B. PUTTAMMA v. C. V. RAMANA IYER — 1971 DIGILAW 280 (KAR)

( 1 ) THESE are three revision petitions under Sec. 50 of the Mysore Rent control Act, 1961. The petitioner in all the three cases is the owner who is a lady. The respondents are the tenants. These three revision petitions arise out of HRC. Nos. 315, 317 and 316 of 1964 on the file of the First Munsiff, bangalore. HRC. Nos. 316 and 317 relate to two shops on the ground floor and HRC. No. 315 relates to the first floor of the premises in which a hotel is beng run by the tenant. The landlord filed eviction petitions under S. 21 (1) (j) of the Mysore Rent Control Act, 1961 "in each of the three cases and the contents of the petitions are almost identical except for the schedule. Common evidence was recorded in HRC. No. 315 of 1964 and common orders have been passed by the lower Courts. The trial court held that the petitioner had established that the premises were reasonably and bona fide required by her for the immediate purpose of demolishing them and for new construction. On appeal by the tenants, the lower appellate Court reversed the finding of the trial Court and dismissed the petitioner's applications. The petitioner has come up now in revision. ( 2 ) IT is alleged in the applications of the petitioner that the premises is an old construction and the petitioner wants to effect reconstruction on modern lines; that the premises are reasonably required for the bonafide use by the petitioner for the immediate purpose of demolishing them, and for erecting a new buildng thereon; that the petitioner has obtained a licence for the erection of a new building from the Bangalore City Municipal corporation. In their objection statement, the tenants contended that the premises is not an old construction, but is a very strong and solid structure and denied the petitioner's allegation that they are reasonably required for the bona fide use by the petitioner for the immediate purpose of demolishing them and for reconstruction. They also contended that the petitioner demanded higher rents, that the tenants refused the same and that circumstance has led to the filing of the eviction petitions. They also contended that the petitioner demanded higher rents, that the tenants refused the same and that circumstance has led to the filing of the eviction petitions. ( 3 ) THE lower appellate Court held that the case made out by the petitioner in her pleading was that the building has become old and that, therefore, it requires demolition and reconstruction, whereas the evidence shows that the building is not in such a condition as to require demolition. The lower appellate Court relied on the evidence of RW. 1, examined on behalf of the tenants, who is a retired Sub-Engineer. He inspected the suit building and prepared the sketch, Ex. R. 1. He deposed that the whole building is constructed with wire cut bricks and that the building can remain strong for another fifty years. This evidence was relied on by the lower appellate Court to come to the conclusion that the building is not in such a dilapidated condition as to require immediate demolition. This finding as to the condition of the building is not seriously challenged. But it is contended on behalf of the petitioner that the approach of the lower appellate Court is erroneous and that it is not necessary for the petitioner to prove that the building is in such a dilapidated condition as to require demolition under S. 21 (1) (j) of the Act. ( 4 ) NETA Ram v. Jiwan Lal, AIR1963 SC 499 is a case under the Patiala and East punjab States Union Urban Rent Restriction Ordinance. Under S. 13 of that Ordinance, it is provided that in case the landlord requires the building for its replacement by another building, the Controller shall make an order in his favour if he is satisfied that the claim of the landlord is bona fide. It was held that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour and the Controller has to be satisfied about the genuineness of the claim and this can only be established by looking at the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to more profitable use after reconstruction, the means of the landlord and so on. It was further observed that the claim of the landlord must be bonafide, that is to say, honest in the circumstances. It was further observed that the claim of the landlord must be bonafide, that is to say, honest in the circumstances. This decision was referred to with approval in Shenoy v. Shenoy, AIR 1971 SC 942 . That was a case under S. 21, (1) (j) of the Mysore Rent Control Act, 1961. While discussing the scope of sub-clause (j) it was observed as follows:" The proviso to S. 21 (1) enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant. The requirement contemplated under clause (j) of the proviso to sub-sec. (1) is that of the landlord and it does not have any reference to the condition of the building as such. What is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bonafide requires the premises