SHEENA NAIK v. LAWRENCE D SOUZA — 1984 DIGILAW 1 (KAR)

( 1 ) THIS Revision Petition is by the tenan who is aggrieved by an order dated 15th day of January 1981 made by the district Judge, Dakshina Kannada, at mangalore, in Civil Revision Petition no. 135/1979 on his file, allowing the revision Petition of the landlold for eviction of the tenants from the suit premises. ( 2 ) THE landlord instituted a petition for eviction of the tenant from the suit premsse before the second Additional Munsiff, mangalore in HRC No. 212/1 976, on his file. He sought eviction of the tenant under Clauses (a) and (h) of the Proviso to section 21 (I) of Karnataka Rent Control act. 1961 He averred that the respondent in the petition was a tenant under him on a monthly rental of Rs. 151- and it was formerly used by him as a bathroom before he leased the room in favour of the tenant. His family in the meanwhile had enlarged and his daughters had come of age. Therefore, he required a separate bathroom inside the house and it was for that purpose that he sought for eviction of the tenant from the suit premises. ( 3 ) THE tenant resisted the petition on the ground that the landlord's real intention was to enhance the rent. He was a tenant under him on a monthly rental of rs. 51- whereas the landlord was insisting upon him to pay the enhanced rate rent of Rs. 15/-p. m. 'since he refused to pay the enhanced rate of rent, the landlord instituted the petition for his eviction and that way the tenant submitted that there were no bona fides on the part of the landlord and his request was not reasonable. ( 4 ) THE tenant further contended that the landlord was having a bathroom already and he did not require his house to be used as a bathroom ; the tenant further contended that he would be put to greater hardship in case he was evicted from the suit premises. No alternative accommodation was available in the city of Mangalore even for higher rent. On these pleadings the learned Munsiff raised the following points as arising for his consideration. 1. Whether the petitioner proves that the respondent is a monthly tenant under him in respect of the petition 'a' schedule premises and the rent payable is Rs. 15/- per month ? 2. On these pleadings the learned Munsiff raised the following points as arising for his consideration. 1. Whether the petitioner proves that the respondent is a monthly tenant under him in respect of the petition 'a' schedule premises and the rent payable is Rs. 15/- per month ? 2. Whether the petitioner proves that the respondent is in arrears of rent from September, 1971 onwards in spite of demands ? 3. Whether the petitioner proves that he reasonably and bona fide requires the ' A ' schedule premises to be used as a bathroom for his house ? 4. Whether the petitioner will be put to greater hardships, then the respondent if an eviction order is not passed? ( 5 ) WHAT order ? 5. During the hearing the petitionerlandlord and respondent-tenant examined themselves in support of their respective contentions. The learned Munsiff appreciating the evidence on record answered point No. 1 in the negative. According to him the monthly rental was Rs. 5/- and not Rs. 15/- as alleged by the landlord. He answered points 2 and 3 in the negative. Under point No. 4 he held that the tenant would be put to greater hardship in case the decree for eviction was passed and in that view the leorned munsiff dismissed the petition of the landlord. ( 6 ) AGGRIEVED by the said order and judgment, the landlord went up in appeal under Section 50 of the Rent Control act, in Civil Revision Petition 135/1979 on the file of the District Judge, Mangalore. The learned District Judge, on hearing arguments found that the claim of the landlord was bona fide and reasonable and that the landlord would be put to greater hard ship in case a decree for eviction was not granted in his favour and in that view he allowed the Revision petition and reversed the judgment and order of the trial Court and decreed the petition of the landlord for eviction of the tenant under Clause (h) of the proviso to Section 21 (1) of the Karnataka rent Control Act. The order of dismissal by the learned Musiff under Clause (a) was not challenged before the learned district Judge. Aggrieved by the said judgment and order, the tenant has instituted the present Revision Petition under section 115 of the CPC. The order of dismissal by the learned Musiff under Clause (a) was not challenged before the learned district Judge. Aggrieved by the said judgment and order, the tenant has instituted the present Revision Petition under section 115 of the CPC. ( 7 ) THE learned Advocate appearing for 'he Revision Petitioner strenuously urged before me that the very approach of the learned District Judge to the facts of the case was erroneous and illegal and as