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2001 DIGILAW 257 (KAR)

SHAIK NAJMUDIN GULSHEER PASHA v. CHAMPALAL

2001-03-19

A.V.SRINIVASA REDDY

body2001
SRINIVASA REDDY, J. ( 1 ) THIS revision petition is preferred by the petitioners-Landlords being aggrieved by the order dated 22nd June, 1996 passed by the court below dismissing the petition filed by them under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 ('the Act' for short ). ( 2 ) THE facts leading to this revision, briefly stated, are as follows: The petitioners are the owners of the shop which is part of the premises bearing No. 16, south Street, Yellagundapalyam, Bangalore, having purchased the same under a registered sale deed dated 29. 09. 1986. After purchase of the Property they got issued Legal notice dated 23. 07. 1987 to the respondent calling upon him to vacate the premises and hand over vacant possession as the same was required for their bonafide use and occupation. As the respondent- tenant did not cqmply with the demand made in the Legal Notice, the petitioners filed the eviction petition under Section 21 (1) (h) of the Act. The Court-below on arriving at the finding that the petitioners failed to establish the requirement of the premises for their bonafide use and occupation dismissed the petition. Hence, this revision. ( 3 ) I have heard the learned Counsel for both sides and perused the records. ( 4 ) THE Court-below has reasoned that though two other shops in the same premises fell vacant the same were not occupied by the petitioners for starting the machine shop. It has also taken note of the circumstance of the first petitioner going back to Saudi Arabia on getting a Job. Mainly driven by these two circumstances, the court-below has come to the conclusion that the premises was not required by the petitioners for their bonafide use and occupation. ( 5 ) THE Court-below was not right in basing its finding on the question of bonafide use and occupation on the circumstance that despite getting vacant possession of the property, the petitioners had not started the machine shop. Ex. P52 is a certificate signed by the neighbours of the petitioners indicating that they have no objection to the starting of the machine shop in the portions that fell vacant. Ex. P53 is an invoice obtained from an Engineering company for supply of various machines. All these goes to show that the petitioners were in fact making all out efforts to start the machine shop. Ex. P53 is an invoice obtained from an Engineering company for supply of various machines. All these goes to show that the petitioners were in fact making all out efforts to start the machine shop. The Court below also; erred in not noticing that the present eviction petition is filed in respect of the premises in the occupation of the respondent. Though, the other two shops are vacant, the purpose shown in the petition filed for vacating one of the said two portions was to start the machine shop for the petitioner's brother. It cannot be said that because the two shops fell vacant, the need of the present petitioners has been fulfilled. The cause of action which gave rise for filing the present petition is distinct and different. While the other two shops were required for the bonafide use and occupation of first petitioner's brother, the present premises is required for the use and occupation of the petitioners in order to start a provision store. The reason for the delay in putting to use the two vacant shops may be many. It is not as if the petitioners have put it to any different use or rented it out to some others. ( 6 ) THE availability of some portion of the same premises for ready occupation by the landlord which had been vacated in an earlier eviction proceedings by citing a cause different from the one for which the present eviction petition is filed, would not serve as a bar for the Courts to grant the relief sought for in the subsequent eviction petition, which is filed in respect of a premises still in occupation of a tenant, if the cause and the need for which the premises are required is different and distinct from the ones for which the Courts had earlier granted the relief in respect of the other portions which are presently lying vacant. The Act is not intended to operate as a barricade against any endeavour of an enterprising landlord who may have the source and the ability to manage many businesses. The Courts cannot be rigid in their approach while considering the case of the landlords for bonafide use and occupation. In the case on hand the Court should have kept in mind that the requirement of the landlord as claimed in the petitions at the threshold itself was for three shops. The Courts cannot be rigid in their approach while considering the case of the landlords for bonafide use and occupation. In the case on hand the Court should have kept in mind that the requirement of the landlord as claimed in the petitions at the threshold itself was for three shops. Therefore, the existence or two vacant shops would not answer to the requirement of the petitioner-landlord completely and his need despite having two vacant shops would still be unfulfilled. Therefore, the Court below erred in coming to the conclusion that the petitioners do not require the petition premises for their bonafide use and occupation-merely relying on the fact that the other two shops which fell vacant have been allowed to remain vacant without being put to use. ( 7 ) THE learned Counsel for the respondent submitted that the first petitioner has since left for Saudi Arabia and presently is working there and therefore, the cause of action as pleaded in the eviction petition does not survive. In RAGHUNATH G. PANHALE vs chaganlal SUNDARJI, the Apex Court while dealing with a similar situation has observed:"it is unimaginable that a landlord who is in service should first resign from his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned from his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get bark one's premises. For that matter, assuming the landlord was in a job and had not resigned from it or assuming that pending trie long drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. " ( 8 ) THE above observation squarely applies to the facts of the case on hand. The landlord cannot be expected to wait unendingly without doing anything to earn his livelihood, for an uncertain period, for the fructification of the litigation in his favour. That is not the requirement in Law. Nor does law require the landlord to conduct himself in a certain fashion so as to gain the confidence of the court. The landlord cannot be expected to wait unendingly without doing anything to earn his livelihood, for an uncertain period, for the fructification of the litigation in his favour. That is not the requirement in Law. Nor does law require the landlord to conduct himself in a certain fashion so as to gain the confidence of the court. What matters is, whether the evidence, both oral and documentary point to the requirement of the premises by the landlord for his bonafide use and occupation. From the material available on record I am convinced that the petitioner has proved that he requires the petition premises for his bonafide use and occupation. ( 9 ) THE learned Counsel for the respondent cited the case laws in MATTULAL vs RADHA LAW ASSOCIATES G. JAGADISH AND another vs GANESH RAO and AMARJIT SINGH vs KHATOON quamarain and relied on the principles stated therein in support of his case. This Court can have no quarrel with the principles laid down in those cases. But the principles enunciated in those decisions would not help the respondent-tenant as they are not applicable to the facts of the present case. ( 10 ) COMING to the question of comparative hardship, the interest of justice require that the petition of the landlords is to be allowed. No doubt some hardship would be caused to the tenant. But the same can be overcome by granting him sufficient time to vacate the premises. It has come on record that the tenant owns a site. He is a pawn-broker. He would have the means to build a small shop for his own use. On the other hand if the eviction petition is dismissed, the first petitioner would never be able to come and settle down in his home land for want of a proper livelihood. If he gets the shop he can start his own business and live with his family. Thus on the question of comparative hardship also, the respondent-tenant does not have a better case than the petitioners-landlord. ( 11 ) IN the result, for the reasons stated above, the HRRP is allowed and the order of the Court-below is set aside. The eviction petition filed under Section 21 (l) (h) is allowed. The respondent-tenant is given two years time to quit and deliver vacant possession of the premises to the landlord. --- *** --- .