Karnataka High Court
Mrs. Ida May Irish vs M.C. Sathyanarayana on 21 July, 1998
Equivalent citations: 1998(5)KARLJ134, 1999 A I H C 461, (1998) 5 KANT LJ 134, (1999) 1 RENCR 365, (1999) 1 RENCJ 278, (1999) 1 RENTLR 603
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER
1. In this revision petition, the petitioner has called in question the correctness of the order dated 8th of December, 1995 made in H.R.C.No. 10320 of 1993 by the Court of Small Causes Judge at Mayo Hall, Bangalore, rejecting the claim of the petitioner-landlady for eviction of the respondent-tenant under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as "the Act").
2. A few facts which may be necessary for the disposal of this revision petition, may be briefly stated as follows:
(a) The petitioner sought eviction of the respondent on the ground that the petition schedule premises is reasonably and bona fide required by her for the purpose of accommodation for her daughter and her son-in-law and their two sons. The petitioner is residing in a house, which is described as an outhouse, which is located on the rear side of the petition schedule premises, along with her sister-in-law, who is a spinster. The accommodation available with the petitioner in the premises occupied by her consists of two bedrooms, a prayer hall, a dining-cum-draw-ing room, a small store room, a bathroom etc. The petition schedule premises consists of ground floor and first floor. The ground floor, even according to the respondent, consists of three bedrooms, one sitting room, one dining hall, one kitchen attached with a small store room; and the first floor consists of two bedrooms, one sitting room, a small verandah, a separate bathroom and a kitchen.
(b) It is the case of the petitioner that her daughter and son-in-law do not own any residential building or property in Bangalore and they are residing in a premises belonging to their friend as care takers; and they are unable to find out any suitable accommodation; and since the petitioner and her sister-in-law are of advanced age, the petitioner intends her daughter and son-in-law and their children to live in close proximity with her in order to help her in case of need. It is her further case that since the petitioner is the widow, she requires the presence of her daughter and grand children to help her and look after her welfare and she is unable to accommodate them in the present premises occupied by her for want of accommodation therein; and, therefore, if an order of eviction is not passed against the respondent, she will be put to greater hardship than the respondent.
(c) The respondent resisted the claim of the petitioner, inter alia, contending that there are no bona fides in the claim made by the petitioner and the petition schedule premises is not required by the petitioner for use and occupation of the daughter of the petitioner and the members of her family and if an order of eviction is passed, the respondent will be put to greater hardship than the petitioner.
(d) In the course of the proceedings before the learned Small Cause Judge, the petitioner examined herself as P.W. 1 and her daughter, for whose purpose, the eviction of the respondent from the petition schedule premises is sought, was examined as P.W. 2. Copies of certain documents were marked on her behalf as Exhibits P-1 to P-5. The respondent examined himself as R.W. 1.
(e) The learned Judge, after consideration of the evidence on record, having found that the claim made by the petitioner for eviction of the respondent from the petition schedule premises is bona fide, negatived the claim of the petitioner for eviction of the respondent on the ground that the claim is not reasonable. However, in the course of the order, the learned Judge has rejected the case put forward by the respondent that the petitioner intended to evict the respondent as the respondent refused to enhance the rent as demanded by the petitioner.
(f) Aggrieved by the said order passed by the learned Judge, as noticed by me earlier, this revision petition is presented under sub-section (1) of Section 50 of the Act.
