LAKSHMIKANTHAMMA v. SAREE MANDIR, BANGALORE — 1997 DIGILAW 420 (KAR)

P. VISHWANATHA SHETTY, J. ( 1 ) THE petitioners, in this revision petition, are the owners of premises bearing No. 193, Gowramma Hostel Lane, Chickpet, bangalore-560053. The said premises consists of the ground floor and the first floor. The subject-matter of dispute in this petition relates to the ground floor of the said premises (hereinafter referred to as "petition schedule premises" ). ( 2 ) THIS petition is directed against the order dated 29th of october, 1992 made in H. R. C. No. 1162 of 1982 passed by the court of XIX Additional Small Causes Judge, Bangalore City, rejecting the claim of the petitioners for eviction of the respondent. ( 3 ) THE petitioners filed eviction petition against the respondent under Section 21 (1) (h), (p) and (o) of the Karnataka rent Control Act, 1961 (hereinafter referred to as "the Act") on 20th of April, 1982. The case of the petitioners, as set out in the eviction petition, was that they require the petition schedule premises reasonably and for bona fide use and occupation, to wit, opening of an office of the second petitioner, who is an architect having secured a degree in architectural Engineering. It was their further case that since the respondent had acquired suitable alternate premises, it is liable to be evicted as provided under Section 21 (1) (p) of the Act. The petitioners have sought for eviction of the respondent also under Section 21 (1) (o) of the Act on the ground that the petitioner had kept the petition schedule premises vacant for a period of more than six months. The learned Small Causes Judge, who earlier decided the claim made by the petitioners, by his order dated 28th of July, 1986, while rejecting the claim of the petitioners for eviction of the respondent under Section 21 (1) (p) and (o) of the Act, directed eviction of the respondent under Section 21 (1) (h) of the Act. The respondent-tenant being aggrieved by the said order, filed a revision petition, C. R. P. No. 4684 of 1986, before this Court and this Court, by its order dated 31st of August, 1990, allowed the revision petition and remitted matter to the Trial Court for fresh consideration on the ground that the learned Small Causes judge had not considered the question as to whether the petition schedule premises is suitable for the use of the second petitioner. ( 4 ) AFTER the remand of the matter, the respondent-tenant filed additional objection statement pleading that during the pendency of the proceedings, the second petitioner has opened his office at No. 138, R. T. Nagar, Bangalore. After the remand of the matter, P. W. 1 further examined himself and on behalf of the respondent, R. W. 2 an Architect, was examined in support of the claim of the respondent. ( 5 ) THE learned Small Causes Judge, after consideration of the evidence on record, has rejected the claim of the petitioners for eviction of the respondent on all the three grounds made out by the petitioners and consequently rejected the eviction petition filed by the petitioners. Aggrieved by the said order of the learned Small Causes Judge, this revision petition has been filed by the petitioners. ( 6 ) SRI Krishna Kumar, learned Counsel appearing for the petitioners, submitted that the finding of the learned Small causes Judge that the petitioners have failed to make out a case that the petition schedule premises is reasonably and bona fide required by them for their bona fide use and occupation is totally erroneous in law and the said finding has been recorded in total disregard to the evidence on record and total misunderstanding of the scope of Section 21 (1) (h) of the Act. Elaborating this submission, the learned Counsel pointed out that the learned small Causes Judge proceeded to reject the petitioners' claim on the ground that the petition schedule premises having been located in a busy commercial area, is not suitable for the purpose of opening an office of Architect by the second petitioner. He further submitted that the finding of the learned Small Causes judge that there is no light, no windows, no toilet and the petition schedule premises is located in a by-lane and therefore unsuitable to be used for the purpose of the office of the second petitioner, is totally erroneous in law and the said finding has been given on a total misreading and misunderstanding of the evidence on record. He further submitted that non-availability of the facilities cannot be considerations to reject the petitioners' claim for eviction of the respondent from the petition schedule premises as the second petitioner being an Architect by himself, is in a position to re-model the ground floor of the premises making it suitable for his occupation. He further submitted that non-availability of the facilities cannot be considerations to reject the petitioners' claim for eviction of the respondent from the petition schedule premises as the second petitioner being an Architect by himself, is in a position to re-model the ground floor of the premises making it suitable for his occupation. He would also point out that the evidence on record would clearly demonstrate that the respondent is a very affluent partnership firm and its transaction, even according to the admission of R. W. 2, is Rs. 4 crores per year. Therefore, the learned Counsel would submit that these are the matters which the learned Small Causes judge should have taken into consideration while considering