such revision was maintainable under section 115 CPC. He further submitted that the learned District Judge ignored the relevant evidence in arriving at his conclusion and as such his conclusions were perverse and had to be interfered with in revision by this Court. According to him, the learned Munsiff arrived at the correct conclusions on both the points namely, on bona fide and reasonable requirement of the landlord, as well on the point of greater hardship. The learned District Judge without considering the material on record reversed those findings. He submitted that the learned district Judge committed an error in exercising jurisdiction and in that view he submitted that the Revision was entitled to succeed. ( 8 ) ON the other hand, the learned counsel for the respondent strenuously urged before me that the revision was not maintainable as the learned District Judge had considered the facts and law correctly and there was no jurisdiction error. He further submitted that even the findings given by the learned District Judge on appreciating the facts of the case were legal and proper and, in that view, he submitted that this court should not interfere with the order passed by the learned district Judge. ( 9 ) THE points, therefore that arise for my consideration in this revision petition are [1] Whether the learned District Judge has committed an error in exercising jurisdiction and, as such, his findings require interference ? [2] What order ? ( 10 ) THE learned Counsel appearing for the respondent strenuously urged before me that Civil revision petition was not maintainable as the grounds taken mainly concern with appreciation of evidence and application of law. He invited my attention to a decision of the Supreme court of India in the case, M/s. Misrilal paraimal v. H. P. Sadasiviah and Another, (A. I. R. 1965 Supreme Court 553 ). He invited my attention to a decision of the Supreme court of India in the case, M/s. Misrilal paraimal v. H. P. Sadasiviah and Another, (A. I. R. 1965 Supreme Court 553 ). ( 11 ) IN that case, it is laid down by the Supreme Court thus "no doubt, sub-section [1] of Section 17 of the Mysore House Rent and Accommodation Control Act, 1951 would indicate that the High Court has wide powers in dealing with revision applications, but the proviso to it which was added by act XXII of 1954, restricts the powers of the High Court in any case in which an appeal lies under Section 15 of the act to the District Court. It is not disputed that the proviso applies to this case. Now, under the proviso it is clear that the powers of the High Court while dealing with an appeal from the order of the District Court are exactly the sameas those conferred on it by section 115 of the Code of Civil Procedure. That is to say, it can interfere with an order of the sub- ordinate Court only if there is an error pertaining to jurisdiction in that order. The High Court thus has no power to reverse the order of a district Court merely on the ground that it was vitiated by an error of law or upon the ground that a question of fact, however vital it may be, was erroneously decided by the District Court -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 12 ) THERE can be no exception to the rule laid down by the Supreme Court ex cathedra. In fact, this Court has followed the decision in the Case, Rajagopaliah setty V. R. v. N. Radhakrishna ( 1983 ) 2 Kar. L. J. 284, wherein this Court has held: "however gross the conclusions of the district Judge either on question of fact or law might be, the High Court cannot assume jurisdiction under S. 115 cpc. to correct the mistake of fact or law. It is only mis-interpretation of law affecting jurisdiction, like limitation, res judicata or provisions creating bar of jurisdiction that can corrected under S. 115. to correct the mistake of fact or law. It is only mis-interpretation of law affecting jurisdiction, like limitation, res judicata or provisions creating bar of jurisdiction that can corrected under S. 115. A. I. R. 1953 SC 23, a,i. R. 1964 SC 1341, A. I. R. 1966 SC 153 and A. I. R. 1973 SC 76 relied on ( 13 ) BUT it is clear that the ruling is not exhaustive. It is further held by the Supreme Court that if the proceeding is tainted with illegaliry or is manifestly perverse and is not based on evidence on record, the High Court in its revisional jurisdiction can interfere with such orders, vide : M/s. Shri Raja Lakshmi Dyeing works and Others v. Rangaswami, (AIR 1980 SC 1253) and Ajanta Transports (P) ltd. , and Others, (AIR 1975 SC 125) ( 14 ) THE learned Counsel appearing for the revision petitioner next invited my attention to the fact that the very approach or the learned District Judge to the facts of the case has been materially illegal and grossly irregular and, as such, the provisions of Section 115 ot the Code