Karnataka High Court
Smt. Girijamma And Others vs M/S. Kamala Engineering Works, ... on 14 January, 2000
Equivalent citations: AIR2000KANT239, ILR2000KAR1212, 2000(2)KARLJ580, AIR 2000 KARNATAKA 239, (2000) ILR (KANT) 1212 (2000) 2 KANT LJ 580, (2000) 2 KANT LJ 580
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
ORDER
1. Heard the learned Counsel for both the parties. Perused the papers.
2. These two revisions HRRP Nos. 1814 of 1996 and 81 of 1997 arise out of the order dated 30th September, 1996 of the XIII Additional Judge, Court of Small Causes, Mayo Hall, Bangalore, in HRC No. 10279 of 1991.
Landlady (first petitioner) Girijamma instituted eviction proceedings under Section 21(1)(h) and (p) of the Karnataka Rent Control Act, 1961. This application was opposed by the respondent. Therefore, after contest, by order dated 30-9-1996, eviction under Section 21(1)(h) was granted and the respondent was directed to vacate and handover vacant possession of the premises within three months. Eviction under Section 21(1)(p) was refused.
It is, therefore, the tenant has filed HRRP No. 1814 of 1996 challenging the eviction order under Section 21(1)(h) and the landlady HRRP No. 81 of 1997 challenging the order refusing to evict under Section 21(1)(p) of the Act. This common order dispose of both the revision petitions.
3. The undisputed facts are that the leased premises belonged to one Ganapathy, husband of the first petitioner and father of petitioners 2 to 4. He had leased the premises now in occupation of the tenant in about the year 1970 and some time thereafter additional area was also leased, the rent at the beginning of the tenancy was Rs. 100/- a month and after leasing the other area, it was increased from time to time and on the date of petition, the rent paid was Rs. 400/- a month. In the year 1986, petitioners instituted eviction petition in HRC No. 10701 of 1986 under Section 21(1)(h), (p), (b) and (f) of the Rent Control Act. During the pendency of the said petition, on 14-2-1989 father of the respondent died and thereafter on 14-9-1989, parties entered into a compromise and accordingly, the respondent tenant surrendered an area measuring 23 feet x 23 feet and retained the disputed area which was originally leased in the year 1970 and accordingly, the petition was closed on 14-9-1989. Again in the year 1991, the present eviction petition is filed on the ground under Section 21(1)(h) and (p) of the Act.
4. The petitioner's case in brief is that the second petitioner-Smt. Vijaya, daughter of the first petitioner and Ganapathy is a divorcee and therefore, there is need for her to settle in life independently. She is trained in tailoring and therefore, she needs separate accommodation to start tailoring and also to live separately. Further it is pleaded that the third petitioner-Sri Shivakumar who is now dead, his wife and two children live in the first floor along with petitioners 1 and 2, accommodation available in the first floor is not sufficient, women folk are not in good terms and therefore, they are cooking separately and further he needs the passage for parking the scooter. The accommodation available in the first floor is not sufficient for his two children to live and continue their studies. It is also said that the first petitioner-Girijamma is aged and ailing, she has Diabetes and Blood Pressure, she cannot climb the stairs, she needs to come down quite often which is not possible. Therefore, she needs accommodation in the ground floor and a separate room for taking rest. Subsequently by an amendment the petitioner sought for eviction under Section 21(1)(p) on the ground that the respondent has purchased site in Sy. Nos. 41 and 42 at Lingarajapuram measuring 60 feet x 40 feet and in fact he has put up building which is suitable for running the engineering works and since that accommodation is available, the petitioners are entitled to seek eviction under Section 21(1)(p) of the Act.
5. The respondent is a proprietary concern and the proprietor being one S. Suresh, R.W. 1. His father-Siddalingaiah had taken the premises on lease at the first instance in the year 1970 and it is stated, after his death, Suresh is continuing the said establishment. The respondent has opposed the application and denied the requirement pleaded by the petitioners. It is contended that the accommodation available in the first floor is sufficient and no separate room is required for the first petitioner. It is also pleaded that an area measuring 12 feet x 15 feet is kept vacant in the ground floor and that is available for them and if really there is need, that area can be utilised. It is also stated that the fourth petitioner, another son of the first petitioner is not running a hotel and in fact they have leased the other area in the ground floor to one Malayali who is doing scrap business. The fourth petitioner is gainfully employed and as he is not running any business, no area is required for him. Therefore, the need pleaded is neither reasonable nor genuine. At the hearing it is brought to my notice that the third petitioner-G. Shivakumar, the second son of the 1st petitioner is dead and therefore, the requirement pleaded on his behalf does not survive.
