Madras High Court
V.V.Mohan vs M.Jothy on 24 November, 2021
C.R.P.(NPD).No.484 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.484 of 2021
V.V.Mohan .. Petitioner
Vs.
M.Jothy .. Respondent
PRAYER: Civil Revision Petition filed under Section 25 of Tamil Nadu
Buildings (Lease and Rent Control) Act, 1963, praying to set aside the
judgment and decreetal order dated 09.12.2020 passed by the Subordinate
Court at Poonamallee allowing RCA.No.21 of 2015 and consequently
confirm the order and decreetal order dated 29.07.2015 passed by the
Principal District Munsif Court at Poonamallee passed in RCOP.No.2 of
2014.
For Petitioner : Mr.V.V.Giridhar
For Respondent : Mr.M.V.Seshachari
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1/12
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C.R.P.(NPD).No.484 of 2021
ORDER
The landlord challenges the order made in RCA.No.21 of 2015 made
by the appellate authority in an appeal under Section 23 of Tamil Nadu
Buildings (Lease and Rent Control) Act, reversing the order of eviction
passed by the Controller in RCOP.No.2 of 2014, a petition filed under
Section 14(1)(b) of the said Act seeking eviction for the purpose of
demolition and re-construction.
2. The landlord sought for eviction under Section 14(1)(b) of the Act.
In the petition filed, the landlord had stated that he has already taken steps
to construct a new building by demolishing the building in the 'B' schedule
property. However, the landlord has not specifically set out the undertaking
as required under Section 14(2)(b) of the Act, to the effect that he will
commence demolition within a period of 1 month and complete it within a
period of 3 months. This absence of the undertaking as required under
Section 14(2)(b) was projected as defence by the tenant. The Rent
Controller however rejected the claim of the tenant and allowed the
application and ordered eviction. The tenant filed appeal.
3. Pending appeal, the landlord filed an affidavit of undertaking on
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C.R.P.(NPD).No.484 of 2021
25.02.2020 complying with the requirements of Section 14(2)(b) of the Act.
The appellate Authority, however, concluded that non-compliance with
Section 14(2)(b) even at the time of filing of Original Petition is fatal to the
claim of the landlord and on the said conclusion, allowed the appeal and
dismissed the eviction petition. It will be pertinent to point out at this
juncture, that the Appellate Authority concurred with the conclusion of the
Rent Controller that the landlord made out a case for eviction under Section
14(1)(b) of Act.
4. I have heard Mr.V.V.Giridhar, learned counsel appearing for the
petitioner/landlord and Mr.M.V.Seshachari, learned counsel appearing for
the respondent/tenant.
5. Mr.V.V.Giridhar would submit that the Hon'ble Supreme Court and
this Court had in various decisions pointed out that non-filing of
undertaking as required under Section 14(2)(b) of the Act cannot be held to
be fatal to the claim of the landlord. He would also point out that an
affidavit of undertaking was filed pending appeal and therefore, the defect
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C.R.P.(NPD).No.484 of 2021
stood cured. Hence, according to him, the Appellate Authority was not
justified in allowing the appeal and setting aside the eviction order passed
by the Controller on the technical ground.
6. Per contra, Mr.M.V.Seshachari, learned counsel appearing for the
tenant would submit that though the judgment of the Hon'ble Supreme
Court in Harrington House School Vs. S.M.Ispahani and others reported
in (2002) 3 MLJ 130 (SC) is being taken as a lead case for the proposition
that non-filing of undertaking is not fatal and it could be filed at any time.
The said judgment did not in fact laid down such law. He would also rely
upon the judgmnet of single Judge of this Court in M.Abu Tahir Vs.
M.Rahamathulla reported in (2005) 4 MLJ 628, Where, Hon'ble Mr.Justice
M.Thanikachalam had pointed out that the judgment in Harrington House
School Vs. S.M.Ispahani and others referred to supra cannot be taken as a
precedent for the proposition that an undertaking as required under Section
14(2)(b) of the Act can be given at any time.
7. No doubt Hon'ble Mr.Justice M.Thanikachalam in M.Abu Tahir
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C.R.P.(NPD).No.484 of 2021
Vs. M.Rahamathulla referred to supra, has observed that the judgment of
the Hon'ble Supreme Court in Harrington House School Vs. S.M.Ispahani
and others referred to supra cannot be taken as a precedent laying down the
proposition that undertaking can be furnished at any time.
8. He would also draw my attention to the judgment of this Court in
Alamelu Vs.Visalakshi reported in 1978 (91) LW 423, wherein, this Court
had pointed out that if the landlord has not been favoured with eviction
order by the Controller, in the appeal filed by him, he can cure the defect by
filing such affidavit of undertaking. But, a landlord who has been favoured
with order of eviction, cannot in the tenant's appeal file an undertaking and
cure the defect. This position of law as stated in Alamelu Vs.Visalakshi
was referred upon by Hon'ble Mr.Justice M.Thanikachalam to conclude that
the undertaking can be before order of eviction and not after order of
eviction.
9. The said position of law turns out on a strict interpretation of the
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C.R.P.(NPD).No.484 of 2021
provisions of the Act. But, subsequently this Court in various judgments
had applied the judgment of the Hon'ble Supreme Court in Harrington
House School Vs. S.M.Ispahani and others referred to supra as one laying
down law that the undertaking can be given at any point of time before
taking possession.
