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2001 DIGILAW 330 (KAR)

A. G. KRISHNAMURTHY v. A. R. RAJANNA

2001-04-09

A.V.SRINIVASA REDDY

body2001
A. V. SRINIVASA REDDY, J. ( 1 ) THIS revision under Section 50 (1) of the Karnataka Rent Control Act, 1961 (the Act' for short) is filed by the petitioner-tenant being aggrieved by the order dated 27-2-1997 passed in H. R. C. No. 1604 of 1990 on the file of the Additional Judge, Court of Small Causes, Bangalore, allowing the petition filed under Section 21 (1) (h) of the Act. ( 2 ) THE landlord, first respondent filed the eviction petition in the court below on the ground that the petition shop premises is required by his son for purposes of establishing a tool and die shop. The landlord pleaded in the petition that he had taken voluntary retirement from the state Government. His son has secured a diploma in tool and die making from the Government Toolroom and Training Centre, Rajajinagar and has undergone intensive training for six months but still he could not get a suitable employment despite earnest efforts. The shop is needed to establish the tool and die making shop. The shop is situate in a commercial area and suitable for the purpose for which it is proposed to be used. The landlord also issued notices to the petitioner and the second respondent for vacating the premises but they have declined to comply with the request. Hence, the landlord filed the eviction petition. ( 3 ) THE revision is preferred by the first respondent alone. For the sake of convenience the contesting parties are referred to as landlord and tenant. ( 4 ) THE landlord examined himself as P. W. 1 and his son as P. W. 2 and got marked the documents Exs. P. 1 to P. 6 in support of his case. The tenant examined himself as R. W. 1 and got marked the documents exs. R. 1 to R. 8 (a ). The Court below formulated three points for its consideration. The first point is touching the requirement of the premises for bona fide use and occupation of the landlord, the second related to the question of hardship that would be caused to the parties and the third point was regarding the feasibility of partial eviction. The Court below after considering the evidence on record, answered all the questions in favour of the landlord and against the tenant. Hence, this revision by the aggrieved tenant. The Court below after considering the evidence on record, answered all the questions in favour of the landlord and against the tenant. Hence, this revision by the aggrieved tenant. ( 5 ) I have heard learned Counsel Mr. K. R, Ashok Kumar for the petitioner and M/s. Nupur Associates for respondent 1 and perused the records. ( 6 ) AT the time of hearing of the revision petition the tenancy was not disputed by the petitioner. But, what is disputed is the nature of the tenancy. While the case of the landlord is that the premises was rented out to the tenants in their individual capacity, it is the contention of the tenant that the tenancy was in favour of the partnership firm and, therefore, there 'was no relationship of landlord and tenant as between him and the first respondent. Ex. P. 1 is the agreement evidencing the tenancy. The averments in Ex. P. 1 clearly go to show that the shop premises was rented out to the tenant and the second respondent in their individual capacity. The recitals in the Ex. P. 1, the tenancy agreement do not whisper about the existence of the partnership firm or about the lease being in favour of the partnership firm. No doubt the rents have been paid through cheques drawn on the firm's account but that by itself would not conclusively establish that the tenant was the partnership firm itself. The date of the lease agreement is 1-1-1973 and it has not been shown by the tenant that the firm Srinivas and Company was in existence on that day and that the lease was in fact in favour of the said firm. In the absence of convincing evidence to show that the firm was in existence on 1-1-1973 the contention of the tenant that there is no relationship of landlord and tenant cannot be accepted. ( 7 ) THE learned Counsel for the tenant submitted that the Court below erred in overlooking the fact of acquisition of another property by the landlord during the eviction proceedings. It was urged by him that the son of the landlord is presently working having secured a job. It is submitted that the son of the landlord is getting more by way of salary than what he could hope to get by carrying on the business of tool and die making in the petition shop premises. It was urged by him that the son of the landlord is presently working having secured a job. It is submitted that the son of the landlord is getting more by way of salary than what he could hope to get by carrying on the business of tool and die making in the petition shop premises. It is contended that the need for which the premises was required by the landlord no more exists as the son of the landlord is well-settled in a job. It is his case that in the changed circumstances the landlord does not require the premises for his bona fide use and occupation and the Court below erred both on facts and in law in granting the order of eviction. ( 8 ) THE Court below has dealt with the aspect of the son getting a job in para 15 of the order. Meeting the argument advanced by the learned counsel for the tenant, in this regard, the Court below observed:"p. W. 2 is married in the year 1992 and has got a family to maintain. It is a common knowledge that eviction cases take many years for final disposal and one cannot be expected to wait till the disposal of the case. When P. W. 2 has got a family to maintain and if he secures a job during the pendency of the case, just to maintain the family, it cannot be said that the need of the petitioner in respect of the petition premises has ceased to exist". ( 9 ) THE appreciation of evidence by the Court below touching the point of the existence of the need and its continuance even after the securing of a job by the landlord's son is correct and cannot be found fault with. The need to start a own business would endure so long as the specific need is met. That the landlord or his dependent was compelled to do something else to eke out livelihood during the pendency of the eviction proceedings would not render the need otiose. In Raghunath G. Panhale (dead) by L. Rs v Chaganlal Sundarji and Company, the Apex Court has held:"it will be seen that the Trial Court and the Appellate Court had clearly erred in law. They practically equated the test of 'need or requirement' to be equivalent to 'dire or absolute or compelling necessity'. In Raghunath G. Panhale (dead) by L. Rs v Chaganlal Sundarji and Company, the Apex Court has held:"it will be seen that the Trial Court and the Appellate Court had clearly erred in law. They practically equated the test of 'need or requirement' to be equivalent to 'dire or absolute or compelling necessity'. According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. The test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business". The principle laid down and the observations made by the Apex Court in the above case apply to this the facts of this case on all fours. The landlord's son cannot be expected to wait indefinitely doing nothing to eke his livelihood, till he gets the shop premises to start his business. ( 10 ) IN the evidence it is clearly stated that the petitioner's son only intends to do the bench work in the petition premises and the actual manufacturing of the parts would be got done elsewhere. This evidence has not been challenged in the cross-examination except suggesting that bench work would involve installation of lathe and turning machine. It is common knowledge that a toolmaker only requires a few basic hand tools for making of a tool and it is only for large scale manufacture that the installation of heavy machinery is called for. Therefore, the case of the landlord that he requires the petition schedule premises for the bona fide use and occupation of the same by his son is established and the finding recorded by the Court below to that effect needs no interference in this revision. ( 11 ) THE shop measures 10 feet by 15 feet which is quite suitable for establishment of a toolroom. From the pleadings and the evidence adduced in the case the ardent intention of the landlord's son to engage himself in the business of tool making is established beyond doubt. ( 11 ) THE shop measures 10 feet by 15 feet which is quite suitable for establishment of a toolroom. From the pleadings and the evidence adduced in the case the ardent intention of the landlord's son to engage himself in the business of tool making is established beyond doubt. It would be always easy to establish and run a business in one's own premises rather than renting out a premises. Though the fact of the landlord coming into possession of another premises is established, it is also clear from the evidence that it is a house property with some empty space in front. Therefore, it cannot be said that it is suitable for the purpose of establishing a toolroom. Of course, the tenant would be put to some hardship in that he will be required to find out an alternate accommodation for shifting his business. Once the landlord has established his bona fide requirement of the premises, he cannot be denied the possession of the premises as it would work greater hardship on him than the hardship that the tenant would experience in finding out an alternate accommodation. Whatever hardship that the tenant would stand exposed to, could be overcome by granting him sufficient time to vacate the premises. ( 12 ) THE finding recorded by the Court below on the question of feasibility of ordering partial eviction also does not call for interference given the size of the shop which is 10 feet by 15 feet. ( 13 ) IN the result, for the reasons stated above, there is no merit in the revision and it is, accordingly, dismissed. The petitioner-tenant shall handover vacant possession of schedule premises to the respondent- landlord on or before 31-3-2002. --- *** --- .