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Case Number

C.R.P No. 2485 of 1989

Attorney(S)

Mr. K. Mohanram for Petitioners
Mr. Hajee P.K Jamal Mohamed for Respondent,

Judges

Somasundram, J.

Acts

Sections 14(1)(b) and 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, hereinafter called the Act.
Nadu City Tenant's Protection Act

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Smart Summary

Structured Summary of the Opinion — Civil Revision Petition arising from R.C.O.P No. 93 of 1983

Factual and Procedural Background

The respondents in R.C.O.P No. 93 of 1983 (on the file of the Rent Controller, Principal District Munsif, Coimbatore) are the petitioners in this Civil Revision Petition and the petitioner in R.C.O.P No. 93 of 1983 is the respondent in this Civil Revision Petition. For convenience the parties are referred to by the nomenclature used in the R.C.O.P.

The petitioner (landlord) filed an eviction application under Sections 14(1)(b) and 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, seeking eviction on grounds including the requirement of the building for demolition and reconstruction.

Relevant factual background summarized from the opinion:

The first respondent is a registered firm (present partners are respondents 2 and 3); earlier partners included the deceased F. Mohamed Hussain. Respondents 4 to 9 are legal heirs of deceased partners.
The petitioner purchased the property on 19.9.1974. At purchase it was subject to a usufructuary mortgage (14.5.1967) and Rahman Sheriff was in possession as usufructuary mortgagee. Mohamed Hussain was initially the tenant under the usufructuary mortgagee and later became tenant under the petitioner after redemption.
The petitioner previously obtained an eviction order against Mohamed Hussain in R.C.O.P No. 327 of 1975 for personal use and reconstruction; Mohamed Hussain ultimately submitted to the eviction order but took time to vacate.
Before execution of that eviction, the respondents (1 to 3) filed O.S No. 518 of 1979 (District Munsif Court, Coimbatore) seeking a declaration that the firm (first respondent) was the tenant and that the eviction order against Mohamed Hussain was not binding on them. The civil court in O.S No. 518 of 1979 held that the lease related to both the site and the building and that the first respondent-firm (not the individual Mohamed Hussain) was the tenant.
The petitioner asserted he purchased primarily for site value to demolish the old structure and erect a new building for better investment returns; the building was described in the petition as old and unsubstantial.
Respondents resisted the eviction petition on grounds including that they were owners of the superstructure, that petitioner was only owner of the vacant site, that there was a bona fide dispute over title (invoking Tamil Nadu City Tenant's Protection Act), and that the building did not require immediate demolition and the petitioner's asserted requirement was not bona fide.
The Rent Controller found in favour of the petitioner (petitioner had title to the superstructure, respondent's denial of title was not proved, lease covered both land and building, and the demolition/reconstruction requirement was bona fide) and ordered eviction.
The Appellate Authority (on R.C.A No. 89 of 1988) confirmed the Rent Controller's findings (petitioner has title to land and building; respondents' denial of title not bona fide; reconstruction requirement bona fide) and dismissed the Rent Control Appeal. The respondents filed the present civil revision petition challenging that judgment.

Legal Issues Presented

Whether the landlord's claim for eviction on the ground that the building is required for immediate demolition and reconstruction was supported by sufficient evidence (i.e., whether the demolition/reconstruction ground was bona fide).
Whether a tenant's denial of the landlord's title to the superstructure made during eviction proceedings (even if not anterior to the eviction petition) can constitute a proper ground for eviction, provided such denial is not bona fide.
Whether the eviction order can be sustained on the alternative ground that the respondents wilfully or not bona fide denied the petitioner's title to the superstructure, even if the landlord did not originally rely on that ground in the eviction petition.

Arguments of the Parties

Respondents' Arguments (as recorded)

The respondents asserted they were the owners of the superstructure and that the petitioner was only owner of the vacant site.
They relied on the benefits of the Tamil Nadu City Tenant's Protection Act and alleged a bona fide dispute regarding title to the superstructure, rendering the eviction application before the Rent Controller not maintainable.
They asserted that the original lease related to the site and that they had put up the superstructure and were in continuous possession since predecessors in title leased the site in 1955.
They contended the building was in good condition and did not require immediate demolition for reconstruction; thus, the petitioner's claimed requirement for demolition and reconstruction was not bona fide.
In the revision proceedings, counsel argued the petitioner had waived the right to rely on denial-of-title as a ground for eviction because that ground was available at the time of filing but was not originally pleaded; relied on Govindaswami Chetty v. Third Judge (Court of Small Causes, Madras) to contend that an eviction order cannot be based on a ground not stated in the landlord's application.

