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2008 DIGILAW 275 (KAR)

M. Ethiraj v. Farida Khanum

2008-06-09

MOHAN M.SHANTANAGOUDAR

body2008
ORDER Mohan Shantanagoudar, J Petitioner is the landlord of the premises in question, of which the respondent is the tenant. The petitioner filed eviction petition under Section 27 (2)(r) of the Karnataka Rent Act, 1999, for eviction of the respondent from the schedule premises. The Court below dismissed the eviction petition on the ground that the Rent Act is not applicable to such premises as the eviction petition is filed within 15 years of completion of the construction of the building in which the premises is situated. 2. The premises in question is in the ground floor of the building, which has totally three floors that is ground, first and second. Petitioner is aged about 70 years. According to him, he has suffered heart attack and he was advised rest and further advised not to climb stairs etc. Wife of the petitioner is stated to be a diabetic patient, having arthritis and experiences pain while climbing the stairs. For the present, the petitioner is residing in the first floor of the building and according to him, it is very inconvenient for the couple to climb the stairs very often. Since there is no other reasonably suitable alternative accommodation available to the petitioner, he filed the eviction petition on the ground that he needs the premises for his bona fide use and occupation. The petition was opposed by the respondent-tenant by inter alia contending that the premises in question is a new premises and that the eviction is filed within 15 years of its construction. As aforementioned, the Court below dismissed the eviction petition as not maintainable only on the ground that the Rent Act is not applicable to such premises as the eviction petition is filed within 15 years of the construction of the building in question. 3. Section 2 (3)(f) of the Karnataka Rent Act, 1999, reads thus: “Section 2 - Application of the Act xxx xxxx xxxx (3) Nothing contained in this Act shall apply, (f): To any premises constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years from the date of completion of such construction or substantial renovation.” Thus, it is clear that, for 15 years after the completion of the premises or substantive renovation, the Karnataka Rent Act is not applicable. The Court below on the stray sentence containing an admission of the petitioner, has held that 15 years have not elapsed after construction of the building and therefore, the eviction petition filed within the said period is not maintainable. 4. The Court below has laid emphasis on the first sentence of cross-examination of PW-1 - petitioner herein. It is no doubt true that he has stated in the first sentence of his cross-examination that the building was constructed in the year 1991 or 1992. Only on that stray sentence, the Court below has held against the petitioner. Other attending circumstances and other material on record, more particularly, the admission of tenant, are not at all given due weightage by the Court below. 5. Admittedly, the Lease Agreement EX.P-11 was entered into between the parties on 20th of April 1989. Thus, it is clear that the tenant has occupied the premises in and around 20th of April 1989. The eviction petition has been filed on 23.11.2004. If really the building was not completed as on 20th of April 1989, the tenant would not have agreed to occupy the premises and would not have occupied the premises then. In this context, it is relevant to note the admissions of the tenant in his cross-examination. The tenant has categorically admitted that, after negotiation, the Lease Agreement was entered into as per Ex.P-11, and that he has paid advance amount; that when he occupied the petition premises, the landlord had already residing in the first floor portion that is above the petition premises; that the landlord did not undertake any construction of the building after the tenant occupied the petition premises. These admissions would amply go to show that the tenant has occupied the ground floor portion and at that point of time, the landlord was occupying the first floor portion of the building. Which means, the landlord had already occupied the first floor of the building when the tenant had entered into an agreement. It implies that the building was already completed at least upto I floor when the lease agreement was entered into. Subsequent to the induction of the tenant in the premises, it seems that, some sort of construction took place above the first floor i.e., the second floor of the building, for which the tenant is not concerned. It implies that the building was already completed at least upto I floor when the lease agreement was entered into. Subsequent to the induction of the tenant in the premises, it seems that, some sort of construction took place above the first floor i.e., the second floor of the building, for which the tenant is not concerned. It is also admitted by the tenant that he is not put to any sort of trouble by the construction undertaken by the landlord in the year 1992-93. Merely because further construction is made on the second floor by the landlord in 1992-93, it cannot be said that the premises in question was constructed in the year 1992-93. Admittedly, the tenant is residing in the ground floor of the building. Thus, at any stretch of imagination, it cannot be said that, the eviction petition is filed within 15 years of the construction of the premises, in question. As aforementioned, the Lease Agreement was dated 20th of April 1989 and whereas, the petition is filed on 23.11.2004. This itself goes to show that the eviction petition is filed much after 15 years of the construction of the premises. 6. The Court below while giving much weightage to the stray admission of the landlord, has given go-by to the series of admissions made by the tenant. The Court below should have decided the matter based on the preponderance of probabilities. The case of the landlord could not have been dismissed without application of mind. The admission of the landlord in the first sentence of the cross-examination will have to be considered, weighed and viewed along with entire material on record. 7. There cannot be any dispute that an admission is the best evidence against the party making it and though not conclusive, shifts the onus to the maker on the principle that what a party admits must to be true or may be reasonably presumed to be true so that until the presumption is rebutted, the fact admitted must be taken to be true. An admission must be examined as a whole and not in parts. It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission on any fact. The Court may reject the admission if it is satisfied from other surrounding circumstances that it is untrue. An admission must be examined as a whole and not in parts. It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission on any fact. The Court may reject the admission if it is satisfied from other surrounding circumstances that it is untrue. The admission must be used either as a whole or not at all. It is also equally settled that the stray sentence elicited in the cross-examination could hardly be construed as admission. The Apex Court in the case of CHIKKAM KOTESWARA RAO Vs. CHIKKAM SUBBARAO, AIR 1971 SC 1542 , speaking through Justice K.S.Hegde, has observed in this behalf thus : “This admission must be read along with the evidence given by him in his chief examination.” Thus, the evidence has to be read in its entirety in a harmonious manner. In this matter, if the evidence of the landlord is read in its entirety in harmonious manner, it becomes evident that the so called admission is not an admission at all with regard to the year of completion of the construction of the premises in question. The said stray sentence in the first line of cross-examination would relate to completion of construction of the entire building and not the premises in question. 8. If the entire material brought in by the landlord and the tenant is read as a whole, it can be safely said that the landlord must have stated in his cross-examination about the completion of the building in the year 1992-93, which refers to the second floor of the building and not the premises in question. As could be seen from the provisions of Section 2 (3)(f), the word used is “premises” and not the “building”. Even in the cross examination the tenant has merely said that “building” is constructed in the year 1992-93. He has not used the word “premises”. The premises (ground floor portion) was already constructed in the year 1989 itself i.e., prior to the execution of agreement of lease. It does not refer to the entire building. In this view of the matter, the order of the Court below cannot be sustained and the same is liable to be quashed. Hence, the following order is made: The order dated 20th September 2006, passed by the XIX Addl. It does not refer to the entire building. In this view of the matter, the order of the Court below cannot be sustained and the same is liable to be quashed. Hence, the following order is made: The order dated 20th September 2006, passed by the XIX Addl. Small Causes Judge, Bangalore, in HRC.No.607/2004, is quashed. Since the Trial Court has not given any finding on other points, the matter needs to be remanded. Hence the matter is remitted to the Court below for disposal of the matter afresh on other points. The Court below shall dispose of the matter as early as possible, but not later than the outer limit of four months from the date of receipt of this order. Petition is allowed accordingly.