1. These Civil Revision Petitions are filed against the common judgment and decree dated 28.11.1994 and made in R.C.A Nos. 7 of 1992 and 9 of 1992, confirming the order of the Rent Controller in R.C.O.P No. 62 of 1989 and 59 of 1989, respectively, on the file of the Rent Control Court, Nagapattinam.

2. The facts that are necessary for the disposal of these revision petitions are as follows:— The petitioners before the Rent Controller, Nagapattinam, who are the appellants before the Rent Control Appellate Authority, are the revision petitioners herein. The revision petitioners are the owners of the property described in the eviction petition. The revision petitioners leased out a thatched shed measuring about 33-1/2 feet × 19-3/4 feet, to the respondent, on 21.7.1982 on a monthly rent of Rs. 30 and advance amount of Rs. 100 was paid. The area of lease was enlarged by extending the thatched sheet by 53 feet ×××× 19-3/4 feet, in the year 1983 and the respondent agreed to pay the rent at Rs. 40 per month. The respondent has committed wilful default in payment of rent from February, 1989 to September, 1989, totalling to Rs. 320, for a period of 8 months. The 1st revision petitioner is doing business by visiting abroad frequently and he is not maintaining good health to carry on business in abroad. The revision petitioners have decided to start business in timber and therefore they want to demolish the thatched shed and to construct an R.C.C building with shops to carry on the said business. The revision petitioners will comply with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as “the Act” in demolishing the thatched shed and constructing the R.C.C building. The revision petitioners are having sufficient funds and have also obtained approved plan and permission for such construction. The revision petitioners undertake to commence the demolition of the thatched shed within a month from the date of taking possession and complete the construction within a period of three months therefrom. It is under the said circumstances the revision petitioners have sought for eviction of the respondent from the demised premises.

3. The respondent herein resisted the claim made by the revision petitioners on the following grounds:— The thatched shed was let out to the respondent herein by the revision petitioners on a monthly rent of Rs. 30 and on payment of Rs. 100 as advance and thereafter the rent was increased to Rs. 40 along with further advance or Rs. 1000. The respondent herein had spent a sum of Rs. 3,000 so far with the consent of the revision petitioners for repairing the thatched roof of the said premises, apart from spending a sum of Rs. 500 for getting electric connection. The revision petitioners had agreed to adjust the abovesaid amounts from the rent payable. The 1st revision petitioner used to go abroad in connection with his business frequently and the 2nd revision petitioner is a pardhanashin woman. The rent from the respondent was collected through one Sheik Allaudin, the husband of the sister of the 2nd revision petitioner or through Noorul Amin, the son of the 2nd revision petitioner, who used to make necessary entries in the hand note book maintained by the respondent. The respondent went to the house of the revision petitioners to pay the rent several time, but, the 2nd revision petitioner asked him to pay the rent either to Sheik Allaudin or to her son. Sensing that the revision petitioners as well as Sheik Allaudin and Noorul Amin are avoiding to receive the rent, the respondent sent the rent for the months of February, 1989 to July, 1989, by money order, to Sheik Allaudin, which was returned as refused. The respondent sent a notice to the revision petitioners, through his counsel, asking them either to receive the rent for the abovesaid period or to specify the name of a bank in which the amount may be deposited. The notice sent to the 1st revision petitioner returned unserved while the 2nd revision petitioner sent a reply notice to the respondent after receipt of the notice sent to her by the respondent. There is no wilful default in payment of rent. The claim of the revision petitioners that the demised premises is required for carrying on business in timber is not bonafide. The revision petitioners are having better building in Nagoor than the demised premises. The respondent is having business in fire wood, bamboo and coconut thatch leaves in the demised premises and considerable amount is outstanding in the said business. If the respondent is evicted from the demises premises he will be put to great loss and hardship. Since the requirement of the demised premises for demolition and reconstruction for carrying on business by the 1st revision petitioner is not bona fide, the petitions have to be dismissed.