6. Further, the respondent pleaded that greater hardship would be worked out to him in case eviction is ordered, on the other hand, no hardship will be worked out to the petitioners as the accommodation available to them is more than sufficient. Thereafter the petitioners examined two witnesses, P.W. 1-G. Shivakumar (now dead) and P.W. 2-Vijaya (the second petitioner) and closed the case by producing the documents Exs. P. 1 to P. 14. Respondent examined himself and three other witnesses R.W. 2 to R.W. 4 and closed the case by producing the documents Exs. R. 1 to R. 61. The learned Trial Judge formulated seven points for consideration. On the first point recorded a finding that the present petition for eviction is not barred under Section 45 of the Rent Control Act. On the second point, recorded a finding that no quit notice was necessary before institution of the eviction proceedings. On Point No. 3, the question relating to the requirement and the need pleaded by the petitioners, recorded a finding that the requirement pleaded is both reasonable and bona fide and the plaintiffs are entitled to evict the respondent. On point No. 4 regarding relative hardship recorded a finding in favour of the petitioners. In regard to point No. 5 relating to partial eviction, the Court recorded that it is not feasible. On point No. 6, viz., eviction under Section 21(1)(p) of the Act, the Court recorded a finding that the petitioners have not made out a case for eviction under Section 21(1)(p)- Ultimately while allowing the petition under Section 21(1)(h), dismissed the application under Section 21(1)(p).
7. Hereinafter I would refer to the parties as they are shown in the Trial Court for the purpose of convenience.
8. Learned Counsel for the petitioner-landlord contended that the evidence on record is sufficient to establish that the respondent-tenant acquired site in Lingarajapuram and thereafter put up construction suitable for engineering works. The Court has ignored the evidence in this behalf and therefore, the finding under Section 21(1)(p) needs to be re-considered. He further contended that there are absolutely no grounds to interfere with the finding of the Court that the requirement pleaded by the petitioner is both reasonable and bona fide. Having regard to the accommodation available in the first floor and the number of members in the family and difference amongst the women folk, it cannot be said that the requirement pleaded is either unreasonable or capricious. Therefore, the finding under Section 21(1)(h) calls for no interference.
9. Learned Counsel for the respondent on the other hand contended that the finding under Section 21(1)(h) is not based on proper appreciation of the evidence on record, in fact, the accommodation available in the first floor is more than sufficient, the first petitioner though suffering from certain ailment does not find it difficult to climb stairs. If really she is unwell, she could as well avail the accommodation available in the ground floor which is kept vacant. The second petitioner-Vijaya is gainfully employed and the alleged intention to settle independently is neither established satisfactorily nor there is convincing material to show that she is unemployed. He further contended that since the third petitioner-G. Shivakumar is no more, the requirement pleaded on his behalf does not also survive. Lastly he contended that the fourth petitioner is not running any business and in fact the evidence establishes beyond a ray of doubt that the building is leased to one Malayali and he is doing scrap business in the ground floor of the building adjoining the leased premises. If really petitioners wanted additional accommodation, they could have as well used that premises. The petitioners having failed to avail of that opportunity, cannot now make a grievance and seek eviction under Section 21(1)(h) of the Rent Control Act.
10. Before adverting to the merits and demerits of the rival contentions, it would be appropriate to consider and dispose of the two applications filed on behalf of the respondent-tenant. I.A. No. IV is an application under Order VI, Rule 17 of the Code of Civil Procedure read with Rule 35 of the Karnataka Rent Control Rules, 1961. In this application, the respondent-tenant has sought for amending the statement of objections filed in HRC No. 10279 of 1991. The substance of the amendment is that in the year 1987, a portion of the building in the ground floor was available to the petitioners and they have leased it to Karnataka State Food and Civil Supplies Corporation and if at all the petitioners were really in need of additional accommodation, they would not have leased the said portion to the said Corporation. I.A. No. V is an application under Order XLI, Rule 27 of the Code of Civil Procedure read with Rule 35 of the Karnataka Rent Control Rules, 1961 praying for permission to produce on record an authenticated copy of lease deed dated 1-10-1987 said to have been entered into between the first petitioner and the Karnataka State Food and Civil Supplies Corporation. These two applications are opposed by the petitioners.
