Posted On by &filed under High Court, Karnataka High Court.


Karnataka High Court
M. Achutan vs Mrs. Carmin Leena Noronha And … on 25 September, 2000
Equivalent citations: ILR 2000 KAR 4520, 2001 (2) KarLJ 339
Author: C Ullal
Bench: C Ullal


ORDER

Chidananda Ullal, J.

1. Both these second revision petitions are filed by the common landlord under Section 115 of the CPC to challenge the common orders passed by the II Additional District Judge, Mangalore, Dakshina Kannada District, Mangalore in Revision Petition Nos. 133 and 134 of 1990. In passing the said order, the learned II Additional District Judge while allowing both the rent revision petitions filed under Section 50 of the Rent Control Act by the tenants, setting aside the common judgment dated 2-4-1990 in co-relating H.R.C. Petition Nos. 133 and 134 of 1988 passed by the Principal Munsiff, Mangalore, in allowing both the petitions under Section 21(1)(h) of the Act while rejecting the ground under Section 21(1)(o) of the Act insofar as the same related to the second eviction petition. The learned District Judge in allowing both the first revision petitions before him had also dismissed the original eviction petitions in H.R.C. Nos. 133 and 134 of 1988.

2. For the purpose of convenience, the petitioner-landlord herein is referred to as the ‘landlord’ and the respondents-tenants as the ‘tenants’. So also, for the purpose of convenience, when the Principal Munsiff at Mangalore who had passed the orders at the first instance in the eviction petitions is referred to as the Trial Court’; the II Additional District Judge, Dakshina Kannada District, who had passed the impugned order hereunder challenge is referred to as the ‘first revisional Court’.

3. The facts of the case leading to filing of these two revision petitions by the landlord are as hereunder:

That the landlord had filed H.R.C. No. 133 of 1988 as against the L.Rs of the original tenant by name H.D. Sequeira, whereas the other eviction petition in H.R.C. No. 134 of 1988 was filed by him as against the original tenant Gregori Noronha who appears to have died subsequent to disposal of the case by the Trial Court. In both the cases, the landlord in filing both the eviction petitions commonly contended that he had acquired right, title and interest in the entire property where the petition schedule premises were situated, under a duly registered sale deed dated 23-8-1979 and thus, he had become the owner of the building in question. When the respondents-tenants in the first eviction petition were paying a monthly rental of Rs. 100/- per rent bond dated 16-11-

1968 executed in favour of the owner of the property and further on attornment of the tenancy in his name, and that the original tenant H.D. Sequeira continued to pay the rents regularly till his death that occurred in the month of May or June 1987 and that after his demise his legal heirs having become statutory tenants had continued to pay the rentals at that rate to the landlord. That the monthly rental in respect of the other premises under the occupation of the tenant Gregory Noronha was at Rs. 45/- per month as per the rent bond dated 1-12-1 966, also executed in favour of the then owner of the composite property and that after the purchase of the composite property as stated above, the said tenant Gregory Noronha had also attorned his tenancy in the name of the landlord and he had been paying the rentals regularly.

4. The further case of the landlord before the Trial Court in filing the eviction petitions was that he was a businessman of repute of Mangalore city and he had purchased the property for the purpose of his business and because of that reason, he had also duly informed all the tenants including the tenants herein to vacate from their respective portions of the premises under their occupation and that as the entire building in question was old enough, he wanted to demolish the same for the purpose of reconstruction to meet requirements of the family business since, he had already obtained necessary building licence and the sanctioned plan together with the commencement certificate to put up a new construction.

5. As against the tenant in H.R.C. No. 134 of 1988 it was also alleged in the eviction petition that two years earlier to the filing of the eviction petition as against him, the said tenant had kept the premises under lock and key and despite the tenancy came to be terminated by issue of the legal notice dated 30-11-1987, copy at Ex. P. 6, he had not obliged the landlord to vacate from the shop premises and as such in filing the eviction petition as against that tenant, a ground under Section 21(1)(o) of the Act also came to be invoked to add to the main ground under Section 21(l)(h) of the Act.

