1. This civil revision petition arises out of an eviction petition filed on two grounds, viz., wilful default in payment of rent and bona fide requirement for demolition and reconstruction. Both the authorities below have accepted the evidence let in by the landlord and held that he has made out both the grounds of eviction with the result an order of eviction has been passed.
2. Learned counsel for the tenant-revision petitioner contends that there is no question of default being wilful as the tenant had been paying her previous landlord from whom the present landlord had purchased the property in 1978 the rent in instalments once in three or six months. The tenant has produced Exs. B.1 to B.4, which are receipts issued by the prior landlord on 15-9-1976, 21-11-1976, 20-1-1977 and 15-4-1978. On those occasions, rents were paid for several months together. It is also seen from Ex.B.7 that the rent was sent to the present landlord for ten months together by one money order. It is the contention of learned counsel for the petitioner that the documentary evidence produced by the tenant proves that she was in the habit of paying the rents once in two months and that it was an implied contract between the landlord and the tenant. It is also deposed by her as RW 1 that the present landlord had told her that she could pay the rent in the same manner in which she was paying to the prior, landlord Mohammed Ismail Sahib, Learned counsel placed reliance on the decisions of this court in Ramaswami Pathar v. Thiagaraja Chettiar, (1983) 1 Mad LJ 114, Chitravadivoammal v. Dr. Moses T. Sunear, (1982) 1 Mad LJ 334, and Komalammal v. Ashoka Cycle and Motor Co., (1980) 1 Mad LJ 194, in support of the proposition, that when a landlord has accepted the rent from the tenant in lump sum, it could not be said that merely because there was some delay in payment of rent, there was wilful default.
3. On the other hand, learned counsel for the respondents draws my attention to the counter statement filed by the tenant in the R.C.O.P. In para 3 of the counter statement, a plea was raised as follows-
"The respondent denies the allegation that she has been irregular in paying the rent, Ever since the petitioner brought the building, he has been postponing receipt of the rent when the same was offered every month. The petitioner wanted to collect the rent once in few months whenever he needed the money. It was at the instance of the petitioner that rent was allowed to be accumulated in the respondent's hands."
This is the specific plea raised by the tenant to the effect that in spite of the offering of the rent made by the tenant every month it was the landlord who refused to accept the same and was postponing the receipt of it and on account of the same, there was accumulation of rents. The period in question is from 15-4-1982 to 14-4-1983, i.e. one year. There is no evidence on the side of the tenant that she made any offer during that period to pay the rent for any particular month. Having raised a Specific plea in the counter statement as stated above, it is not open to the tenant to change her case in the course of the evidence and make suggestion when the landlord was in the witness box that she was permitted to pay the rent in the same manner in which she was paying the prior landlord. It might be that the prior landlord had not taken any proceedings for eviction of the tenant or for the recovery of rent even when there was accumulation of rent for several months. That does not mean that there was an implied contract between the present landlord and the tenant that the latter could pay the rent as and when she pleased.
4. Both the authorities below have taken the view that the default in this case was willful and there was no explanation for nonpayment of rent for a period of one year. Exs. B.1 to B.4 would only show that the maximum period for which the rent was accumulated when the building was owned by the prior landlord was three months. As regards the present landlord, he had given evidence that whenever the tenant had accumulated the rent and paid for several months together, he had raised a protest and he had accepted the rent only under protest. The tenant admits that the landlord had raised protests in that manner whenever the rent was tendered after accumulation of the same. It is urged by learned counsel for the petitioner that as soon as the notice was issued by the landlord to the tenant to the effect that a sum of Rs. 1140 was due by way of arrears of rent for the period commencing from 15-4-1982, she sent the amount immediately by money order and as it was refused, it was sent by a draft along with the reply notice issued by the lawyer on her behalf. This does not, in my opinion, absolve the tenant of the wilful default committed by her earlier. The fact that the tenant sent the rent as soon as a notice was issued to her with reference to the wilful default, will not enable the tenant to plead that there was no wilful default. The Courts below have rightly appreciated the evidence and held that there was no justification for the conduct of the tenant in not paying the rent for a period of one year. The finding that the tenant was in wilful default in the payment, of rent is therefore upheld.
5. The decisions relied on by learned counsel for the petitioner will not help for they turn on the facts of those cases. On the facts of this case, I find that the conclusion arrived at by the authorities below is correct. Learned counsel for the respondent draws my attention to the decision of Ramaprasada Rao J. as he then was in S. C. Basappa v. Jamnudas, also known as Jamunudas Manikchand, (1979) 1 Mad LJ 317. The learned Judge has taken the view that though a practice of the tenant paying rent once in two months and the landlord receiving the same without demur cannot be pleaded so as to escape a petition for eviction on the ground of wilful default, yet, that particular circumstance in a particular case can certainly be a ground for the tenant to set up a case that there was no wilful or contumacious conduct on his part to avoid the payment of rent. However, in this case, as seen already, there is evidence to show that there was protest and demur by the landlord whenever the tenant had accumulated the rent for several months and attempted to pay the same to the landlord. Learned counsel for the respondent also referred to the decision of Fakkir Mohammed J. in Kulsumbai Multa Jeevaji v. Madras Marine Pvt. Ltd., (1984) 1 Mad LJ 399. That case will not help the respondent as in that case there was only a lump sum payment on one occasion and there was condonation of the delay by the landlord on that occasion only and the learned Judge took the view that such condonation by the landlord will not enable the tenant to repeat the accumulation of rents for several months and payment thereof. It is not necessary to multiply the authorities on this aspect of the matter. As found already, the facts a re clear enough to hold that there was wilful default in payment of rent by the tenant in this case.