of Civil Procedure are attracted to the facts of the case. ( 15 ) THE Supreme Court of India had an occasion in a recent decision to consider the question of approach by a court to the facts of the case in Rent coutrol matter in the Case, M. M. Quasim v. Manoharlal Sharma and Others, (AIR 1981 Supreme Court 1113.) The Bench of the Supreme Court consisting of d. A. Desai, R. S. Pathak and E. S. Venkataramiah, JJ. , in para-18 of the judgment has enunciated as to what should be the approach of the court in deciding a matter under Rent Control Act. It reads :"before turning to the next topic, a word about the judicial approach to the landlord under the Rent Act would not be out of place. The learned judge of the first appellate Court while upholding the claim of personal requirement of respondent 1 has observed as under : it is for the plaintiffs to decide whatever they think fit and proper. It, is not for the defendant to suggest as to what they should do. The defendent has led evidence to show that the plaintiffs have got some more houses at Giridih. . . . . . . . . . . It, is not for the defendant to suggest as to what they should do. The defendent has led evidence to show that the plaintiffs have got some more houses at Giridih. . . . . . . . . . . . the defendant appellant has also filed certified copy of judgment of one suit No. 47/73 which is Ext. D only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs. 'this approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the Country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the Society which had to to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only an proving some enabling grounds set out. in the Kent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison dietre of the Rent act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the , sion is commenced in the court. ( 16 ) IN the instant case, the learned district Judge appears to think that the landlord needs a bath-room and it is for him to choose as to where he should set up the bath-room. It is immaterial if he is having a bath-room attached to his house which is temporary one. It is immaterial if he is in possession of 20 cents of land behind his house where in he can construct a bath-room since the landlord has chosen to construct his bath-room in the premises, the learned district Judge appears to think that his decision and his choice should be respected. That, as pointed out by the Supreme Court in the aforesaid decision, betrays a woeful lack of consciousness relatable to circumstances leading to the enactment of Rent Act in the State. ( 17 ) THE learned District judge, in the course of his judgment has observed :"therefore, it has to be taken that the need of the petitioner for a bath room inside the building would he met, if any of the rooms in the occupation of the three tenants, is vacated. In such a contingency, the landlord must necessarily chose some tenant, and it is no answer to any tenant that he could have as well sought for eviction of the other two tenants. . . . . . . . . The learned District Judge has further observed :. . . . . . If there is no mala fides in the choice of the respondent for being evicted then it has to be held that the requirement projected for the premises in his occupation must necessarily be held to be bona fide. . . . . . ( 18 ) APART from the mistake committed by this approach, the learned District judge has dignored the oblique motive' of the landlord brought on record. ( 19 ) THE learned District Judge, in the course,of his judgment has observed : it has been stated by- the respondent that the petitioner sought for increase in rent for his portion and because he refused to accede to that demand, the present petition has been thought of. No such particulars of the alleged demand have been furnished. . . . . . This is patently an erroneous statement made by the learned District Judge. In the petition itself, the landlord has claimed rent at Rs. No such particulars of the alleged demand have been furnished. . . . . . This is patently an erroneous statement made by the learned District Judge. In the petition itself, the landlord has claimed rent at Rs. 15/- per month and ultimately, on discussion, the learned munsiff has arrived at the conclusion, by raising a specific issue on the point, that the rental is only R -. 