SHIVAYOGAPPA TAMBAKE v. SEETHABAI — 1978 DIGILAW 220 (KAR)

VENKATESH, J. ( 1 ) THIS revision petition has been referred to a Division Bench by jagannatha Shetty, J. , under Sec. 8 of the Karnataka High Court Act. In view of the decision of the Supreme Court in Shantilal vs. Chimanlal, AIR. 1976 SC 2358. which doubts whether a landlord of business premises can be said to require the same for his own use if he wants the same for a firm of which he is a partner, the learned single Judge felt the decision of this Court in c. R. P. No. 1678 off 1973 (2) may require reconsideration. ( 2 ) THE revision is directed against the Judgment of the learned district Judge, Bijapur, in a House Kent Control Appeal (H. R. C. A. No. 54 of 1973 ). By that judgment the learned District Judge set aside th9 order dated 20-11-1973 of the II Addl. Munsiff, Bijapur, in H. R. C. No. 72 of 1972. ( 3 ) THE petitioner herein, Shivayogappa Tambake, filed a petition for eviction under Sec. 21 (1) (h) of the Karnataka Rent Control Act, 1961 (hereinafter called the Act), against Seethabai, the respondent herein, who is admittedly the tenant of the petition premises consisting of a godownl with a small room attached to it, in all measuring 232 sq. yds, and situated in C. T. S. No. 966 of Ward No. 3 of Bijapur city. The petitioner's case is: the firm, Messrs S. S. Tambake, of which he is a partner, carries on business on a large scale, and in connection with the said busings the petition premises are required to store or keep the articles ; the godowns in the firm's occupation not being sufficient it had taken some godowns belonging to others on lease, and even then the space available is not sufficient, and, therefore, he had purchased the petitioln, premises from its previous owner Madhav Rao Naik in 1966 for the use of the firm he had validly terminated the lease in question calling upon the opponent to deliver vacant possession of the premises; and the opponent had crp. 216 of 75. refused to give vacant possession. The landlord claims possession on the ground that the premises are reasonably and bona fide required for use and occupation by the firm of which he is a partner. ( 4 ) THIS claim was resisted by Seethabai on several grounds. 216 of 75. refused to give vacant possession. The landlord claims possession on the ground that the premises are reasonably and bona fide required for use and occupation by the firm of which he is a partner. ( 4 ) THIS claim was resisted by Seethabai on several grounds. In her objection statement she has btated, imnteralia, that (1) the claim is neither bona fide nor reasonable and (ii) in the event of her eviction, she suffers greater hardship than the petitioner. ( 5 ) THE learned Munsiff granted a decree for evidtion holding that the petitioner had established that he reasonably and bona fide requires the petition premises for his own occupation, that is, for the business of the firm of which he is a partner and that greater hardship would be caused by refusing a decree, for eviction than by granting such decree. ( 6 ) IN the appeal by the tenant, in addition to the grqunds urged in the trial Court opposing the application, a new ground was sought to be made out. It was contended that the landlord, Tambake, was different from the firm, Ms. S. S. Tambake, and that the requirement of the firm cannot be construed within the meaning of Sec. 21 (1) (h) of the Act, as the requirement of the landlord and, therefore, the claim for possession of the premises on behalf of the firm, and not for his own purposes, was not maintainable. The learned District Judge overruled this objection mainly on the ground that if the premises are occupied by the firm, it would be the occupation of the landlord himself to the extent of his interest in the partnership firm. Though the learned District judge held that the landlord had proved that additional accommodation was required for his business he was of the view that the landlord had not proved his bona fides. The learned District Judge held that the rejection of the landlord's prayer for eviction would cause him greater hardship, but he allowed the appeal solely on the ground that the landlord's claim lacked bonafides. The learned District Judge held that the rejection of the landlord's prayer for eviction would cause him greater hardship, but he allowed the appeal solely on the ground that the landlord's claim lacked bonafides. ( 7 ) THE learned Counsel for the revision petitioner, while assailing the order of the District Judge, submitted that the finding of the learned district Judge that the landlord's claim lacked bona fides was based merely on surmises and not on facts and that the District Judge