6. Before the Trial Court, in the first case, the landlord had examined himself and 3 other witnesses, P.Ws. 1 to 4 and among them, P.W. 1 was the landlord and whereas P.W. 3 was his son Govindan Kutty. He had also produced 40 documents and they included Ex. P. 6-office copy of the lawyers notice sent, Ex. P. 16-office copy of notice, Ex. P. 22-building licence and Ex. P. 23-the approved plan.

7. In the other eviction case, in H.R.C. No. 134 of 1988 the landlord had examined 4 witnesses and they included the landlord-P.W. 1 his son, the above said Govindan Kutty-P.W. 3. The landlord had also produced 40 documents and they included Ex. P. 6-office copy of the lawyer’s notice, Ex. P. 22-building licence, Ex. P. 23-buildmg plan, Ex. P. 24-site plan, Ex. P. 40-extract of Property Tax Demand Register and whereas from the side of the tenant, the tenant had examined himself as D.W. 1 and the first L.R. Lancy Sequeira as D.W. 2. He had further marked in his evidence 10 documents and they included, office copy of
the reply notice dated 14-12-1987 – Ex. D. 10, for and on behalf of the tenant in H.R.C. No. 134 of 1988.

8. Based on the material evidence on record, both oral and documentary, the Trial Court had allowed both the eviction petitions filed by the landlord; however the first revision petition in R.R.P. No. 133 of 1990 filed by the tenants Mrs. Lilly Sequeira and others in H.R.C. No. 133 of 1990 and the other R.R.P. No. 134 of 1990 filed by the other set of tenants Mrs. Carmin Leena Noronha and others in H.R.C. No. 134 of 1990 before the first revisional Court came to be allowed in setting aside both the eviction orders passed by the Trial Court and further dismissing both the eviction petitions filed by the landlord, i.e., H.R.C. Nos. 133 and 134 of 1988.

9. Having been aggrieved thereto, the landlord is before this Court in filing the above two second revision petitions under Section 115 of the CPC to challenge the above common orders of the first revisional Court in the said R.R.P. Nos. 133 and 134 of 1990.

10. The learned Counsel for the landlord, Sri Bhat in these two second revision petitions at the outset had taken me through the original eviction petitions filed by his party, the evidence adduced, both oral and documentary by both the contending parties before the Trial Court, the original common eviction order passed by the Trial Court and the common order passed by the first revisional Court.

11. At the outset, while supporting the common orders passed by the Trial Court allowing both the eviction petitions filed by his party, he had argued the first revisional Court had failed to appreciate that in the matter of pleadings, the Courts in India are too liberal and despite that, the first revisional Court had held a view that there was no proper pleadings with regard to the parking space required by the landlord for parking his vehicles and therefore, the case one made out by the petitioner with regard to the bona fide requirement of the petition schedule shop premises under the occupation of the two tenants was not at all pleaded in filing the original eviction petitions. He further argued that the first revisional Court was also carried by certain inconsistencies in the evidence adduced by the landlord examined as P.W. 1, for in one place, the landlord had stated in his evidence that he wanted to make use of the premises by occupying the same as they are and in some other place he had stated that he was not knowing definite as to the requirement of the parking space and in yet another place, he had deposed before the Trial Court that he would demolish the petition schedule premises to have the parking space. According to Sri Keshava Bhat, the minor inconsistencies in the evidence of the landlord examined as P.W. 1 was magnified by the first revisional Court disproportionately as if there was mala fides on the part of the landlord in filing the eviction petition. It was also added in this context that the stray sentences in the evidence of the landlord would not have influenced the first revisional Court to disbelieve the case that had been made out by him totally, particularly, when the proceedings before the Trial Court in trying the case under the Rent Control Act was summary in nature. In support of the case that
the pleadings had to be liberally construed by the Courts, Sri Keshava Bhat had cited before me the decisions in Shivayogappa Tambake v. Seethaba, ILR 1982 Kar. 155 and L. Eswar v E. Raghupathi Naidu and Others. While turning to the last decision cited by him, Sri Keshava Bhat also submitted that the facts of the said case and the facts of the instant case in hand are similar and as such, the decision in the said case has got total application to the case in hand. While pointing out that the business of the landlord was retreading in tyres Sri Bhat argued that the landlord was doing his business in a big way and it is for that reason, he wanted to demolish the petition schedule premises and construct a reasonably big building and therefore it was obviously a business necessity for his business to have a parking slot in front of the building wherein admittedly the petition schedule premises were situated. It is in this regard, Sri Bhat had also referred to the conditions of licence Ex. P. 22, wherein at Condition No. ‘G’ it was set out therein that ‘the front set back may be kept open for parking of vehicles’. Therefore, he submitted that it was not only a business necessity of the landlord to have the parking area in front of the proposed building, but it was also a legal necessity to maintain the same. Therefore, he submitted that the Trial Court had perfectly appreciated that position and allowed both the eviction petitions filed by his party, whereas, the first revisional Court had totally failed to appreciate that position to set aside both the eviction orders passed by the Trial Court at the first instance. Therefore he prayed that the impugned orders passed by the first revisional Court be set aside to restore the orders of eviction passed by the Trial Court.

