A. M. OBEDULLA v. S. M. SHAFT — 1984 DIGILAW 179 (KAR)

M. S. NESARGI, J. ( 1 ) THIS matter has come up for disposal before this Division Bench on an order of reference dated 15. 3. 1984 passed by the learned single judge G. N. SABHAHIT, J. expressing his view that the decision in B. V. Rathniah Setty vs. B. Venkata Rao 1975 (1) Kar. L. J. 75 rendered by Chandrashekhar, J. (as he then was), appears to require reconsideration. ( 2 ) THE undisputed facts are that the respondent is the owner of an open land not used for agricultural purpose. That is the schedule premises. He had leased that land to the petitioner- tenant for running a timber business. The petitioner-tenant, according to him, constructed a superstructure on that land, at a cost of Rs. 5,000/- and commenced running timber business. The landlord is also a timber merchant. He has been running his business in rented premises. According to the landlord, he is running timber business in one premises bearing No. 36 in Bamboo Bazar and owned by p. W. 3. According to the petitioner-tenant, the landlord has been running his business in four premises including the premises bearing No. 36. The landlord filed a petition for eviction making out a case that he reasonably and bonafide required the schedule premises foi erecting one storcyed building for running timber business by personally occupying it. The petitioner-tenant contended, that the requirement, put forth by the landlord is neither reasonable nor bona fide, as he has four premises in which he has been running his timber business. He also contended that the landlord was actuated by oblique motive of enhancing the rent which was originally Rs. 20/- per month and subsequently enhanced to Rs. 50/- per month. He has also in this connection contended that the landlord intends to increase the monthly rent to Rs. 200/ -. ( 3 ) THE petition filed by the landlord purported to be under Section 21 (l) (h) and (j) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'act' ). An enquiry was held and an order of eviction was passed by the VII Additional Small Causes Judge, civil Station, Bangalore in H. R. S. No. 6564 of 1980 (Old No. H. R. S. 599 of 1977 ). An enquiry was held and an order of eviction was passed by the VII Additional Small Causes Judge, civil Station, Bangalore in H. R. S. No. 6564 of 1980 (Old No. H. R. S. 599 of 1977 ). The Civil judge, Ultimately concluded in favour of the landlord not only on facts but also on question of law holding that the case of the landlord fell within the ambit and scope of clause (h) of the proviso to Sec. 21 (l) of the act. ( 4 ) IT appears from the order rendered that it was argued before the learned single Judge that clause (1) of the proviso to Sec. 21 (1) of the Act appears to have been misunderstood by the trial Court and that the view expressed by chandrashekhar, J. in B. V. Rathniah Setty's case 75 (1) K. L. J. 75, requires reconsideration. ( 5 ) THE trial Court has held on the question of law, that clauses (j) and (i) of the proviso to Sec. 21 (1) are not attracted, while clause (h) of the said proviso is attracted. ( 6 ) CLAUSE (h) of the proviso to Sec. 21 (1) of the Act reads as follows: (h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purposes of the trust; or clause (I) of the said proviso reads as follows: (1) that where the premises are land, such land is reasonably and bonafide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon; or it is plain that the words in Italics in clause (h) are not appearing in clause (1 ). ( 7 ) CLAUSE (j) of the said proviso reads as follows: (j) that the premises are reasonably and bonafide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished; here again it is plain that the ingredients of clause (j) make it manifest that the existing structure belonging to the landlord is required to be demolished for the purpose of erecting a new building. Therefore, clause (j) will have no application to a premises falling within the definition of Sec. 3 (n) (ii) of the Act. Sec. 3 (n) of the Act reads as follows: (n) "premises" means - (i) a building as defined in clause (a); (ii) any land not used for agricultural purposes; re-reading of clause (1) of the proviso also makes it crystal clear that in case of premises being a land and the requirement by the landlord is for the erection of a new building by the landlord on such premises, the provision in clause (1) will be attracted. This necessarily means that the premises contemplated by clause (1) of the said proviso is the premises as defined in Sec. 3 (n) (ii) of the Act. Here it is worthwhile noticing that the premises as defined in Sec. 3 (n) as a whole appears in clause (h) of the Said proviso. But, what is important are the Italic words, viz. , for occupation by himself, occurring in clause (h) and the fact of those words being absent in clause (1 ). Reading of all the clauses in the said proviso shows that the words for occupation by himself occurring in clause (h) are not found in any other clauses of the said proviso. Therefore, it has to be concluded that whenever a landlord comes out with a case for eviction of a tenant