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2003 DIGILAW 596 (KAR)

A. S. SUCHITRA v. K. RATHNAKARA RAO

2003-07-25

body2003
SRINIVASA REDDY, J. ( 1 ) AGGRIEVED by the dismissal of the petition filed by her for eviction of the tenant under Sec. 21 (1) (h) of the Karnataka Rent Control Act, 1961 (the repealed Act for short), the petitioner landlord has preferred this revision under Sec. 50 of the repealed Act. ( 2 ) THE facts as pleaded by the petitioner in support of her case for eviction of the tenant, briefly stated, are: the petitioner is the owner of the petition premises which is rented out to the respondent tenant on a monthly rental of Rs. 3250/ -. She along with her husband are residents of Thippanahalli Estate, Chickmagalur. Her husband is one of the Directors of Ankush Builders Pvt. Ltd. , and office is situated at No. 15, Siddiah Road, Bangalore. The said company is engaged in the business of constructions and he being the promoter of the company is often required to be present at Bangalore. The wet weather in Chickmagalur does not suit her and she is suffering from bronchitis and often she comes down to Bangalore for treatment. During such visits she used to stay in her brother-in-laws house at Crescent Court, High Grounds, Bangalore. Of late after division in the family, differences have cropped up among the family members of her husband and it has become unpleasant to stay in their place whenever she comes down to Bangalore for treatment. The respondent is an affluent person and there would be no difficulty for him to get an alternative accommodation. Despite the several requests made in that regard the respondents has declined to vacate the house. ( 3 ) THE respondent besides denying the above averments pleaded by the petitioner in support of her case also took up the stand that the petitioner does not really require the premises for her own use and the eviction petition has been filed only in order to evict the respondent and rent out the premises for higher rent. ( 4 ) I have heard the learned counsel on both sides. ( 5 ) THE main thrust of the argument advanced by learned Counsel for the petitioner Mr. B. Viswanatha Bhandarkar is that the need propounded by the petitioner does not have an element of must have in it and it is a mere desire. ( 4 ) I have heard the learned counsel on both sides. ( 5 ) THE main thrust of the argument advanced by learned Counsel for the petitioner Mr. B. Viswanatha Bhandarkar is that the need propounded by the petitioner does not have an element of must have in it and it is a mere desire. According to him, in the absence of a requirement which could be classified as a real need with an element of immediacy attached to it the petitioner would not be entitled to an order of eviction. He submits that, it is well-settled law that a tenant cannot be ousted from the tenanted premises in order to satisfy the mere whim of the landlord. He has cited many decisions in support of his argument. ( 6 ) THE word requirement has been interpreted to mean a need with an element of must have attached to it. It has been laid down in a catena of decisions that a need without the element of must have is a mere desire which would not entail a landlord to an order of eviction. The aforesaid principle has been laid down by the Apex Court in a number of decisions in order to emphasise on the courts dealing with eviction cases the need to find out whether the need propounded by the landlord is real or a make believe as such an exercise was necessary and essential for examining the reasonableness of the need and to find out the intention of the landlord in seeking the said relief, whether it is bonafide or malafide. The analyzation of the need propounded by the landlord was necessary under the old law in order to test the rival claims of the parties to determine the issue whether the requirement pleaded is bonafide and reasonable as it is only on recording a finding on this aspect that the courts could proceed to pass or refuse to pass an order of eviction. The outcome of the eviction petition to a large extent depended on the establishment of this factor. The outcome of the eviction petition to a large extent depended on the establishment of this factor. It was in the context of the law that was then in force that such an exercise became necessary and the court was compelled to guard itself against an approach either too liberal or too conservative or pedantic and for purposes of determining the issue of entitlement of the landlord to an order of eviction the court was required to distinguish a need which is a mere whim or fanciful desire form a requirement which is distinct and different form fanciful or whimsical desire. ( 7 ) BUT the law has undergone a sea change and under the provisions of the Act the concept that a requirement should be both bonafide an reasonable has been given a complete go-by and the question arises in the present scenario as to whether the courts are still bound to follow the traditional approach of analyzing the need to determine whether it is a mere desire or an absolute requirement. The answer to this question should certainly lie in the provision itself as the intention of the legislature could be gleaned only from the terms used in the relevant provision. Let me examine the context in which