the claim of the petitioners for eviction of the respondent. He further pointed out that after the matter was remanded, the second petitioner has examined himself as P. W. 2 and in his 'evidence, he has asserted that he is carrying on his profession at vasanthanagar and there has not been any cross-examination on this aspect of the matter by the respondent and, therefore, he pointed out that the learned Small Causes Judge has seriously erred in law in proceeding on the basis that the second petitioner has established his office as an Architect at R. T. Nagar, bangalore solely on the basis that the petitioners have not filed their reply to the additional objection statement filed by the respondent. Secondly, he submitted that the evidence on record also clearly shows that the respondent has acquired suitable alternative premises and the respondent having acquired the alternative premises, has kept the premises vacant for a period of more than six months. It is his submission that the lower court has, in disregard to the evidence on this aspect of the matter also, negatived the claim of the petitioners for eviction of the respondent. It is his submission that the lower court has, in disregard to the evidence on this aspect of the matter also, negatived the claim of the petitioners for eviction of the respondent. ( 7 ) SRI Radhesh Prabhu, learned Counsel for the respondent, seriously countering the arguments of the learned Counsel for the petitioners that the petition schedule premises is reasonably and bona fide required by them for their use and occupation, submitted that the petitioners cannot be permitted to urge their claim under Section 21 (1) (p) and (o) of the Act, as they did not challenge the order dated 28th July, 1986 passed by the learned small Causes Judge on an earlier occasion where their claim under Section 21 (1) (p) and (o) of the Act came to be rejected and that order had become final. He further pointed out that mere desire or wish of the landlord to occupy a tenanted premises is not a ground to pass an order of eviction of the respondent from the petition schedule premises. According to the learned counsel, during the pendency of the proceedings, the second petitioner having already established Architect's office at R. T. Nagar, the need of the second petitioner having been satified, the petitioners cannot seek eviction of the respondent under section 21 (1) (h) of the Act. He further submitted that it is not sufficient if the landlords establish that the petition schedule premises is required by them for their bona fide use and occupation; the landlords must also establish that the claim is reasonable. He submitted that the finding recorded by the learned Small Causes Judge that the petition schedule premises is not required by the petitioners under Section 21 (1) (h) is not liable to be interfered with by this Court in exercise of its revisional jurisdiction under Section 50 of the Act. ( 8 ) IN the light of the rival contentions advanced by the learned Counsel appearing for the parties, three questions that would arise for consideration in this revision petition, are. (1) Whether the petitioners are entitled to seek an order of eviction of the respondent from the petition schedule premises, under Section 21 (1) (h) of the Act? ( 8 ) IN the light of the rival contentions advanced by the learned Counsel appearing for the parties, three questions that would arise for consideration in this revision petition, are. (1) Whether the petitioners are entitled to seek an order of eviction of the respondent from the petition schedule premises, under Section 21 (1) (h) of the Act? (2) Whether the petitioners are estopped from seeking eviction of the respondent under Section 21 (1) (p) and (o) of the Act, in view of the earlier order dated 28th of July, 1986 passed by the learned Small Causes Judge, which was not challenged before this Court? (3) If it is held that the petitioners are entitled to seek eviction of the respondent under Section 21 (1) (p) and (o) of the Act, whether an order of eviction is required to be passed against the respondent under the said provisions of law? ( 9 ) BEFORE proceeding to consider the first question that arises for consideration, I am of the view that it is convenient to first deal with questions (2) and (3 ). ( 10 ) IT is not in dispute that the claim of the petitioners for eviction of the respondent under Section 21 (1) (p) and (o) of the act came to be rejected by the learned Small Causes Judge on an earlier occasion by his order dated 28th of July, 1986, while ordering eviction of the respondent under Section 21 (1) (h) of the act. Being aggrieved by the said order of eviction, the respondent had filed C. R. P. No. 4684 of 1986 before this Court. However, the petitioners did not challenge the finding recorded against them in respect of their claim under Section 21 (1) (p) and (o) of the Act. This Court, by its order dated 31st of August, 1990, allowed the revision petition filed by the respondent and remitted the matter for fresh consideration. It is useful to extract the relevant portion of the direction given by this Court in the said order, which reads as follows:"in the result, this petition is allowed, the order under revision insofar as it relates to clause (h) of Section 21 (1) is set aside and the matter is remanded to the Trial Court for fresh consideration in accordance with law in the light of the observations made above. The parties