5/- per month. In the circumstances, it is very strange that the learned District Judge thinks that no demand for Rs. 15/- was ever made by the landlord and there is no evidence for it; the very fact that the landlord in the very petition itself mentioned that the rental to be paid was Rs. 15/- per month, though it was Rs. 5/- per month, would go to show that there was a subtle attempt on the part of the landlord to enhance the rent and it is this which the learned Munsiff has seen through and has observed that the requirement of the landlord is not bona fide and it is obliquely motivated. The learned District judge has practically ignored this aspect and has reached his conclusion ignoring the existing evidence on record and his finding is perverse to say the least. ( 20 ) I am satisfied by reading the orders of the learned Munsiff and of the learned District Judge that the learned munsiff is entirely correct when he holds that the requirement of the landlord is obliquely motivated, his real intention being enhancement of rent. ( 21 ) IT is not every wish or desire of the landlord that can be described as a reasonable and bona fide requirement. The word ' requirement ' has been judicially interpreted in cases more than one and the term ' require ' implies something more than a mere wish or impulse or desire on the part of the landlord. It denotes something more than desire. Although the element of need is present in both the cases the real distinction between 'desire' and 'require' lies in the insistence of that need. It denotes something more than desire. Although the element of need is present in both the cases the real distinction between 'desire' and 'require' lies in the insistence of that need. There is an element of 'must have' in the case of 'require' which is not present in the case of mere 'desire' and which the learned District Judge has entirely ignored though the learned Munsiff has come to the correct conclusion that such an element is not present in the desire of the landlord to have a bath-room in the tenament in which the tenant is residing. ( 22 ) THE evidence on record clearly established that the landlord is having a bath-room attached to his house. The grievances that are made by the landlord are that it is a temporary bath-room, that it is made up of 'thatti', that his daughters are grown up and that it would be proper for him if the bath-room is inside the house. When the bath-room is attached to the house, which is of 'thatti it could always be converted into a 'pukka' bath-room or it could further be closed so as not to provide access to others it is not as if the landlord had no bath-room at all. He may have desire to have a different bath-room. But the element of necessity or need is not there. It does not amount to a requirement at all. Considered in that perspective it becomes obvious that the real motive of the landlord is oblique and that is to enhance the rental. ( 23 ) IT is not enough if the landlord even proves that his requirement is reasonable and bona fide. He has to further satisfy the Court on the aspect of comparative hardship. ( 24 ) SECTION 21 [4] of the Karnataka rent Control Act reads"no decree for eviction shall be passed on the ground specified in clause [h] of the provise to sub section [1] if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenants, greater hardship would be caused by dassing the decree than by refusing to pass it. " ( 25 ) THE Supreme Court of India has explained the sub-section in the case, central Tobacco Co. " ( 25 ) THE Supreme Court of India has explained the sub-section in the case, central Tobacco Co. Bangalore v. Chandra prakash, [1969] [1 S. C. W. R. 1147] The following guiding principles are laid down by the Supreme Court : [1] The concept of reasonableness and greater hardship are interwined and they have to be viewed in a broad and common sense way as a man of the word. [2] Both the landlord and the tenant are required to adduce available evidence to enable the court to consider all the circumstances germane to the question at issue, namely, comparative hardship. [3] A duty is enjoined on the Court by the statute itself to balance as best as it can all the cirumstances placed on record come to a determinate conclusion as regards comparative hardship. [4] It is not necessary for a tenant to specifically plead greater herdship as there is no 'onus Probandi', as such cast on him and statutory obligation is on the court to consider the question of greater hardship on either party before passing the final decree. See also Mst. Bega Begum and Others v. Abdul Ahmad Khan, [a. I. R. 1979 Supreme Court 272]. ( 26 ) THESE prospositions are reiterated by the Supreme Court again in a recent decision in the case Bhaichand ratnshi v. Laxmishanker Tribhoyan, [1982] 1 S. C. R. 153]. Therein, a Bench of the supreme Court consisting of O. Channappa reddy A. P. San and Baharul Islam, JJ. , at page 156 of the Reports, has observed : "it is plain upon the language of S. 13 [2] of the Act that it creates a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under S. 13 [1] [g] of the Act. The words 'no decree for eviction shall be passed', make in incumbent on the court not to pass a decree on the ground specified under S. 13 [1] [g] of the Act unless it is satisfied as to the