for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlord's requirement is reasonable and bonafide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the building, and other steps taken by him in that regard. In considering the reasonable and bonafide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinin, it is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition. That the condition of the property may be such which requires immediate demolition is emphasised in clause (k) of the proviso. When such a specific provision has been made in clause (k), the condition of the building cannot come into the picture nor could it have been dealt with again in clause (j ). So the requirement under clause (j) is that of the landlord and cannot have any reference to the building. "in Adirajaiah and Sons v. Sha Nathmul, (1970) 2 Mys. So the requirement under clause (j) is that of the landlord and cannot have any reference to the building. "in Adirajaiah and Sons v. Sha Nathmul, (1970) 2 Mys. L. J. 275, the landlord-petitioner stated that the premises is more than 100 years old and that the same is reasonably and bonafide required by the landlord for the immediate purpose of erecting a new building after demolishing the existing one, that the petitioner has made all arrangements to do so and that he has obtained the Corporation's licence and the approved plan. It was held that the averments in the petition read with the contents of the licence and the plan make it clear that the landlord requires the premises not because it had become old and dilapidated but because he wanted to erect a new building after demolishing the existing one. In P. Hajee Abdul v. Mad. General hardware, (1971) 2 Mys. L. J. 18 it has been held that the main question to be decided is whether the claim of the landlord is bonafide and whether the landlord requires the premises for the purpose of demolition and reconstruction and that while considering the same, the Court will have to take into consideration every circumstance affecting the interest of the landlord and the tenant. It was however observed that when it is shown that the requirement is for a collateral purpose or that the purpose is absurd under the circumstances, it is to be held that the requirement of the landlord is not reasonable and bonafide. No doubt the bonafide and reasonable need is proved by having plans prepared, necessary estimates made for the building, obtaining sanction of the authorities and also showing that he has got the capacity for the purpose of reconstruction. But these circumstances would ordinarily be sufficient to prove bonafide and reasonable requirement of the landlord provided there is no other impediment in the way of the landlord preventing him or her from proceeding with the immedate demolition of the premises and reconstruction and there are no other circumstances showing want of bonafides or reasonable requirement of the landlord. ( 5 ) IN the present case, the petitioner stated in her application that the schedule premises is an old construction and that she wants to effect reconstruction on modern lines. ( 5 ) IN the present case, the petitioner stated in her application that the schedule premises is an old construction and that she wants to effect reconstruction on modern lines. Therefore according to her " the premises are reasonably required for bonafide use by the petitioner for the immediate purpose of demolishing them and such demolition is to be made for erecting a new building in place of the premises sought to be demolished ". Ex. P. 1 is the licence and Ex. P. 2 is the sanctioned plan issued by the bangalore City Municipal Corporation. On behalf of the respondents, it is contended that there is no plea on behalf of the landlord that the building, after reconstruction, would fetch more rent and that the reconstruction would be a profitable investment for the landlord, and in the absence of such a pleading, the Court could not have considered what is not pleaded in the pleadings. But as noticed already, it is stated in the petition that the petitioner wants to effect reconstruction on modern lines. The schedule premises are situated in Narasimharaja Road, a prominent business locality of Bangalore and the sanctioned plan shows that a modern building is proposed to be constructed in the place of the present building. Hence, it cannot be said that the likelihood of the property being put to more profitable use by the landlord cannot be taken into consideration. The lower appellate Court was therefore in error in finding that the only basis of the petitioner's averments in the petition was that the building was old and required reconstruction on that account. * * * * * * in view of the evidence above refer ted to, it has to be held that the petitioner has proved her capacity to put up the new construction. * * * * * * in view of the evidence above refer ted to, it has to be held that the petitioner has proved her capacity to put up the new construction. ( 6 ) IT is contended on behalf of the respondents that there are