are given liberty to adduce further evidence, if they so desire, on the respective questions raised by them". The learned Counsel for the petitioners relying upon the observations made by this Court while remitting the matter for fresh consideration and reserving liberty to the parties to adduce further evidence, if they so desire, on the respective questions raised by them, submitted that the claim made by the petitioners seeking eviction of the respondent under Section 21 (p) and (o) of the Act, was kept open and in that background, the learned Small Causes Judge has considered the petitioners' claim for eviction of the respondent under Section 21 (1) (p) and (o) of the Act and, therefore, this Court should examine the claim made by the petitioners for eviction of the respondent under section 21 (1) (p) and (o) of the Act also. I am unable to accede to this submission. Admittedly, the petitioners had not challenged the findings recorded by the learned Small Causes Judge against them on an earlier occasion under Section 21 (1) (p) and (o) of the act. This Court had remitted the matter for fresh consideration only insofar as the petitioners' claim under Section 21 (1) (h) of the Act was concerned in the revision petition filed by the respondent-tenant. Under these circumstances, the observations made by this Court reserving liberty to the parties to adduce further evidence, must be understood to mean only with regard to the claim made by the petitioners under Section 21 (1) (h) of the Act. Therefore, since the finding recorded by the learned small Causes Judge on the petitioners' claim under Section 21 (1) (p) and (o) of the Act had become final as the same was not challenged by the petitioners, I am of the view that it is not permissible for the petitioners to challenge the said finding in the present revision petition. Hence, the learned Small Causes judge was not justified in law in considering the petitioners' claim under Section 21 (1) (p) and (o) of the Act. Consequently, it is not permissible for me to examine the claim of the petitioners under Section 21 (1) (p) and (o) of the Act. Therefore, the claim of the petitioners under Section 21 (1) (p) and (o) of the Act is hereby rejected. Consequently, it is not permissible for me to examine the claim of the petitioners under Section 21 (1) (p) and (o) of the Act. Therefore, the claim of the petitioners under Section 21 (1) (p) and (o) of the Act is hereby rejected. ( 11 ) INSOFAR as the petitioners' claim under Section 21 (1) (h) of the Act is concerned, I am of the view that having regard to the evidence on record, the petitioners are entitled to succeed. Nagendra Prasad, who is petitioner 2 and for whose benefit the petitioners have sought for eviction of the respondent from the petition schedule premises, has examined himself as P. W. 1 and has stated on oath that the petition schedule premises is required for the purpose of opening his office as an Architect. He has also stated in his evidence that except the petition schedule premises, the petitioners have no other accommodation or premises where he could open his office. He has also stated that for want of accommodation, he has been carrying on his profession as an Architect, in his residence itself situated at vasanthanagar, which consists of only two bed rooms and a hall. The evidence on record also shows that there were four members in the family at that time. However, Sri Krishna Kumar submitted that the eviction petition was of the year 1982 and subsequently, petitioners 2, 3 and 4 are married and they are residing in their building located at Vasanthanagar. But, Sri radhesh Prabhu submitted that this is a submission made at the Bar, which he is not in a position either to admit or to dispute. He further submitted that it is not relevant. In a matter like this, on account of lapse of time, though there is no evidence with regard to the increase in the number of members of the family, this Court can take notice of the fact that petitioners 2, 3 and 4, who were young at the time of filing of the petition, must have married by now and they must be residing in the premises in question as contended by the learned Counsel for the petitioners. Even otherwise, the statement made by P. W. 1 that he is not in a position to carry on his profession in his residence, requires to be accepted as true having regard to the limited accommodation available in his residence. Even otherwise, the statement made by P. W. 1 that he is not in a position to carry on his profession in his residence, requires to be accepted as true having regard to the limited accommodation available in his residence. Further, P. W. 2, who is admittedly a professional Architect, cannot be compelled to carry on his profession in his residence which, according to him, is totally unsuitable for his professional work. No doubt, as pointed out by Sri Radhesh Prabhu, mere desire on the part of the landlord to occupy his own premises is not a ground to order eviction. However, in the present case, the evidence on record and the circumstances in which the petitioners have sought eviction of the respondent, clearly indicate that the claim made by the petitioners for the eviction of the respondent is not a mere desire and on the other hand, the second petitioner is in dire necessity of accommodation for his professional work of architect. Having regard to the financial position and the background of the petitioners in the light of the