3. Sri Albert, learned Counsel appearing for M/s. Rego and Rego for petitioner, strenuously contended that the learned Judge having found that the claim of the landlady for eviction of the respondent is bona fide, has seriously erred in law in rejecting the eviction petition on the ground that the claim is not reasonable. He pointed out that the finding recorded by the learned Judge on this aspect of the matter, is in total disregard of the evidence on record and contradictory in nature. He submitted that the evidence on record clearly establishes, and as a matter of fact, it has gone unchallenged, that the daughter and son-in-law of the petitioner do not have any accommodation of their own in Bangalore and they are residing in their friend's house as care takers. He further pointed out that if the nature of the cross-examination and the evidence on record is analysed, it would be clear that it is also not the case of the respondent that the claim made by the petitioner that her daughter and son-in-law along with their children should reside in the petition schedule premises is not genuine or there is no truth in it, but the only case sought to be made out by the respondent, according to the learned Counsel for the petitioner, is that they can stay with the petitioner in the premises presently occupied by her as the accommodation available in the said premises is sufficient; and, therefore, the finding recorded by the learned Judge that the claim made by the petitioner for eviction of the respondent is not reasonable, is erroneous in law. He pointed out that undisputedly the accommodation available in the premises occupied by the landlady consists of two bedrooms, a prayer hall, a drawing-cum-dining room, etc.; and it is not possible to accommodate the family of the daughter of the petitioner consisting of her husband and their two school going children, who were aged 17 years and 15 years in the year 1995 and who are now aged 20 years and 18 years in the premises occupied by the landlady. He further pointed out that this Court can also take judicial notice of the fact that the grand children of the petitioner, in course of time, are to be married and their family would grow; and under these circumstances, the learned Judge ought to have held that the claim made by the petitioner for eviction of the respondent is reasonable. He also submitted that the reasonableness of the claim made by the peti-
tioner should have been considered in the backdrop of the status of the respondent, who is the Managing Director of a Company, and also the evidence on record that if he is evicted from the petition schedule premises, he will not be put to any hardship and also keeping in mind that his family consists of only the respondent, his wife and a son. He pointed out that the daughter of the respondent, who was residing with him, is admittedly married and has left for United States of America. For all these reasons, the learned Counsel submitted that the order under revision is liable to be set aside and an order of eviction may have to be passed against the respondent.
4. Sri N. Kumar, learned Counsel appearing for M/s. Kumar and Kumar, while strongly supporting the order under revision, submitted that even the finding of the learned Judge that the petitioner requires the petition schedule premises is not justified. He submitted that the claim made by the petitioner that she requires the petition schedule premises to accommodate her daughter and her family in the petition schedule premises, is not true. He further submitted that even if it is true, the accommodation available with the petitioner, is sufficient. However, he submitted that for any reason, if the Court were to come to the conclusion that the accommodation available with the petitioner is not sufficient, the respondent will be willing to vacate the petition schedule premises in exchange for the premises occupied by the petitioner on payment of the same rent which the respondent is now paying to the petitioner. He submitted that in a matter like this, having regard to the facts and circumstances of the case, in the light of sub-section (4) of Section 29 of the Act, it is permissible for the Court to make an order directing the parties to mutually exchange the premises. In support of the submission, Sri Kumar relied upon a decision of this Court in the case of Saroja H.S. v C. Krishnamurthy and drew my attention to paragraphs 17 and 19 of the judgment, wherein this Court has observed as follows:
"..... However, I am of the view that while considering the case under Section 21(4) of the Act, the Court may in appropriate cases, permit the parties to agree to adjust the situation and if no such agreement is arrived at, as an alternative to the order of partial eviction, Court may, give an option to the landlord, to exchange the premises in his occupation (which, he is competent to exchange as its owner), for the tenanted premises from which he seeks the eviction of the tenant, subject to reasonable terms as to payment of rent, etc. Section 21(4) essentially, confers an equitable power in the Court, and it should be so read as to create appropriate jurisdiction in the Court enabling it to make an equitable order, having regard to all just considerations.
In view of this statement, I modify the order of partial eviction made by the Trial Court as follows:
Petition under Section 21(1)(h) of the Act is partly allowed. Respondent-tenant is directed to vacate the two rooms situated towards the north eastern corner of the petition schedule premises as shown in Ex. P-8 and measuring 8' x 7.6' and 8' x 9.6' and hand over vacant possession of the same to the petitioner".
5. In the light of the submissions made by the learned Counsel appearing for the parties, the questions that would emerge for my consideration in this petition are the following:
(i) Whether the petitioner has established that the petition schedule premises is reasonably and bona fide required by her for the purpose of use and occupation of her daughter and her family?
(ii) Whether the petitioner or the respondent will be put to greater hardship if an order of eviction is either passed or not passed? and whether, in the facts and circumstances of the case, comparative hardship can be obviated or minimised by ordering partial eviction?
(iii) Whether, in the event of this Court coming to the conclusion that the petitioner requires the petition schedule premises for her bona fide use and occupation i.e., for the purpose of accommodating her daughter and her family, an order directing the petitioner to put in possession of the premises occupied by her in exchange for the petition schedule premises occupied by the respondent can be made?