making out that the premises in question are. reasonably and bona fide required by him for occupation by himself, only clause (h) of the said proviso would come into play, to the exclusion of other clauses. This Court while dealing with clause (h) and (j) of the said proviso has, in the decision in SMT. reasonably and bona fide required by him for occupation by himself, only clause (h) of the said proviso would come into play, to the exclusion of other clauses. This Court while dealing with clause (h) and (j) of the said proviso has, in the decision in SMT. ROHINIBAI vs. VISHNUMUR- thy I. L. R. 1980 (1) Karnataka 340 held that clauses (h) and (j) are mutually exclusive and when a landlord makes out a case of his requirement for personal occupation after demolishing the existing structure and reconstructing it, only clause (h) of the said proviso would be applicable. The very reasoning would be aptly applicable when a landlord comes to a court with a case that the premises, viz. , open land not used for agricultural purpose, is reasonably and bonafide required by him for occupation by himself after erecting a new building on the open land. ( 8 ) IN the decision in B. V. Rathniah Shetty's case 1975 (1) K. L. J. 75, it has been clearly held as follows:"the provisions of Cl. (1) of S. 21 (1) apply, in my opinion, to a case where the landlord requires the demised land for erecting a new building which he does not intend to occupy for himself but intends to let out to others. "what we have already reasoned earlier, amply supports this opinion because whenever a landlord makes out a case of his requirement for occupation of the premises by himself, only clause (h) will be attracted. The requirement of the landlord under clause (1) may be anything else other than occupation of the premises by himself. This discussion shows that clause (1) of the said proviso and clause (h) of the said proviso operate in entirely different fields. It is our considered view, that there is absolutely no scope for doubt or confusion, in regard to the understanding of the scope and ambit of these two clauses. ( 9 ) IT is already made clear that the landlord has prayed for an order of eviction making out his requirement for the purpose to run his timber business. Therefore, though clause (j) of the proviso to Sec. 21 (1) is mentioned in the petition presented by the landlord in the trial court, that does not at all operate against him. Therefore, though clause (j) of the proviso to Sec. 21 (1) is mentioned in the petition presented by the landlord in the trial court, that does not at all operate against him. The law does not permit a tenant to claim any benefit on the basis of a wrong provision of law having been quoted. ( 10 ) IN view of the foregoing position in law, the merits of the case on hand has to be gone into. ( 11 ) THE landlord has produced a plan sanctioned by the Corporation authorities, evidently to satisfy the provision in clause (1) of the said proviso. He has examined himself and two witnesses. P. W. 2 is his own brother and p. W. 3 is the landlord of the premises bearing no. 36 wherein the respondent-landlord is running his timber business. Respondent-landlord has claimed that P. W. 3 has asked him to vacate the said premises and therefore, he was required to erect a new building on the schedule premises, to do his timber business therein. P. W. 3 has stated that he has been since two years asking the respondent-landlord to vacate the premises, the landlord had promised to vacate it and is going to vacate and therefore he has not taken legal action against the respondent- landlord who has been examined as P. W. I. ( 12 ) SRI Udaya Holla appearing on behalf of the petitioner-tenant submitted that it is clear from the cross-examination of P. W. I the respondent-landlord that he has in his possession three more rented premises in which he has been running business, thereby making total number of the premises in his possession to four. He in this connection vehemently urged that the evidence of P. W. I the respondent-landlord to the effect that he has been running timber business in only one premises belonging to P. W. 3, is totally false and therefore, the trial Court ought to have held that there was no bonafides in the claim of the respondent-landlord. He in this connection vehemently urged that the evidence of P. W. I the respondent-landlord to the effect that he has been running timber business in only one premises belonging to P. W. 3, is totally false and therefore, the trial Court ought to have held that there was no bonafides in the claim of the respondent-landlord. In this very connection, he further argued that P. W. 3 is not under threat of eviction of the premises wherein he has been carrying on his business and he has in fact admitted to that effect by saying that so long as he continues to pay rents regularly that so long as he continues to pay rents regularly there is no likelihood of his being asked to vacate. This Court is not holding an enquiry into the requirements of P. W. 3 being reasonable or bonafide, i. e. , in his asking p. W. I the respondent-landlord to hand