two other tenants in part of the suit premises, that no steps have been taken against them by the landlord for evicting them, that it is not possible to demolish the suit building and put up a new construction in its place without evicting the said two other tenants, and that on that account it must be held that the claim of the petitioner is not bona fide and reasonable and that she has not established her claim for the immediate purpose of demolition and reconstruction. In the petitions filed in the trial court, there is no mention about the other two tenants in part of the premises. There is also no reference to this fact in the objection statements filed by the respondents. For the first time it was elicited in the cross-examination of p. W. 1 that there are two bunks in the verandah of the ground-floor of the suit premises, that the occupants of the bunks are paying rents to the petitioner. He further stated that the petitioner has not instituted any action for their eviction because they have promised to quit the premises at any time if the petitioner wanted. On behalf of the respondents, the occupant of one of the two bunks was examined as RW. 2. He stated that ht is in occupation of the shop premises No. 96/1 in a portion of the petitioner's building and that the shop is close to the staircase in the verandah of the ground-floor. He also stated that the shop is shown in red as 'b' in the plan Ex. R. 1 prepared by R. W. 1. He further stated that there is another similar shop in the eastern portion of the verandah shown as 'a' in ex. R. 1. He stated that he obtained the shop on lease from the petitioner 3 or 4 years ago on a monthly rent of Rs. 20 and that he has been paying the rent at Rs. 35 per month for the last two years. R. 1. He stated that he obtained the shop on lease from the petitioner 3 or 4 years ago on a monthly rent of Rs. 20 and that he has been paying the rent at Rs. 35 per month for the last two years. It was elicited in the cross-examination that the lease is only from month to month and that he has himself constructed the wooden bunk shops and that both the bunks are built of wood. It is also in his evidence that thrre was another bunk at the place where he has constructed his bunk and that it was removed by the person who had constructed it earlier. It was elicited from rw. 1 that when the whole building is demolished the two bunk shops in the ground floor have also got to be demolished. The trial court considered the evidence of R. W. 2 and it held that it is doubtful whether he is the tenant in one of the bunks in the schedule building and therefore rejected the contention of the respondents that the occupants of the bunks in the petitioner's building constituted a serious impediment for the immediate demolition of the building. The lower appellate court considered the evidence of R. W. 2 and his statement in evidence that P. W. 1 has not askrd him to vacate and that he is not prepard to remove his bunk even if P. W. 1 required him to do so. It therefore held that the petitioner is not in a position to demolish the existing building even if possession of the petition schedule shops of the premises in the first floor are ordered in her favour as she has not shown her earnestness and bona fide desire to immediately demolish the building by taking steps against the other tenants. It accordingly held that one of the important elements of the provisions of sub-clause (i) was not satisfied and that the petitioner has not established her bona fide and reasonble requirement for the immediate purpose of demolishing the building and reconstruction. At one stage, it was contended on behalf of the petitioner relying on the decisions in state of Punjab v. British India Corpn. At one stage, it was contended on behalf of the petitioner relying on the decisions in state of Punjab v. British India Corpn. , AIR 1963 SC 1459 and Ramamurthy Subudhi v. Gopinath, AIR 1968 SC 919 that the occupants of the two bunks in the verandah of the suit premises are not tenants but only licensees, though PW. 1 admitted in cross-examination that the occupants of the bunk are paying rents to the petitioner. It was sought to be explained that the word "rent" does not necessarily mean that the occupants of the said bunks are tenants and that there is no relationship of landlord and tenant as between the petitioner and the said two persons. But during the course of the arguments, the respondent in CRP. 650/70 has filed I. A. II under Order 41. Rule 27 c. P. C. for reception of additional evidence, Annexures I and II accompanying the application. Annexure-1 purports to be a notice dated 20-3-1970 issued by the petitioner's counsel on her behalf to R. W. 2. Annexure II purports to be the copy of the reply notice sent on behalf of r. W. 2 in answer to Annexure I. It is stated in the affidavit accompanying i. A. II that it was contended by the petitioner for the first time in this ccurt that RW. 1 was a licensee and not a tenant and that such was not the gase of the petitioner