having found in favour of the landlord on other points, should not have disturbed the findings of the trial Court. ( 8 ) ON the other hand, while supporting the judgment of the learned district Judge, the learned Cotunsel for the respondent, reiterated the contention that the requirement of the firm M/s. S. S. Tambake cannot be construed as the requirement of the landlord Tambake himself. ( 9 ) THE following three points arise for consideration in this revision (i) Whether the owner of the premises, Tambake, can seek prssession of the same for occupation by the firm Mjs S. S. Tambake, of which he is a partner, under Sec. 21 (1) (h) of the Act; (ii) If it is so, has he proved, in the circumstances of the cose, that the requirement is reasonable and bona fide and (Hi) Whether greater hardship will be caused by granting 3 decree for eviction than by refusing such a decree. ( 10 ) IN support of his contention that the requirement of the firm of which the landlord is a partner cannot be regarded as the requirement of the landlord for his own occupation under Sec. 21 (1) (h) of the Act, the learned Counsel for the respondent places reliance on a decision of the supreme Court in D. N. Sanghav vs. A. T. Das, AIR. 1974 SC. 1026.- There, the landlord sought for eviction of his tenant on the ground that the demised premises were required for the business of the firm of which the landlord was a partner. That business was being carried on in rented premises. The supreme Court held that the landlord did not fulfil the requirement of clause (f) of Sec. 12 (a) of the Madhya Pradesh Rent Control Act. That business was being carried on in rented premises. The supreme Court held that the landlord did not fulfil the requirement of clause (f) of Sec. 12 (a) of the Madhya Pradesh Rent Control Act. The supreme Court observed that the landlord did not produce into Court the deed of partnership which would have disclosed whether the landlord was a mere sleeping partner or a partner who was entitled to manage the business either solely or with other partners or that the other partners were the sole managing partners. It was in the special circumstances of that case the Supreme Court held that the landlord had not established that he bona fide required the non-residential accommlddation for starting or continuing his business. Hence, this decision, cannot be understood as overruling the earlier decision in Muralidhar vs. Chunilal, 1970 Rent Control Jr. 922 in which the supreme Court held that the firm is not a legal entity, but is only a compendious way of describing the partners thereof and that therefore the occupation by a film is only occupation by its partners. ( 11 ) THE learned Counsel for the respondent next placed reliance on another decision of the Supreme Court in Shantilal Thakordas v. Chimanlal maganlal. In that case the facts were One Thakordas was the owner of the suit premises. He was also a partner in a firm styled as Jai hind Silk Weaving Wqrks. Thakordas had filed a suit under Sec. 13 (1), (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Bombay Rent Control Act) claiming possession of the premises on the ground that he required the same for the use of the partnership firm. It was contended that the requirement of the firm of which Thakordas was a partner could not be considered within the meaning of Sec. 13 (1) (g) of the Bombay Rent Control Act as the requirement of Thakordas himself, and, therefore, the claim for possession was liable to be rejected. It was contended that the requirement of the firm of which Thakordas was a partner could not be considered within the meaning of Sec. 13 (1) (g) of the Bombay Rent Control Act as the requirement of Thakordas himself, and, therefore, the claim for possession was liable to be rejected. On the other hand, it was argued on behalf of the landlrd therein that he was one of the partners of the firm and that the requirement of the landlord for the bond fide occupation and use by the firm would amount to the bona fide requirement of the landlord himself, and, therefore, the landlord was entitled to claim possession of the premises under Sec. 13 (1) (g) of the Bombay Rent Control Act. The Supreme Court observed that the landlord died subsequent to the institution of the suit, that of his three sons, only two had become partners of a new partnership firm and that the third son was not a partner of that firm. The decision in that case turned on the special facts of that case and in particular on the fact that one of the heirs of the deceased landlord did not require the premises for his business. The supreme Court incidentally observed that it was doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will