the word required has been employed in sec. 27 (2) (r) of the Act. The provision reads: (r) that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable accommodation:. . The provision is followed by an explanation wherein a mandate is issued to the Court to draw a presumption that the requirement pleaded by the landlord in his application supported by an affidavit is real and genuine. The explanation reads thus:explanation. I. For the purpose of this clause and Sections 28 to 31. (i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependant on him, the Court shall presume that the premises are so required; (ii ). I. For the purpose of this clause and Sections 28 to 31. (i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependant on him, the Court shall presume that the premises are so required; (ii ). The meaning of the word required is given as something needed in the New Laxicom Wbster Dictionary (page 846 ). Therefore, when a landlord files a petition supported by an affidavit stating that the premises is needed by him the court has to fall in line with the explanation (i) and perforce draw a presumption that the premises are in fact so required by the landlord. When the requirement is to be presumed, the whole exercise of examining the need threadbare in order to find out whether it is a mere desire or a requirement entitling the landlord to an order of eviction is totally obviated. It is to achieve this end that the legislature has in all probability done away with the words bonafide and reasonably that formed part of the corresponding Sec. 21 (1) (h) of the repealed Act. The omission of the terms bonafide and reasonably from Sec. 27 (2) (r) of the Act explicitly brings out the intention on the part of the legislature to save the courts the bother of going into the exercise of analyzing the need. It is enough on the part of the landlord to state his requirement and support the pleading by filing an affidavit to the effect that the requirement pleaded is real and genuine and once that is done, the Court is required to draw a presumption that the requirement pleaded is real. Under the present law the need to analyze the requirement pleaded threadbare to find out as to whether it is a mere desire or a requirement with an element of must have in it is rendered unnecessary and is totally uncalled for. When a requirement is urged by the landlord and the same is supported by an affidavit, the Court has to merely presume that the requirement a pleaded is real and genuine and there is no scope for the tenant to contend that the requirement pleaded is a mere desire and, therefore, it should not be granted. When a requirement is urged by the landlord and the same is supported by an affidavit, the Court has to merely presume that the requirement a pleaded is real and genuine and there is no scope for the tenant to contend that the requirement pleaded is a mere desire and, therefore, it should not be granted. There is also no scope for the court to examine and analyze the need pleaded in order to decide whether the need is a mere desire or a requirement as the Court has to impliedly proceed on the presumption that the requirement urged is real and genuine. Therefore, under the provisions of the Act, the exact nature of the need as propounded by the landlord is not one of the deciding factors that would have a bearing on the outcome of a petition presented by the landlord for eviction of the tenant and the court need not examine the said aspect at all. The principle laid down in R. R. Paint Industries v Rahamathunisa Begum, 1968 (1) Mys. L. J 453 this Court has observed: what Clause (h) of Section 21 (1) requires is that the requirement of the landlord should be both reasonable and bonafide. A requirement is bona fide if it is honest, and a requirement which is neither capricious, nor unfair nor absurd would be a reasonable requirement. The principle as laid down cannot be faulted at all, because under sec. 21 (1) (h) of the repealed Act it was incumbent on the Court to determine whether the requirement was honest or capricious in order to determine the reasonableness of the claim. But, in the changed circumstances, the principle is no longer valid as it cannot be applied to the corresponding provision which is Sec. 27 (2) (r) as this provision is in terms so vastly different from sec. 21 (1) (h) of the repealed Act. The present provision having done away with the need to test whether the requirement is both bonafide and reasonable, the said principle has no application in the present context. 