12. The learned Counsel for the respondents-tenants Sri Sanath Ku-mar Shetty while supporting the impugned order passed by the first revisional Court argued that, what mistake the Trial Court had committed in allowing the eviction petitions filed by the landlord, the first revisional Court had corrected in passing the impugned orders by it. Sri Shetty had also taken me through the petition averments, more particularly, the averments in para 3 of the petition, wherein the case in specific was made out by the landlord in filing the eviction petition. According to him, neither in para 3 of the petition, nor in any other part thereof in the eviction petitions, the landlord had pleaded that the subject premises was bona fide needed for the family partnership firm of the landlord and furthermore he had not even stated anything about the actual requirement thereof by him. According to him, the actual requirement of the landlord would have been clearly set out in the eviction petitions since the bona fide requirement by a landlord cannot be whimsical and capricious and that the reasonable requirement of the landlord has to be appreciated by the Court by applying the reasonableness in the claim made on the part of the landlord so that the test of reasonableness can be well-applied by the Court. He also argued that the Courts have consistently held that the landlord has to satisfy the Court that the need put forward by him was honest and reasonable and that the genuine
need of the landlord has not only to be pleaded, but also to be proved by him before the Court and that unless and until that had been done by
the landlord, the Court does not get jurisdiction to order for eviction of the tenants. In support of that argument Sri Shetty had also cited before me the cases of Narayana Gangasa Bhure v Ramachandra Ambasa Kalburgi and Srinivasa Ealiga v Gopalakrishna Pai.

13. In the first decision, the learned Single Judge of this Court had held that, even if the landlord’s claim is not vitiated by the mala fides or oblique purpose, he has nevertheless to satisfy the Court that his need as put forward though honest is also reasonable and that need has to be determined by recording the problem in a way in which a reasonable man would approach it and that it is necessary for the Court to take into account all the factors which are relevant for the purpose; whereas in the other decision, the learned Single Judge of this Court had held in para 10 thereof as hereunden

“HELD:

It is not enough if the landlord pleads need of space and proves it by oral and documentary evidence. Desire to have more parking space is not adequate cither. What is required to be proved is the genuine need. Need is not intention nor intention need, unless need is established. If the need is established, intention or desire automatically follows. If mere desire is established, then need does not get established. This is something which the Courts below must keep in mind having regard to the language of clause (b) of proviso to sub-section (1) of Section 21 of the Act.

On the evidence on record, the need apart from being not pleaded was never proved. It is in that sense that the Court did not acquire jurisdiction to pass an order under clause (h)”.

14. Sri Shetty has also cited before me yet another decision in Shiu Sarup Gupta v Dr. Mahesh Chand Gupta, wherein the Supreme Court held that what is pleaded has to be proved.

15. Sri Shetty while turning to para 3 of the petition wherein the landlord had pleaded with regard to his bona fide need, submitted that the said pleading was totally vague, for it would not have pleaded therein that the landlord wanted to demolish the subject premises and that the vacant space thereafter would be used for the purpose of parking of vehicles. He further pointed out in regard to the pleadings in the said para that the simple case that was made out by the landlord in pleading in para 3 was only with regard to the demolition and reconstruction of a new building and nothing beyond.

16. Sri Shetty while referring to the evidence of the landlord (examined as P.W. 1) in paras 7, 8 and 23 submitted that the landlord in deposing thereof had set out three inconsistent cases from his side.