in the lower Courts and that the contents of annexure I show that the petitioner has treated R. W. 2 as a tenant in occupation of one of the bunks in the suit premises. From the contents of annexure I it is clear that R. W. 2 is a tenant under the petitioner in respect of an open space in the main building in the verandah and that R. W. 2 has put up his own bunk which has been numbered as 96 1 and that he is running a bunk shop on a monthly rent of Rs. 35. Since this application was not opposed, the said two documents have been admitted in evidence, as it is necessary for the decision of the question of tenancy. In view of the contents of Annexure I, it is no longer open to the petitioner to contend that R. W. 2 is only a licensee and not a tenant. 35. Since this application was not opposed, the said two documents have been admitted in evidence, as it is necessary for the decision of the question of tenancy. In view of the contents of Annexure I, it is no longer open to the petitioner to contend that R. W. 2 is only a licensee and not a tenant. Hence, it is clear that when p W. 1 stated in cross-examination that the occupants of the two bunks are paying rents to the petitioner, what he had in mind was that since the rent was being paid by the occupants of the said two bunks, they were tenants under the petitioner. ( 7 ) IT has been held in Lidwine Mathias v. Madhava, (1968) 2 Mys. L. J. 120 that the demolition which can be made the foundation' of an application under sub-clause (j) of S. 21 (1) is a proposed immediate demolition, and that the landlord should intend to make the demolition soon after he secures possession, and it is that sense of urgency in mind which impresses on the contemplated demolition the quality of immediateness. It is also observed that such is his intention should be stated by him in his application and proved by trustworthy evidence, and that on failure to do so, the application for eviction must fail. In the present case, the petitioner has stated in her petitions that the premises were reasonably and bona fide required for the immediate purpose of demolishing them and for reconstruction. The question is, whether the finding of the lower appellate court that the failure of the landlord to take suitable action for the eviction of the tenants in"occupation of the bunks in the verandah of the existing building disentitles her to an order of eviction against the present respondents under sub-clause (j), is correct or not. In the petitions in the lower court, no reference is made to the existence of the two wooden bunks or to the occupants of the said bunks in the verandah of the premises. In the petitions in the lower court, no reference is made to the existence of the two wooden bunks or to the occupants of the said bunks in the verandah of the premises. It is elicited in the cross-examination of P. W. 1 for the first time that there were two such bunks in the verandah of the suit building but P. W. 1 gave the explanation that no action has been taken for eviction of the said two occupants since they had agreed to vacate the shons in their occupation as and when required to do so bv the petitioner. The occupants of one of the bunks was examined as RW. 2. He stated in his evidence that he is a tenant in the vacant space in part of the verandah and that he had constructed a wooden bunk and that there was also another tenant in occupation of another wooden bunk in another corner of the verandah. The attempt made by the petitioner was to elicit in cross-examination the answers in support of her case that RW. 2 is not a tenant. RW. 2 who was examined on 1-2-1969 stated, that he has been a tenant since 3 or 4 years. According to him, therefore, he is in occupation of the wooden bunk since the year 1965 or 1966. Annexure-I to I. A. II, the notice issued on behalf of the petitioner to RW. 2 states: "previously this portion was occupied by another bunk owner against whom HRC. case was filed since this space was required for immediate demolition and reconstruction of fresh building on modern lines to enhance its yielding value. This tenant vacated the bunk and when the space was vacant you occupied it undertaking to vacate the same whenever my client demanded the same. My client has already initiated proceedings for the eviction of the tenants of the main building since the entire building is required by my client for immediate demoliton and hence this formal notice to quit. "further, the tenant is called upon to quit by 30-4-1970. Thus, it is clear that the previous tenant who was in occupation of part of the same premises which is now in occupation of RW. 2 was evicted by the petitioner through proceedings under the Rent Control Act, on the ground that she lequired the same for immediate demolition and reconstruction of the suit schedule building. Thus, it is clear that the previous tenant who was in occupation of part of the same premises which is now in occupation of RW. 2 was evicted by the petitioner through proceedings under the Rent Control