Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 126 (KAR)

C. LAKSHMIPATHI v. BHANUMATHI

2000-02-10

B.N.MALLIKARJUNA

body2000
B. N. MALLIKARJUNA, J. ( 1 ) THIS revision under Section 50 (1) of the Karnataka Rent Control Act (the act' for short) is directed against the order dated 2-9-1992 of the chief judge of small causes at Bangalore city in h. r. c. No. 1971 of 1933 dismissing the landlord's eviction petition under Section 21 (1) (a) and (h) of the act. Revision petitioner herein is the landlord and petitioner in the eviction proceedings. Respondents are tenants. I shall hereinafter refer to them as they are arrayed in the eviction petition for the purpose of convenience. ( 2 ) BRIEFLY stated the facts are: petitioner-deceased laxmipathi is the owner of the premises bearing No. 15, poornaprasad compound, high grounds, race course road, Bangalore city. There are more than one tenements in the said compound and the petitioner lives in one of the portions, other portions are leased to several other persons. It emerges from the pleadings and as well from the evidence that one kantamma, sister of the deceased petitioner -laxmipathi lives in one of the portions. Malathi, eldest daughter of the deceased petitioner-laxmipathi lives in another portion, another person by name c. Mahesh is in occupation of the ground floor of the premises and the first floor of that building is leased to the respondent herein. Eviction petition under Section 21 (1) (a) and (h) was filed on 7-7-1983, at the first instance against one Smt. Bhanumathi, daughterin -law of deceased manibhen k. Sodha. Subsequently, Smt. Manibhen k. sodha and her son ramesh k. Sodha, husband of bhanumathi were brought on record as r-1 and r-3. Bhanumathi is thereafter described as r-2. Subsequently, during the pendency of the proceedings the petitioner -laxmipathi, manibhen k. Sodha and bhanumathi died, legal representatives of laxmipathi are brought on record. ( 3 ) PETITIONER's case as it stood at the first instance is that the premises in question was leased to bhanumathi on a monthly rent of rs. 250/-, she was irregular in payment of rent and became due for the period from 1-4-1982 to 30-6-1983 in a sum of Rs. 3720/- being the rent for 15 months. Petitioner therefore sent statutory notice as required under Section 21 (1) (a) of the act and despite service of notice bhanumathi failed to reply and did not pay or deposit the arrears of rent. 3720/- being the rent for 15 months. Petitioner therefore sent statutory notice as required under Section 21 (1) (a) of the act and despite service of notice bhanumathi failed to reply and did not pay or deposit the arrears of rent. petitioner further pleaded that the accommodation available to him in the premises in his occupation was not sufficient and he required the leased premises as additional accommodation. In elaborating the requirement it is pleaded that he has 5 daughters and a son living with him, 4 of them have attained majority, one of them is a graduate in law and intends to practice by setting up her office in the premises in question. the other daughter by name uma completed her chartered accountancy and intends to practice as chartered accountant, the place is suitable for establishing her office, but the accommodation available is totally insufficient. The only son satish is a graduate in b. Com. And intends joining law and after completing law, joins the legal profession and intends to practice with his sister P. W. 2-kum. Viju. Thus, it is pleaded that there being 8 members in the family, available accommodation is not sufficient and therefore leased premises is required as additional accommodation. ( 4 ) BHANUMATHI appeared and opposed the petition contending inter alia that she is not the tenant, no jural relationship of landlord and tenant exists in between laxmipathi and her, in fact the premises was taken on lease by her mother-in-law mambhen k, sodha and she had paid Rs. 20,000/- as advance. However, she admitted that she and her husband ramesh k. Sodha lived with manibhen k. Sodha in the said premises right from the beginning. She also pleaded that there being no relationship of landlord and tenant, she was not required to pay the rent and as such question of arrears does not arise. Further she denied the alleged requirement contending that is neither reasonable nor bona fide, the petition is filed with a view to enhance the rent. It is stated that the petitioner demanded Rs. 400/- a month and an additional advance of rs. 5,000/- and since that was not agreed, petition for eviction is filed. Further she denied the alleged requirement contending that is neither reasonable nor bona fide, the petition is filed with a view to enhance the rent. It is stated that the petitioner demanded Rs. 400/- a month and an additional advance of rs. 5,000/- and since that was not agreed, petition for eviction is filed. ( 5 ) THE matter was therefore posted for evidence and in the meantime, landlord made an application under Section 29 (1) of the act for a direction to stop further proceedings for non-payment of arrears of rent. That application was also opposed on the ground that there exists no relationship of landlord and tenant. Enquiry was held, the court after considering the evidence and the arguments of the respective parties, by order dated 15-3-1986 held that there