Judgment:
ORDER
Venkataswami, J.
1. This revision petition, preferred by the landlord in rent control proceedings, is directed against a common judgment of the Appellate Authority in R.C.A. No. 404, etc. of 1987, dated 17.8.1989.
2. The petitioner filed R.CO.P. No. 5140 of 1983 under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as 'the Act') against 12 tenants occupying different portions of the premises belonging to the landlord. When that R.C.O.P. was allowed in favour of the landlord, the tenants preferred different individual R.C.As. to the Appellate Authority. Hence there were number of Appeals before the Appellate Authority. Further, in addition to the petition under Section 14(1)(b) of the Act, the landlord also filed additional eviction petitions against some of the tenants under other provisions. But here we are not concerned with those. We are concerned now only with the case relating to eviction petition filed under Section 14(1)(b) of the Act.
3. It is the case of the landlord that the premises in the occupation of various tenants was in a dilapidated condition requiring demolition. He has means to demolish and reconstruct the same. According to the petitioner, the petition under Section 14(1)(b) of the Act was bona fide and he has undertaken to demolish and commence reconstruction within the period allowed by the Statute.
4. The tenants resisted the eviction petition under Section 14(1)(b) of the Act contending inter alia that the petition was not bona fide, that the building was not in a dilapidated condition as claimed by the landlord, and that a similar petition (R.CO.P. No. 479 of 1972) filed by the landlord having ended in dismissal, the present petition for eviction is barred under Section 19 of the Act.
5. Before the Rent Controller, the petitioner (landlord) examined himself as P.W. 1 and an engineer was examined as P.W.2, and two other witnesses were examined on the side of the petitioner as P.W.3 and 4 to support his case. The petitioner filed as many as 47 documents which were marked as Exs.P-1 to P-47. On the side of the tenants, eight witnesses were examined. Of them, except R.W.7 and R.W.8, an Engineer, the others, namely, R.Ws.1 to 6 were tenants. On the side of the respondents (tenants) Exs.R-1 to R-17 were marked. Exs.C-1 to C-5 were marked as Court exhibits.
6. The Rent Controller, on the basis of the pleadings, evidence both oral and documentary and the arguments advanced before him, found that the building was in a dilapidated condition requiring immediate demolition, that the claim for demolition was bona fide, that the petitioner has got sufficient means to demolish and reconstruct, that the petition was not barred under Section 19 of the Act. Consequent to these findings, the Rent Controller ordered eviction. Aggrieved by that, as mentioned above, the tenants preferred independent appeals, and the Appellate Authority, on a reappreciation of evidence, came to a different conclusion and found that though the building was in a bad condition, the claim was not bona fide, and the petition was barred under Section 19 of the Act. However, he found that the petitioner has got means to demolish and reconstruct. Ultimately, the Appellate Authority allowed the appeals preferred by the tenants against the order of eviction. Aggrieved by the judgment of the Appellate Authority dismissing the eviction petitions and allowing the tenant's appeals, the landlord has filed this revision petition.