21 (1) (h) of the repealed Act. The present provision having done away with the need to test whether the requirement is both bonafide and reasonable, the said principle has no application in the present context. For the very same reason the principle laid in Naresh v Kanai Lal, AIR 1952, Calcutta, 852 to the effect that the word require is something more than the word desire and although the element of need is preset in both the cases, the real distinction lies in the insistence of that need, also is of no avail to the tenant to advance his case against the claim of the landlord. ( 8 ) BACK to the merits of the case, the petitioner claims that she often visits Bangalore to get treatment. It is her case that her husband who is the promoter of Ankush Builders Pvt. Ltd. Is also required to stay at Bangalore to look after the day to day affairs of the company. She has also stated in her evidence that her husband is planning to go in for construction and development at a large scale in future. It has come in her evidence that generally her husband stays in Bangalore for 20 days in a month and that except the petition premises they do not own or possess any other property at Bangalore. She has deposed that she used to stay in her brother-in-laws house during her sojourn to Bangalore for treatment an after partition in the family there is some difference of opinion among brothers and, therefore, she feels embarrassed to go and stay in the house of her brother-in-law. The husband of the petitioner also stepped into the witness box and reiterated the evidence given by his wife, the petitioner. It was also admitted by the respondent in his evidence that the husband of the petitioner has a construction business in Bangalore and his office is situate near Lalbagh. ( 9 ) THE Court below has disbelieved the case putforward by the petitioner on the ground of her ill-health by reasoning that the same had not been proved by examining the Doctor. This claim has also been rejected on the ground that there is no evidence produced by the petitioner to show that the claimate in Chickmagalur is very humid. This claim has also been rejected on the ground that there is no evidence produced by the petitioner to show that the claimate in Chickmagalur is very humid. Chickmagalur being located in a Malnad area there was absolutely no reason at all for the court to have asked for proof that the climate in Chickmagalur is very humid. It was also not necessary for the petitioner to have examined her doctor to establish that she is suffering form cold allergy. When evidence is adduced by a witness, it was for the other side to show to the court that such evidence is false. The adducing of evidence by a witness in support of the pleading cannot be disbelieved on the ground that it was not substantiated by other oral or documentary evidence. Evidence given on oath which has not been rebutted by the other side convincingly has to be accepted by the Court if the evidence relates to a personal matter of which the other side could have no knowledge. The Court below erred in discarding the evidence relating to the illness of the petitioner which was pleaded in support of her case for eviction. The evidence of the petitioner and her husband that her husband is having his construction business in Bangalore and his presence is also required in Bangalore and he generally stays at Bangalore for about 20 days a month is also disbelieved by the Court below despite the production of the notice of the annual general body meeting, the balance sheet of the firm and the memorandum of association of the said firm. All these documents certainly prove the existence of the firm in Bangalore and one does not have to stretch his grey cells too much to understand that a business of such magnitude would require the personal attention and ht presence of persons at the helm of its affairs in the place of business. The respondent himself did not dispute the existence of the business in Bangalore an about the petitioner being the promoter of the said business. In this fact situation, the Court below has certainly erred in disbelieving the cases putforward by the petitioner about the requirement of the premises for her own use and occupation. It was also not disputed by the respondent that whenever the petitioner comes to Bangalore she is compelled to stay in the flat of her brother-in-law. In this fact situation, the Court below has certainly erred in disbelieving the cases putforward by the petitioner about the requirement of the premises for her own use and occupation. It was also not disputed by the respondent that whenever the petitioner comes to Bangalore she is compelled to stay in the flat of her brother-in-law. In Prativa Devi v T. V. Krishnan, (1996) 5 SCC 353 the Apex Court has observed: the proven facts are that the appellant who is a widow, since the demise of her husband late Shivnath Mukherjee, has beenstaying as a guest with Sri N. C. Chatterjee who was a family friend of her late husband, at B-420, Safdarjang Enclave New Delhi. There is nothing to show that she has any kind of right what ever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjeewa hardly a ground sufficient for interference. The landlord is the best Judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. When the fact that the petitioner is compelled to stay in her brother-in-laws residence is proved and her stay there is shown to be without any kind of right, the Court below was not right in expecting the petitioner to continue to stay in her brother-in-laws house whenever she comes down to Bangalore. Such a finding cannot be accepted in law when law does not deprive a landlord of the beneficial enjoyment of her property. Therefore the finding recorded by the Court below calls for interference by this Court. ( 10 ) IN the result, for the reasons stated above, the revision succeeds and the eviction petition filed by the petitioner is allowed. The respondent tenant is granted three months time to quit and deliver vacant possession of the premises to the petitioner landlord. --- *** --- .