Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 752 (KAR)

R. SETHURAJAN v. N. S. KRISHNA SETTY

2003-09-04

A.V.SRINIVASA REDDY

body2003
A. V. SRINIVASA REDDY, J. ( 1 ) THIS revision petition tinder Section 46 (1) of the Karnataka Rent Act, 1999 ('the Act' for short) is preferred against the order dated 22-2-2003 passed by the Court below in H. R. C. No. 1991 of 1997 allowing the petition filed for eviction under Section 27 (2) (r) of the Act. ( 2 ) THE respondent-landlord filed the petition under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 ('the repealed Act' for short) for eviction on the ground that the ground floor portion of the premises in his occupation consisting of three bed rooms is not sufficient for him to accommodate his two married sons, their wives and children and one unmarried son. It was also pleaded by him that his married daughter also often visits his house and he is finding it difficult to accommodate them during their visits. It was further pleaded by the landlord that his unmarried son Manoj Kumar has reached the marriageable age and for want of accommodation he is not in a position to conduct his marriage. On these averments he has sought for an order of eviction against the tenant. ( 3 ) THE petitioner-tenant disputed the claim of the landlord that the accommodation available to him consists only of three bed rooms. He set up the defence that the landlord has 8 rooms to accommodate himself and his family members and case as put forth by the landlord is false and untenable. It was pleaded by the tenant that the landlord owns other 16 residential houses and, therefore, the requirement of the landlord as contended by him in the petition is not real. With this defence, the petitioner-tenant sought for the dismissal of the eviction petition. ( 4 ) THE Court below interpreted the term 'requirement' as a need with an element of 'must have' in it, appreciated the evidence on record, both oral and documentary, in order to find out the nature of the need as put forth by the landlord and on having found on such examination that the need as put forth by the landlord amounts to a 'requirement' within the meaning of Section 27 (2) (r) of the Act, allowed the petition filed for eviction under that provision. Being aggrieved, the petitioner-tenant has come up in this revision calling in question the legality and correctness of the said finding. ( 5 ) FOR the sake of convenience the parties are referred to in the course of this order as 'landlord' and 'tenant'. ( 6 ) I have heard the learned Counsel Mr. Ashok B. Patil for the tenant and Mr. G. V. Shantharaju, learned Senior Counsel for the landlord. ( 7 ) MR. Ashok B. Patil, learned Counsel for the tenant placing reliance on definition of the term, 'family' in Section 3 (d) of the Act submitted that family in relation to a person means the wife or husband of such person and his or her dependents alone and not other family members who are independent. Referring to the omission of the expressions 'bona fide' and 'reasonable' from Section 27 (2) (r) of the Act, it is his contention that it should not lead to an assumption that however gross the contradiction in the pleadings and the evidence put forth by the landlord in support of his case that the Courts should pass an order for eviction. He submits that the omission of those two terms from the relevant provision of the Act ought not to be construed by Courts as entitling the landlord automatically to an order of eviction. It is his pertinent submission that the Courts should dispassionately consider the merits of the case in reaching the conclusion as to the requirement of any additional accommodation by the landlord. Drawing attention to the term, 'reasonably suitable accommodation' as found in Section 27 (2) (r), he endeavoured to submit that it was for the landlord to show to the satisfaction of the Court that he has no other reasonably suitable accommodation and in the absence of evidence forthcoming from the landlord's side, it is not open for the Court to have passed the impugned order. Touching upon the case as put forth by the landlord in his pleadings and in his evidence before Court, it is submitted by him with lot of emphasis that the landlord has failed to reveal to the Court the accommodation that is available to him in the first-floor of the premises and this amounts to suppression of material fact from the Court which disentitles him to the relief granted by the Court below and, therefore, the impugned order of the Court below is both illegal and incorrect, calling for interference at the hands of this Court in exercise of its revisional jurisdiction. ( 8 ) LEARNED Senior Counsel Mr. G. V. Shantharaju on the other hand defended the impugned order by submitting that the order cannot be found fault with at all if the requirement of the landlord and his family consisting of two married sons, one unmarried son and visiting daughters is taken into consideration. The family of the landlord being so big, the requirement as put forth by him in his petition for eviction can never be termed as a mere whim or