4. After considering the material evidence available before the Court, the learned Rent Controller had found that there is no wilful default in payment of rent and the requirement of the demised premises for demolition and reconstruction of a R.C.C building to carry on new business by the 1st revision petitioner is not bona fide. Accordingly, the petitioners filed by the revision petitioners were dismissed on 19.9.1991 Aggrieved at the order of the Rent Controller in the Rent Control Petitions referred to above, the petitioners, as appellants, filed Rent Control Appeals in R.C.A Nos. 7 of 1992 and 9 of 1992, before the learned Subordinate Judge, Nagapattinam. The learned Subordinate Judge, after hearing the submissions made on both sides and in the light of the material evidence available before Court, confirmed the common order of the Rent Controller, by a common judgment and decrees, dated 28.11.1994 Aggrieved at the judgment and decrees of the Rent Control Appellate Authority (Sub Judge), Nagapattinam the appellants, as revision petitioners, have come forward with these revision petitions.

5. The fact remains that the revision petitioners are the owners of the premises described in the Rent Control Petitions. Admittedly, the revision petitioners had leased out a thatched shed measuring 331?2 × 193?4 feet to the respondent herein and a lease agreement as seen in Ex. A-3, was executed on 1.7.1982 A perusal of Ex. A-3 would disclose that the tenancy is a monthly tenancy and the respondent has agreed to pay the rent on the last day of every month and obtain receipt therefor from the revision petitioners or their power agent. A sum of Rs. 100 was paid as advance, as seen from the above said written agreement between both the parties. It is also not in dispute that the thatched shed already leased out by the revision petitioners to the respondent was enlarged by putting up an extended thatched shed measuring a total extent of 53 × 193?4 feet, in March, 1983, and the respondent had agreed to pay a monthly rent of Rs. 40 for the said premises. The respondent is also said to have given a sum of Rs. 1,000 as additional advance, which is denied by the revision petitioners herein. Admittedly, the respondent, who has paid rent upto January, 1989, has obtained acknowledgment for such payments, in the hand book and the payment of Rs. 100 by way of advance at the commencement of the tenancy was also engrossed in the written agreement at the instance of the respondent herein. The respondent has not produced any documentary evidence or oral evidence excepting his interested testimony, to establish the payment of Rs. 1,000 as advance, in March, 1983. Therefore, the stand taken by the respondent that he has paid an advance of Rs. 1,000 at the time of letting out the enlarged thatched shed referred to above, except the fact of agreeing to pay an increased monthly rent of Rs. 40, cannot be accepted. Likewise, there is no material evidence worthy of consideration on the side of the respondent for having incurred an expenditure of Rs. 3,000 for repairing the thatched roof with the consent of the revision petitioners to adjust the said amount from the rent payable by the respondent. So also, there is no evidence for the alleged payment of Rs. 500 by the respondent for getting electric connection.

6. Admittedly, the respondent has not paid the rent from the month of February, 1989 and the eviction petition was filed on 18.10.1989 The respondent has to pay the rent every month as per the lease agreement. The admission made by Sheik Allaudin, who was examined on behalf of the revision petitioners, as their Power Agent, as seen from the Power Deeds Ex. A-1, dated 11.8.1989, and Ex. A-2 dated 6.9.1989, would show that he would go and collect the rent from the respondent if he is instructed to collect the rent. Even according to the respondent, either Sheik Allaudin or Noorul Amin, the son of the revision petitioners, will collect the rent and make endorsements in the hand note book maintained by the respondent for payment of rent. Even though the above said hand note book has not been produced before Court to show the payment of rent upto January, 1989, it is evident that Sheik Allaudin or Noorul Amin used to collect rent from the respondent as the 1st revision petitioner was doing business in abroad by visiting abroad frequently and as the 2nd revision petitioner is a Pardhanashin woman. But, there is no material evidence to establish that the rent was collected by the abovesaid persons from the respondent by going to the demised premises and making entries in the hand note book maintained by the respondent at the said premises.