tantamount to "occupation by himself". However, the Supreme Court did no't express any final opinion on this question. Hence, there is no good ground to depart from the view taken by this Court in the unreported case in CRP No. 1678 of 1973 (2) that a landlord can seek for eviction of the tenant, under clause (h) of sec. 21 (1) of the Act, from his non-residential premises if such premises are required for the business of the firm of which he is a partner. The view taken in that case is in accordance with the view expressed by a division Bench of Nagpur High Court in Rajanik Lal and Co v. Vithal panduang, AIR. 1952 Nag. 312. and, the Division Bench of the Madras High Courtin v. Danmull Sowcar v. Syed Ali Mohamed, 1969 RCJ. 226. 11a. The view taken in that case is in accordance with the view expressed by a division Bench of Nagpur High Court in Rajanik Lal and Co v. Vithal panduang, AIR. 1952 Nag. 312. and, the Division Bench of the Madras High Courtin v. Danmull Sowcar v. Syed Ali Mohamed, 1969 RCJ. 226. 11a. However, since Sec. 13 (1) (g) of the Bombay Rent Control Act is in parmateriar with Sec. 21 (1) (h) of the Act, if the landlord is merely a sleeping partner of a firm then he cannot, in the light of the decision of the Supreme Court in D. N. Singhav's case (3) (supra) ask for eviction of his tenant from non-residential premises on the ground that the same are required for the business of such firm In the present case, there is evidence on record to show that the firm M/s. S. S. Tambake consists as partners the petitioner and his brothers only. There is nothing on recor record to suggest that Tambake is a mere sleeping partner. On the other hand, indications are that he is an active partner and is fully engaged in the business of the firm. The firm deals in Adath business on a large scale it appears that to stock its goods the firm has several godowns and has even taken a few on lease. In his evidence PW. 1 has deposed that the petitioner, Tambake, has purchased the suit premises from its former owner M. L. Naik to use it in this business. The learned Munsiff has stated that on this pqint there was no cross-examinat of at all. In these circumstances, if the landlord seeks possession of the godown to use the same to stock the goods of the firm in which he is as partner, the same, cannot be dubbed as an unreasonable claim nor from the facts available can it be said that the claim is not bona fide. Hence, point No. 2 is also answered in the affirmative. ( 12 ) ON the question of comparative hardship also (point No. 3) the answer has to be in favour of the landlord. It is the casa of the respondent that she has been doling the business of oil crushing in the suit premises and has established a goodwill of her customers and if she is evicted she will be put to a greater hardship. It is the casa of the respondent that she has been doling the business of oil crushing in the suit premises and has established a goodwill of her customers and if she is evicted she will be put to a greater hardship. The petitioner's contention in this connection is that the respqndent's husband owned CTS. No. 27 in Ward no. 3 of Bijapur City, and that after his death the respondent had got entered the names off her two daughters as kathedars in respect of the said premises. It is further staged that she has leased out the said premises in favour of some persons and has been earning a rent of Rs. 1,000 per annum. The learned Munsiff has found that the names of the respondent's daughters were mutated in respect of the said premises only after the death of the husband of the respondent. He has found from the available evidence before him that the respondent also has some interest in the said premises. Ho,wever, it is nobody's case that no godowns at all are available for lease in Bijapur City. At any rate, it is not the case of the respondent that it is next to impossible to secure alternate godown in that city. On this point both the learned Munsiff and the learned District Judge have concurrently held that if the claim of the landlord for possession of the premises is rejected he would Suffer greater hardship than the tenant if an order of eviction is parsed. We have no reason to disturb this finding. ( 13 ) IN the result, this revision petition is allowed, the judgment of the District Judge in HRCA. 54 of 1973 is reversed and the order of the second Additional Munsiff, Bijapur, in HRC. 72 of 1972 is restored. With this modification, the tenant is granted time of six months from the date of this order to vacate the premises and to handover vacant possession thereof to the landlord. ( 14 ) PARTIES are directed to bear their own costs. --- *** --- .