S. KOLANDAVEL Vs. SOWRASHTRA VIPRASABBA NAMAKKAL

JUDGEMENT

(1.) The tenant suffered by an order of eviction passed by the Rent Controller and confirmed by the Appellate Authority is the petitioner herein.

(2.) The respondent sought eviction on the ground of requirement for demolition and reconstruction under section 14 (1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. In the petition it was stated that the premises were in bad shape requiring demolition and it was aged more than 35 years. It was also stated that if the building is reconstructed, the petitioner would be able to realise a fancy rent as the building is situated in the main road. 3. The Rent Controller upheld the claim of the respondent herein and ordered eviction. The Rent Controller passed the order on 18-4-1984. The petitioner herein filed an application for a certified copy on 19-4-1984 and he obtained the same on 18-5-1984. He had time to file an appeal till 11-6-1984. He preferred the appeal in the court of the vacation Civil Judge, Salem on 23 5-1984. The appeal was taken on file as C.M.A. 124 of 1984 and on 7-6-1984, after the expiry of the vacation the appeal was transferred administratively to the file of the Subordinate Judge, Namakkal, who is the appellate authority under the Act. The file reached the court on 15-6-1984, and the appeal was numbered as R.C.A. No. 5 of 1984. The petitioner filed as a matter of caution an application for condoning the delay of 8 days under Sec. 5 of the Limitation Act in the event of the court taking the view that there was a delay in filing the appeal in that court. 4. The Appellate Authority after hearing the appeal, held on the merits that the requirement of the respondent for demolition and reconstruction was not proved to be bona fide. He reversed the finding of the Rent Controller on that ground. However the Appellate Authority dismissed the appeal taking the view that the appeal was not maintainable since it was presented in the court of the Vacation Civil Judge who according to the Appellate Authority had no authority to receive the appeal. The Appellate Authority dismissed also the application under Sec. 5 of the Limitation Act, as unnecessary. According to the Appellate Authority, the Vacation Civil Judge has no jurisdiction under the Act to receive the appeals under Sec. 23 of the Act. It is this order of dismissal passed by the Appellate Authority which is challenged in this revision petition. 5. On the question of maintainability of appeal before the Appellate Authority the view taken by the Appellate Authority is clearly wrong. Sec. 30 of the Tamil Nadu Civil Courts Act. 1873, provides for vacation for Civil Courts and enables the High Court to permit the Civil Courts under its control to adjourn from time to time for periods not exceeding in the aggregate to two months in each year. Under Clause 2 of Sec. 30 of the State Government may in consultation with the District Judge for the duration of the adjournment of any District Court in summer, appoint for such District Court a Subordinate Judge to be designated the vacation Civil Judge. Under Clause 3(a) the local limits of the jurisdiction of the Vacation Civil Judge shall be the same as those of the District Court concerned. Under Clause 3(b) the jurisdiction of the Vacation Civil Judge shall extend to all suits, appeals and other proceedings pending in or cognizable by any Civil Court (whether a District Court, a Subordinate Judge's Court or District Munsif's Court), in the district concerned when such court is adjourned for summer vacation. 6. Thus, the Vacation Civil Judge is empowered to take on his file any proceedings cognisable by a Subordinate Judge's Court. Under Sec. 23 of the Act, any person aggrieved by an order passed by the Rent Controller may prefer an appeal in writing to the Appellate Authority having jurisdiction. Under sub-section (1) (a) of Sec. 23 the Government may, by general or special order notified in the Tamil Nadu Government Gazette, confer on such officers and authorities as they think fit, the powers of Appellate Authorities for the purpose of the Act, in such areas and in such classes of cases as may be specified in the order. Pursuant to the powers conferred under Sec. 23(1) (a), the Government issued a Notification No. 3006 (f) of 1973 conferring on Subordinate Judges within their respective jurisdiction the powers of Appellate Authority for the purpose of the Act. Thus, the Subordinate Judge, Namakkal, is an Appellate Authority under the Act. The appeal is undoubtedly cognizable by the Subordinate Judge, Namakkal. As such the Vacation Civil Judge is entitled to entertain an appeal which is cognizable by the Subordinate Judge, Namakkal. In the present case, the Vacation Civil Judge had taken on file the appeal presented by the petitioner herein. There is no question of lack of jurisdiction on the part of the Vacation Civil Judge, to entertain an appeal. The view taken by the Appellate Authority is erroneous. 7. Even otherwise, the Appellate Authority is wrong in dismissing the application under Sec. 5 of the Limitation Act. Even assuming for the sake of argument that the Vacation Civil Judge had no authority to receive the appeal, he having received the appeal in fact and transferred the same administratively after the expiry of the vacation to the Court of the Subordinate Judge, Namakkal, long before the time prescribed for filing the appeal, there being only delay in the file being received by the Subordinate Judge, Namakkal, the Appellate Authority ought to have held that there was sufficient cause for the petitioner for not presenting the appeal in time prescribed by the Act. This would have been a fit case for exercise of jurisdiction under Sec. 5 of the Limitation Act and the Appellate Authority ought to have condoned the delay. 8. I hold that the appeal presented before the Vacation Civil Judge was maintainable and consequently the Appellate Authority is wrong in dismissing the same as not maintainable. 9. Learned counsel for the respondent challenged the correctness of the finding of the Appellate Authority on the merits. Learned counsel contended that the bona fide of the requirements of the respondent for the purpose of demolition and reconstruction has been made out by the respondent. As stated already the respondent has mentioned in the petition for eviction that the building is in a bad shape requiring demolition. The evidence in support of the same is only the ipsi dixit of the respondent. A Commissioner was appointed for inspecting the building and submitting a report as to the condition of the building. The report of the Commissioner is marked as Ex. C-1. He states that the front portion of the building is in good condition. He has also stated that the age of the front portion of the building and the back portion of the building is the same. He has pointed out that the back portion has an old appearance and that the walls in the back portion have not been cemented. The report of the Commissioner does not state that the building is in a bad shape and that it required demolition. The report is clearly against the version put forward by the petitioner. The Appellate Authority is right in relying upon that report and holding that the building is in good condition. 10. It is further stated in the petition that if the building is reconstructed the petitioner will be able to realise a fancy rent as the building is situate in the main road. In the course of the evidence it was deposed by the respondent that the respondent has an intention to construct a marriage hall on the rear side of the petition building. The plan has been filed which is marked as Ex.A-4. It is seen from the plan that the petition building is proposed to be demolished and no fresh construction is to be put up in that place. According to the plan that portion is to be kept vacant and used as passage. This case set out in the evidence of the respondent was not pleaded. If the respondent had pleaded that he wanted to construct a marriage ball and use the space occupied by the petition building as passage the matter might have been viewed differently. But not having raised such a plea the respondent is not entitled to put forward the same in the evidence for the first time. The Appellate Authority has rightly found that the case of the respondent that he requires the building bona fide for the purpose of demolition and reconstruction has not been made out. Hence the finding of the Appellate Authority with reference to demolition and reconstruction is confirmed. 11. In the result, the revision petition is allowed and the orders of the authorities below are set aside and H.R.C.O.P. 17 of 1981 on the file of the Rent Controller, District Munsif, Namakkal is dismissed. There will be no order as to costs. Petition allowed.