fancy. Meeting the submission of Mr. A. B. Patil that the landlord owns umpteen other premises, he submitted that the landlord staying in the ground-floor his prayer for eviction of the first-floor flows from the need to have his family together at one place and he cannot be dictated by the tenant to occupy some other premises owned by him because it is inconvenient for the tenant to vacate the premises in his occupation. ( 9 ) THE argument advanced by Mr. Ashok B. Patil on what constitutes family under the Act is not of much relevance because Section 27 (2) (r) does not speak of 'family' alone but also about the landlord "himself. The term himself has been interpreted by Courts consistently to include every member of the family dependent upon the landlord. ( 9 ) THE argument advanced by Mr. Ashok B. Patil on what constitutes family under the Act is not of much relevance because Section 27 (2) (r) does not speak of 'family' alone but also about the landlord "himself. The term himself has been interpreted by Courts consistently to include every member of the family dependent upon the landlord. In dwarkaprasad v Niranjan and Another , the Apex Court while construing the words 'for occupation by himself as occurring in Section 13 (l) (g) of the Bombay Rents, Hotel and Lodging House Rates Control act, 1947, which is in pari materia with the words occurring in Section 27 (2) (r) of the Act, observed:"such a provision cannot be construed strictly so as to confine it to the requirement of the landlord alone and it can be extended to include the requirements of members of landlords' family. In the present case, the plaintiff landlord has pleaded right from the beginning that he constitutes a joint family with his mother and brothers and sisters. It is also in evidence that the plaintiff holds the property for the benefit of the entire family. All the brothers and sisters including mother of the landlord live with him as members of the joint Hindu family. It is his obligation to settle his younger brother in business as it is his obligation to settle his children in business. Therefore, he can legitimately seek eviction of a tenant by pleading that he needs demised premises to settle his son and his younger brothers in business". The question whether the sons of the landlord are covered by the expression 'for any member of his family' as contained in Section 27 (2) (r) becomes irrelevant if the expression, 'for occupation for himself itself amply covers and includes the members of the family who are residing with the landlord and, therefore, dependent on him for accommodation. The entire case of the landlord has been built on the ground that the accommodation is required for two of his married sons and one unmarried son who are staying with him. The landlord never propounded the need of his other sons who are married and living separately from him. The entire case of the landlord has been built on the ground that the accommodation is required for two of his married sons and one unmarried son who are staying with him. The landlord never propounded the need of his other sons who are married and living separately from him. Two married sons with their wives and children and one unmarried son along with the petitioner and his wife would, therefore, constitute the 'family' as defined in Section 3 (d) of the Act and the requirement of all of them or any one of them would be the requirement of the 'family'. Therefore, the ratio of the decision in dwarkaprasad's, case, supra, that the landlord can legitimately seek eviction of a tenant by pleading that he needs the demised premises to accommodate his son will certainly apply to the facts of the present case. In the light of the latest decision of the Apex Court on the point, the ratio of the decision to the contrary in Radha Krishnan v Thayappa setty, should be held to be no longer a good law as it gives a very narrow interpretation to the term "himself as it occurred in Section 21 (1) (h) of the Act. Moreover, the facts in the present case are very different from the facts of the said case as in Radha Krishnan, supra, the petition premises was sought by the father for the benefit of his son who was living elsewhere and having his own business. But that is not the case herein. ( 10 ) INSOFAR as the other contentions of learned Counsel for the tenant touching upon the aspect of how the Court should proceed to consider the relative merits of the claim made by the landlord are concerned, no doubt, they were relevant under the provisions of the repealed Act wherein it was made mandatory for the landlord to show to the satisfaction of the Court that the need propounded by him for occupation of the premises in the possession of the tenant is a genuine one. A duty was cast on the Court, in those circumstances, to consider whether it is reasonable on its part to gratify the need. A duty was cast on the Court, in those circumstances, to consider whether it is reasonable on its part to gratify the need. The present Act, however, compels the Court to deviate in a big way from that thinking and philosophy by adding Explanation I (i) which is required to be applied by the Court for purpose of determining the need of the landlord arising under clause (r) of Section 27 (2) and under Sections 28 to 31. The said explanation reads:"explanation I.