Re: Question (i):
6. At the very outset, I may point out that the learned Judge having rightly found in the order under revision that the claim made by the petitioner that she requires the petition schedule premises for the purpose of accommodation of her daughter and her family is bona fide, has seriously erred in law in rejecting the claim of the petitioner for eviction of the respondent on the ground that the claim is not reasonable. I am also unable to accede to the submission of the learned Counsel for the respondent that the finding recorded by the learned Judge that the claim made by the petitioner for eviction of the respondent is bona fide, is not justified on the basis of the evidence on record. Though an attempt was made in the course of the evidence of the respondent that the petitioner has sought eviction of the respondent as the respondent has failed to pay the higher rent demanded by the petitioner and for the said purpose, he tried to rely upon the gradual increase in the rent, as rightly pointed out by the learned Judge, there is no basis for the said stand taken by the respondent. In this connection, the learned Judge has referred to the reply notice Exhibit P-5, dated 29th of June, 1993 issued by the respondent in response to the notice issued by the petitioner calling upon the respondent to vacate the petition schedule premises on the ground that the petition schedule premises is required by her for the purpose of her daughter and her family wherein he has not pleaded that at any time, the petitioner sought for increase of rent from the respon-
dent. Further, in the course of the cross-examination at paragraph 6 of the evidence, the respondent admits that the petitioner has not asked for enhanced rent though in the course of the examination-in-chief, he has stated that the "petitioner wanted him to pay higher rent three years back through her son-in-law". On consideration of the evidence, I am of the view that the case of the respondent that since he failed to pay higher rent, the eviction petition has been filed, does not appear to be true. If, as a matter of fact, an attempt was made by the petitioner through her son-in-law to seek for enhancement of the rent, the same would have been made as a grievance in the reply notice Exhibit P-5. But, the same has not been made, as pointed by the learned Judge. It is necessary to point out that the respondent, who has the experience of managing a company, would not have committed the mistake of not making a grievance in respect of the claim made for higher rent, in the reply notice Exhibit P-5. Further, the case sought to be made out in the objection statement was that the intention of the petitioner seeking eviction of the respondent was either to lease out the petition schedule premises for higher rent or to sell it away with vacant possession. However, it is also relevant to point out that in the course of the evidence, the respondent sought to make out that the petitioner requires the petition schedule premises as she intended to go for a joint venture for construction of the flats on the petition schedule premises. At paragraph 3 of the evidence, he has stated thus:
"The petitioner intends to go for joint venture for construction of the flats. Near the petition premises, lot of flats have come up. Few people were coming on enquiring with us as we are staying in the main house. We have directed them to go the rear side as the owner is staying there".
However, it is the case of the petitioner that the rent, which was fixed at Rs. 1,500/- in the year 1980 at the time of allotment of the premises was gradually increased by the respondent on account of the increase of the building tax. Therefore, on the basis of the evidence on record, I am fully satisfied that there is no oblique motive on the part of the petitioner in seeking eviction of the respondent. As rightly found by the learned Judge, the claim made by the petitioner for eviction of the respondent is bona fide. On this question, the finding recorded by the learned Judge does not suffer from any infirmity and the said finding is fully supported by the evidence on record.
7. Now, the only question is whether the claim made by the petitioner is reasonable? Even according to the respondent, it is the case of the petitioner that the daughter and son-in-law of the petitioner, for whose purpose the eviction of the respondent is sought in this petition, were residing in the petition schedule premises, though it was the case of the petitioner that the daughter of the petitioner was residing till her marriage and subsequently, she ceased to reside with the petitioner. At paragraph 2 of his deposition, the respondent has stated as follows:
". . . . .I am told that the petitioner has got 3 daughters. Presently, 2 daughters are staying abroad. 1 daughter is in Bangalore. The daughter who was staying with the petitioner along with her family has left now and she is residing separately".
Again, at paragraph 4, the respondent has stated as follows:
". . . .The petitioner is staying along with an elderly lady who is related to her when her daughter moved out of her house".
Therefore, even according to the case of the respondent, the daughter and her family members, for whose benefit the petition schedule premises is required, were staying along with the petitioner in the premises presently occupied by her and after their moving out of the premises, the sister-in-law of the petitioner is staying with the petitioner. On these admitted facts, it is necessary to examine whether the accommodation available with the petitioner in the premises occupied by her would be sufficient?