While referring to the evidence in para 7, Sri Shetty pointed out that the landlord had proposed to construct a mansion consisting of three floors and interestingly enough he could not say what was the area required for the business. While taking me through the evidence in para 8 of P.W. 1 recorded on 12-7-1989, Sri Shetty pointed out that in the said para, the landlord had deposed that he intended to use the petition schedule premises in the same condition as it existed then and on the other hand, while referring to the other para i.e., para 23 of his evidence, Sri Shetty further pointed out that the landlord did impart instructions to his lawyer to issue the legal notice Ex. P. 1, that his total requirement was 3096 sq. ft. and that he had since constructed the building on the entire area of 3096 sq. ft. With the above inconsistencies in the pleading vis-avis the evidence of the landlord, Sri Shetty argued that the landlord in the instant case in hand was not knowing his own requirement at all and furthermore, in a way he did not know anything about his own case made out in the eviction petition, or else, according to him, there would not have been total discrepancy in the pleadings as well as the evidence adduced by the landlord. In this context, Sri Shetty had also cited before me a decision in Sudha Agrawal v Xth Additional District Judge and Others. He had specifically drawn my attention to para 7 of the said decision, wherein the Supreme Court held that there is no presumption in favour of the landlord that his need was bona fide by virtue of application of explanation (i) to fourth proviso to sub-section (1) of Section 21 of the Uttar Pradesh Act.

17. Nextly Sri Shetty had argued that in no part of the pleadings in the original eviction petition, there was any plea as to the requirement of the family partnership firm, of which the landlord was the managing partner. Even while referring to his evidence with regard to that, Sri Shetty had also argued that it could not be made out whether his requirement was of his or the requirement of the family business in the partnership firm. While taking me through the discussion in paras 10 to 15 of the impugned judgment passed by the first revisional Court, Sri Shetty had also submitted that the first revisional Court had rightly come to the conclusion that the minimum pleadings with regard to the requirement of the petition schedule premises by the landlord had not at all been set out in the original eviction petitions and as such, any amount of evidence contrary to pleadings could not be looked into by the Court. Further, he had also argued that the so-called partnership deed under which the landlord had claimed status of a managing partner could not be produced before the Trial Court as the tenants herein had opposed such a production in the absence of pleading thereto in the eviction petition.

18. For the aforesaid reasons, Sri Shetty submitted that the instant revisional petitions do not merit any consideration.

19. In support of that argument, Sri Shetty had also cited the following decisions further:

1. Narayana Gangasa Bhure’s case, supra;

2. Basha Baig v Choodanath;

3. Vinod Kumar Arora v Smt. Surjit Kaur;

4. Vbra Abbasbhai Alimahomed v Haji Gulamnabi Hiji Saftbhai; and

5. AIR 1991 SC 445.

20. In the light of the above arguments advanced, the point that arises for my consideration now in the instant two revision petitions is, whether the impugned common order dated 27-7-1999 passed by the II Additional District Judge in setting aside the common order dated 2-4-1990 in H.R.C. Nos. 133 and 134 of 1988, ordering eviction of the tenants and further dismissing the said original eviction petitions filed by the revision petitioner herein is just and proper or not.

21. In examining the above, at the first instance, I have gone through the case the landlord made out in the original eviction petitions in H.R.C. Nos. 133 and 134 of 1988. As I see, in filing the said original eviction petitions, in the caption right below the cause title therein, it had been set out that the eviction petition in H.R.C. No. 133 of 1988 is the petition one filed under Section 21(1)(h) of the Act, whereas in filing the other eviction petition in H.R.C. No. 134 of 1988, right below the cause title therein it had been set out that the eviction petition was filed under Section 21(1)(h) and (o) of the Act. However, I have noted that in para 3 in both the petitions, the landlord had broadly pleaded that he was dealing with tyres, tubes, retreading, etc. and he is one of the reputed businessman of Mangalore City and that he had purchased the subject property for his bona fide self-use and occupation for the purpose of his business. He further averred therein that the petition schedule building is old and he required to reconstruct a new building after demolition for the purpose of meeting his requirements and that of his family for the business and that the tenants though called upon to surrender the possession of the petition schedule premises on or before 1-1-1988, they failed to comply with the demands and that he had since obtained the necessary commencement certificate and the building licence for reconstruction of the building. To quote para 3 of both the petitions, they read commonly as hereunder:

