P.M. GNANAVELU Vs. R.V. KOTHANDAN

JUDGEMENT

(1.) The tenant is the petitioner in this C.R.P. The landlord filed a petition for eviction on 3 grounds, i.e. 10(2)(1) - -default, 10(2)(7) - -denial of title and 14(1)(b) - -demolition and reconstruction. The Rent Controller went into the evidence in detail and found that the condition of the building did not require demolition. He has found against the respondent with reference to the other two grounds also. Hence the petition was rejected. The landlord filed an appeal before the Appellate Authority. The Appellate Authority though confirmed that there was no default in payment of rent allowed the appeal on the other two grounds namely that the landlord required the building bona fide for demolition and there was denial of title. Hence the tenant has filed the C.R.P.

(2.) The learned Counsel for the petitioner contended that the findings of the appellate court that there was a denial of title and the building requires immediate demolition are not correct. According to him the denial was raised only in the reply notice and the counter, but however he did not assert it in the evidence. He contended that the building did not require immediate demolition as the condition was not so bad as alleged. As against the aforesaid contention the learned Counsel for the respondent Mr. Subbiah contented that the finding of the lower court with reference to denial of title and condition of building is correct. He has argued that the lower court ought to have found that there was wilful default in payment of rent.

(3.) First of all with reference to the bona fide requirement of the building for demolition, the trial court has considered the evidence and has arrived at the finding that the building did not require demolition. P.W. I has not stated anything about the condition. P.W. 2 nor has spoken about the condition of the building. In his evidence a contradiction is found. In the chief examination he has stated that the floor was newly laid. But in the cross examination he has stated that he did not know that the flooring was newly laid. It is true that P.W. 2 has stated that the condition of the building is very bad. According to him the building was constructed with bricks and cement. But R W2 has stated that the walls are built with bricks and cement. He has also stated teak wood has been used. The wood and the walls are very strong. Since in one place the rafter is bent, the roof portion in that place has slanted. In assessing the evidence of the Petitioner and the respondent when we come to the evidence of P.W. 2 there is some discrepancy as mentioned above. Similarly when we come to the, evidence of P.W. I also his evidence is not reliable because he has produced Ex. P. 16 stating that it is for the building, but in the cross -examination he has admitted that the said plan does not belong to the petitioner premises but for some other building. If that is so what is the necessity for production Ex. P. 16 is not at all understandable. Further he has admitted as per Ex. P. 16 he has constructed a new building in another place. Therefore whether he really intended to construct a new building in the petition premises is much doubtful because he has not obtained the plan for demolition and reconstruction as he himself has admitted in the cross -examination. Under these circumstances we have to rely upon the evidence of R.W. 2 and hold that the condition of the building does not require any demolition. The learned Counsel for the respondent submitted the following authorities and contended that there was bona fide intention of the land -lord that would suffice Mohammed Gani v/s. S. Rathinavel, (1994) 2 L.W. 472; Sabura Begum v/s. M.K. Thangavelu : (1997) 1 L.W. 418 and Sherwood Educational Society v/s. Abdul Normaria, (1997) 1 1 W. 323 are the decisions submitted by the learned Counsel for the respondent. In, (1994) 2 LW. 472 the learned single Judge has stated that want of sanction plan it -self cannot negative bona fide. But the learned Judge has taken a view that the condition of the building warrant the same. In this case the bona fide is negative by the production of Ex. P. 16 stating mat it relates to the building and when questioned about it, it was admitted that the said Ex. P. 16 did not relate to the building at all. in : (1997) 1 L.W. 418 the three conditions are set out by the learned Judge. Bona fide intention is also one of the requirements. At the same time the age and the condition of the building are also the factors to be taken note of in addition to the means of the landlord. What the learned Judge has stated is that the building need not be in a deteriorated condition for demolition and reconstruction. In this case whether the respondent really intended to construct the building is itself in doubt because of his producing Ex. P. 16. If he has been genuine to demolish and reconstruct he could have applied for a sanctioned plan. But without doing so he attempted to use the plan of some other building. Therefore his intention is only to evict the tenant and not for construction. The other decision, (1997) 1 1 W. 323 is also not helpful to the respondent. In the said case it is stated that there is no necessity to produce liquid cash for the purpose of showing means. However it is also stated that the bona fide has to be presumed from the surrounding circumstances. In this case we find that the condition of the building did not require demolition. Further the landlord's attempt is also not a bona fide one. Therefore the said decision is not helpful to the respondent. As regards the means also there is some doubt. Exs. P17 to 19 show that he is a partner in some firms and his contribution is only Rs. 1,000. Even though it is stated that number of properties are in the name of his wife it has been admitted the house is mentioned in Ex. P. 23, only order. From Ex. P. 16 we find that recently the respondent has constructed a new building in some other place. If that is so whether he would be in a position to construct a new building is doubtful. The respondent has not produced the evidence to disprove the said suspicion.