10. In some cases, this Court has gone to the extent of holding that an
undertaking as required under 14(2)(b) can be filed even along with the
Execution Petition. Even prior to Alamelu Vs.Visalakshi referred to supra,
this Court had in B.C.Dioceses of Madurai Vs. Ganapathy Iyer and othres
reported in 1976 (89) LW 584, taken a view that an undertaking given
pursuant to the direction by the Rent Controller, after eviction order can be
taken as a sufficient compliance with the provision of Section 14(2)(b) of
the Act. The Hon'ble Mr.Jusitice Gokulakrishnan, while doing so, has
observed as follows:-
8. In view of the fact that the undertaking
given by the petitioners subsequent to the eviction
order passed by the Rent Controller giving them
one week's time to file such an undertaking can be
taken as sufficient compliance with the provisions
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C.R.P.(NPD).No.484 of 2021
of S 14(2)(b), the orders passed by the Appellate
Authority are set aside and the cases are remanded
to the file of the Appellate Authority for disposal
afresh only on the question of bona fides of the
requirements by the petitioners herein.
11. In S.P.Kasi Viswanathan Chettiar Vs. S.Kalyanaraman reported
in 2001 AIHC 336, Hon'ble Mr.Justice K.P.Sivasubramaniam had held that
the undertaking can be given after the order of eviction. The learned Judge
had considered the judgment of this Court in Alamelu Vs.Visalakshi
referred to supra as well as the judgment in Radhakrishnan Vs.
Rajasekaran reported in (1990) 2 Mad LJ 319. In R.V.E.Venkatachala
Gounder Vs. Venkatesha Gupta and others reported in AIR 2002 Supreme
Court 1733, a similar question arose before the Hon'ble Supreme Court and
the Hon'ble Supreme Court held as follows:-
13. For the foregoing reasons, we are of the
opinion that the High Court ought not to have
interfered with the decision of the appellate
authority. The appeals are allowed. Judgment of
the High Court is set aside and that of the appellate
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C.R.P.(NPD).No.484 of 2021
authority restored. However, in view of the time
that has already been lost in the litigation and to
protect the interest of the tenants and certainly to
allay their fears,it is directed that the executing
Court shall, before directing the tenants to be
evicted and possession being given to the landlord,
direct the landlord to file plans of proposed
construction, duly approved by the local authority,
and give an undertaking in terms of S.14(2)(b) of the
Act. No order as to costs.
12. Same view was reiterated by this Court in Lakshmi Vs.
M.V.Balamurali and another reported in 2007 (2) CTC 518, Harikrishnan
Daga Vs. Loknath Rao reported in 2013 (4) LW 107, PL.L.Rajamani Achi
Vs. M.Govindaraj and another reported in 2017 SCC OnLine Mad 6568
and S.Sundararajan Vs.A.Mary Josephine reported in 2019 SCC OnLine
Mad 10227.
13. No doubt, the language of Section 14(2)(b) requires the landlord
to undertake to demolish the building within a particular time, to commence
demolition and complete it within a particular time and such undertaking is
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C.R.P.(NPD).No.484 of 2021
to be furnished prior to the order of eviction. But, the object of the
requirement is only to ensure that the landlord does not take an order of
eviction under Section 14(1)(b) and retains the building as it is.
14. The power of re-entry is also given to the tenant, in the event the
building is not demolished as undertaken, de horse the point on time at
which the undertaking is given. The right of the tenant is protected.
Therefore, I do not think it will be proper, while considering the beneficial
legislation, to project an interpretation that it would render the right
redundant. The very purpose of the enactment is to protect the tenant from
unreasonable eviction. The said enactment cannot be used to unleash
unreasonableness on the landlord. However, in view of the preponderance
of judicial opinion, which is in favour of the landlord to the effect that the
undertaking can be given at any point of time and considering the fact that
the landlord has given such undertaking pending appeal, I do not think that
the Appellate Authority was right in concluding that the landlord is not
entitled to an order of eviction for his failure to furnish an undertaking
before the Rent Controller.
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C.R.P.(NPD).No.484 of 2021
15. The rights of the tenant stand perfectly protected. Hence, I do not
think that the order of the Appellate Authority can be sustained. The
revision is therefore allowed. The order of the Appellate Authority is set
aside and the order of the Rent Controller is restored. No costs.
16. Considering the fact that the tenant is carrying on business in the
premises, he is given a years time to vacate and handover possession. The
tenant shall file an affidavit undertaking to vacate and handover vacant
possession by 30.11.2022, such an affidavit shall be filed into this Court by
10th December 2021. If the affidavit is not filed by the said date, the
landlord will be entitled to seek execution of order of eviction, as if, no time
has been granted by this Court.
24.11.2021
dsa
Index : Yes
Internet : Yes
Speaking order
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C.R.P.(NPD).No.484 of 2021
To
1. The Subordinate Judge, Poonamallee.
2. ThePrincipal District Munsif, Poonamallee.
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C.R.P.(NPD).No.484 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(PD).No.484 of 2021
24.11.2021
https://www.mhc.tn.gov.in/judis
