Vasantha Leela Petitioner v. N. Vadivelu Chettiar

1. In these two civil revision petitions the revision petitioner and the respondent are the same. The property relating to which the impugned orders were passed is the same. Therefore, these two C.R.Ps are taken up for joint enquiry.

2. As regards C.R.P No. 48 of 1991, the landlord viz., the respondent herein filed an application before the Rent Controller, Vellore under Section 14(1)(b) of the Tamil Nadu Building (Lease and Rent Control)Act requiring the building bearing Door No. 286, Saidapet, Main Bazar, Vellore on the ground that the building is old and dilapildated and that the income derived from the building is low and therefore the landlord wants to demolish the building and reconstruct the same with a view to obtain higher income from the same.

3. The tenant filed his objections to the application contending that the requirement of the petitioner-landlord is not bonafide and that the application has been filed with a view to extract higher rent and that landlord is not possessed of sufficient means to undertake demolition and reconstruction. It was further contended by the tenant that as the landlord was harassing the tenant had to file suit in O.S No. 683 of 1984 and obtained an interim injunction against the landlord. Further, the landlord refused to receive the rent and therefore the tenant has filed application in RCOP. No. 119 of 1984 for deposit of the rent.

4. The learned Rent Controller held an enquiry and allowed the application holding that the requirement of the landlord is true and bonafide. Aggrieved by the same, the tenant preferred an appeal in C.M.A No. 10 of 1989 to the Appellate Authority viz., Sub Judge, Vellore who confirmed the order and decretal order of the Rent Controller. Therefore the tenant has now preferred this C.R.P No. 48 of 1991 against the same.

5. The landlord filed an application in RCOP. No. 94 of 1987 for eviction of the tenant under section 10(2) of the Tamil Nadu Buildings Lease and Rent Control Act on the ground that the tenant has committed willful default in payment of rent and that the tenant is in arrears from 1.11.1984 to 30.9.1987 for period of 35 months aggregating to Rs. 2,800 and therefore the tenant is liable to be evicted. The tenant filed an objection contending that in 1984 the landlord demanded a monthly rent of Rs. 300 and a huge deposit. As the landlord was harassing the tenant the tenant has filed a suit in O.S No. 683 of 1984 and obtained injunction against the landlord. Enraged by the same, the landlord refused to receive the rent. Hence the tenant filed application in, RCOP. No. 119 of 1984 for deposit of rent. As the landlord agreed to receive the rent the said application was not pressed. In the meanwhile the landlord filed application in RCOP. No. 92 of 1985 on the ground that he requires the premises bona fide for his occupation. The allegation that the tenant has committed wilful default in payment of rent is false. The landlord is wilfully refusing to receive the rent. The rent due till date of this application has been paid by the tenant. Hence the tenant prayed that the application be dismissed.

6. The Rent Controller who held an enquiry found that the tenant has committed Wilful default in payment of rent and ordered eviction. Aggrieved by the same, the tenant preferred an appeal in C.M.A No. 19 of 1980 and the appellate Court confirmed the order and decreetal order of the Rent Controller. Hence the tenant has preferred C.R.P No. 441 of 1984 against the same.

7. The common points that arise for consideration in these above two revisions are:-

(1) Whether the landlord requires the building bonafide for the purpose of demolition, and re-construction?

(2) Whether the tenant has committed the wilful default in payment of rent?

8. The Points: The parties in these two CM.As are the same. The landlord is the petitioner and the tenant is the respondent. C.R.P 48 of 1991 arises out of the order passed by the Rent Controller in an application filed by the landlord under Section 14(1)(b). C.R.P No. 444 of 1991 arises out of the order passed by the Rent Controller in an application filed by the landlord under section 10(2)(i). Both the applications relate to the same property. Ofcourse the application under section 10(2)(i) was filed by the landlord in 1987 whereas the application in RCOP No. 62 of 1985 under section 1491)(b) was filed earlier in 1985. The application filed by the landlord under Section 14(1)(b) in RCOP No. 62 of 1985 was ordered as prayed for by the Rent Controller against which an appeal was preferred in C.M.A No. 10 of 1989 to the appellate Authority viz., Sub Judge, Vellore who confirmed the order on 9.11.1990 thereby paying the way for the C.R.P No. 48 of 1991. The latter application filed by the landlord in RCOP. No. 94 if 1987 for eviction under section 10(2)(i) of Tamil Nadu Building Lease and Rent Control Act was allowed by the Rent Controller against which the tenant preferred an appeal in C.M.A No. 19 of 1990 and the appellate authority viz., the Sub Judge, Vellore confirmed the order of the Rent Controller with the result that CRP. No. 444 of 1991 is preferred against the same. Therefore, both these C.R.Ps were taken up together for hearing and a common judgment is rendered.