“3. The petitioner is a businessman assessed under the Sales Tax Act urtder State and Central Governments and under the Income-tax Act and he is dealing tyres, tubes, retreading etc. and he is one of the reputed businessman of Mangalore City, The petitioner purchased the property of his bona fide self-use and occupation for the purpose of his business. Immediately after the purchase the petitioner informed all the tenants of the building
situate in the property that he purchased the property for the purpose of his business and requested the tenants to vacate their respective demised premises. The petitioner is also in occupation of the same building in which the demised premises is situate. It is old building which requires construction so as to meet the requirements of the petitioner and his family members for the business. Since the tenants failed to vacate their premises required by the petitioner, the tenancy has been terminated by notice dated 13-11-1987 and the respondents have been called upon to surrender possession of the schedule premises on or before 1-1-1988. But the respondents have failed to comply with the demands of the petitioner, which has since obtained necessary Commencement Certificate and the building licence for reconstruction of the building including the demised premises. Hence, the petition”.

22. On a careful reading of the above pleadings it appears to me that there are no pleadings with regard to his own requirement in the new construction he had proposed to put up and therefore, the petitioner-landlord had filed the eviction petition merely on the ground of Section 21(1)(j) of the Act than under Section 21(1)(h) of the Act, no matter that in the caption below the cause title in both the eviction petitions, the common ground that had been made by him is the one under Section 21(l)(h) of the Act. As a matter of fact, both the Trial Court as well as the first revisional Court had proceeded to pass the considered order as if the eviction petition was filed one under Section 21(l)(h) of the Act. Therefore, it also appears to me that both the Courts below had entered into an error basically in proceeding in the matters as if the eviction petition was filed for bona fide use and occupation of the premises under Section 21(l)(h) of the Act; probably, both the Courts led more by the caption in both the original eviction petitions than the substance of the case that was made out in para 3 of the eviction petitions quoted supra.

23. In my considered view therefore, both the Courts below would have reckoned the substance of the case in para (3) of the petition by holding that the eviction petition filed by the petitioner-landlord was one under Section 21(l)(h) and (j) of the Act in which event, the choices for the Courts below to lean more in favour of clause (j) instead of clause (h) of the provision in Section 21(1) of the Act exclusive. This in fact was the view of this Court in the case of P.K. Upadhyaya v A. Venkatesh and Others. In the said decision at page Nos. 136 and 137 thereof, this Court held as hereunder:

“If the entire premises to be put up by the petitioners is required for their own bona fide use and occupation and if the said requirement is reasonable, certainly the case would come within clause (h) of Section 21(1). But as the case made out, it discloses that the entire premises will not be required by the petitioners and their alleged requirement read with the sanctioned plan for
the construction of the new building shows that the claim is not reasonable, the Court cannot direct eviction under clause (h) at all. If the requirement of the petitioners will be met by a part of the newly put up construction, it can be said that at the most the petitioners have, made out a case that they require the premises reasonably and bona fide for the immediate purpose of demolishing them for the purpose of erecting a new building and such a case falls within clause (j) and not under clause (h) at all.

An order under Section 21(l)(j) thus not only safeguards the interest of the tenant to some extent, but also provides scope for encouraging building activities. A landlord who is capable of demolishing and putting up new constructions, though motivated by profit motive, contributing to the reduction of the shortage of premises, to that extent. In these circumstances, if there is a choice for the Court between clauses (h) and (j) for directing eviction of a tenant, the Court will have to lean in favour clause (j) rather than ordering eviction under Section 21(l)(h) of the Act. If the entire reconstructed premises is required by the landlord for his own occupation, Section 21(l)(h) will be applicable. But, if the reconstructed premises could accommodate the tenants and also would reasonably satisfy the requirements of the landlord, then an eviction order under Section 21(l)(j) would advance the objection of the Act. Facts of each case has to be examined carefully in this regard”.