11. On a careful consideration of the arguments advanced by both the learned Counsel on these two applications and on scrutiny of the applications, I do not find substantial grounds to allow anyone of these two applications. In the application for amendment what has been sought to amend is that in the year 1987 a portion was available in the ground floor and that was leased by the petitioners to the KSFCs under a lease deed in the same year. Suffice it to say that in evidence not only of the petitioners but also of the respondent, it is brought out that even in the year 1984, the building had been leased and KSFCs was in occupation of that premises. In addition to that, the respondent has produced a copy of the lease deed dated 26-11-1983 and that would make it clear that the premises in the ground floor was leased in favour of KSFCs in the year 1983 and they continued to be in occupation of the said premises till the year 1987 and in fact they continue even till today. Therefore, the ground on which the amendment is sought for is not substantiated. The lease as is sought to be made out is not made in the year 1987 and it is even prior to that period. I hardly find any grounds to permit at this belated stage to amend the statement of objections. Accordingly, I.A. No. IV is dismissed.
Now coming to I.A. No. V, an application under Order XLI, Rule 27 of the Code of Civil Procedure equally I find no merits for the reason that it is not as if the respondent-tenant was not aware of these particulars. It is suggested to P.W. 1 and P.W. 2 that KSFCs is a lessee of certain area in the ground floor. Added to it, R.W. 1 has clearly stated in evidence that KSFCs is a tenant in the rear portion since last 10 years. His evidence is recorded on 18-11-1994 which would clearly demonstrate that KSFCs is a tenant under the petitioners if not earlier at least from the year 1984. Secondly, additional evidence under Order XLI, Rule 27 can be permitted if only it is established that even after exercise of due diligence, the party seeking production of additional evidence was unable to secure that evidence during the trial of the case. In the instant case, there is no such evidence. On the other hand, the evidence which I have referred to supra clearly demonstrates that though the respondent knew that KSFC is in occupation of certain area in the ground floor as lessee, has not made any attempts to secure any documents in between the petitioners and the Corporation. In these circumstances, I hardly find any grounds to permit the production of additional evidence. Accordingly, I.A. No. V is also rejected.
12. It is settled law that on an application under Section 21(1)(h), what the Court is required to see is whether the need pleaded on the date of application did really exist. Therefore, in the circumstances, the fact that there was an earlier application for eviction and that came to be compromised will not be a ground to reject the second application for similar relief under Section 45 of the Rent Control Act. Similarly the finding of the Court that no quit notice was required before institution of the eviction proceedings cannot also be faulted. The only two principal questions that are required to be considered is whether the Court was right in holding that the requirement pleaded is both reasonable and bona fide, secondly, whether the Court was right in refusing eviction under Section 21(1)(p) of the Act. I shall now take up the question of need pleaded by the petitioners.
13. It is not in dispute that one Ganapathy had leased the premises in the year 1970 and since then the respondent's father Siddalingaiah was running the business in the said premises. Subsequently thereafter an additional area was leased in the year 1989 and the rent in the beginning viz., in the year 1970 was Rs. 100/- a month and that was increased from time to time and in the year 1989 the rent paid was Rs. 400/-. Having regard to the gap in between 1970 and 1989 increase of rent from Rs. 100/- to Rs. 400/- cannot be considered improper and the intention of the petitioners at any rate is to secure higher rent. Rent has been enhanced by providing additional accommodation and though some portion surrendered the rent continues to be Rs. 400/-. Having regard to the period and the increase in the rent, it cannot be said that the intention of the petitioners was only to seek higher rent from time to time. The Court considering this aspect of the matter has clearly recorded a finding that the petitioners' intention was not to seek higher rent. Therefore, this finding cannot be faulted.
