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2001 DIGILAW 785 (KAR)

GANESHMAL v. ZEENATHUNNISA

2001-10-12

K.SREEDHAR RAO

body2001
K. SREEDHAR RAO, J. ( 1 ) REVISION filed against the order of the principal munsiff, Mysore in hrc No. 375 of 1986 and the order of the i additional district judge, Mysore in rr No. 1611 of 1995. The petitioner is the tenant. The respondent-landlord made an application for eviction of the petitioner-tenant under Section 21 (l) (h), (j) and (f) of the Karnataka Rent Control Act, 1961. ( 2 ) THE trial court, on the consideration of the oral and documentary evidence, rejected the claim for eviction under Section 21 (l) (h) and (f) and allowed the eviction under Section 21 (l) (j) of the Act, however giving a right of re-entry to the petitioner-tenant under sections 26 and 27 of the act. Being aggrieved by the said Order, the landlord preferred the revision before the district judge, Mysore who set aside the order of the trial court and allowed the petition under Section 21 (l) (h) and (j) of the act without any right of reentry for the tenant after reconstruction. Being aggrieved by the said Order, the present revision is filed. ( 3 ) THE bona fide and reasonable requirement of the landlord to demolish and to reconstruct the premises is concurrently upheld by the trial court and as well by the first revisional court. However, there is divergence with regard to the claim under Section 21 (l) (h) of the act. The trial court does not outrightly hold that there is no need for personal requirement for the occupation by the landlord for his office and for the purpose of running a clinic by the wife of the landlord who is examined as P. W. 2. The trial court, on the basis of the sanctioned plan produced, finds that there are two more shops available after satisfying the need of landlord therefore directed that two shops to be relet after the reconstruction. ( 4 ) THE first revisional court, after reappreciation of evidence on record finds that the entire premises reconstructed would be required reasonably and bona fide for the occupation of the petitioner and his wife and finds that there is no scope for any excess area being available so as to allow the right of reentry under sections 26 and 27 of the act. The first revisional court and as well the trial court do take up the exercise of measuring the dimensions of the shops contemplated to be constructed and surmises as to what could be the reasonable area for the occupation for the intended purpose. However, both the courts have not properly appreciated the evidence on record regarding the bona fide and reasonable need. The first revisional court infers that for the purpose of clinic two rooms are necessary which appears to be contrary to the evidence of P. W. 2. The trial court assumes that a room with a dimension of 10' x 18' is sufficient for the purpose of landlord. However, on going through the oral and documentary evidence adduced, there appears to be no doubt in the material to support the claim of the landlord that the entire area is required for their personal use and occupation for the purposes stated. ( 5 ) P. W. 1 in his evidence in para 3 states that the present premises which has three tenements would be demolished and would be rebuilt into two premises one to be used for his office purpose and the other for the need of his wife. P. w. 2 in the cross-examination initially states that her requirement would be met by a room measuring 15' x 20' immediately followed a statement that the room measuring 10' x 15' would be required for her clinic purpose and the requirement of her husband would be met by a room measuring 20' x 30'. From the evidence of p. ws. 1 and 2 it is abundantly clear that they intend to construct two rooms and each one to be occupied by the landlord and his wife. The sanctioned plan is produced. It is on account of unexplained entries made by the corporation authorities, some amount of confusion is generated. The evidence of p. ws. 1 and 2 is virtually consistent with the plan submitted by P. W. 1 for sanction. There are only two premises shown for the purpose of construction. In between two premises a provision for staircase is made with a toilet in the hind portion of the landing area of the staircase. However there is interpolation with red ink made by the corporation authorities splitting one office complex measuring 20' x 28' showing as 10' x 18' each. In between two premises a provision for staircase is made with a toilet in the hind portion of the landing area of the staircase. However there is interpolation with red ink made by the corporation authorities splitting one office complex measuring 20' x 28' showing as 10' x 18' each. However, in the sanctioned plan submitted by P. W. 1 the entire area is shown as only one tenement required for office purpose and that is consistent with the evidence of p. ws. 1 and 2. Even assuming that the corporation had directed that two tenements measuring 10' x 18' each are to be built in place of 20' x 18' none the less the entire area of 2 tenements would become necessary for occupation by the landlord. In that view perhaps there is no surplus area left to allow the request of reentry for the tenant. ( 6 ) COUNSEL for petitioner strenuously contended that the requirement of 10' x 18' for office purpose for the landlord is quite sufficient. However, I am not able to agree with the said contention. P. w. 1 and P. W. 2 have categorically stated by oral and documentary evidence that for office purpose an area of 20' x 18' is required. The counsel for the petitioner contended that, the said dimension is too luxurious for the landlord to locate his office. Regarding the reasonable dimension and requirements are concerned, the landlord has let in evidence that the entire area is required. To counter such allegation or assertion, there should have been some effort on the part of tenant to demonstrate by effective cross examination to show as to what could be the reasonable area required. This aspect of the matter virtually has gone unchallenged in the cross-examination. It has become matter of speculation and surmises only by the courts to assess and attribute as to what could be the reasonable and ideal area for the purpose of office and clinic. However in oral evidence, a categorical stand has been taken by the landlord and his wife that for office accommodation 20' x 20' is required as per their submission in the sanctioned plan. Even assuming that a partition wall is put as directed, the need does not get curtailed nor satisfied as contended by the counsel for the petitioners. However in oral evidence, a categorical stand has been taken by the landlord and his wife that for office accommodation 20' x 20' is required as per their submission in the sanctioned plan. Even assuming that a partition wall is put as directed, the need does not get curtailed nor satisfied as contended by the counsel for the petitioners. In that view of the matter, i find that there is no merit in the contention that tenants should be given right of reentry. ( 7 ) REGARDING eviction under Section 21 (l) (j) of the act is concerned, i find that the trial court has committed grave error in not properly understanding the case. At one stretch, the trial court upheld the requirement of the landlord for personal occupation for the purposes stated and further dilates the discussion to find out as to what the reasonable dimension required for the purposes stated. In that view, dismissal of the petition claim under Section 21 (l) (h) of the act was totally illegal. After reconstruction if it is shown that the entire area is required for personal occupation, then the ground under Section 21 (l) (j) gets merged with the claim under Section 21 (l) (h) and the petition in such circumstances should be construed as one under Section 21 (l) (h) only and the consideration of the case under Section 21 (l) (j) of the act would not arise, however to the extent of ascertaining the bona fides and the genuine intention of putting up reconstruction, some of the overlapping grounds available under Section 21 (l) (j) of the act would become relevant to understand the requirement in the context of bona fide and reasonable need. The overlapping material to that extent may become necessary for consideration but however when the ground under Section 21 (l) (h) is fully established, the ground under Section 21 (l) (j) virtually get merged with the case under Section 21 (l) (h) and any of the benefits available in law in the event of eviction under Section 21 (l) (j) of the act would not be available for the tenant. In that view of the matter, i do not find any merit in the revision. ( 8 ) ACCORDINGLY, the revision is dismissed. The tenant is granted two months time to vacate the premises. --- *** --- .