Petitioner's Arguments (as recorded)

The petitioner asserted entitlement to eviction on the ground of requirement for demolition and reconstruction (asserted as bona fide).
As an alternative, the petitioner argued that eviction could be sustained because the respondents denied the petitioner's title to the superstructure during the eviction proceedings and that such denial was not bona fide, which itself constitutes a ground for eviction.
The petitioner relied on evidence including the civil court judgment in O.S No. 518 of 1979 (Ex. A1) and documentary material (Ex. A52 — a letter from the first respondent-firm; Exs. A55 and A56 — notices) to show respondents had admitted tenancy under the petitioner and therefore the denial in the counter was not bona fide.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M/s. P. Orr & Sons Pvt. Ltd. v. M/s. Associated Publishers (Madras) Ltd., 1990 T.L.N.J 17 = 1990-2-L.W. 547 S.C	Held that to obtain an order of eviction for reconstruction the landlord must show the building's condition requires immediate demolition for reconstruction.	The Court applied this principle to find there was "absolutely no evidence" that the building required immediate demolition; therefore the petitioner's claim for eviction on the demolition/reconstruction ground was not made out on the available evidence.
Majati Subbarao v. P.V.K. Krishna Rao (Deceased) By Lrs., AIR 1989 S.C. 2187 (also cited as Maji Subbarao)	Established that a denial of title in the course of eviction proceedings constitutes a ground for eviction provided the denial is not bona fide; denial need not be anterior to the filing of the eviction petition.	The Court relied on this Supreme Court authority to hold that the respondents' denial of the petitioner's title (made in the counter during eviction proceedings) could support an order of eviction because the denial was found not to be bona fide.
Govindaswami Chetty v. Third Judge, Court of Small Causes, Madras, 1948 II M.L.J. 76	(As relied on by respondents' counsel) Traditional principle argued to preclude relying on a ground not pleaded in the initial eviction application.	The Court concluded that, in view of the later Supreme Court decision (Majati Subbarao), the principles in Govindaswami Chetty could not be applied to the facts of the present case and therefore rejected the respondents' reliance on it.

Court's Reasoning and Analysis

The court proceeded in two principal analytical stages corresponding to the two grounds that had been relied upon (demolition/reconstruction and denial of title):

Assessment of the demolition/reconstruction ground:
The Court examined the evidence in light of the Supreme Court's decision in M/s. P. Orr & Sons (1990) which requires proof that the building's condition is such that it requires immediate demolition for reconstruction. The opinion notes:
- The petition merely described the building as "old and unsubstantial" and "just a shed resting on wooden poles" and stated the petitioner purchased for locality value and to rebuild for better return.
- The respondents' counter specifically stated the building was in good condition and did not require immediate demolition.
- P.W.1 (the petitioner's witness) admitted limited personal inspection (saw the building in 1974 and did not inspect thereafter) and could not attest to the building's present condition sufficiently to establish immediate need of demolition.
On this basis the Court concluded there was no evidence that the building required immediate demolition for reconstruction and therefore the petitioner had not made out a bona fide case on that ground.
Assessment of denial of title as an alternative ground for eviction:
The Court then considered whether eviction could be sustained because the respondents denied the petitioner's title to the superstructure during the eviction proceedings and whether such denial was bona fide. The Court relied on the Supreme Court decision in Majati Subbarao (AIR 1989 S.C. 2187), which holds that denial of title in eviction proceedings is a ground for eviction if not bona fide and need not be anterior to the filing of the eviction petition.

Relevant findings and evidence the Court considered:
- Ex. A1: the civil court judgment in O.S No. 518 of 1979 finding that the petitioner (defendant in that suit) is the owner of the superstructure in the suit property (Issue No. 2 answered in petitioner's favour).
- Documentary evidence (Ex. A52 — letter from the first respondent-firm to the petitioner; Exs. A55 and A56 — notices) suggesting that the respondents had admitted they were tenants in respect of both land and building under the petitioner.
- The respondents, despite the civil court's finding, denied the petitioner's title in the counter in the present eviction proceedings but produced no evidence to substantiate their claim of ownership of the building.
- The Rent Controller and the Appellate Authority both found the respondents' denial of title was not bona fide.
Given the combination of prior judicial finding (O.S No. 518 of 1979), documentary admissions by the respondents, and lack of contrary evidence from respondents in the eviction proceedings, the Court held that the respondents' denial of title in the eviction proceedings was not bona fide. Applying Majati Subbarao, the Court concluded that such non-bona-fide denial constitutes a valid ground for eviction.
Disposition on competing procedural argument:
The respondents argued the petitioner had waived the right to rely on denial-of-title ground because it was not pleaded originally; they relied on Govindaswami Chetty. The Court rejected that contention, noting the petitioner relied on the respondents' denial of title made during the course of the present eviction proceedings (i.e., in the counter) and that Majati Subbarao authorizes reliance on such denial even if it arises after the eviction petition was filed. Therefore, Govindaswami Chetty was not applied.