9. First of all, I will take up for consideration the C.R.P No. 441 of 1991 being the application filed by the landlord for eviction of the tenant under Section 10(2)(i) of the Tamil Nadu Building (Lease and Rent Control) Act on the ground of wilful default. There is no dispute between the parties with regard to the rate of rent payable. It is Rs. 80 per month. Already with reference to the property for eviction of the tenant a proceeding has been initiated by the landlord under Section 14 in RCOP No. 62 of 1985 (CRP. No. 48 of 1991). The tenant also filed a suit in O.S No. 683 of 1984 restraining the landlord from interfering with the possession and obtained an order of injunction. The tenant also filed an application in RCOP. No. 119 of 1984 for deposit of rent into court. Since the landlord agreed to receive the rent the said application was closed. Therefore it is clear from the above circumstances that the tenant ought to have been diligent in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. The tenant ought to have been careful and scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore in the context of the litigations that went on between the parties any default committed by the tenant has to be construed as wilful default. The tenant was aware of the legal consequences of his omission to pay rent. Therefore he ought to have been more careful. Inspite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. Therefore any default committed by the tenant in this context can be nothing but wilful default within the meaning of the Act. There is no controversy between the parties that the rent till 1.11.1987 has been paid. It is also not disputed that the Rent due from 1.11.1984 to 30.9.1987 i.e, rent for 35 months was due and payable by the tenant, towards the same the tenant has paid a sum of Rs. 600 on 9.12.1986, 520 on 5.1.1988 and Rs. 400 on 27.8.1988 A sum of Rs. 2080 was also deposited by him into court in 1988. The last payment was made only on 5.2.1990 in a sum of Rs. 320. Thus we find that the tenant has committed default in payment of rent from 1.11.84 But he took his own time to make payment that too in driblets. Inspite of the filing of the application for eviction he has not chosen to make payment of the entire sum due and payable by him. But he continued to pay in driblets and at his convenience. Therefore in the context this definitely amounts to wilful default. There is no acceptable explanation from the tenant for his failure or inability to pay the rent in time. He filed an application for deposit of rent in 1984. But later the application was closed. He did not choose to pay the rent regularly thereafter. Even after the filing of this application for eviction he has not chosen to pay the rent regularly. But allowed it to pile up and paid only small sums towards the same. The explanation of the tenant that because the landlord refused to receive he did not pay is only a puerile explanation. The tenant ought to have been vigilant more so when the proceedings have been going on between the parties. Having failed and neglected to pay the rent, the tenant cannot be heard to urge any explanation. Therefore the court below rightly construed that the default is a wilful one. Hence, I do not find any reason to take a different view from that of the courts below.

10. Now coming to the other revision petition viz., CRP. No. 48 of 1991 it is to be pointed out that it is admitted by the tenant that the building is an old one. According to the landlord the building is 100 years old. Therefore, as regards the age of the building there is no controversy and therefore the courts below held rightly that the building was an old one. That the building is situate in an important locality of the town is also spoken to by the landlord and it is not disputed by the tenant. It is the case of the landlord that if the building is pulled down and a multi-story building is erected thereon, it would fetch greater income to him. Considering the nature of the building its location and the area available it can be safely held that if the building is pulled down and a multi-storeyed building is erected thereon it would definitely fetch greater income to the landlord. The appreciation of value of the property and the demand for building both residential and non-residential, the expansion of commercial activities have all to be taken into account in deciding such an application. It cannot also be disputed that the present rent of Rs. 80 is definitely low in the present context of the rental values. Therefore the case of the petitioner that if the property is demolished and if a new building is put up it would fetch greater income cannot be said to be fanciful claim or a claim having a tinge of mala fide. Both the courts have held that the requirement of the landlord for the said purpose is bona fide. Regarding the means of the landlord the landlord has produced documents which have been marked as Exs. A-4 to A-25 to establish that the landlord has got sufficient means to undertake such re-construction of the property. The landlord has also applied to the Municipality and obtained sanction as is evidenced by Ex. A.-1 and A-3. Ofcourse the sanction has been subsequent to the filing of the application. But it does not in any manner belie the landlord's case. The property measures nearly 94 feet and 100 feet. For such a big property which nearly measures 9,500 sq.ft, and situate in an important locality the present income realised from the property at the rate of Rs. 80 per month is really low and if the property is demolished and reconstructed it is likely to fetch higher income to the landlord.

11. The learned counsel for the petitioner contended that the landlord has not filed an application for appointment of commissioner to inspect the property and filed any report from an expert regarding the condition of the property. That the property is a old building is spoken to be the landlord and it is admitted by the tenant. The landlord seeks the building for demolition and construction not merely because the building is in a dilapidated condition. If it is merely based on that, perhaps there may be a necessity to prove that the building is really dilapidated. It is also in this context necessary to refer to the decision of the Supreme Court reported in M/s. Rajalakshmi Dyeing Works and Ors. v. Rangaswamy Chettiar, 1980 (2) RCJ 165. There it has been held that if there is a concurrent finding that the requirement of the landlord is bona fide, it cannot be touched by the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Their Lordships have further observed as follows:-

Some argument was advanced whether a finding as to the bonafide requirement of a landlord is or not a mixed question of fact and law. Reference was made to Madan Lal Puri v. Sain Das Berry and Kamla Soni v. Rup Lal Mehra, on the one hand and I.B Sarvate v. Nemichand and Matturally.

Dadhe lal on the other hand. We do not think it is necessary for the purpose of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional Power. It must further be shown that there was a taint of such unreasonabless resulting in a miscarriage of justices. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under sections 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

The appeal is, therefore, allowed with costs. Here in this case it can never be contended nor is contended that any taint of unreasonableness in the finding of the courts below or there is any miscarriage of justice. On the otherhand, the evidence and circumstances establish clearly that the requirement of the landlord is bona fide and both the courts have concurred in their findings. Therefore applying the principles enunciated in the above decision, we have to hold that there is nothing for interference in this matter. Therefore on analysis, it has to be held that the requirement of the landlord is bonafide and that the tenant has committed wilful default in payment of rent. Hence, it would follow that there is no merit in these two civil revision petitions.

12. In the result, C.R.P Nos. 444 and 48 of 1991 are hereby dismissed confirming the Order of the courts below with costs. Time for vacating three months.