exists relationship of landlord and tenant, directed the tenant bhanumathi to pay arrears of rent within one month. Aggrieved by the said Order, bhanumathi approached this court in revision c. r. p. No. 2557 of 1986 and that revision came to be dismissed on 5-7-1989. Thereafter she filed a review petition c. p. No. 147 of 1990 complaining that the revision petition was disposed of without giving her an opportunity of hearing and that petition after hearing was allowed on 16-11-1990, order dated 15-3-1986 was set aside. However, the court reserved liberty to the petitioner to move the trial court for bringing the appropriate tenants on record. ( 6 ) IT is thereafter on 9-1-1991 petitioner made an application under order 1, Rule 10 of the CPC requesting the court to permit him to bring on record manibhen k. Sodha and ramesh sodha as parties to the proceedings. After contest the application was allowed and manibhen k. sodha was brought on record as r-1, bhanumathi was shown as r-2 and ramesh sodha as r-3. Ramesh sodha alone filed his objections supporting the statement of objections of his wife bhanumathi. Notices sent to manibhen k sodha were not served and it is seen from the records that the other two respondents did not even furnish the correct address or the particulars of manibhen k. Sodha despite the application by the petitioner under order 6, Rule 5 of the CPC. Notices sent to manibhen k sodha were not served and it is seen from the records that the other two respondents did not even furnish the correct address or the particulars of manibhen k. Sodha despite the application by the petitioner under order 6, Rule 5 of the CPC. It may be noted here that along with the application under order 1, Rule 10 petitioner also made two other applications one under order 22, Rule 2 read with Section 151 of the CPC and the other under order 6, Rule 5 read with Rule 35 of the Karnataka rent control rules. While opposing both the applications, it is pertinent to note that respondents 2 and 3 did not either inform the death of manibhen k. Sodha nor given the particulars of that lady. matter proceeded. Thereafter, petitioner examined himself and his two daughters P. W. 2-viju and P. W. 3-uma and closed the case by producing exs. P. 1 to p, 13. As against this evidence, respondents examined respondents 1 and 3 as r. ws. 1 and 2 and closed their case by producing documents exs. R. 1 to r. 14. Learned judge, after hearing the arguments and after considering the evidence both oral and documentary, by the order impugned dated 2-9-1992 held that r-2 and r-3 were not the tenants and the deceased manibhen k. Sodha was the tenant of the premises in question, but in view of the fact that lady died as long back as on 5-12-1989 and petitioners 2 and 3 being her son and daughter-in- law and having lived with her right from the day of the commencement of the tenancy have succeeded to her tenancy rights and by operation of law have become tenants under the petitioner. The court did not go into the question of eviction under Section 21 (lxa) in view of the memo filed on behalf of the petitioner on 3-8-1992 giving up the prayer for eviction under Section 21 (l) (a ). However, on the question of requirement, court held that the requirement pleaded is bona fide, but refused to grant eviction on the ground that it lacks reasonableness. It is this order that is challenged by the landlord in this revision under Section 50 (1) of the act ( 7 ) A memo also filed on 7-2-2000 on behalf of the respondent stating that r-1 herein viz. It is this order that is challenged by the landlord in this revision under Section 50 (1) of the act ( 7 ) A memo also filed on 7-2-2000 on behalf of the respondent stating that r-1 herein viz. , bhanumathi r. Sodha died on 25-3-1999. Learned counsel for the petitioner filed a memo today stating that since her estate is adequately represented by her husband viz. , r-2 herein ramesh sodha and since he is already on record, there is no need to bring her other legal representatives on record. ( 8 ) HEARD Sri nagesh, learned counsel for the petitioners and sri shekar shetty, learned counsel for the respondents. ( 9 ) SRI shekar shetty, learned counsel for the respondents contends that the question of relationship of landlord and tenant cannot be gone into for the reason that there is already a finding in the matter on the application under Section 29 (1) of the act and that is concluded. In support, relies on the decision of the apex court in supreme court employees' welfare association v union of India and others. Further contends that since manibhen k. Sodha was dead by the time the application under order 1, Rule 10 of the CPC was filed, petition for eviction is not maintainable. In support, relied on the decision of the apex court in om prakash and others v ram kumar and others. On a careful consideration of the submission, i find no merit in the submission for the reasons which i would presently state. ( 10 ) TRUE, the contention of deceased bhanumathi was that her mother-in-law was the tenant and no relationship of landlord and tenant existed between her and the landlord. Though the trial court held in favour of the landlord, that order was set aside in revision. However, liberty was given to the petitioner to move the court for bringing the real tenants on record. It is thereafter