Holding and Implications

Holding: The civil revision petition was dismissed; the eviction order passed by the Rent Controller and confirmed by the Appellate Authority was sustained, but sustained on the alternative ground that the respondents denied the petitioner's title to the superstructure in the course of the eviction proceedings and that such denial was not bona fide.

Implications and direct effects on the parties:

The eviction order in favour of the petitioner is upheld (i.e., the landlord's entitlement to eviction is sustained on the non-bonafide denial-of-title ground rather than on the demolition/reconstruction ground).
No costs were awarded.
The tenant (respondent) was granted a period of Four months to vacate the premises, on condition that the tenant files an affidavit within four weeks undertaking to vacate after the expiry of that four-month period.

The opinion applies existing Supreme Court precedent (Majati Subbarao) to the facts; it does not purport to announce any novel legal principle or to set new precedent beyond its application of the cited authorities.

Final Disposition: Civil revision petition dismissed. No costs. Tenant granted Four months to vacate subject to filing of an affidavit within four weeks.

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M/S Hussain Lorry Booking Service By Its Partner M. Hasan Rowthar Coimbatore And 8 Others v. A. Sirajudin

The respondents in R.C.O.P No. 93 of 1983 on the file of the Rent Controller (Principal District Munsif), Coimbatore are the petitioners in this Civil Revision Petition. The petitioner in the said R.C.O.P is the respondent m this Civil Revision Petition. For the sake of convenience the parties are referred to in this order as per the nomenclature given to them in the R.C.O.P

2. The petitioner filed an application for eviction against the respondents under Sections 14(1)(b) and 14(2)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, hereinafter called the Act. The case of the petitioner in R.C.O.P No. 93 of 1983 is as follows;

The first respondent is a registered firm whose present partners are respondents 2 and 3, formerly the second respondent and F. Mohamed Hussain were partners of the firm. After the death of F. Mohamed Hussain, the third respondent herein has become the partner along with the second respondent in the respondents-firm. The respondents 4 to 9 are the legal heirs of the deceased partners of F. Mohamed Hussain. The petitioner purchased the petition mentioned property on 19.9.1974 and at the time of purchase it was subject to a usufructuary mortgage deed dated 14.5.1967 executed by the petitioner's vendor in favour of one Rahman Sheriff, who was in possession of the petitioner mentioned property as the usufructuary mortgagee. The deceased F. Mohamed Hussain was the tenant in respect of the petition mentioned property under the usufructuary mortgagee in the first instance and later on after the redemption of the usufructuary mortgagee the said Mohamed Hussain became the tenant under the petitioner. Earlier the petitioner filed an application for eviction against she said F. Monamed Hussain in R.C.O.P No. 327 of 1975 on the file of the Rent Controller, Coimbatore on the ground that the petitioner required the petition mentioned property for his own use and for the purpose of demolition and reconstruction. The respondent in R.C.O.P No. 327 of 1975 contested the application, But, finally submitted to an order of eviction and took time to vacate the building. Before the petitioner could execute the order of eviction obtained by him in R.C.O.P No. 327 of 1975 the respondents 1 to 3 filed a suit O.S No. 518 of 1979 on the file of the District Munsif s Court, Coimbatore for declaration that the first respondent-firm was the tenant of the petition mentioned property and the order of eviction, obtained against Mohamed Hussain in his individual capacity in R.C.O.P No. 327 of 1975 was not binding on respondent's 1 to 3 and prayed for the relief of injunction. In the suit the respondents 1 to 3 also raised the contentions that what was taken on lease was only a site and not the building. The civil court negatived the plea of the respondents 1 to 3 that the original lease was in respect of the site alone, but held that the lease was in respect of both the site as well as the building. It was further held in O.S No. 518 of 1979 that the tenant of the petition mentioned property is the first respondent-firm and not the individual, Mohamed Hussain. As per the decision of the civil court in O.S No. 518 of 1979 the petitioner is a landlord and the first respondent firm and its partners are tenants with regard to the petition mentioned premises. The petition mentioned building is an old and substantial one. The petitioner purchased the property primarily for the site value with a view to put up there at a new structure after pulling down the existing structure for a better and profitable investment and increased return on such investment.