Act, on the ground that she lequired the same for immediate demolition and reconstruction of the suit schedule building. The petitions out of which the revision petitions arise were filed on 3-9-1964 in the trial Court. Since RW. 2 is the tenant since 1965 or 1966, he must have got into possession of one of the bunks in the verandah subsequent to the initiation of the present proceedings against the respondents. ( 8 ) IT is urged on behalf of the petitioner that the petitioner could not forego the rent for the period during which the present proceedings lasted and that therefore, RW. 2 must have been inducted as a tenant. This conduct on the part of the petitioner is a circumstance which throws considerable doubt on her bonafides. The fact that RW. 2 in occupation of one bunk and the occupant of another bunk both of which are situated in part of the verandah of the suit schedule building are tenants also and the fact that no attempt is made by the petitioner to evict them from the premises in their occupation shows that even if possession of the premises in occupation of the present respondents is ordered to be handed over to the peitioner, she will not be in a position to proceed with the demolition of the building and reconstruction of the same. It is urged on behalf of the petitioner that even if an order is passed in her favour against the present respondents it is open to the petitioner to somehow or other induce the occupants of the bunks to vacate the premises in their occupation. This is the explanation offered by PW. l in his evidence, but subsequent to his statement in the evidence, one of the tenants RW. 2 deposed before court that he is not prepared to vacate the premises in his possession even if the petitioner or RW. 1 asks him to do so. It is contended further on behalf of the petitioner that the respondents did not take this objection in their pleading in the trial Court and that the petitioner is taken by surprise. 2 deposed before court that he is not prepared to vacate the premises in his possession even if the petitioner or RW. 1 asks him to do so. It is contended further on behalf of the petitioner that the respondents did not take this objection in their pleading in the trial Court and that the petitioner is taken by surprise. What is surprising is that such a contention should have been advanced on behalf of the petitioner. Under S. 21 (1) (j) the burden of establishing the fact that the landlord requires the premises bona fide and reasonably for the purpose of immediate demolition and reconstruction is on the landlord. It was the duty of the petitioner therefore to state in his petition in the trial Court that there wore two other tenants and that no eviction proceedings are taken against them since they agreed to vacate the premises voluntarily whenever asked to do so by the petitioner. This was not done. The respondents were entitled to disprove the claim of the petitioner and the answer was elicited in cross-examination of pw. 1 that there were two other tenants in occupation of parts of the premises in the verandah in the ground floor of the suit building. They further examined RW. 2 to disprove the statement of PW. 1 that the said two tenants had undertaken to vacate the premises voluntarily whenever asked to do so by the petitioner. Apart from the statement of PW. 1 there is no evidence to show that the tenant of the other bunk agreed to vacate at the request of the petitioner and that he is prepared to do so even now. The petitioner had to plead and prove that fact. In the absence of the evidence of the said tenant the statement of PW. 1 is not sufficient to prove the same. Even if the petitioner was under the impression that the said two tenants would vacate the premises whenever asked to do so by her, it was clear after RW. 2 was examined in Court that he would not agree , to hand over possession of the premises in his possession voluntarily. Even at that stage, it was open to the petitioner to implead the said two tenants also or withdraw the applications and file fresh applications, but that was not done. 2 was examined in Court that he would not agree , to hand over possession of the premises in his possession voluntarily. Even at that stage, it was open to the petitioner to implead the said two tenants also or withdraw the applications and file fresh applications, but that was not done. On the other hand, an attempt was made to show that rw. 2 is not a tenant in possession of any part of the suit premises, and that attempt succeeded in the trial Court but failed in the lower appellate court. In this Court, a new theory was set up that the said two occupants of the bunks were not lessees. That position the petitioner was forced to give up on the production of the additional evidence on behalf of the respondents. Thus, the fact remains that the petitioner will not be in a position to proceed with the demolition and reconstruction immediately even if an order of eviction is passed against the respondents. The fact that the previous