-For the purposes 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 dependent on him, the court shall presume that the premises are so required". There can be no doubt that the tenant could resist the prayer of the landlord for eviction by falling back upon the protection provided to him in the statute against such eviction and successfully defend his possession if the statutory conditions essential for resumption of possession by the landlord have not been satisfactorily established by him. The only question, therefore, that is required to be examined by the court is whether the landlord has satisfied the conditions stipulated in section 27 (2) (r) when it is read long with the Explanation I (i ). Section 27 which begins with a non obstante clause and ends with the Explanation. The Explanation establishes a legal presumption in favour of the landlord that the requirement pleaded by him is in fact genuine. Such presumption may, in certain cases, give rise to discordance between law and fact. The explanation does throw up the question whether the fact of requirement of the premises could be treated as genuine in the light of the fact that an affidavit is sworn to in support of such requirement. Where one fact is recognised by law as sufficient proof of another fact, whether it is in truth sufficient or not, such a legal presumption being a praesumptio juris et de jure, constrains the Court to infer the existence of one fact from the existence of another and such presumptions are conclusive in nature unlike the other presumptions in law which are not conclusive. For e. g. , a negotiable instrument is presumed to be given for value only so long as it is not successfully rebutted by the defendant. Therefore, the requirement pleaded by a landlord under clause (r) of sub-section (2) of Section 27 and under Sections 28 to 31 would by virtue of the legal presumption arising under Explanation I (i) has to be deemed by law to exist constructively whether it exists in fact or not. The explanation employs the term, 'the Court shall presume' and not, 'the court may presume' thus shutting out the options that were otherwise open to the tenant under the old statute to bring in considerations such as the nature of the need, as to whether it is a mere whim or desire and whether it does or does not have an element of 'must have' in it, in order to defeat the claim of the landlord. All such considerations are pushed to the backburner or rendered otiose for determining or appreciating the requirement of the landlord in the light of the new developments that have been introduced in the present statute. It has been rightly said that the sphere of judicial discretion is merely such portion of the sphere of right as has not been thus encroached upon by the sphere of law. The sphere of right that was hitherto available to the tenant to prove to the satisfaction of the Court that the need propounded by the landlord is just a whim or a fancy has been encroached upon by the present statute by introduction of the explanation and by binding the Court to draw a presumption in construing the requirement as a genuine one. Therefore, however convincing and forceful the argument of Mr. Ashok B. Patil is touching the aspects that the Court has to examine before granting an order of eviction, the Court finds that they cannot be appreciated or accepted for denying the claim of the landlord because the sphere of law has not only taken away the right of the tenant to dispute the claim excepting on the solitary ground that the landlord has 'other reasonably suitable accommodation' but also takes away the discretion of the Court to go into those aspects and hold otherwise. Learned Counsel Mr. Learned Counsel Mr. Patil relied on the decision in Narayana Gangasa Bhure v Ramachandra ambasa Kalburgi, for the proposition that this Court can in a revision under Section 46 (1) of the Act re-appreciate the evidence. It is a well-settled principle of law that the Court can be called upon to re-appreciate evidence only if it finds that the appreciation of evidence by the Court below is improper or where such re-appreciation becomes necessary if the findings of the Court below are found to be incorrect or infirm in law. But, such a situation does not obtain in the present case. In Ram Dass v Ishwar Chander and Others and Kempaiah v Lingaiah and Others, also similar view is taken. There can be no dispute that in appropriate cases this Court can re-appreciate evidence. But in the light of the changed in situation in law, no purpose would be served by re-appreciating the evidence that is on record. ( 11 ) EVEN if the defence set up by the tenant that a bedroom is available to the landlord on the first floor is taken to be true, it would not be sufficient for the need propounded by the landlord. The petitioner has sought the first-floor premises for accommodating his two