background of the other alternative premises acquired by the respondent-firm and its financial capacity, I am fully satisfied that the claim made by the petitioners for eviction of the respondent can never be termed as either unreasonable or arbitrary. As observed earlier, R. W. 2, in his evidence, has admitted that the yearly transaction of the respondent-firm is to the tune of Rs. 4 crores. In that situation, if the petitioners seek eviction of the respondent for the purpose of office accommodation of the second petitioner, the said claim, in my view, has to be held as reasonable and it cannot be rejected on the ground that the premises in question is not suitable to be occupied by the second petitioner as the same is located in a lane and there is no light, no windows, no toilet facility etc. If a landlord, who has no other accommodation and who finds that it is not possible to secure any other suitable alternative premises than the one belonging to him, seeks eviction of the premises, even if it is not convenient from the standard of some third party, the claim of the landlord cannot be rejected solely on the ground that the premises in respect of which eviction is sought by the landlord is not suitable for his occupation. Whether the premises belonging to the landlord is suitable for his occupation or not, is essentially a matter on which the landlord will have to take a decision. The court can only consider the suitability of the premises only for the purpose of examining the question whether the claim made by the landlord that the premises in respect of which he seeks eviction, is genuine and there are bona fides. The approach of the Court or the test to be applied with regard to the suitability of the premises should not be such as to deprive the claim of the landlord under Section 21 (1) (h) of the Act, unless the Court on the basis of the evidence on record finds that no reasonable person, in the given circumstances, would occupy such a premises. Once the Court finds that the claim of landlord is reasonable and bona fide, suitability of the premises, as stated earlier, must be left to the decision of the landlord. It is because where the landlord, who has no premises of his own and takes a premises on lease, he would be under perpetual threat of eviction from his landlord. Therefore, he may prefer to compromise and give up some of the facilities which he may, in the normal circumstances, like to enjoy, for occupying his own premises than occupying a rented premises. These are the matters which cannot be weighed with mathematical exactitude. The Courts will have to take into account broad probabilities or realities of life. As stated earlier, the suitability of the premises is required to be considered by the Court only for the purpose of examining the bona fides or genuineness of the claim of the landlord. The entire approach made by the learned Small causes Judge, on this aspect of the matter, is erroneous in law. In the instant case, even accepting what is found by the learned small Causes Judge with regard to the location and condition of the premises is assumed to be true and correct, I am of the view that the claim of the petitioners cannot be rejected on the ground that the said premises is unsuitable for the purpose of office premises of the second petitioner. The second petitioner being an architect by profession, is capable of making the premises suitable for his occupation. Admittedly, the premises in question is situated in a commercial area. The second petitioner being an architect by profession, is capable of making the premises suitable for his occupation. Admittedly, the premises in question is situated in a commercial area. It is also the case of the petitioners that they could not secure any other premises. Therefore, the finding of the learned Small Causes Judge that the petitioners are not entitled for eviction of the respondent from the petition schedule premises on the ground that the petition schedule premises is unsuitable for the purpose of the second petitioner, is totally erroneous in law and the said finding has been recorded in total misunderstanding and misreading of the evidence on record and without applying the objective tests with regard to the suitability of the premises and the fact that the petitioners are capable and are in a position to make the premises in question suitable for the office purpose of the second petitioner. ( 12 ) THE only other question that requires to be considered is whether the requirement of the second petitioner has been satisfied in view of the claim made by the respondent that the second petitioner has opened his office at R. T. Nagar, Bangalore. As contended by the learned Counsel for the petitioners, P. W. 2, i. e. , the second petitioner, after remand of the matter, in his evidence, has asserted that he is carrying on his profession in his residence at Vasanthanagar and this assertion made by P. W. 2 has not been challenged in cross-examination. As stated earlier, when P. W. 2, in his evidence, has asserted that he has not established his office at R. T. Nagar, Bangalore, and the said assertion has remained unchallenged, the learned Judge has totally erred in law in rejecting the case of the petitioners that the second petitioner has not opened his office at R. T. Nagar solely on the ground that the petitioner has not filed reply to the additional objection statement. Further, even assuming that the second petitioner has