bhanumathi, mother-in-law and her husband were brought on record. The contention is that by the time they were brought on record, manibhen k. Sodha who was the tenant of the premises was no more and therefore application was not maintainable. the evidence reveals that the said manibhen k. Sodha died in london on 5-12-1989. It is also clear from the evidence of r. ws. The contention is that by the time they were brought on record, manibhen k. Sodha who was the tenant of the premises was no more and therefore application was not maintainable. the evidence reveals that the said manibhen k. Sodha died in london on 5-12-1989. It is also clear from the evidence of r. ws. 1 and 2 that the said lady rarely stayed in india and most of the time she stayed in england with her husband who had settled and lived there for over 20 years. It is pertinent to note that the petitioner-landlord not only made an application to bring the real tenants on record, but along with it made two other applications one under order 22, Rule 2 and the other under order 6, Rule 5 of the CPC requesting the respondent on record to furnish the particulars of the lady. These applications are filed in court on 9-1-1991 viz. , after the death of the said lady manibhen k. Sodha, son and daughter-in-law have not furnished the particulars nor do they mention in the objection filed to those applications as to whether that lady was living or dead. Bhanumathi and her husband undisputably lived with the said lady in the premises from the commencement of the tenancy. The evidence of r. ws. 1 and 2 further makes it clear that no other children of manibhen k. Sodha, though she had more than six, lived with her in that premises. In fact, one of her daughters was a tenant in another portion of the building. The court has held that bhanumathi and her husband succeeded to the tenancy rights of manibhen k. Sodha after her death, petition for eviction was filed against bhanumathi. Though in response to the application under order 22, Rule 2 of the CPC, husband and wife owed a duty in law to tell the court that the lady is no more, do not mention about the whereabouts, or the death of the lady. In these circumstances, i do not find any substance in the arguments that the application filed for eviction is not maintainable for the reason that by the time manibhen k. Sodha was brought on record she was no more. In these circumstances, i do not find any substance in the arguments that the application filed for eviction is not maintainable for the reason that by the time manibhen k. Sodha was brought on record she was no more. In addition, petitioner even while making the applications maintain that the tenancy was in between him and the lady bhanumathi and that he is making the application in view of the order of the court. Even otherwise the petition for eviction was against one of the successors in interest viz. , bhanumathi and another namely her husband was added subsequently. More importantly r. w. 2-bhanumathi states in evidence:"at present my husband is the tenant in respect of the psp under the petitioner. It is true that I am the tenant in respect of the psp". (psp should be read as petition schedule property) therefore it cannot, in the circumstances be said that the petition for eviction was against a dead person. the facts and circumstances came up for consideration in the case of om prakash, cited supra are quite different and distinguishable. In that case, landlord instituted eviction proceedings against wrong persons by suppressing the real facts, the real tenant made the application for impleading. In the instant case bhanumathi and her husband lived in the premises from the beginning, the lady did not live in india, rents were paid by ramesh k sodha, may be the payment of advance was by that lady manibhen k. Sodha. In the circumstances and having regard to the relationship of the parties, i find no substance in the arguments that the eviction petition against the respondent is not maintainable. ( 11 ) THE evidence admits of no doubt that laxmipathi and his wife have 5 daughters and a son, one of the daughters is married, the other daughters have attained majority, one of them is a graduate in law and the other is a chartered accountant and the son by the time the case was ready for hearing had also completed law. It also admits of no doubt that P. W. 2-l. Viju was a practising Advocate and P. W. 3-uma was practising with a chartered accountant. Thus, there are 8 members in the family of the petitioner and they were in occupation of the ground floor of the building. It also admits of no doubt that P. W. 2-l. Viju was a practising Advocate and P. W. 3-uma was practising with a chartered accountant. Thus, there are 8 members in the family of the petitioner and they were in occupation of the ground floor of the building. It has come in evidence that the accommodation available in the said premises was 3 bedrooms, a hall, dining hall and a toilet. The respondents dispute and r-1 says that the premises in occupation of the petitioner consists of 5 rooms, a dining hall, kitchen and a toilet but his evidence is not substantiated. The court considering the evidence of the petitioner and his witnesses elaborately and having regard to the accommodation that was available to the petitioner, rightly comes to the conclusion that the requirement is bona