14. The petitioner's family consists of mother, two married sons and a daughter. The evidence admits of no doubt that the second petitioner-Vijaya is divorced and she is living with her mother in the first floor of the building. Exs. P. 12 and P. 13 are the copies of the order and decree in M.C. No. 6 of 1985 on the file of the Civil Judge, Madhugiri. It would reveal that on 11-2-1986, the marriage between the second petitioner and one Rajashekaraiah was dissolved. An attempt is made by the respondent to show that she is gainfully employed and working in a garment factory. R.W. 3-Ifthekar, Legal Assistant in the office of Regional Provident Fund is examined to show that the second petitioner works in the same garment factory and the employer contributed to her provident fund. Ex. P. 61 is the particulars furnished by the Assistant Provident Fund Commissioner. It would show that one Vijayalakshmi, daughter of Ganapathy, aged 31 years is working in the establishment called "M/s. Fine Wear Exports Limited" and the date of coverage is from 1-5-1983. However in the cross-examination, he says that he cannot say whether this document would relate to the second petitioner, name of the employee does not tally. She is described as Vijayalakshmi and the father's name no doubt is shown as Ganapathy. But the second petitioner is described in the petition as Vijaya, daughter of late M. Ganapathy. In Exs. P. 12 and P. 13, she is described as Smt. Lakshmivijaya. Whatever the discrepancy in the name, one may say that she is the second petitioner but that itself will not be sufficient to hold as rightly pointed out by the Trial Court that the petitioner is gainfully employed. Even assuming for a moment that she is gainfully employed, the question would be whether she continued in the same profession even on the date of the petition. It is stated that the petitioner 2 is trained in tailoring and she intends to lead an independent life by taking up tailoring. Therefore, she needs the accommodation. In view of the fact that she has been divorced and that she is living with her mother and brother, requirement/intention pleaded on her behalf cannot be rejected as not true. It is also pleaded that the first petitioner is aged and ailing.
Certain documents Exs. P. 5 and P. 6 are produced to show that she suffers both from Blood Pressure and Diabetes. It is her case that she needs separate accommodation to take rest and the accommodation now available in the first floor is not sufficient. No doubt, an attempt was made on behalf of the respondent to show that there is a vacant area measuring 12ft x 15ft in the ground floor and that could be made use of by the petitioner. But the evidence is not sufficient to hold that there is really a vacant place in the ground floor. It is also pleaded that the fourth petitioner is not running a hotel business as sought to be shown and in fact is gainfully employed. R.W. 2-V. Parameshwaraiah and R.W. 4-D. Varadaraja Rao are examined to show that petitioner 4 is gainfully employed. But their evidence establishes that the fourth petitioner was only a casual employee. Evidence of R.W. 2 reveals that he was working as a casual labourer for about three or four months from November 1995 to February 1996 and he was not a full time employee. The evidence of R.W. 4 reveals that petitioner 4 was working as a casual employee in Mysore Kirloskar Limited from May 1992 to November 1995 and he was attending to some sundry work. Sri Nagabhushan, learned Counsel for the respondent-tenant inviting my attention to this evidence argued that the fourth petitioner being employed, cannot run a hotel and the averment that he is running a hotel and that premises is not available, is not correct. He also invited my attention to the evidence of P.W. 1 and submitted that the discrepancy in his evidence as to what his brother is doing would demonstrate that what the petitioners plead is not correct. It is no doubt true that P.W. 1 has said in evidence at one point of time that his brother, namely, the fourth petitioner is running a hotel in the front portion and is residing in the back portion. It is necessary to note that P.W. 1 has been examined and cross-examined on several dates. He states on 13-1-1992 that his brother is running a hotel in the front portion and resides in the back portion of the same premises. However, later when he was examined on 23-11-1993 he states that his brother even on that day was running a refreshment stall. When he was examined on 14-12-1995 he comes forward with a statement that his brother is doing business in scrap. P.W. 1 when he was examined on 14-2-1996 states that his brother is doing business in waste paper. It may be that the 4th petitioner having experienced that hotel business is not remunerative must have changed over to other business. Whatever that may be, the evidence establishes that in a portion in the ground floor, the fourth petitioner is doing certain business. The respondent, on the other hand, tries to show that the petitioners in fact have leased this premises to one Malayali and is doing business in scrap. As it is rightly pointed out by the learned Trial Judge, there is no convincing evidence as to the fact that the premises is leased to one Malayali and he is doing business in scrap in the said premises. However, the evidence admits of no doubt that the first petitioner's children, namely, petitioners 2 and 3 are living separately, though in fact in different floors.