24. Therefore, it is obvious that both the Courts had misled itself in taking the original eviction petitions as one under Section 21(l)(h) of the Act instead of as one under Section 21(l)(h) and 21(l)(j) of the Act. In the said facts and circumstances, it also appears to me that not only the impugned order passed by the learned first revisional Court hereunder challenge have to be set aside, but also the common eviction order passed by the Trial Court in the original eviction petition in H.R.C. Nos. 133 and 134 of 1988 have to be set aside in allowing the original eviction petition under Section 21(l)(h) of the Act and furthermore, both the matters have to be now remitted to the Trial Court with a direction to dispose of the original eviction petitions in question by treating the same as the ones filed under Section 21(l)(h) and 21(l)(j) of the Act. Incidentally, it is also to be added here that the clause (o) under Section 21(1) made out by the petitioner-landlord in filing the original eviction petition in H.R.C. No. 134 of 1988 does not survive for consideration in view of the circumstances that no legal notice as contemplated under Section 21(6) of the Act was ever admittedly issued by the petitioner-landlord to invoke the said ground under Section 21(l)(o) of the Act.

25. In this context, it is relevant to observe here that the specific case of the petitioner-landlord in filing the original eviction petition was that, upon demolition of the petition schedule premises involved in the said two eviction petitions, he wanted to make use of the said space for the purpose of utilising the same as a parking slot and that in fact was in tune with the sanctioned plan the petitioner-landlord had obtained from the Corporation for the purpose of putting up 3096 sq. ft. building. Therefore, it is obvious that the space now occupied by the petition
schedule premises, presently under occupation of the tenants have got direct bearing on the proposed construction by the landlord on a large scale and it is in that sense I have observed as above that the original eviction petition was more under Section 21(1)(j) of the Act than one under Section 21(1)(h) of the Act exclusive.

26. In the said view of the matter, I do not think it is necessary for me to deal with all that what had been argued before me by the learned Counsel for the contending parties and further to advert to good number of authorities they have relied upon as I have opted to dispose of these two revision petitions, for the conclusions I have reached as aforesaid.

27. To keep the records straight, I also add here that the learned Counsel for the petitioner Sri Bhat had also cited before me three other decisions in the cases of Vijaya N. Vithal v M.H. Talageri; Fakirasa v Shekharayya; and ILR 1991 Kar. 120. The last decision of this Court cited by him holding that the tenancy right in respect of non-residential premises is not heritable, no more holds good as the same came to be reversed by the Supreme Court in the case of Gantusa H. Baddi (dead) by L.Rs v Meerabai G. Pai and Others4, wherein the Supreme Court held that the tenancy right in respect of non-residential premises is as good a heritable right.

28. In view of the above conclusions reached in these two second revision petitions, I pass the following:

(i) The impugned common order dated 27-7-1999 in R.R.P. No. 134 of 1990 and R.R.O. No. 133 of 1990 passed by the first revision Court hereunder challenge in these two revision petitions and the original common orders of eviction passed by the Trial Court in the original H.R.C. Nos. 133 and 134 of 1988, dated 2-4-1990, stand set aside.

(ii) Both the original eviction petitions now stand remitted to the Trial Court with a direction to it to treat the same as the eviction petitions filed under Section 21(1)(h) and 21(1)(j) of the Act. The Trial Court shall afford the tenants to file additional objection statements to meet that ground under Section 21(1)(j) of the Act and further afford both the contesting parties in both the eviction petitions to adduce additional evidence limited to that ground under Section 21(1)(J) of the Act.

(iii) The Trial Court shall pass considered orders in the two eviction petitions based on the evidence on its record adduced earlier to filing of the first revision petitions before the first revisional Court and subsequent to the remittal order herein made and dispose of both the eviction petitions in accordance with law, of course after hearing the parties.

(iv) In view of the circumstances that the matters had been delayed with the long drawn litigations, firstly before the Courts below and secondly before this Court, the Trial Court is also directed to dispose of both the original eviction petitions within a period of 3 months from the date of communication of this order, if necessary by taking up the matters out of turn.

(v) It is also added in this context that all the contentions of the parties are kept open before the Trial Court and that the Trial Court shall not in any way be influenced by any of the observations herein made in this common order, either in favour or against the contending parties hereto while disposing of the original eviction petitions as hereinabove directed.

29. Both the second revision petitions stand disposed of in the above terms.


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