married sons along with their family as also for accommodating his unmarried son. Certainly the single room accommodation of the first-floor would not be sufficient to accommodate all of them. The circumstances pleaded by the landlord certainly warrant additional accommodation and he has discharged this burden of proving this requirement by stepping into the witness-box. His evidence to the effect that the petition premises is required by him for the above stated purpose has not been challenged by the tenant. The decision in Smt. Venkatalakshmamma v Rajkumar bhatia, has been relied upon by Mr. Patil in support of his proposition that in a city like Bangalore where it is extremely difficult to secure residential accommodation, the countervailing interests of the tenant should also be taken into consideration cannot be accepted in the light of the fact that such considerations are no longer essential for the determination of the requirement of the landlord. ( 12 ) GETTING back to the provision, Section 27 (2) (r) contemplates that the landlord has to show to the satisfaction of the Court that he has no other reasonably suitable accommodation. ( 12 ) GETTING back to the provision, Section 27 (2) (r) contemplates that the landlord has to show to the satisfaction of the Court that he has no other reasonably suitable accommodation. What is reasonably suitable to the landlord is something that lies in the sphere of the subjective satisfaction of the landlord himself and the tenant cannot dictate terms in such matters. What is reasonably suitable would vary from person to person according to their status in society, their preferences and likes and dislikes. What is more than sufficient for one may not even meet the minimum requirement of the other who is used to a more luxurious style of living. These matters cannot be subjected to a strait-jacket formulae and no definite standard can be set by which the Courts can say that the requirement pleaded by a landlord is more than what is actually required by him. The evidence on record discloses that the landlord is an affluent person and, therefore, it would be too much to assume that a single bedroom as an additional accommodation would meet the requirement to meet for which the landlord has filed the eviction petition. Therefore, the finding recorded by the Court below on appreciation of evidence that the landlord has established his requirement does not suffer from any infirmity or illegality requiring the interference of this Court. ( 13 ) LEARNED Counsel Mr. Patil submitted with lot of emphasis that the availability of a single room accommodation in the first-floor has been suppressed by the landlord and, therefore, he is disentitled to the relief at the hands of this Court. What is required of the landlord is to show that he does not have any reasonably suitable accommodation. If in the opinion of the landlord the accommodation available in the first-floor is not a reasonably suitable accommodation, he was well-within his rights not to make a mention of it. What is required of the landlord is to show that he does not have any reasonably suitable accommodation. If in the opinion of the landlord the accommodation available in the first-floor is not a reasonably suitable accommodation, he was well-within his rights not to make a mention of it. Such a omission cannot be termed as suppression of a material fact because even if it is shown that there in fact exists a single room accommodation in the first floor it being not sufficient to meet the entire requirement of the landlord, omission to mention a fact that is not material to arrive at a decision in the case would not disentitle the landlord from seeking the relief Eviction proceedings are summary proceedings and strict rules of interpretation do not apply to such proceedings and, therefore, I find I cannot agree with this submission of learned Counsel Mr. Patil. ( 14 ) IN the present case the landlord is aged more than 65 years and section 31 provides to such landlord the special right of immediate recovery of possession of premises owned by him. The creation of a summary process, investing in specified class of persons a special right to immediate recovery and bringing into the statute a presumption in favour of the landlord, all go to reveal that the underlying object of the legislature in enacting these provisions is to enable such persons to have recourse to immediate recovery of premises in possession of their tenants on their establishing that they require the premises for their own occupation or for use by their family or for any one ordinarily living with them. This provision takes the wind out of the argument advanced by Mr. Patil on the question as to who should be construed as constituting a 'family' because such argument cannot be advanced at least in respect of Section 31 which also is attracted to the facts of the case. ( 15 ) IN the result, I find no merit in this revision and it is, accordingly, dismissed. The petitioner-tenant is given 3 months' time to quit and deliver vacant possession of the premises to the landlord. --- *** --- .