P PRAKASAMURTHY Vs. P RAJENDRAN

JUDGEMENT

(1.) THE landlord in R.C.O.P. No. 31 of 1983 on the file of the Rent Controller, Coimbatore is the revision petitioner. THE tenant in that proceeding is the respondent herein. Eviction was sought for on two grounds namely, demolition and reconstruction and owners occupation of a non-residential building. On merits, the learned Rent Controller ordered eviction on both the grounds. THE tenant appealed in R.C.A. No. 161 of 1990 before the Appellate Authority, Coimbatore and the said appeal was allowed on merits. Hence the present revision before this court at the instance of the landlord.

(2.) I heard Mr. M.S. Krishnan, learned counsel appearing for the revision petitioner and Mr. Jagadeesh, learned counsel appearing for the respondent in this revision. The appellate authority had allowed the appeal filed by the tenant holding that the requirement of the landlord on the ground of owners occupation of a non-residential building in the occupation of the tenant is hit by Section 19 of the Tamil Nadu Buildings (Lease and Rent Control) Act and the requirement of the building on the ground of demolition and reconstruction, the appellate authority held that the landlord has not made out any case at all. According to Mr. M.S. Krishnan, learned counsel appearing for the revision petitioner, the conclusion arrived at by the appellate authority that section 19 of the said Act would operate as a res judicata for the present landlord to maintain his petition on the ground of owners occupation of a non-residential building, is wholly opposed to law and in so giving the said finding, the appellate authority had failed to take into account the change in the circumstances. The learned counsel would further contend that the change in the circumstances, if there are any, should, be taken into account while deciding whether the bar under Section 19 of the said Act would operate or not, is the judgment of this court in a number of judgments. As far as the requirement on the ground of demolition and reconstruction is concerned, according to the learned counsel for the petitioner, the finding of the appellate authority is opposed to evidence and in any event, the totality of the circumstances available in this case on that ground do make out that the landlord bona fide requires that building for demolition and reconstruction. All the materials as contemplated in the judgment of the Hon"ble Supreme Court of India in a case reported in Vijay Singh & others v. Vijayalakshmi Ammal , 1997 (1) L.W. 218 are established in this case and therefore the Appellate Authority should not have interfered with the order of the Rent Controller on that ground also. Per contra, the learned counsel for the respondent would state that in the year 1974, the present petitioner's father (he was then the landlord) filed a petition for eviction on the very same ground of owners occupation of a non-residential building for the requirement of his son, who is none else that the present petitioner. The present petitioner in that case had given evidence as P.W.1 and on merits, the learned Rent Controller had held against the landlord. Therefore that, judgment having become final, would definitely operate on the principle enumerated under section 19 of the said Act. As far as the ground of demolition and reconstruction is concerned, the learned counsel for the respondent would contend that the commissioner's report and the plan which is marked in this case as Exs.C.1 and C.2 relates to some other portion in the occupation of some other tenant in the very same building and there is nothing in that report to indicate the condition of the building in the occupation of the tenant in this case. Therefore in the absence of the condition of the building, the appellate authority had rightly held that the landlord has not made out any case for demolition and reconstruction.

(3.) COMING to the question of demolition and re-construction, it is stated in the rent control petition that the building is old and that the landlord bona fide requires the same for immediate demolition for the purpose of erecting a new construction. The statutory undertaking had also been given. It is also stated in the rent control petition that the landlord had obtained the plan and he has means to erect a new construction. In the counter, in the rent control petition, it is stated that the requirement is not bona fide and the building in question is in good and sound condition, which does not require any demolition and reconstruction. P.W.1 in his evidence would state that there is no electricity connection, toilet or bathroom to the tenanted premises and those facilities are in the adjoining portion belonging to his brother and the tenants are using it. He would further add that the rear portion of the tenanted premises is thatched and the front portion is a tiled one. Bamboo reapers support the roof and if it rains, there will be leakage. He would further add that the flooring is bad and when the commissioner appointed by the court went to inspect the premises, the tenants kept the premises under lock and key. The landlord would further state that the estimated cost of construction is around Rs. 40,000 and he has means. His evidence shows that his wife is in possession of 50 souverign of gold jewels. There is literally no cross examination of the evidence of P.W.1 and the line of his evidence as extracted above. The tenant in his evidence as R.W.1 would state that the premises has a tiled roof and it is common for the tenanted as well as the adjoining premises owned by the landlord's brother. He would further add that if the portion in his occupation is demolished, it will have an impact on the adjoining portion also. He would also admit that at the tenanted premises, there is no bath room, toilet or electricity connection and that the tenanted premises is an old one. However he would state that during rainy season, it will not leak. In the counter statement filed by the tenant, he would state that he became the tenant in the year 1962. A commissioner was appointed and he has filed his report. He would give a general report about the building by examining it from outside. The commissioner's report would further show that to reach the rear portion of the tenanted premises, there is no direct access from the road and that the access is through the adjoining portion owned by the brother of the landlord. It is also seen from the commissioner's report that the tiled roof in one portion at the rear of the tenanted portion is damaged.