Now coming to the requirement pleaded for the third petitioner-G. Shivakumar, no doubt, the said requirement may not be there. But the Court cannot loose site of the fact that the third petitioner's children are school going children. They are studying in higher schools. The accommodation available in the first floor as spoken to by him is a hall, a kitchen, a pooja room and a bedroom. Thus it is clear when the size of the family grows, the requirement also enlarges and more particularly in this case the evidence is that in the first floor mother, her divorced daughter, her daughter-in-law and her two children are living. The two children are now grown-up and studying in schools. The mere fact that Shivakumar died during the pendency of the revision petition, is no reason to say that the requirement by his family for additional accommodation is not true and cannot be accepted. As the family grows, the requirement also enlarges and whatever accommodation that was available in the first floor may not be sufficient for number of people in the family. The evidence demonstrates that in view of the differences amongst the women folk, they are cooking separately. Vijaya is divorced and as revealed from Exs. P. 12 and P. 13, no maintenance is provided by her husband, there is need for her to settle in her life and she cannot depend on her mother and brother for all times to come. In these circumstances, the finding of the Trial Court that the requirement pleaded by the petitioners is both reasonable and bona fide, cannot be faulted.
15. The Court on consideration of evidence, records a finding that greater hardship would be worked out to the petitioners, if eviction is refused. On a careful scrutiny of the evidence, I do not find substantial grounds to disturb that finding. It has come in evidence of the respondent that after the death of his paternal grandmother, building belonged to her has come to him and it was available to him. He further admits that he had leased the ground floor in the said building for five years in the year 1992. It is significant to note that the building is situated in Bangalore. No doubt he says that the building came to him through his paternal grandmother but he has not said as to why it is impossible to make use of the available portion in that building for running his engineering work, those two buildings are being in the same road and as the petition for eviction was pending trial. The Trial Court holds that the evidence led by the tenant as to the attempts made to secure alternative premises is not convincing. I do not find any substantial grounds to fault that finding of the Trial Court.
16. In regard to partial eviction, the Court finds that it is neither feasible nor practical. The area in dispute measures 23' x 23'. The respondent undisputably is running engineering works for over 20 years. The petitioner's family has number of persons and some of them living in the first floor and one of the sons is in ground floor. In the circumstances, the Court was right in recording that partial eviction is neither practical nor feasible.
17. The landlord also sought for eviction on the ground under Section 21(1)(p) of the Act. Their case is that the respondent-tenant acquired site in Sy. Nos. 41 and 42 in Lingarajapuram measuring about 60 ft x 40 ft and subsequently thereafter put up a building suitable for running his engineering works, the business which is being carried on in the leased premises. The Trial Court considering the evidence has said that the evidence in this behalf is not convincing. Undisputably, what was acquired by the respondent-tenant during the pendency of the eviction proceedings was a vacant site. There is no substantial evidence as rightly pointed out by the Trial Court as to whether the respondent-tenant put up a building on the said site and that building is suitable for running the business. No doubt there is evidence to show that certain constructions are put up and brother of the respondent is running a dairy farm in the said area. Whatever that may be, there is no clinching evidence that the respondent put up building in the site acquired by him during the pendency of this case and put up construction suitable for his business. Therefore, in the circumstances, the finding of the Court that the landlord has failed to make out ground for eviction under Section 21(1)(p) of the Act cannot also be disturbed.
18. In the result and for the reasons hereinabove stated, the finding of the Trial Court that the landlord requires the premises for his personal use and occupation and as well the finding that the landlord has failed to make out ground for eviction under Section 21(1)(p) cannot be disturbed. Therefore, both the revision petitions fail. Accordingly, these two petitions are dismissed.
19. Sri Nagabhushan, learned Counsel for the respondent-tenant prays time (two to two and half years) to vacate and handover possession of the premises on the ground that it would be difficult to shift and get supply of electrical energy at an early date. He contends that in the present premises, there is 20 H.P. and there are eight permanent employees and if he is to be thrown out right now, it would be difficult for them and their families would suffer. Sri Dayananda Kumar, learned Counsel for the petitioner-landlord submits that any reasonable time may be given. This eviction proceeding is pending right from the year 1991. In the meantime, one of the petitioners also died. In these circumstances, it would be just and appropriate to grant only 12 months from today to vacate and handover vacant possession of the premises. Even that may be little longer, but having regard to the fact that the respondent is running the business for over 20 years in the said premises and he should be given some time to shift, I do not think that granting of 12 months would be unreasonable. Therefore, the respondent-tenant is granted time to vacate and handover vacant possession on or before 31-1-2001, subject to the payment of rent promptly and regularly. It is made clear that if there is any default continuously for two months in the payment of rent, the petitioners would be at liberty to execute the order of eviction.