7. The case of the respondent would disclose that he had visited the house of the revision petitioners several times, to pay the rent, but, he was informed by the 2nd revision petitioner to pay the rent as usual to Sheik Allaudin or to Noorul Amin. It is also the case of the respondent that he attempted to pay the rent to Sheik Allaudin, who evaded to receive the same, that he developed suspicion of foul play on the part of the revision petitioners and Sheik Allaudin and that therefore he sent the rent to Sheik Allaudin by Money Order, as seen in Ex. B-2, dated 7.8.1989, which returned as refused. The respondent, while he was examined as a witness before the Rent Controller, has admitted that he attempted to see the 2nd revision petitioner two or three times to pay the rent but he could not see her, even though he had stated subsequently that the 2nd revision petitioner asked him to pay the rent to her agent. The abovesaid statements are contradictory to each other. If the respondent could not see the 2nd revision petitioner, who is a pardhanashin woman, during his attempt to see her, it is not known as to how or through whom he came to know that the 2nd revision petitioner had asked him to pay the rent to her agent. Likewise, there is also no evidence, except the interested testimony of the respondent herein, to establish that he had attempted to pay the rent from the month of February, 1989 to Sheik Allaudin. It is not even the case of the respondent that he had attempted to pay the rent at least to Noorul Amin, the son of the revision petitioners. It is for the first time that the respondent had taken effort to send the rent to Sheik Allaudin for the months of February, 1989 to July, 1989, by money order, as seen in Ex. B-2 on 7.8.1989 The said Money Order sent was returned as refused. Of course, a perusal of Ex. B-2 would disclose that the respondent had mentioned that he had attempted to see the revision petitioners at their residence, but he could not see them and; that therefore, the arrears of rent for six months was sent to Sheik Allaudin by money order. It is a self serving statement, which was made by the respondent at the time of sending the money order after committing default in payment of rent for six months. The respondent has sent a notice as seen in Ex. B-3, dated 19.8.1989, to the revision petitioners, and the notice sent to the 1st revision petitioner was returned as he was in abroad. A reply, as seen in Ex. B-4. was sent by the 2nd revision petitioner on 1.9.1989 denying the allegations made in the notice Ex. B-3 and explaining the reasons as to why the money order sent in Ex. B-2 was returned as refused. The fact that rent was not paid by the respondent herein for about six months on the date of sending of the money order-as seen in Ex. B-2, has not been denied even though an attempt was made on the side of the respondent to explain as to why the rent was not paid, which is not acceptable one. Therefore, the reason given in the reply notice for not receiving the rent sent by money order, as seen in Ex. B-2, to Sheik Allaudin cannot be held as unreasonable one.

8. The learned counsel appearing for the respondent contended that the revision petitioners who are in India have not come to the witness box to give evidence with regard to the non-payment of rent by the respondent herein and also to deny the tender of rent to the 2nd revision petitioner and that therefore, the non-examination of the revision petitioners as witness before the Court has to be taken into consideration to draw an adverse inference against the revision petitioners. A duty is cast upon the tenant statutorily under Section ilO (2) (i) of the Act to pay rent or to tender rent for the building in her/his occupation, within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. In this case, there is a written agreement to pay the rent on-the last date of the month and, therefore, the respondent herein is bound to pay the rent within 15 days from the last date of the month on which the rent becomes due. Even if the agent of the revision petitioners had not come to collect the rent the respondent ought to have taken necessary steps to pay or tender the rent within 15 days from the last date on which the rent had to be paid. The respondent is not able to establish that he had chosen to pay or tender the rent as contemplated under the Act. On the other hand he had chosen to send the rent to Sheik Allaudin by money order, as seen in Ex. B-2, dated 7.8.1989, only after a period of six months from 1.2.1989 As already pointed out, there is no acceptable evidence on the side of the respondent to establish that he had taken every step to pay or tender rent to the revision petitioners or to Sheik Allaudin or to Noorul Amin. It is only after six months the respondent has chosen to send notice to the revision petitioners, on 19.8.1989 as seen in Ex. B-3, to specify the name of a bank in which the rent may be deposited, in order to comply with the provision of Section 8 of the Act.

9. In Mohamed Rowther v. S.S. Rajalinga Raja and 2 others, 1994 (2) LW 524. His Lordship Mr. Justice Abdul Hadi has held as follows:—

“It is settled law that it is the duty of the tenant to pay the rent regularly every month as enjoined in the statute without expecting any demand from the landlord in that regard.”

