing to advance funds to erect new structures in commercial areas. This is apart from the fact that the landlord has himself indicated that he was

willing to invest a sum of Rs. One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs.

The excerpts from the aforesaid decisions would unambiguously and unequivocally highlight and spotlight the fact that earlier the Hon''ble Apex

court in P. Orr & sons case reported in 1990 (2) L.W. 547 held that the ingredients relating to immediate requirement for demolishing the building

should be strictly construed and then only on that ground, eviction could be ordered. However, subsequently, in view of the aforesaid two

decisions, even though the Court has to take into consideration the age of the building and also the dilapidated nature of the building, that alone is

not the criterion. Here, the learned Counsel for the tenants would invite the attention of this Court to the fact that for the past two decades, so to

say, even after the Engineer for the landlord, PW2 gave his certificate that the building was in a dilapidated condition, it still exists and that itself is

indicative of the fact that the building does not require demolition and reconstruction.

Whereas the learned Counsel for the landlord would invite the attention of this Court to the deposition of RW4, the Engineer who deposed on

behalf of the tenants and submit that RW4 himself candidly and categorically, highlighted and spotlighted the fact that the building itself was 70

years old. It is an undisputed fact that the building is situated in a commercial area. It is common knowledge that any landlord owning a building of

70 years old in a commercial locality would incline to demolish and raise a new construction so as to augment his income.

At this juncture, the learned Counsel for the tenants would point out that if there was a specific pleading to the effect then the tenants would

have no case, but here, the case of the landlord is that the building is in a dilapidated condition and it requires demolition and reconstruction and

nothing more. I would like to recollect the maxim:

Judicis est judicare secundum allegata et probata : It is the proper role of a judge to decide according to the allegations and proofs.

With rigour, the said maxim is not applicable to rent control proceedings. However, in rent control proceedings, there should be adequate

pleadings. When the law enables the landlord to demolish the existing building and raise a new construction, then it is not for the tenants to dictate

terms to test the bona fides. No doubt, the over all conduct of the landlord has to be seen. Here , there is an old building admittedly of 70 yeas old

and consists of six shops in a row. According to the learned Counsel for the landlord, the other tenants have vacated and only these tenants are

occupying the three shops and that the building is intended to be erased and a new building has to be raised. In such a case, I am of the view that

the benefit cannot be denied to the landlord so as to evict the existing tenants who are residing in the old building and paying only a meagre rent as

correctly pointed out by the learned Counsel for the landlord.

The undertaking given by the deceased landlords would be sufficient in view of the decision of this Court reported in 1989 (1) LW 155 cited

supra. The law as it stood enunciated in the aforesaid decisions of the Hon''ble Apex Court is clear and this Court is bound to follow the same and

accordingly, I am of the considered opinion that the views expressed by both the Courts below were not fraught with any illegality or perversity,

warranting interference in revision.

Accordingly, I am of the view that there are no merits in these revisions and consequently, all these revisions are dismissed. No costs. The

connected miscellaneous petitions are closed.

However, taking into account the fact that the tenants are there for a pretty long time and they would take sometime to vacate the premises,

granting of six months'' time for vacating the premises would meet the ends of justice subject to payment of rent without any default and an affidavit

to that effect shall be filed within a period of two weeks.

The learned Counsel for the tenants would make an extempore submission that the tenants paid the statutory dues such as property tax, water

and sewerage taxes, which the landlords are bound to refund. Whereupon the learned Counsel for the landlords would undertake to reimburse the

tenants under those counts. Accordingly, it is recorded and ordered.