7. Mr. K. Sarvabhauman, learned Senior Counsel appearing for the petitioner/landlord, took me through the order of the Rent Controller and the common judgment of the Appellate Authority. According to the learned Senior Counsel, the judgment of the Appellate Authority dismissing the eviction petition is unsustainable both on facts and on law. According to him, the Appellate Authority, having found that the building is in a bad condition, erred in dismissing the eviction petition on the ground that the claim was no bona fide and the petition for eviction was barred under Section 19 of the Act. Learned Senior Counsel contended that the reasons given by the Appellate Authority for reaching the above two conclusions are totally unsustainable. According to the learned Senior Counsel, the principle of res judicata or the bar under Section 19 of the Act cannot be pressed into service to the facts of this case. Because, the previous eviction petition, namely R.CO.P. No. 479 of 1972, filed under Section 14(1)(b) of the Act was dismissed by the Rent Controller on the ground that the eviction petition was not maintainable under Section 14(1)(b) of the Act at the instance of a life-estate holder. Having held so, the Rent Controller ought not to have gone into the other issue, namely, whether the claim was bona fide or not. According to the learned Counsel, any findings given on merits after having found that the petition was not maintainable will not be of any consequence and cannot stand in the way of the landlord filing a fresh eviction petition. No doubt, the order of the Rent Controller was confirmed on appeal by the Appellate Authority and further by this Court is revision. It is only after the Supreme Court has declared the law in S.M. Gopala Krishna Chetty v. Ganeshan : [1976]1SCR273 , holding the life-estate holder can also file eviction petition under Section 14(1)(b) of the Act, the petitioner has filed the present petition for eviction under Section 14(1)(b) of the Act and, therefore, the judgment of the Appellate Authority holding that the , decision given in the earlier eviction petition regarding bona fides will operate as res judicata is not sustainable. In support of that, he cited the following decisions : Shankaralal Patwari v. Hiralal Murarka and Ors. A.I.R. 1950 P.C. 80, M. Govindarajulu v. M. Jayaraman : (1976)1MLJ406 and Associated Traders v. T.M.A. Abdul Hameed (1983) 2 M.L.J. 583. He also submitted that apart from holding that the finding regarding bona fides rendered in the earlier eviction petition will operate as res judicata, the Appellate Authority, in the present case, has found that the sanction for demolition and reconstruction was obtained subsequent to the filing of the R.C.O.P. and therefore the claim was not bona fide. This reasoning is not against sustainable in view of several decisions of this Court, namely S. Balasubramaniam v. Gulab Jan 94 L.W.I 02, B. Paras Devi v. Vijaya Auto Parts by its Proprietor M. Gulapchand, Madras, 100 L.W. 319 and K.A. Vadivehi v. R. Govindarajulu (1992)1 L.W. 190. Finally, he brought to my notice certain subsequent events which will have some relevance to decide the issue regarding the condition of the building in this case. It is stated that some of the tenants have filed R.C.O.Ps. for direction to the landlord to carry out repairs to the respective portions in their occupation. In that proceedings, the Court seems to have appointed a civil engineer as Commissioner and has filed a report which would show that presently the building is in a dangerous condition and it is likely to crumble at any time, and. repairs cannot be carried out and the only solution is demolition. Learned Counsel also placed reliance on a notice issued by the Corporation on 27.6.1986 under Section 258 of the Madras City Municipal Corporation Act, 1991 bringing to the notice of the landlord about the dangerous condition of the building and calling upon him to take necessary steps to prevent the danger. In support of his contention that the subsequent events can be relied upon, learned Counsel placed reliance on two judgments of the Supreme Court, namely, Variety Emporium v. R.M. Mohd. Ibrahim : [1985]2SCR102 and Gulabbai v. Nalim Nersi Yohra and Ors. : [1991]2SCR941 .
8. Mr. S.V. Jayaraman learned Counsel appearing for the tenants, in his usual fairness, has submitted that as regards the condition of the building, in the light of the findings and the evidence available, he cannot possibly contend contra. However, he strongly pressed into service two arguments, namely, that there were no bona fides in the claim of the landlord and that the petition under Section 14(1)(b) of the Act is barred under Section 19 of the Act. In support of his argument that the present petition for eviction is barred under Section 19 of the Act, he placed reliance on a judgment of this Court in B. Yamuna Bai v. N. Ramaswamy : (1977)1MLJ223 .
9. I have considered the rival submissions.
10. From the recent report of the Civil Engineer (Ex.C-5) who was appointed a Commissioner by the Rent Controller, it is quite clear that the building is in a dangerous condition requiring immediate demolition. The conclusion in the report Ex.C-5 reads as follows:
1. Entire superstructure of the said portion already collapsed 1 year ago to the best of my opinion.
2. Madras terraced portion both the ground first floor are completely collapsed and dumped at site excepting main door.
3. The flooring both ground and first floor are also the same like above which cannot be used for business or any other purpose on account of the dilapidated condition. At any time, the entire building may collapse, or one part may collapse and the other part may collapse some time later.
