SRI LAKSHMI Vs. MUTHUVEERAN CHETTIAR

JUDGEMENT

(1.) Landlady is the petitioner in both the revisions. She has filed H.R.C.O.P. Nos.473, 474 and 475 of 1977 for eviction of three tenants who are occupying different portions of the premises bearing Door No.162, Big Bazaar Street, Tiruchi-rapalli, on the ground that she requires the same for the immediate purpose of demolition and reconstruction under section l4(l)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Act 18 of 1960). The petitions which are the subject matter of these two revisions are H.R.C.O.P.Nos.474 and 475 of 1977. According to the petitioner, her husband is running embroidery business and in order to improve the said business, she wants the building to be demolished and reconstructed. It is also urged that the building is very old. The said claim was resisted by all the three tenants on the ground that the petitioner had filed prior applications for eviction on different grounds and she was unsuccessful and in order to secure enhanced rate of rent and pagadi these petitions have been filed. The petitioner has no resources to reconstruct the building. Further, the building is in a very good condition and it does not require any demolition and reconstruction. The learned Rent Controller accepted the case of the petitioner and ordered eviction. Aggrieved by the same, the tenants preferred C.M.A.Nos. 15, 17 and 18 of 1979 and the learned Appellate Authority allowed the appeals and set aside the order of eviction. Aggrieved by the same, they have preferred three revision petitions. It is stated that so far as the respondent in C.R.P.No.3936 of 1981 is concerned, after the filing of the revision petition, he has settled the matter and vacated the premises and as such the same was not pressed and it was already disposed of. Hence the remaining two petitions alone are to be disposed of.

(2.) Learned Counsel for the petitioner in both the revisions raised a preliminary point regarding the jurisdiction of the Appellate Authority to enquire into the appeal. According to the learned Counsel, the Principal Subordinate Judge has no jurisdiction to transfer these appeals for disposal to the II Additional Subordinate Judge, as he was only a persona designata and since the very made over itself is without any jurisdiction, the order passed by the II Additional Subordinate Judge is not valid and is liable to be set aside and the matter has to be remanded back to the Principal Subordinate Judge, who is having jurisdiction to dispose of the case. In support of the above contention, the learned Counsel for the petitioner cited the decision of this Court in C.R.P. Nos. 1578 and 1579 of 1980. In a similar situation, Ratnam, J., held that the transfer effected by the Principal Subordinate Judge would not be in order and that it is only the District Judge who can effect such a transfer. On that ground the order passed by the II Additional Subordinate Judge, Tiruchirapalli was set aside and the matter was remitted back to the Principal Subordinate Judge to re-hear and dispose of the same. On the other hand, the learned Counsel for the respondent drew my attention to E.K. Venkai Marban v. Dakshinamurthy, (1981) 94 L.W. 243, wherein Balasubrah-manyan, J., while considering the applicability of section 5 of the Limitation Act to the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, held that the Appellate Authority is a Court and not persona designata, relying on the decision of the Supreme Court reported in The Central Talkies Ltd. v. Dwaraka Prasad, (1962) 2 S.C.J. 41: (1961) 3 S.C.R. 495: A.I.R. 1961 S.C. 606. Subsequently it was also approved by a Division Bench of this Court in Rathinasamy v. Komalavalli, (1982) 95 L.W. 552: (1982) 2 M.L.J. 406: A.I.R. 1983 Mad. 45. It was also brought to my notice that under section 4-A of the Tamil Nadu Civil Courts Act, 1873, the Principal Subordinate Judge is empowered to make such arrangement as he thinks fit for distribution of cases and by virtue of the said provision, the made over effected by him is valid. I find that in view of the ratio laid down in the above quoted decisions, coupled with the provisions of the Tamil Nadu Civil Courts Act, the made over effected by the Principal Subordinate Judge is in order and it cannot be said to be in any way beyond his jurisdiction and invalid. The State Government has empowered all the Subordinate Judges to dispose of appeals arising under the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960) by effecting necessary amendments to the rules, and as such I do not find any merit in the contention of the learned Counsel for the petitioner that the transfer effected by the Principal Subordinate Judge to the Additional Subordinate Judge is