fide. But refuses to grant eviction on the ground that it lacks reasonableness. On an application under Section 21 (1) (h) of the act landlord is required to establish that the requirement is not only bona fide but it is also reasonable. If any one of the elements is absent, true the landlord cannot succeed. But the question is whether the court in the instant case and on the face of the evidence available was right in concluding that it lacks reasonableness. ( 12 ) THE learned judge, on considering the evidence says that it lacks reasonableness on the ground that no sketch of the premises in occupation of the petitioner is produced. Secondly, malathi, elder daughter of the petitioner is not examined and lastly, mahesh in occupation of another portion is not examined. He does not say that the requirement of the petitioner for additional accommodation is unreasonable. Respondents case is that certain other tenements in the compound were available to the petitioner and if really the requirement of the petitioner was genuine, he could have as well used that portion and therefore requirement is not reasonable. It is admitted that one sumitra, sister of the respondent ramesh k. Sodha was in occupation of one of the portions and that was vacated. It is contended that if the petitioner required additional accommodation that could have been made use of by the petitioner. But the petitioner's case is that his first daughter malathi is married and whose husband is unemployed are living in that premises. ex. It is contended that if the petitioner required additional accommodation that could have been made use of by the petitioner. But the petitioner's case is that his first daughter malathi is married and whose husband is unemployed are living in that premises. ex. P. 8 is the copy of the order in h. r. c. No. 10411 of 1989. A perusal of it makes out that the eviction was sought on the ground that it was required to accommodate petitioner's daughter. Respondent who is no other than the sister of ramesh k. Sodha conceded the alleged requirement in her evidence and thereafter court proceeded to make the order on 6-12-1989 directing the tenant to vacate and handover vacant possession of the premises. P. ws. 1 and 3 have said in evidence that this premises is in occupation of malathi. R. w. 1 contends that malathi does not live in that premises and in fact she lives in a different locality viz. , in hayes road, but he does not give the particulars of the house in which she appears to live. However, he states that he cannot give the number of the house. Except the oral assertion of r. w. 1 there is nothing on record to show that malathi, married daughter of the petitioner really lives in hayes road and in occupation of the premises vacated by sumitra, his sister. On the other hand, evidence of the petitioner finds support from the evidence of p. ws. 2 and 3 and their evidence together makes out that malathi with her husband lives in the portion vacated by sumitra. Moreover, eviction petition in the instant case is filed in the month of july, 1983. It is only, in the year 1989 eviction petition is filed against sumitra, sister of the respondent-ramesh k. Sodha and the order is made on 5-12-1989. Thus, it is clear that on the day the petition for eviction was filed, that accommodation was not available. In fact, as i have said earlier eviction was sought on the ground that it is required to accommodate his daughter and the evidence of the petitioner now establishes that after sumitra vacated the premises his daughter has occupied that premises and she is living with her husband. In fact, as i have said earlier eviction was sought on the ground that it is required to accommodate his daughter and the evidence of the petitioner now establishes that after sumitra vacated the premises his daughter has occupied that premises and she is living with her husband. In these circumstances, trial court was not right in saying that non-examination of malathi is fatal to the case of the petitioner and an adverse inference has to be drawn. ( 13 ) NEXT it is contended that mahesh who was in occupation of the ground floor constructed a house and vacated the premises. It is clear from the evidence that the leased premises is in the first floor of the said building. Petitioners' definite case is that mahesh has not vacated the premises and he continues to be in occupation and that is the evidence of even P. W. 2. It is the case of the respondent that mahesh has vacated and in occupation of a new house. In fact, in the statement it is stated that he has constructed a house, house warming ceremony was performed and the portion that was occupied by mahesh is vacant. In evidence, r. w. 1 states that in fact he had received invitation by mahesh, but he did not attend as he was not in city, his children told him about the house warming ceremony. Further, it is elicited in the cross-examination of r. w. 1 that mahesh is in good terms with him. It has also come in evidence that mahesh is in occupation of the ground floor and the respondent is in occupation of the first floor. In these circumstances and in view of the defence taken it was for the respondent to have examined mahesh and no duty was cast on the petitioner to examine mahesh. It is not the case of the petitioner that mahesh vacated the building. Therefore, the court was