tenant in occupation of the bunk in the space which RW. 2 has occupied was evicted by taking proceedings under the Rent Control act. on the ground that the premises were required for the purpose of immediate demolition and reconstruction of the building and the fact that after such eviction the present tenant RW. 2 has been inducted as a tenant in part of the suit schedule premises also, throws considerable dcubt on the bonafides of the petitioner. ( 9 ) WHEN the petitioner was confronted with the additional evidence filed along with I. A. II, a new stand was taken on behalf of the petitioner to the effect that the petitioner wants an order of eviction against the present respondents in respect of the portions of the premises in their occupation only and that the suit building could be demolished and new construction put up without interfering with the possession of the other two tenants who are in occupation of the two bunks in the verandah of the suit building. HRC. 316/64 and HRC. 317/64 relate to the premises situated in the ground floor. HRC. 316/64 and HRC. 317/64 relate to the premises situated in the ground floor. In the body of the petitions, there is nothing mentioned about the existence of the two tenants in portion of the verandah or that portions only of the building are required The schedules to the two petitions show that the northern boundary of the premises of which possession is sought by the petitioner, is the narasimharaja Road. If the petitioner wanted possession of the premises excluding the verandah of the suit schedule property, such an averment would have been made in the bodv of the petition and the northern boundary in the schedule to the said two petitions would be mentioned as the verandah and not the road. The contention that the petitioner intended to ask for possession of that part of the building excluding the portions of the verandah in occupation of the said two tenants, is also not supported by the evidence of PW. 1 the only witness examined on her behalf. He has nowhere stated in his evidence that possession was not sought by the petitioner in respect of that portion of the building which is in occupation of the tenants of the two bunks. On the other hand, he stated that the petitioner did not institute any action for the eviction of the said two tenants because, they had promised to quit the premises at any time that the petitioner wanted them to do so. This also shows that the intention of the petitioner was to ask for possession of the entire building belonging to her including the verandah portions which are in occupation of RW. 2 and another tenant who is not impleaded. ( 10 ) IT is rightly contended on behalf of the respondents by Mr. Desai, that this is a new case sought to be made out tor the petitioner which is not set up in the pleading. The proposed plan Ex. R. 2 also shows that the front wall which is at the northern extremity of the suit building is also one of the walls which is proposed to be pulled down for the purpose of reconstruction of the new building. The proposed plan Ex. R. 2 also shows that the front wall which is at the northern extremity of the suit building is also one of the walls which is proposed to be pulled down for the purpose of reconstruction of the new building. Paragraph-3 of the notice annexure-I, issued on behalf of the petitioner filed along with I. A. II in this Court, makes it clear that the petitioner has initiated the present proceedings since she wanted the entire building for immediate demolition and reconstruction. It is also clear from this document that the previous tenant who was in occupation of the same premises as RW. 2 was evicted by proceedings taken under the Mysore Rent Control Act, by the petitioner on the ground that the space in the verandah in occupation of the two tenants of the bunk shops was required for the immediate demolition and reconstruction of the building. Hence, the petitioner cannot be allowed to set up this new case for the first time in this Court. ( 11 ) EVEN though the petitioner has obtained the sanctioned plan and licence from the Municipal Authorities and has established her capacity to put up a new construction she has failed to take the necessary steps to evict two other tenants in occupation of portions of the schedule premises. She will therefore not be in a position to proceed with demolition and reconstruction of the premises immediately after the passing of an order of eviction against the respondents. Her conduct in leasing part of the schedule premises to RW. 2 after evicting the previous tenant under the rent Control proceedings on the ground that she wants the premises for the purpose of demolition and reconstruction also shows her want of bona fides. Hence, the finding of the lower appellate Court that the petitioner has failed to prove that she requires the premises bona fide and reasonably for the immediate purpose of demolition and reconstruction has to be upheld. These petitions are therefore dismissed with costs. --- *** --- .