6. As regards the requirement of the petition premises for demolition and reconstruction, it is urged by learned counsel for the petitioner that no undertaking was given in the petition for eviction and that there was no reference in the order of the Rent Controller or in the order of the appellate authority to any such undertaking. Learned counsel argued that no undertaking was given by the tenant in the court of the Rent. Controller as required by the section.
Learned counsel for the respondent produces two certified copies of the affidavit filed by the landlord in the court of the Rent Controller on the same day on which he filed the petition for eviction. In that affidavit, he had undertaken to demolish the building within 30 days from the date of taking possession and to finish the construction as and when the court orders him to do so. To this affidavit, there is a reference in the evidence of the landlord as PW 1. He has stated clearly in his evidence that he had filed an affidavit to that effect in the court. This statement was made by the landlord in the chief examination. There is no cross-examination on this aspect of the matter and there was no suggestion by the tenant that no such affidavit was filed by the landlord in the court. Apart from that, there is a clear statement in the deposition of P W 1, that he would demolish and reconstruct the building in one month. In my view, that statement in the deposition is an undertaking sufficient to satisfy the requirement of Section 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 23 of 1973. Neither in the Act nor in the Rules any form is prescribed for the undertaking mentioned in the section. When the party gives evidence on oath and particularly when he signs the deposition, that will be a sufficient undertaking within the meaning of the section. There is no necessity to file a separate undertaking apart from such evidence. Under the section, the undertaking has to be given before the passing of the order of eviction. In this case, apart from the affidavit filed at the time of the ' filing of the eviction petition, the landlord has also made the statement in his deposition in the course of the trial. That is certainly prior to the passing of the order of eviction. Hence, the contention that there was no undertaking as required by the section has to be rejected.
7. As regards the bona fides of the requirements, learned counsel for the petitioner submits that the house in question is mortgaged and the landlord has not obtained the consent of the mortgagee for demolishing the building. It is his contention that the landlord cannot be said to have proved his bona fides unless he produces the consent of the mortgagee. Learned counsel submits that the mortgagee would not allow the building to be demolished when it is given as security and in the absence of such permission from the mortgagee, the requirement of the landlord cannot be treated by the court as a bona fide requirement. According to learned counsel, the order of the authorities below is vitiated inasmuch as they have not taken into account this aspect of the matter, though there is a reference in the order of the appellate authority that the building was under mortgage. I do not agree, with this contention of the learned counsel. As observed by the appellate authority, it is for the mortgagee to protest against the demolition if he is of the opinion that his security would lose its value in the event of demolition.
8. As far as the petition for eviction is concerned, the question whether the requirement for demolition is bona fide or hot has to be considered on the basis of the evidence let in by the landlord with regard to the condition of the building and the possession of the necessary funds etc. The Supreme Court has laid down in Metalware and Co. v. Bansilal, , the principles which have to be followed regarding the demolition and reconstruction. The Courts below have found on the facts that the landlord has let in evidence to prove that the requirements laid down by the Supreme Court have been satisfied in this case. The Commissioner has inspected the building and has filed a report. It is seen from the report of the Commissioner that the entire building is a tiled one and it is built with mud and black stone. It is also seen from the report of the Commissioner that even the frame of the front door is deteriorated completely and the mud plastering of the walls had peeled off in several places and the flooring had come off in several places. It is expressly admitted in the objections filed by the petitioner to the Commissioner's report that the building is built up of mud. The landlord has given evidence that the building is about 50 to 60 years old. There is no evidence to the contra by the tenant in fact, the tenant says that she does not know whether the building was constructed 60 years before the partition. She claims to be residing in the building for about 30 years. There is no dispute about the financial capacity of the landlord to demolish the building and erect a new structure. The landlord has also given positive evidence with regard to the same. He has produced a banker's certificate to show that he has got Rs. 50,000 in fixed deposit with Karur Vysyc Bank. Having regard to the evidence let in by the landlord, the finding of the authorities below that the building is bona fide required for demolition and reconstruction by the landlord is unassailable.
9. In the result, the civil revision petition fails and it is dismissed. There will be no order as to costs. Learned Counsel for the respondent agrees that time may be granted to the tenant to vacate the petition premises on condition that she files an affidavit in this Court within two weeks from this date undertaking to vacate the premises on or before 15th May, 1988 without driving the landlord to execution proceedings. Accordingly, the petitioner will have time to vacate the premises till 15-5-1988 on the abovesaid conditions.