10. The Apex Court, in M. Bhaskar v. J. Venkatarama Naidu, 1996 (6) SCC 228. has held as follows:—

“…Though_ parties are related, nonetheless when the appellant is staying in the premises as tenant, he has got an obligation to pay the rent regularly. If he does not do so, he commits wilful default. If he finds that the landlord is evading the payment of rent, procedure has been prescribed under Section 8 of the Act to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file an application before the Rent Controller for permission to deposit the rent. The appellant did not avail of that remedy.”

In view of the failure to follow the said procedure, the Apex Court held that the non-payment of rent by the tenant to the landlord was wilful default.

11. In K. Avinasilingam v. Hamsa, 1990 TLNJ 108 a single Judge of this Court has held that the tenant has to satisfactorily explain as to why there was delay in payment or rent and if the delay has not been satisfactorily explained, the authority concerned has to hold that the petitioner has committed wilful default thus rendering himself liable to be evicted.

12. Again, in S. Sundararajan v. S.A Viswanatham Chetty and another, 1997 (2) L.W 567, a single Judge of this High Court has held as follows:—

“…If the proceedings initiated by tenant under Sec. 8 of the Rent Control Act are not in accordance with law, then he cannot' escape from the liability of being evicted. …If the tenant has committed default in payment of rent and if the same is proved to be wilful, eviction has to be ordered.”

13. It is evident from the principles laid down in the above decisions by this Court as well as by the Apex Court that a legal obligation is cast on the tenant to pay the rent without any demand by the landlord, within 15 days from the date on which the rent is payable as per the written agreement of tenancy or, in the absence of any such agreement, by the last day of the month next following that for which the rent is payable. If the landlord or landlady is evading to receive the payment or tendering of rent, the tenant has to resort to the provisions of Section 8 of the Act or other modes prescribed under the law to deposit the rent. If the tenant fails to comply with the statutory obligation cast on him, he has to be evicted from the premises under his occupation. If this principle is taken into consideration in the light of the facts available in this case, this Court is of opinion that the Courts below have committed an error in applying proper test to arrive at the correct conclusion on the evidence available before them. When the Courts below have failed to apply proper test in arriving at the conclusion, this Court has the essential power of superintendence under Section 25 of the Act, as a Court of revision, as held by the Apex Court in Sri Raja Lakshmi Dyeing Works v. Rangaswamy, AIR 1980 SC 1253; Sarala Ahuja v. United India Insurance Company Ltd., 1998 (III) CTC 679 and by this Court in Rookshana Nazir v. U.M.D. Shaukathulla and 5 others, 1998 (III) CTC 687. As such, this Court can interfere in revision to render justice to the affected party,' as has been held by this Court in S.M. Ispahani v. Harrington House School, 2000 (I) CTC 634.

14. The learned counsel for the respondent herein relied on a decision reported in Durgai Ammal v. R.T Mani, 1989 (1) L.W 155 in support of his case and contended that when the landlord refuses to receive the rent sent by the tenant, it is his fault and he cannot subsequently say that the tenant has not exercised his right given under Section 8 of the Act an, therefore, he must be taken to have committed wilful default. In that case, there was a dispute with regard to the quantum of rent payable to the landlord who was a purchaser and there was also a bona fide doubt as to the person who was entitled to receive the rent. The person concerned did not help to remove the doubt of the tenant. It was under the said circumstances the nonpayment of rent by the tenant to the landlord was held to be not wilful. Such is not the situation in this case. Therefore, the case cited by the learned counsel for the respondent will have no application to the facts and circumstances of this case.

15. It has also been held in that case that under Section 25 of the Act, the High Court has been conferred with revisional powers wider than that of Section 115 of the Code of Civil Procedure and that when one of the parties to the proceedings tries to jeopardise the other, the high Court gets the jurisdiction to look into the entirety of the records to render justice to the parties. The abovesaid decision of a Division Bench of this Court is in line with the decision reported in S.M. Ispahani v. Harrington House School, 2000 (I) CTC 634.