3. The respondents resisted the application for eviction contending as follows the respondents are the owners of the superstructure described in the petition and the petitioner is only the owner of the vacant site and that the first respondent is entitled to the benefits of the Tamil Nadu City Tenant's Protection Act As there is a bonafide dispute regarding the title to the superstructure, the application for eviction filed before the Rent Controller under the provisions of the act is not maintainable. The petition mentioned vacant site was leased out by the petitioner's predecessor-in-title in the year 1955 to one Arunachalam Pillai and one Kasim Sahib who are the predecessors in title of the first respondent-firm having put up superstructure therein are in continuous possession as tenants of the demised vacant site and as owners of the superstructure. The building in question is in good condition and it does not require immediate demolition for reconstruction and the petitioner's requirement for demolition and reconstruction is not bonafide.

4. The Rent Controller found that the petitioner has title to the superstructure that the respondents have not proved that they are the owners of the superstructure and that the lease is in respect of both the land and the building and that the petition for eviction filed before the Rent Controller is maintainable. The Rent controller further found that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is bona fide and consequently passed an order of eviction. As against the order of the Rent controller the respondents filed an appeal, R.C.A No. 89 of 1988 before the appellate authority. The appellate authority confirmed the findings of the Rent controller that the petitioner has title to both the vacant land as well as to the building and that the respondent's denial of the petition's title to the superstructure is not bona fide and therefore, the petition for eviction filed under the provisions of the Act is maintainable. The Appellate Authority also confirmed the finding of the Rent Controller that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is bona fide. Consequently the Appellate Authority dismissed the Rent Control Appeal. Aggrieved by the judgment of the Appellate Authority the respondents have filed the present civil revision petition.

5.Mr. K. Mohanram, learned counsel for the respondents would contend that the petition for eviction was filed by the petitioner on the ground that the petition mentioned building is required for demolition and reconstruction and that his requirement is bona fide. Recently, the Supreme Court in M/s. P. Orr & Sons Pvt. Ltd. v. M/s. Associated Publishers (Madras) Ltd. 1990 T.L.N.J 17 = 1990-2-L.W. 547S.C has held that The landlord, to obtain an order of eviction and reconstruction must satisfy one essential condition viz., that the condition of the building is such that it required immediate demolition for reconstruction and in this case there is absolutely no evidence to show that the condition of the building is such that it required immediate demolition for reconstruction. There is force, in the contention of the learned counsel for the respondents. In the petition in R.C.O.P No. 93 of 1983 it is merely stated that the building is an old and unsubstantial one and it is just a shed resting on wooden poles, and that the petitioner purchased the property primarily for the locality value and with a view to put up a new structure after pulling down the existing structure for better and profitable investment and increased return of such investment. In the counter the respondents have specifically stated that the building in question is in good condition and it does not require any immediate demolition for reconstruction P.W 1 in his evidence has stated that the building is old one and if the building is demolished and a new building is constructed it will fetch good return. In his evidence P.W 1, has admitted that he saw the petition mentioned building only in 1974 and thereafter he did not inspect the same. He has further admitted in his evidence that he is not in a position There is absolutely no evidence in this case to show that the condition of the building is such that it requires immediate demolition for reconstruction. The petitioner has not made out a case for eviction on the ground that the petitioner's requirement of the petition mentioned building for demolition and reconstruction in bona fide.

6. Mr Jamal Mohamed, learned counsel for the petitioner would submit that even assuming that the petitioner has not made out a case for eviction on the ground that the petitioner's requirement of the building for demolition and reconstruction is bona fide, the order for eviction passed by the Rent controller and the Appellate Authority can be sustained on the ground that the respondents' denial of the petitioner's title to the superstructure is not bona fide. Mr. K. Mohanram, on the other hand would contend that the respondents have denied the title of the petitioner to the superstructure in the petition mentioned premises even in the suit, O.S No. 518 of 1979 filed by the respondents against the petitioner. The petitioner has not filed the petition for eviction in the present case on the ground that the respondent's denial the petitioner's title to the superstructure is not bona fide, though that ground was available to the petitioner at the time of filing the present petition for eviction; when the petitioner has failed to claim an order of eviction in the present R.C.O.P on the ground that the respondents' denial of the petitioner's title to the superstructure is wilful. The petitioner must be deemed to have waived his right to claim eviction on the ground that the respondents wilfully denied the petitioner's title to the superstructure. The learned Counsel for the respondents further contended that an order of eviction cannot be ordered on a ground which was not mentioned in the landlord's application for eviction. In support of his contention the learned counsel relied on the decision reported in Govindaswgmi Chetty v. Third Judge, Court of Small causes Madras 1948-2-M.LJ..76S.N. I am not inclined to accept the contention of the learned counsel for the respondents. In the present case the order of eviction passed by the Rent Controller and the Appellate Authority is sought to be sustained not on the petitioner to the superstructure in the earlier suit O.S No. 518 of 1979 but on the ground that the respondents denied the petitioner's title to the superstructure in the counter filed in the courses of the present proceedings and, therefore, the question of the petitioner waiving his right to claim eviction on the ground that the respondents wilfully denied the title of the petitioner to the superstructure does not arise in this case.