invalid. Learned Counsel for the respondents drew my attention to the changes effected by way of notification regarding the conferment of powers of Appellate Authority on certain officers for the purpose of the Act. In the Government Gazette Extraordinary dated 30.6.1973, all Subordinate Judges within their respective jurisdiction on Tiruchirapalli and other Districts mentioned therein, were conferred with the power of Appellate Authority for the purpose of the Tamil Nadu Act 18 of 1960. By virtue of notification dated 18.4.1979, Explanation (ii) wherein the Principal Subordinate Judge was empowered to exercise the appellate jurisdiction in places where there are more than one Subordinate Judge was deleted. It is clear from the above notification as it existed on the date of filing of the appeal, the II Additional Subordinate Judge, Tiruchirapalli was empowered to dispose of the appeal. Learned Counsel for the petitioner submitted that it is only the District Judge who is empowered under rule 17 to transfer appeal from one appellate authority to another and as such, the Principal Subordinate Judge has no power to transfer the appeal. Under rule 17, the District Judge is empowered to transfer from one appellate authority to another under two circumstances, namely (1) on an application by any party in the appeal or otherwise and (2) when the appellate authority before whom the appeal is pending is personally interested in the appeal and reported the same to the District Judge. In the instant case, the appeal was made over to the Additional Subordinate Judge administratively by the Principal Subordinate Judge. Under section 4-A of the Tamil Nadu Civil Courts Act, 1873, it has been provided that subject to the general or special orders of the District Judge the Principal Subordinate Judge may from time to time make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof. As already stated, the madeover has been made only under the said provision. The only question that remains for consideration is, whether the Principal Subordinate Judge exercising the authority of Appellate Authority is a Court. In the Bench decision of this Court reported in Rathinaswamy v. Komalavalli, (1982) 2 M.L.J. 406 : 95 L.W. 552, it was held that Tor the purpose of sections 3, 5 and 29 (2) of the Indian Limitation Act, the Appellate Authority is a Court and that section 5 of the Limitation Act is applicable to an appeal preferred by the petitioner herein before the Appellate Authority, constituted under section 23 (1) (b) of the Madras Buildings (Lease and Rent Control) Act 18 of 1960." In the above quoted decision, the earlier decision reported in E.K. Venkai Marban v. Dakshinamurthy, (19SI) 94 L.W. 243 and rendered by Balasubrahmanyan, J., was approved. The above Bench decision was not brought to the notice of Rat-nam, J., while disposing of the above quoted C.R.P.Nos. 1578 and 1579 of 1980. Relying on the decision of the Division Bench and that of the decision of the Supreme Court reported in Central Tal-kies v. Dwaraka Prasad, (1962) 2 S.C.J. 41: A.I.R. 1961 S.C. 606, I entirely agree with the contention of the learned Counsel for the respondent that the Principal Subordinate Judge exercising the power of Appellate Authority is a Court and his act of making over the appeal for disposal to the II Additional Subordinate Judge who is conferred with the power of disposal of appeal is perfectly in order. Learned Counsel for the respondents also submitted that since the petitioner has not raised any objection before the Appellate Court and since it has not been raised as a ground even in this revision the petitioner is estopped from raising the point in this revision consequent upon his acquiescence. Learned Counsel for the petitioner on the other hand, drew my attention to the decisions reported in Kiran Singh v. Chaman Paswan, (1954) 2 M.L.J. 60: 1954 S.C.J. 514: (1955) 1 S.C.R. 117: A.I.R. 1954 S.C. 340 and the United Commercial Bank Ltd. v. Their Workmen, 1951 S.C.J. 334: 1951 S.C.R. 280: A.I.R. 1951 S.C. 230 and submitted that if there is defective jurisdiction, whether it is pecuniary or territorial, it cannot be cured by consent of the parties and there is no question of waiver. The proposition laid down in those decisions is not disputed. But the only question is whether the said principle would be applicable if the II Additional Subordinate Judge was not having any power to hear the appeal. But in the instant case, it is not one of lack of jurisdiction. As such, those decisions are not applicable to the facts of the case. From the foregoing discussion, I hold that the order passed by the Principal Subordinate Judge making over the appeal to the II Additional Subordinate Judge is perfectly legal and valid.