4. I certify that the whole building is in a dilapidated condition and cannot be repaired or altered under any circumstances, excepting demolishing the whole building for reconstruction with all modern type of amenities as required to a non-residential accommodation in a civilized city like Madras.
11. In the light of the above Report, the notice issued by the Corporation of Madras under Section 258 of the Madras City Municipal Corporation Act, 1919 also gives an idea about the condition of the building presumably, realising this, Mr. S.V. Jayaraman, learned Counsel appearing for the tenants, has not seriously attacked the condition of the building.
12. The other two points that were urged by the learned Counsel for the respondents have to be considered now.
13. Let me first consider the position whether the present eviction petition under Section 14(1)(b) of the Act is barred either on the principle of res judicata or under Section 18 of the Act.
14. In Shankarlal Patwari v. Hiralal Murarka A.I.R. 1950 P.C. 80, Head-note 'a' reads as follows:
Court holding that suit is not maintainable by reason of failure to comply with Section 80 - Findings given on merits are obiter and do not support plea or res judicata either in favour of or against party.
In M. Govindarajulu v. M. Jayaraman : (1976)1MLJ406 , Gokulakrishnan, I, as he then was, while considering a similar question, has found as follows:
There is no difficulty in accepting the said contention. But it is for the Court to find out as to whether the finding given by the Court on issues which are not necessary to dispose of the suit is an observation without the seal of finding or is ab initio void as per the provisions of the particular enactment. Section 10(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 states:No order for eviction shall be passed under Sub-section (3)-(i) against any tenant who is engaged in any employment or class of employment not filed by the Government as essential service for the purpose of this subsection unless the landlord is himself engaged in any employment or class of employment which has been so notified.
The prior eviction proceeding was dismissed because of this provision in Section 10(4). Subsequently, the landlord obtained exemption, as far as this section is concerned, from the Government under Section 29 of the Act. After obtaining exemption, the landlord has filed the present eviction petition. It is unnecessary for the Rent Controller's Court, which decided the prior proceeding, to go into the question of bona fides in as much as Section 10(4) specifically states that no order for eviction shall be passed in such cases. When there is such a mandatory direction prohibiting the court to pass any eviction order against that person who comes squarely under Section 10(4)(i) of the Act, the finding on others issues regarding the bona fides must be construed as ab initio void. In cases wherein want of notice was raised and the same was decided as one of the issues along with other issues, there is no prohibition to go into such issues along with the question of want of notice. In those circumstances, the cases cited by Mr. Viswanatha Rao, held that the findings which went against a party concerned, even though he succeeded on the question of notice or lost on the question of notice will constitute a bar for the subsequent proceedings on the same issues. In as much as the present finding in the prior proceedings has to be construed as ab initio void in view of Section 10(4)(i) of the Act. I am of the view that Section 19 is not a bar for the present proceedings. Further, in Official Trustee v. S.N. Chatterjee : [1969]3SCR92 , the Supreme Court has held:
It is clear that before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the question at issue, the authority to hear and decide the particular controversy that has arisen between the parties.'
Thus, it is clear from the above said decision that the Rent Control Court in the prior proceeding should not have decided the other issues in view of the clear prohibition contained in Section 10(4)(i) of the Act. In those circumstances, the civil revision petition is dismissed and the order of eviction passed by the Courts below is confirmed. There will be no order as to costs. Time to vacate two months.