16. In Deluxe Road Lines v. R.K. Palani Chetty, 1992 (II) M.L.J 481 His Lordship Mr. Justice M. Srinivasan (as he then was) has held that it is not necessary in every case that a notice should have been issued by the landlord to the tenant, in order to hold that the default is wilful and even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful. It has also been held that an unexplained default is undoubtedly wilful and it is for the tenant to prove that his default is not wilful as he was aware of the relevant facts as to why he had not paid the rent. If the tenant is not able to establish the default to the satisfaction of the Court that he was prevented from carrying out his contractual or statutory obligation of paying the rent, then the necessary consequential inference is that the default is Wilful.

17. The learned counsel for the respondent relied on a decision reported in M/s. Chordia Automobiles v. S. Moosa and others, 2000 (I) CTC 742 to establish that the respondent has not committed wilful default in payment of rent. In that decision, “wilful default” has been defined as to mean “act done consciously or deliberately done with open defiance and intent not to pay rent”. In that case, the tenant was paying rent of Rs. 500 per month with effect from 1985 and the tenant desired to change the business from spare parts of two wheelers to sale of tyres. For that there was a need to install air compressor with electric connection for checking up tubes and fitment of tyres, which required additional electricity load, water tap and separate lavatory. There was an agreement between the landlord and the tenant to comply with the additional amenities and also to pay increased rent of Rs. 750 per month, which was subsequently increased to Rs. 1,000 per month. The above said amenities as agreed to was not provided and, therefore the tenant disputed the quantum of rent payable per month. In addition to that the agent of the landlord had not come to collect the rent because of the dispute in the quantum of rent payable. It was under the said circumstances the tenant had not paid the rent and it was, therefore, held to be not wilful. There is no such dispute with regard to the quantum of rent or provision of any amenities by the landlord to the tenant in this case. Therefore, the principle laid down in the case law cited above will have no application to the facts and circumstances of this case.

18. The learned counsel for the respondent relied on a decision reported in V.S. Hamid Sultan v. Abdul Latheef, 2000 (I) CTC 137 :2000 (1) M.L.J 364 in support of the case of the respondent. In that case, the question that arose for consideration was as to whether a tenant was guilty of wilful default if there is noncompliance of Section 8 of the Act. It was held in that case that noncompliance of Section 8 of the Act will be one of the relevant circumstances but not the only conclusive circumstance in a case where the landlord refuses to receive the rent. Therefore, the ruling cited above will not also extend any help to the respondent in any respect.

19. The learned counsel for the respondent next relied on a decision reported in V. Krishna Mudaliar v. Lakshmi Ammal., 1996 (2) L.W 467 in support of the case of the respondent and contended that the respondent has not committed wilful default in payment of rent. In that case, the tenant was in occupation of the premises in dispute under the earlier owner and the same was purchased by the landlord who filed a civil suit for recovery of possession on the ground that the tenant in occupation was a trespasser. After contest, the Civil Court declared that the person in occupation of the demised premises was a tenant. During the pendency of the said suit, the tenant tendered the rent to the purchaser/landlord, but the same was refused. Immediately after the disposal of the civil suit, the purchaser/landlord filed a petition for eviction on the ground of wilful default in payment of rent for about four years. The tenant had taken a stand that he had tendered the rent to the landlord and the same was refused by the landlord. The tenant has also deposited the rent in the Rent Control Court within one month from the date of initiation of the eviction proceedings. It was under the said circumstances, the nonpayment of rent by the tenant was held to be not wilful. The facts and circumstances of this case are entirely different from the one cited above and therefore, it will have no application.

20. The learned counsel for the respondent also relied on a decision reported in Gouse Batcha v. Viswanatha Mudaliar, 1956 (I) MLJ 55, in support of the case of the respondent that the respondent has not committed wilful default in payment of rent. In that case, the landlord used to collect rent by sending his Bill Collector and had not sent the Bill Collector to collect the rent for a month or months. In the said circumstances it was held that the nonpayment of rent will not amount to wilful default in payment of rent. There are no particulars available as to the months for which the rent was not paid. The circumstances of the case is also not known as seen from the short notes available in the case cited. Therefore, that may not help the respondent to establish his case that he has not committed wilful default in payment of rent.