(3.) Next we have to consider, whether there is any case made out for interference with the order passed by the Appellate Authority. The only ground on which eviction was sought is immediate demolition and reconstruction under section 14 (0(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act for developing the embroidery business done by the husband of the petitioner. The Appellate Authority held that the said requirement was not bona fide and that this petition was filed only to evict the respondents in order to fulfil her long desire to evict them under the guise of demolition and reconstruction. Let us consider the reasons set out in the order passed by the Appellate Authority in support of his finding. It is not in dispute that the very same petitioner-landlady has filed an application, H.R.C.O.P.No. 27 of 1972 on the allegation that she requires the premises for additional accommodation for embroidery and readymade garments business for the same. The same was dismissed holding that the requirement of the petitioner was not bona fide, by the Rent Controller as well as the Appellate Authority and it has become final on 27. 1977 and no revision has been filed against the said order. The present application has been filed on 12.10.1977. Even the petitioner had admitted in her evidence that she has filed the present application four months after the disposal of the said previous application. The Appellate Authority for the reasons assigned in his order held that the petitioner failed to establish even in this petition that she is having a flourishing business after the death of her husband in embroidery and that she required additional accommodation. The next main ground on which the claim was negatived is that admittedly the petitioner obtained the approved plan Ex.A-1 which shows that the petitioner proposed to remove the low terrace of Madras terraced roof and to put up a R.C.C. roof in the ground floor and the first floor. P.W.1 herself admitted in her evidence that she is not going to change the plan, but she wants to construct only as per Ex.A-1 plan. Though P.W.2 Engineer is examined and through him Ex.A-2 estimate was filed, he has categorically stated that he had prepared Ex.A-2 only with reference to Ex.A-1 and that Ex.A-1 is only for change of roof. This admission of P.W.2 in his evidence is sufficient to reject Ex.A-2 which was filed only for the first time on the date when P.W.1 was examined, that is, a year after the filing of the petition. Even though the estimate was prepared for demolition and reconstruction it is not in accordance with the plan Ex.A-1. There is absolutely nothing to show from the evidence of the petitioner that she had changed . the proposal and that she proposed to effect complete demolition and reconstruction of the building. The Appellate Authority has rightly held that Ex.P-2 was prepared with the help of P.W.2 who was not the author of Ex.A-1, at a later stage during the pendency of the case in order to substantiate the allegations before Court. Learned Counsel for the respondents drew my attention to the decisions reported in Kanakavel Pillai v. Drugs and Chemicals, (1980) 2 M.L.J. 392 and S.A. Ahamed v . Alagar, (1983) 96 L.W. 239 in support of his contention that change of roof would not amount to demolition and reconstruction and it would not fulfil the requirements under section l4(l)(b) of the Tamil Nadu Act 18 of 1960. Learned Counsel for the petitioner is unable to dispute the proposition. But he only relied on the evidence of P.W.2 and Ex.A-2 and the same has been rightly rejected by the Appellate Authority. There is absolutely nothing to hold that there was a proposal to demolish the entire building and effect reconstruction. Learned Counsel for the petitioner next submitted that the Appellate Authority is thoroughly wrong in saying that on the date when the petition was filed she was having a bank balance of Rs.29.43 and subsequently during the pendency of the application, she deposited a sum of Rs.9,000.00 in three instalments and that she has not established that she has got sufficient means to put up the construction. Learned Counsel for the petitioner relied on the decision reported in D. Rukmani Ammal v. V.K. Isuddan, (1983) 1 M.L.J. 186: (1983) 1 R.C.J. 640: (1983) 96 L.W. 145: A.I.R. 1983 Mad. 303, wherein Nainar Sundaram, J., held that 'the means of the landlord to carry out the work of demolition and reconstruction is a relevant factor to be taken note of and considered while testing his bona fides. But this does not necessarily mean that the landlord should jingle the coins before the Controller to establish this factor.� It is further observed: