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2001 DIGILAW 379 (KAR)

K. C. NAYARANA REDDY v. K. S. CHINNASWAMY

2001-04-20

A.V.SRINIVASA REDDY

body2001
SRINIVASA REDDY, J. ( 1 ) THIS is a Revision Petition filed under Section 50 of the Karnataka rent Control Act, 1961 {'the Act' for short) against the order passed by the Chief Judge, Court of Small -Causes, Bangalore, dismissing the petition filed for eviction of the respondent-tenant under Clauses (h) and (p) of Section 21 (1) of the Act. ( 2 ) THE facts relevant for the disposal of the Revision Petition, briefly stated, are as follows: the shop premises bearing No. 353, Old No. 594, situated at kodihalli Main Road, Bangalore belongs to the petitioner. The respondent-tenant is running a Government fair-price depot in the said premises. The petitioner filed the eviction petition under Clauses (h) and (p) of Section 21 (1) of the Act on the ground that the shop premises is required for the bonaflde and reasonable use of the petitioner's brother and on the ground that the respondent-tenant has come into possession of alternative premises. The Court-below found that the petitioner-landlord had failed to prove his case on both these grounds and accordingly dismissed the eviction petition. Hence, the petitioner-landlord has preferred this Revision Petition. ( 3 ) I have heard the learned Counsel on both sides. ( 4 ) MR. G. L. Vishwanath, learned Counsel for the petitioner, submitted that the Court-below had indulged in microscopic examination of the evidence. The Court-below erred in dismissing the eviction petition even after it found bonafides in favour of the petitioner. The exercise undertaken by the Court-below in going into the intrinsic meaning of the evidence is an hair-splitting exercise not called for in a summary proceeding. The dismissal of the eviction petition is the outcome of wrong assessment of evidence by the court-below and, therefore, calls for interference by this Court in revision. ( 5 ) ON the other hand, learned Counsel for the respondent Mr. Srivasta submitted that the petition filed by the landlord suffers from basic infirmity. The property is petitioner's sole property. The requirement of the petitioner's brother would not amount to the requirement of the petitioner 'himself. The family of the petitioner not being joint, the petitioner's brother would not be covered by the definition of the word 'family' as contained in the Act. ( 6 ) THE finding recorded by the Court-below under Cfause (p) of Section 21 (1) of the Act cannot be faulted. The family of the petitioner not being joint, the petitioner's brother would not be covered by the definition of the word 'family' as contained in the Act. ( 6 ) THE finding recorded by the Court-below under Cfause (p) of Section 21 (1) of the Act cannot be faulted. It has come on record that the respondent is only an honorary director of the society called 'sarka Society' which is operating from the premises bearing No. 189/ a, Konena Agrahara, HAL Post, Bangalore. Obviously, the business is earned on by the society of which he is only a honorary director. It is not a business owned by the respondent-tenant. Therefore, the premises from where the society is operating cannot be termed as alternative premises available for the respondent's use, The petitioner has also admitted in cross-examination that the respondent is not in possession of any alternative accommodation. Therefore, the plea taken by the petitioner that the respondent has another alternate premises at Murugesha Palya, HAL Post where he is said to be running a kerosene vending business also cannot be accepted. The petitioner has not mentioned either in the pleadings or in his evidence the address or the location of the shop owned by the respondent- tenant. Therefore, his claim that the respondent-tenant has another shop in Murugeshapalya is also not established. So the finding recorded under Clause (p) of Section 21 (1) of the Act has to be affirmed. What remains is the ground under Clause (h) of Section 21 of the Act. ( 7 ) THE learned Counsel for the respondent-tenant submitted that the petition filed under Clause (h) suffers from basic infirmity in that. the requirement of the brother of the petitioner would not amount to the requirement of the petitioner 'himself as defined under Section 21 (1) (h) of the Act. On the other hand, learned Counsel for petitioner mr. G. L. Viswanath placing reliance on several decisions, submitted that the requirement of the petitioner's brother would tantamount to the requirement of the petitioner himself. ( 8 ) IN RAGHAVENDRA vs HANAMANT, the expression 'use. On the other hand, learned Counsel for petitioner mr. G. L. Viswanath placing reliance on several decisions, submitted that the requirement of the petitioner's brother would tantamount to the requirement of the petitioner himself. ( 8 ) IN RAGHAVENDRA vs HANAMANT, the expression 'use. of himself in Clause (h) of Section 21 (1) of the Act came up for interpretation and this Court held:"section 21 (1) (h) which enabled the landlord to seek possession for bona fide use and occupation of himself and his family entitled him to seek possession for use of himself and his brothers and their wives residing jointly as members of the family. Expression 'himself should be widely construed as recognizing his right to live with persons of his choice, whether they were brothers, parents or friends"the following statement had been elicited in the cross-examination of R. W. 1:"it is not true to say after the death of K. T. Chinnappa Reddy brothers are living in HUF. I am not aware of any partition or division among themselves. I have no document to evidence any partition among them. I do not know if it is suggested that after the death of Chinnappa Reddy, petitioner, is looking after the property as the eldest brother in undivided family . "the entire thrust of the cross-examination by the petitioner's counsel was to bring out the fact that the petitioner's family is still joint. From what has been excerpted above it can be safely concluded that he has succeeded in that endeavour. Once it is established by the petitioner who is seeking the premises under Clause (h) that, himself and his brother for whose benefit the premises is sought, are living joint, then the requirement of the brother would be the requirement of the petitioner 'himself. Considering the degree of relationship between the petitioner and his brother, his dependence on the petitioner and also the social mores, the interpretation to which the word 'himself occurring in Clause (h) has to be given a wider connotation in this case than what is sought to be made out by the learned Counsel for the respondent. In RAGHAVENDRA P. MUDHOL vs HANMANT R. KULKARNI, this Court held thus:"clause (h) of Section 21 (1) of the Act does not provide for the requirement of the family or things like that. It specifically mention the use of the landlord himself. In RAGHAVENDRA P. MUDHOL vs HANMANT R. KULKARNI, this Court held thus:"clause (h) of Section 21 (1) of the Act does not provide for the requirement of the family or things like that. It specifically mention the use of the landlord himself. 'himself should not be so read narrowly to confine it to the person of the landlord and no one else. The word 'himself occurring therein in the first clause of clause (h) of Section 21 (1) of the Act should be given a meaning wide enough to include his requirement. If a landlord's requirement includes need for occupation of larger family consisting of not only himself and his wife but that of his brothers and their wives who have chosen to live with him, then the wider definition should include the brothers also. " (emphasis supplied) ( 9 ) THE conspectus of the judicial pronouncements leave nothing to doubt that the interpretation of the word 'himself as found in clause (h), should be liberal. Therefore, the submission made by the learned Counsel for the respondent that the eviction petition suffers from some basic infirmity is without substance and has to be rejected. ( 10 ) COMING to the merits of the case as made out by the landlord under Clause (h) of Section 21 of the Act it is claimed by him that the petition premises is required for his brother to start the business of selling chicken and egg. It is averred in the petition that his brother k. C. Prabhakar is unemployed and is without any avocation. It is averred by the petitioner that his brother has gained sufficient experience in the said business as he has been working in the poultry farm belonging to his father-in-law for the past 10 years. The petitioner examined himself before Court as PW1 and also examined his brother Prabhakar as PW2 in support of the case. The Court- below has rejected the case of the petitioner on the ground that the products coming out of the farm does not belong to either the petitioner or his brother and that it has not been stated in clear terms by the brother of the petitioner that he would stop assisting his father-in-law in looking after his farm. The Court- below has rejected the case of the petitioner on the ground that the products coming out of the farm does not belong to either the petitioner or his brother and that it has not been stated in clear terms by the brother of the petitioner that he would stop assisting his father-in-law in looking after his farm. ( 11 ) WHETHER the products coming out of the farm belong to the petitioner or his brother or the father-in-law of petitioner's brother is in no way relevant for deciding the issue whether the premises are required for the bonafide use and occupation of the petitioner. The case of the petitioner himself is that the shop premises are required to start the business of selling chicken and egg to be procured from the farm belonging to the father-in-law of the petitioner. It would be too much to expect the parties to have their own farms in order to start a business of selling eggs and chicken. The point in issue before the Court-below was whether the requirement of the premises by the petitioner was bonafide and reasonable. To decide that issue, it was not necessary for the Court to go into the ownership of the product that the petitioner's brother intends to sell in the petition premises. To whom the produce belongs is a factor which is not even remotely connected to the essential ingredient that the petitioner is required to prove to establish the case under Clause (h ). The Court- below has misdirected itself in relying on a factor which is totally extraneous to the issue involved in order to arrive at a decision one way or the other on the question of reasonable and bonafide requirement of the premises by the petitioner. ( 12 ) THE Court-below has suspected the case of the petitioner also on the reasoning that petitioner's brother has nowhere stated in his evidence that he would stop assisting his father-in-law in running the farm in order to start his own business in the shop premises. It has been stated in evidence by both the petitioner and his brother that they require the shop premises to enable the brother of the petitioner to start the business. It would necessarily mean that the petitioner's brother would stop assisting his father-in-law in running the farm as he would have his own business to look after. It has been stated in evidence by both the petitioner and his brother that they require the shop premises to enable the brother of the petitioner to start the business. It would necessarily mean that the petitioner's brother would stop assisting his father-in-law in running the farm as he would have his own business to look after. The whole endeavour, of the petitioner, as could be gathered from the pleading and the evidence adduced in the case, is to provide the petitioner's brother an avocation of his own so that he could stop his reliance on his father-in-law. Thus, on a close examination of the pleadings and the evidence adduced in the case I find that the Court-below has erred in rejecting the claim of the petitioner. There is sufficient material on record by way of pleadings and evidence to hold that the petitioner requires the premises for his own use and occupation. Hence, I hold that the petitioner has proved his case under Clause (h) of Section 21 (1) of the Act. ( 13 ) COMING to the question of comparative hardship, no doubt the petitioner would be put to some hardship in getting an alternative shop premises. But declining the prayer of the petitioner would work greater hardship on the brother of the petitioner in that he would never be able to have an avocation for himself and for ever would be reliant on his father-in-taw. The hardship that the respondent- tenant would suffer could be overcome by granting some time for the tenant to vacate the premises. ( 14 ) THE shop measures only 10 x 10 feet. The feasibility of partiale viction can be safely ruled out. The space would be grossly insufficient to accommodate the business of the petitioner's brother and also of the respondent-tenant. ( 15 ) IN the result, for the reasons stated above, I allow the revision petition. The respondent-tenant is directed to vacate and hand over vacant possession of the petition premises to the petitioner-landlord within six months from today. --- *** --- .