21. The learned counsel for the respondent then relied on a decision reported in Mohideen Sahib v. Theodre Samuel, 1985 (II) M.L.J 354, in support of the case of the respondent. In that case, the money order sent to the landlord by the tenant was refused repeatedly and, therefore, notice was issued to specify the name of a bank in which the rent may be deposited. Immediately after the receipt of the notice, the tenant deposited the entire rent arrears. In such circumstances it was held that there was no wilful default in payment of rent. Therefore, the abovesaid ruling will have no application to the facts and circumstances of the case on hand.

22. In view of the circumstances stated supra, this Court is not able to agree with the conclusion arrived at by the Courts below, in refusing to order eviction of the respondent on the ground of wilful default. Accordingly, the findings of the court below in this respect are set aside.

23. The revision petitioners have sought for eviction of the respondent from the demised premises also on the ground of demolition and reconstruction of the thatched shed to carry on business in timber, since the 1st revision petitioner who is carrying on business in abroad is not maintaining good health to do business in abroad and he intends to carry on the said timber business in India itself. The respondent contends contra, saying that the requirement of the premises for the abovesaid purpose is not bonafide. Admittedly, the 1st revision petitioner is carrying on business in abroad while his family is at Nagoor in Nagapattinam District. It is also evident from the evidence available on record that the 1st revision petitioner wants to carry on business in timber because he has got experience in such business in view of the said business being carried on by his close relatives. The premises is a thatched shed, which requires, even according to the respondent, repairs frequently. Ex. A-6 is the copy of the plan submitted to the Municipal authority concerned for sanction of the plan. The same was sent on 25.9.1989 to the abovesaid authority. Ex. A-7, dated 4.1.1991 is the challan showing the payment of Rs. 440 to Nagai Municipality for grant of building permission and the permission has been accorded on 2.12.1989, for construction of an R.C.C building in the demised premises. A perusal of Ex. A-7 would further disclose that the above said premises is situate in Nagoor public road. Ex. A-10 to A-15 are the Fixed Deposit Receipts standing in the name of the 1st revision petitioner to an extent of Rs. 60,000 and odd. It is an admitted fact even by the respondent that the revision petitioners are having other properties besides the 1st revision petitioner having business in abroad. So, the financial position of the revision petitioners to demolish the thatched shed and reconstruct an R.C.C building as per the approved plan cannot be disputed.

24. The learned counsel for the revision petitioners has brought to the notice of this Court a decision reported in S. Periaswamy Nadar v. T.M.P.N. Singaravel, 1997 (3) L.W 731, wherein a learned single Judge of this Court has held thus:—

“..the present question raised before this Court is whether the respondent is entitled to the prayer of eviction, since the eviction is sought on two different grounds under Section 10 (3) (a) (iii) of the Act and under Section 14 (1) (b) of the Act, which are contradicting each other, and the requirement for two purposes viz. for demolition and reconstruction, and for owner's occupation is mutually exclusive, and whether the claim of the landlord is a device and intended to serve an obligue purpose, which would certainly militate against the bonafide claims made by the petitioner in the petitions for eviction.

This principle has been followed by this Court in so many decisions as referred to hereunder:

(1) In Ponnuswami Naicker v. K. Anandan, 1988 (1) L.W 31. it has been held by this Court that the requirement for own occupation for the purpose of business and the requirement for the purpose of demolition and reconstruction are not contradictory to each other and they can be combined even in one petition.

(ii) In Nandan Brothers and others v. Kamaladevi Chandak and others, 1989 (2) M.L.J 469: 1989 (2) L.W 25, while similar questions have been raised by stating that the requirement for demolition and reconstruction cannot go along with the requirement for own occupation as they are mutually exclusive, this Court observed that “that the said contention has no substance and there is no inconsistency in the stand taken by the respondents, as the grounds for eviction are not mutually exclusive and they are, complementary to each other”. In the said decision, this Court followed the decision of the Division Bench of this Court reported in Nathella Sampathu Chetty v. Sha Vajineo Bapulal, 1977 (1) M.L.J 289: 1977 (90) L.W 73, wherein it has been held that “there was not inconsistency in those allegations and that the said allegations were not relevant for considering the question of bonafide, that they could not affect the bona fides of the claim made in the petition for eviction, and that so long as the evidence does not justify the finding that the claim is a device and intended to serve an oblique purpose, it will go a long way towards the claim being honest.”

It is evident from the case law cited above that there can be a combined claim viz., for demolition and reconstruction and for own use and occupation to carry on business by the revision petitioners.

25. In Vijay Singh and others v. Vijayalakshmi Ammal, 1996 (II) CTC 586: 1996 (6) SCC 475, the Apex Court was pleased to hold as follows:

“On reading Section 14 (1) (b) along with Section 16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time, and to erect a new building on the same site Permission under Section 14(1) (b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the building in question to erect a new building. At the same time it is difficult to accept the stand of the appellants that the building must be dilapidated and dangerous, unfit for human habitation. For granting permission under Section 14 (1) (b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not. For recording a finding that requirement for demolition was bonafide, the Rent Controller has to take into account; (1) bonafide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Section 14(1) (b). No court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent Controller.”

26. Following the decision reported in S. Saraswathi Ammal (deceased) and 2 others v. Mallikarjun Raja and 2 others, 1997 (I) CTC 280: 1997 (2) L.W 287. a learned single Judge of this Court, in Dorali Gounder v. Ganeshmal and 4 others, 1998 (2) L.W 546, has held that the building need not be in a dilapidated condition or in a dangerous state of affairs for ordering eviction under Section 14 (1) (b) of the Act. Another learned single Judge of this Court in S.M Ispahani v. Harington House School, 2000 (I) CTC 634, has followed the principles laid down by their Lordships of the Apex Court in the abovesaid decision and held, on complying with the abovesaid conditions, the requirement of the building for demolition and reconstruction is bona fide.

27. The learned counsel for the respondent relied on a decision reported in Iswar Bhai C. Patel v. Harihar Behera and another, 2000 (1) L.W 178 and contended that if the party has not entered into the witness box to make a statement on oath, adverse inference has to be drawn by the Court against such party. The learned counsel further contended that the revision petitioners who are in India at the time of examining their agent as a witness have not chosen to come to the witness box to speak about the requirement of the demised premises for demolition and reconstruction and, therefore, an adverse inference has to be drawn against them. It is relevant to point out that the revision petitioners have examined none other than the husband of the sister of the 2nd revision petitioner to whom the respondent herein is said to have paid rent apart from Noorul Amin, the son of the revision petitioners. The abovesaid Sheik Allaudin, who is a close relative and Power of Attorney Agent of the revision petitioners, has given evidence on behalf of the revision petitioners. The revision petitioners have produced documentary evidence to establish that the requirement of the demised premises for demolition and reconstruction for the business intended to be carried on by them is bona fide and the genuineness of those documents have not been questioned by the respondent. The fact remains that the demised premises is situate in Nagoor public road, which will be more suitable to carry on business in timber and is also a suitable place for constructing shops. Therefore, the non-examination of the revision petitioners as witnesses in the abovesaid circumstances will not in any way affect the case of the revision petitioners and the case law cited above by the learned counsel for the respondent will not also extend any help to the respondent herein.

28. A perusal of the petition would disclose that the revision petitioners have given an undertaking as contemplated under Section 14 (1) (b) of the Act that they will start the work of demolishing the material portion of the building not later than one month and complete the construction before the expiry of three months from the date of recovery of possession of the entire building or before the expiry of the further period as the Court may fix. On considering the entire evidence available in this case, it is evident that the Courts below did not apply proper test in arriving at the conclusion. In view of the said position and in the light of the decision reported in S.M Ispahani v. Harington House School, 2000 (I) CTC 634, referred to above, this Court can interfere in revision on the ground of non-application of proper test by the Courts below in arriving at a correct conclusion. Accordingly, the finding of the Rent Control Appellate Authority confirming the finding of the Rent Control Authority is set aside.

29. In fine, these Civil Eviction Petitions are allowed, but, in the circumstances of the case, without costs. Time for eviction six months.