comparative hardship caused to the landlord and the tenant by passing a decree than by refusing it. . . . . . . . . . . . Section, 21 [4] of the Karnataka Rent control Act is similar. . . . . . . . . . . . Section, 21 [4] of the Karnataka Rent control Act is similar. The Supreme Court proceeding further on this aspect has observed :"the Legislature by enacting S. 13 [2] of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under s. 13 [1] [g] of the Act does not cause any hardship to the other side. The considerations that weigh in striking a just balance between the landlord and the tenant were indicated in a series of decisions of the court of appeal interpreting an analogous provision of the Rent and Mortgage Interest Restrictions [amendment] Act, 1933 [c 32], s. 3[1], Sched. 1 para [h]: Sioms v. Wilson [1946] 2 All E. R. 261, Fowle v. Bell [1946] 2 All E. R. 668, Smith v. Penny [1946] 2 All E. R. 672, Chandler v. Streyett [1947] 1 All E. R. 164 and kelly v. Goodwin [1947] 1 All E. R. 810. One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant. The Court would have to put in the sale other circumstances which would tilt the balance of hardship on either side, including financial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation, as the case may be. It must, however, be observed that the existence of alternative accommadation on both sides is an important but not a decisive factor. [halsbury's Laws of England, 3rd Edn. Vol. 23, p. 824] On the issue of greater hard hip the English courts have uniformly laid down that the burden of proof is on the tenant. We are inclined to the view that or, the terms of S. 13 [2] of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case. " ( 27 ) APPRECIATING the facts of the case, it is on record that the tenant is having six children. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case. " ( 27 ) APPRECIATING the facts of the case, it is on record that the tenant is having six children. He is a Beedi-twistcr living in a small room measuring 9 x 9 with a "chavdi" attached to it. The landlord has three tenaments which he has let. He receives some rent ar. d he is engaged in ironing work [laundry]. Adverting to the alternative accommodation available, it is on record that the landlord has already a bath-room. In addition, he has got 20 cents of land behind his house. So far as the tenant is con- cerned he is indigent, huddling his family in a room of 9- x 9' and he has deposed that it is very difficult to get alternative accommodation even on higher rent in the city of Mangalore. That being so, the learned Munsiff correctly come to the conclusion that greater hard-ship would be caused to the tenant if an order of eviction is made and the effect would be inconsequential on the landlord since he is already having a bath-room, which he can improve if he desires. The learned district Judge, without considering all these factors, has jumped to the conclusion that the landlord would be put to greater hardship, which cannot be supported. ( 28 ) FOR the foregoing reason, the revision petition is entitled to succeed. ( 29 ) THE learned Counsel appearing for the respondent invited my attention to the afore-quoted case of the Supreme court in the case. Bhaichand Ratanshi v. Laxmishanker Thribkoyan, which is also reported in A. I. R. 1981 Supreme court 1690, wherein the Supreme Court, in para-6 of the judgment, has observed"under S. 29 (2) of the Act as substituted by Gujarat Act 18 of 1965, although the high Court has a wider jurisdiction than the one exercisable under S. 115 of the Code of Civil procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the requirements of S. 13 (2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. It cannot be said that the courts below failed to apply their mind to the requirements of S. 13 (2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so, the High court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence. " ( 30 ) THE enunciation of law as expounded by the Supreme court is unexceptionable. But, in the present case, there is no concurrent finding of the Courts below. On the other hand, I have shown that the finding of the learned District judge is perverse on the facts of the case and it is manifestly erroneous. That being so, these observations would not apply to the facts of the present case and the High Court is not only entitled to come to its conclusion but also bound, as of duty, to do so get right the perversion committed by the learned District judge. ( 31 ) IN the result, therefore the revision petition is allowed. The order of the learned District Judge is set aside and the order of the learned Munsiff is sustained and restored and the petition of the landlord for eviction of the tenant is hereby dismissed. No order as to costs of this revision petition. --- *** --- .