opened his office at R. T. Nagar for want of accommodation in his residential premises which has been the case of the petitioners throughout, it cannot be a ground to reject the petitioners' claim for eviction of the respondent when the other materials on record clearly establish that the requirement of the petitioners for the petition schedule premises is both reasonable and genuine. I am fully satisfied on the evidence on record that the petition schedule premises is required by the petitioners for their bona fide use and occupation and the need is genuine. ( 13 ) THE other question that is required to be considered is whether the petitioners or the respondent will be put to greater hardship if an order of eviction is passed against the respondent. In this connection, the evidence of the respondent clearly shows that the respondent-firm is a very affluent firm carrying on business in textiles and the turn over of which, even according to r. W. 1, is Rs. 4 crores per year. Though the claim of the petitioners under Section 21 (1) (p) and (o) of the Act has been rejected, the evidence of R. W. 1 itself shows that they have acquired alternative premises. In this connection, it is useful to extract the relevant portion of the evidence of R. W. 1 in this regard:". . . . . WE had purchased an old building in Chickpet in the year 1975. It was in occupation of a tenant. We negotiated with that tenant and got it vacated and then demolished the building and constructed new building with 3 floors. We gave the ground floor to the previous tenant and occupied the 1st and 2nd floors. We gave the ground floor as per the agreement. We are using the 1st floor for distribution of dayaram prints textiles and 2nd floor for distribution of vimal sarees. we are the distributors for Karnataka, Kerala and Goa. We are using the petition premises as godown. . . . . . ". From the evidence of R. W. 1 itself, it is clear that the respondent is in possession of a building acquired by it. The said premises is very close to the petition schedule premises. The only explanation offered by the respondent is that the textile materials are required to be stored in the ground floor and the first and the second floor acquired by it are not suitable. This cannot be accepted. Admittedly, even according to R. W. 1, the textiles are kept for distribution in the first and second floors of the premises acquired by the respondent. This cannot be accepted. Admittedly, even according to R. W. 1, the textiles are kept for distribution in the first and second floors of the premises acquired by the respondent. When admittedly, the textiles of the respondent are kept in the ground and the first floors of the building acquired by it, I am unable to appreciate and understand as to how the portion of either the first floor or the second floor cannot be used for the purpose of storing the textile materials which, according to the respondent, is presently kept in the petition schedule premises. Further, when the turnover of the respondent is admittedly Rs. 4 crores per year, I am of the opinion that it should not be difficult for the respondent to find out any suitable alternative premises. It may be that the respondent will have to pay a little more rent and little more advance. Therefore, I am fully satisfied that the respondent will not be put to any hardship or inconvenience of whatsoever nature if an order of eviction is passed and on the other hand, if an order of eviction is not passed, the petitioners will be put to greater hardship. ( 14 ) INSOFAR as the question of partial eviction is concerned, the total area of the petition schedule premises is 560 sq. ft. I have already pointed out that the respondent is a very affluent commercial undertaking and it is in a position to acquire any other suitable premises and it will not be put to any hardship if an order of eviction is passed against it. For an Architect to open an office, an area of 560 sq. ft. cannot be said to be excessive. The evidence of P. W. 1 and P. W. 3 clearly show that the entire petition schedule premises is required for the purpose of opening an office of Architect by the second petitioner. Therefore, having regard to the facts and circumstances of the case, it is neither desirable nor feasible to pass an order of partial eviction. ( 15 ) FOR the reasons stated above, I am of the view that the order under revision requires to be set aside. Therefore, having regard to the facts and circumstances of the case, it is neither desirable nor feasible to pass an order of partial eviction. ( 15 ) FOR the reasons stated above, I am of the view that the order under revision requires to be set aside. ( 16 ) ACCORDINGLY, the revision petition is allowed and the order dated 29th of October, 1992 passed by the learned XIX additional Small Causes Judge, Bangalore City, in H. R. C. No. 1162 of 1982 is set aside. The respondent is directed to vacate and deliver vacant possession of the petition schedule premises. ( 17 ) HOWEVER, having regard to the facts and circumstances of the case and keeping in view that the respondent is an affluent commercial undertaking, I am of the view that if three months' time from today is granted to the respondent to vacate the petition schedule premises, it will meet the ends of justice. Accordingly, the respondent is given three months' time from today to vacate and hand over vacant possession of the petition schedule premises to the petitioners. --- *** --- .