over vacant possession of the premises bearing No. 36 in Bamboo Bazar. P. W. I the respondent- landlord has sworn that schedule premises. In fact, there is no suggestion put forth by the petitioner that the landlord is not having sufficient means to erect a new building. Sri Udaya holla sought support from that has been laid down by the Supreme Court in the decision in neta Ram vs. Jiwan Lal A. I. R. 1963 S. C. 499. That was a case where the provision similar to the one found in clause (j) of the said proviso of sec. 21 (1) of the Act came up for consideration before the Supreme Court. The Supreme Court laid down as to what were the matters to be considered, to satisfy the authority regarding bonafide requirement by a landlord for reconstruction. This is not a case which falls within the ambit of clause (j) of the proviso to Section 21 (1 ). Therefore, that principle would not be strictly applicable to the facts and circumstances of the case. Moreover, we have already shown how there is inherent material in the evidence of P. W. I and the circumstance relied upon by the petitioner-tenant himself and also how the tenant himself has not at all disputed the financial capacity of P. W. I the landlord to erect a new building in confirmity with the sanctioned plan. 15. Moreover, we have already shown how there is inherent material in the evidence of P. W. I and the circumstance relied upon by the petitioner-tenant himself and also how the tenant himself has not at all disputed the financial capacity of P. W. I the landlord to erect a new building in confirmity with the sanctioned plan. 15. In view of the foregoing, we are clearly of the view that the trial Court has not at all approached the evidence and material relied upon by the parties in any unjust manner and/or contrary to the recognised principles in law. Therefore, we agree with the conclusion reached by the trial Court. We further hold that the respondent-landlord is entitled to invoke clause (h) of the proviso to Sec. 21 (1) of the Act as recorded by the trial Court. 16. This takes us to the request as to the time to be granted to the petitioner-tenant for handing over vacant possession of the schedule premises. Sri Udaya Holla prayed for grant of 2 years. This was opposed by the learned Advocate for the landlord. 17. We find from the order of the trial Court that on 14. 7. 1984, the date on which the order was passed, the trial Court found it just and proper to grant time of that he has been asked to vacate and P. W. 3 the landlord of the premises in which he (P. W. 1) is conducting his business as a lessee has also sworn to that effect. Merely because no legal steps have been taken by P. W. 3 to evict P. W. I, his evidence cannot be disbelieved. Even if such step had been taken by P. W. 3, it would have been possible to argue that it was a mere eye-wash. We are not impressed with this reasoning. ( 13 ) SRI Udaya Holla attempted to argue that if p. W. I has in his possession four rented premises in which he has been running his busi ness, then there is additional burden of P. W. I to satisfy the Court as to why he has chosen the premises in question for his occupation. He placed reliance on what has been laid down by the Supreme Court in M. M. Qureshi vs. Man- oharlal A. I. R. 1981 S. C. 1113. He placed reliance on what has been laid down by the Supreme Court in M. M. Qureshi vs. Man- oharlal A. I. R. 1981 S. C. 1113. The principle laid down by the Supreme Court there in has no application to the facts on hand. It is not the case of the petitioner-tenant that the respondent-landlord is the owner of another or any other open land particularly suitable for erecting construction to run a business. This is not a case where the respondent-landlord can be said to have exercised a choice of the premises. ( 14 ) IT is no doubt true that the burden is on the landlord to establish that he reasonably and bonafide requires the schedule premises for occupation by himself. What is reaspnable and bonafide has to be established to the satisfaction or a Court. Such Satisfaction depends on facts and circumstances of each case. The best that can be said in favour of the petitioner-tenant, in this case, is that contrary to the averment of P. W. 1 landlord it has been shown that he is running his business in 4 premises, all of them being rented. But, we are unable to see how that factor militates against the case of P. W. 1 landlord that his requirement is reasonable and bonafide. In our view, that factor was in his favour at least to indicate that he must be having sufficient means to erect a new building as per the sanctioned plan produced by him, on the schedule of 6 months from that date. So much time has already elapsed. Hence, we consider it just and reasonable, to grant time till the end of March 1985, to the petitioner-tenant to vacate the schedule premises and hand over vacant possession of the schedule premises, subject to the condition that the petitioner-tenant continues to pay monthly rental as and when it falls due without committing any default. Civil Revision Petition is dismissed. No order as to costs. --- *** --- .