In M/s Associated Traders v. T. M.A. Abdul Hameed (1983)2 M.L.J. 583, a Division Bench of this Court, while considering a question whether a petition filed under Section 10(3)(c) will operate as res judicata when an application was subsequently filed under Section 10(3)(a)(iii) of the Act, held that 'any decision given by the Rent Controller on an application for eviction filed under Section 10(3)(c) cannot therefore operate as a bar under Section 19 to an application for eviction filed under Section 10 (3)(a)(iii) of the Act'. The Division Bench further held as follows:
The question whether the hardship that might be caused to a tenant by granting an order of eviction will outweigh the advantage to landlord will arise only in dealing with an application under Section 10(3)(c) of the Act filed by the landlord for additional accommodation. When the application by the landlord is itself dismissed as not maintainable, the Appellate Authority had no jurisdiction to give any finding as to whether the hardship that might be caused to the tenant by granting the application would outweigh the advantage to the landlord. In the circumstances, we are of the opinion that the finding that was given by the appellate authority and heavily relied upon by the learned Counsel for the petitioners was obliter. Similarly, when once the appellate authority had come to the conclusion that the application for eviction of the revision petitioners was not maintainable under Section 10(3)(c) of the Act in as much as the respondent was not carrying on any business in any portion of the building, the appellate authority was equally not competent to go into the question whether the respondent needed the premises for the purpose of the business which he was carrying on. We are therefore of the view that the present petition for eviction filed under Section 10(3)(a)(iii) of the Act is not barred by Section 19 of the Act by the principle of res judicata enacted in the section...' A perusal of the above judgments will clearly support the contention that when the dismissal of the earlier petition under Section 11(1)(b) of the Act was mainly on the ground that it was not maintainable, any findings given on merits in that case will not operate as res judicata or as a bar under Section 19 of the Act. The decision relied on by the learned Counsel for the respondent namely B. Yamuna Bai v. N. Ramaswamy : (1977)1MLJ223 , is not apposite, and as a matter of fact, the very same decision was relied on before the Division Bench that rendered the decision reported in Associated Traders v. T.M.A. Abdul Hameed (1983)2 M.L.J. 583 and the Division Bench has distinguished the same. Therefore, I do not think that the decision reported in B. Yamuna Bai v. N. Ramaswamy : (1977)1MLJ223 , will apply to the facts of this case. In the circumstances, I hold that the learned Rent Controller was right in holding that the earlier dismissal of the application under Section 14(1)(c) of the Act will not operate either as res judicata or as a bar under Section 19 of the Act.
15. As regards the question of bona fides, the contention was that apart from filing an application under Section 14(1)(b) of the Act, the landlord also filed another application for owner's occupation and that was also dismissed. That only shows according to Mr. S.V. Jayaraman that there were no bona fides in the claim, and that the only aim was to evict the tenants at any cost. I do not consider that the contention can be accepted having regard to the condition of the building. In M/s. P. Orr. & Sons (P) Ltd. v. Associated Publishers (Madras) Ltd. : (1990)2MLJ12 , the Supreme Court, on the scope of Section 14(1)(b) of the Act has held as follows:
We accordingly hold that Section 14(1)(b) is satisfied only if the building is bona fide required by the landlord for the 'immediate', i.e., direct, sole and timely purpose of demolishing it with a view to erecting a new building on the site of the existing building. Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional, space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery; but the essential and overriding consideration which, in the general interests of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under Clause (b), that condition is not only one of the various circumstances which may be taken into account by the Controller, but it is the essential condition in the absence of landlord to prove that he has a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act does not accept the requirement by the landlord as a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. These are matters which are to be proved by evidence.
If the above ratio is borne in mind, there is no difficulty in holding that the bond fides cannot be doubted merely on the ground that the earlier petition for owner's occupation was dismissed. It may be noted that both the Authorities below have found concurrently about the solvency of the petitioner to demolish and reconstruct.
16. For all these reasons, I hold that the judgment of the Appellate Authority cannot be sustained on both on law and on facts. Accordingly, the same is set aside, and the order of the Rent Controller on the application under Section 14(1)(b) of the Act is restored. The civil revision petition is allowed. However, there will be no order as to costs.