not right in drawing adverse inference for the failure of the petitioners to examine mahesh. In the circumstances, it was for the respondent to have examined and shown that in fact mahesh vacated and that portion was available to the petitioner. It is further stated that no sketch of the premises in occupation of the petitioner is produced and that is another factor which requires to be held against him. In the circumstances, it was for the respondent to have examined and shown that in fact mahesh vacated and that portion was available to the petitioner. It is further stated that no sketch of the premises in occupation of the petitioner is produced and that is another factor which requires to be held against him. On a careful scrutiny of the evidence of p. ws. 1, 2 and 3 and also the evidence of r. w. 1,i find no merit in the statement that certain portions in the building/compound were available to the petitioner and if really he was in genuine need, he could have as well made use of those portions. Lack of reasonableness cannot be attributed to non-examination of certain witnesses when the court concludes that there is requirement of the leased premises for additional accommodation and it is bona fide. ( 14 ) A feeble attempt is made to show that real purpose of filing the application is to extract more rent and advance. It is stated that the landlord/petitioner demanded Rs. 400/- a month and an additional advance of Rs. 5,000/-, since the tenant did not agree, this petition is filed. suffice it to say that the whole evidence in this behalf is totally unsatisfactory and not convincing. R. w. 2-bhanumathi does not say anything about the demand for payment of higher rent. R. w. 1 her husband says that Rs. 15,000/- out of Rs. 20,000/- was adjusted in the payment of rents. Therefore, it is difficult to say that the landlord's intention was only to extract higher rent and the requirement pleaded is not true. whatever that may be, trial court having come to the conclusion that the requirement was bona fide, was not right in refusing eviction under Section 21 (1) (h) of the act on the ground that it lacks reasonableness by drawing adverse inference for not examining certain witnesses, more particularly, the circumstances and the defence urged, required the respondent to examine the other tenant who according to him is said to have vacated the premises. ( 15 ) IN regard to the question of relative hardship, I am of the considered view that if eviction is refused, that would work out greater hardship to the petitioner than to respondent. It has come in evidence that respondent has two sons and those two are well-settled. Tenancy has commenced in the year 1977. ( 15 ) IN regard to the question of relative hardship, I am of the considered view that if eviction is refused, that would work out greater hardship to the petitioner than to respondent. It has come in evidence that respondent has two sons and those two are well-settled. Tenancy has commenced in the year 1977. R. w. 1-ramesh k. Sodha says that his mother has 11 children, r. w. 2-bhanumathi says that his mother-in-law had six children. Whatever the number may be, their evidence transpires that none of those children lived with manibhen k. Sodha in the premises at any time. It is these two persons ramesh k. Sodha and bhanumathi who lived with manibhen k. Sodha in the premises right from the commencement of the tenancy in the year 1977. Ramesh k. sodha r. w. 1 no doubt says that he made certain attempts to find out alternative accommodation. But his oral assertion is not substantiated. having regard to the fact that the two sons are well-settled and one of them is doing business in hotel, if eviction is ordered, they would not be put to any difficulty or hardship and inasmuch as they can secure alternate accommodation. Sri nagesh, learned counsel for the petitioner also submitted that in fact deceased respondent-bhanumathi r. Sodha and her daughter-in-law mrs. Rajeshree p. Sodha have purchased a premises situated at nagavara village, kasaba hobli, Bangalore north taluk under registered sale deed dated 19-11-1998. But there being no pleading and evidence in this behalf, i do not wish to comment on this. however, I am convinced that if eviction is ordered, no hardship will be caused to them and the hardship that would be suffered by the petitioners in the event of refusal would be more and greater. ( 16 ) HAVING regard to the nature of the building and its situation and the requirement pleaded by the petitioner, partial eviction of the premises is also not feasible. ( 17 ) IN view of the reasons hereinabove stated, revision petitioner succeed. In the result, this revision is allowed. Order dated 2-9-1992 in h. r. c. No. 1971 of 1983 is hereby set aside. ( 17 ) IN view of the reasons hereinabove stated, revision petitioner succeed. In the result, this revision is allowed. Order dated 2-9-1992 in h. r. c. No. 1971 of 1983 is hereby set aside. Having regard to the peculiar circumstances of the case, respondent ramesh k. Sodha is granted 9 months time to vacate and handover vacant possession of the premises subject to payment of rent promptly and regularly as and when it accrues. respondent shall vacate and handover vacant possession of the premises on or before 30-11-2000. Rent if any, in deposit shall be paid to the petitioners. --- *** --- .