7. In Majati Subbarao v. P.V.K Krishna Rao (Deceased) By Lrs.. AIR 1989 S.C 2187 the Supreme Court has held that a denial of title in the course of eviction petition constitutes a ground for eviction provided the denial is not bona fide and it is not necessary that in order to constitute a ground for eviction, the denial of the title must be anterior to the filing of the eviction petition. The supreme Court in the above mentioned decision further held that;

“To insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entitled by the tenant's denial of his character as a tenant in the written statement.”

In view of the decision of the supreme court referred above, the principles laid down in Govindaswami Chetty v. Third Judge, Court of Small Causes, Madras 1948 II M.L.J 76 cannot be applied to the facts of the present case.

8. The evidence in this case discloses that the petitioner has title to both the land as well as to the superstructure of the petition mentioned premises. Ex. A1 is the judgment in O.S No. 518 of 1979 on the file of the District Munsif, Coimbatore. O.S No. 518 of 1979 is the suit filed by the first respondent and the partners of the first respondent against the petitioner for permanent injunction. Issue No. 2 framed in the said suit runs as follows:

“Whether the defendant is the owner of the superstructure in the suit properties?”

On the basis of the evidence, the Civil Court in Ex. A1 in O.S No. 518 of 1979 rendered the following finding:

“I therefore hold under this issue that the defendant is the owner of the superstructure in the suit property. This issue to answered accordingly.”

Further, Ex. A52, the letter written by the first respondent-firm to the petitioner and Ex. A55 and A56 notices sent by one of the partners of the first respondent to the petitioner go to show that the respondents have admitted that they are the tenants is respect of the land as well as the building under the petitioner. In the counter filed by in the present proceedings the respondents have denied the petitioner's title to the superstructure in spite of the finding of the civil court in O.S No. 518 of 1979 that the petitioner has title to the superstructure. However, the respondents have not let in any evidence to substantial their case put forth in the counter that they constructed the building and that the building belongs to them. In these circumstances, both the Rent Controller as well as the Appellate Authority found that the respodent's denial of the petitioner's title to the building is not bona fide. No doubt, the above findings of the Rent Controller and the appellate Authority were rendered for coming to the conclusion that the petition for eviction filed by the petitioner against the respondents under the provisions of the Act is maintainable.

However, as pointed out by the Supreme Court in Maji Subbarao v. P.V.K Krishnarao AIR 1989 S.C 2187 the denial of the title in the course of eviction proceedings constitutes a ground for eviction when it is proved that such denial is not bona fide. Therefore, the petitioner is entitled to an order of eviction in the present case on the ground that the respondents denied the title of the petitioner to the petition mentioned building in the course of the eviction proceedings and such denial of the petitioner's title by the respondents is not bonafide. In these circumstances the order of eviction passed by the Rent Controller and the Appellant Authority can be sustained though not on the ground that the petitioner's requirement of the petition mentioned building for demolition and reconstruction is bona fide but on the ground the respondents in the course of the eviction proceedings denied the title of the petitioner to the superstructure of the petition mentioned premised and such denial is not bona fide.

In the result, the civil revision petition fails and is dismissed. No costs.

Mr. K. Mohanram, counsel for the tenant requests six months time for vacating the premises on the ground that the tenant is carrying on transport business in the petition mentioned premises. Taking into consideration the facts and circumstances of the case and the further fact that the tenant is carrying on transport business in the petition mentioned premises, the tenant is granted Four months for vacating the premises on condition that the tenant files an affidavit within four weeks from today before this court undertaking to vacate the premises after the expiry of the said period of four months.

RR/VCS

M/S Hussain Lorry Bo... v. A. Sirajudin