8. Admittedly, there are only two bedrooms in the premises occupied by the petitioner. It cannot be disputed that the said two bedrooms are required by the petitioner, her sister-in-law, who is a spinster and who is admittedly residing with the petitioner. I am unable to accept the submission of Sri Kumar that the petitioner and her sister-in-law can utilise one bedroom and the daughter and son-in-law of the petitioner can be accommodated in one other bedroom while the prayer room could be utilised by the grandsons of the petitioner. In my view, the reasonableness of the claim of the landlady made for eviction of the tenant should be considered, understood and appreciated taking into account the status of the landlady, their normal requirement and the minimum of comforts they are seeking for, while they enjoy their property and the background and status of the tenant. Admittedly, it is not in dispute that at the time of recording the evidence in the year 1995, the two grandsons of the petitioner were aged 17 years and 15 years respectively and they were students studying in Bishop Cotton's School and Clarence School. The Court can take judicial notice of the fact that they have grown up and would be aged 20 years and 18 years. Therefore, if the requirement of the petitioner, her sister-in-law, who is residing with her in the premises occupied by her with reference to the accommodation available in the said premises is taken into consideration, I am of the view that the accommodation available with the petitioner in the premises occupied by her is only sufficient for the petitioner and her sister-in-law and it will not be sufficient to accommodate her daughter, son-in-law and two grandsons. It is the case of the petitioner that she requires the petition schedule premises for the purpose of accommodating her daughter, son-in-law and their children in the petition schedule premises. The evidence of the petitioner and her daughter, P.W. 2, that P.W. 2 and her husband were earlier residing in a rented premises and at the time of filing of the eviction petition, they were staying in a premises belonging to their friend as a care taker, has not been seriously challenged by the respondent. On the other hand, the respondent admits in the course of the cross-examination at paragraph 6 of his evidence that he did not verify where the son-in-law of the petitioner was residing even after furnishing of the particulars relating to his address, to him and he has nothing to say whether the son-in-law of the petitioner has no house of his own. He also admits that the grand children of the petitioner are studying in schools. It is useful to extract the said portion of his evidence, which reads as hereunder:
"I do not know where the son-in-law of the petitioner is residing. I did not verify where the son-in-law of the petitioner is residing even after the filing of the petition. I did not verify where the son-in-law is residing even after the furnishing of the particulars of the address of him. I have nothing to say whether the son-in-law of the petitioner has no house of his own. The son-in-law of the petitioner has got 2 sons. They are studying in Schools".
If the said evidence of the respondent is considered in the backdrop of the evidence of the petitioner and her daughter that the daughter of the petitioner and her son-in-law were earlier residing in a rented premises and they are presently residing temporarily in a premises belonging to their friend as care takers, I have no reason to disbelieve the case of the petitioner that the daughter and son-in-law of the petitioner do not have a residential building of their own in Bangalore City. Under these circumstances, when the petitioner has her own premises and when she states that she intends to accommodate her daughter and the members of her family in her own premises, both on the ground that they do not have their own premises and they are residing in their friend's house after shifting from one after another tenanted premises, as care takers temporarily and also on the ground that she wants them to be very close to her premises, on account of her advanced age, such claim made for eviction of the tenant, who is of the status of the Managing Director of a Company, the question is whether such a demand can be considered as unreasonable? I am of the view that it is not possible to take such a view in this case. The test of reasonableness in a matter like this which the Court is required to consider, is whether, under similar circumstances, a reasonable person would either seek or would not seek for eviction of a tenant. If that test is applied and the entire matter is viewed in that background, I am of the view that the finding recorded by the learned Judge that the claim made by the petitioner for eviction of the respondent though bona fide, is not reasonable, is totally unjustified and requires to be set aside. It is natural that every parent, especially when they have reached advanced age in their life, would like their children and grand children either to stay with them or to stay very close to their place of residence. It is also not uncommon that many people, who can afford to have two establishments, would prefer to stay separately, but very near to their kith and kins. These are all realities of life which the Court cannot totally ignore while considering the reasonableness of the demand made by the landlady for eviction of the tenant.
9. Therefore, in the light of the discussion made above, I am of the view that the petitioner has established that she requires the petition schedule premises reasonably and bona fide for the purpose of occupation by her daughter and her family.
Re: Question (ii):
10. Even according to the respondent, the respondent is the Managing Director of a public limited Company, though he states that the working of the said company had closed down for want of financial assistance over an year and half prior to the date of giving evidence. But, the statement made in the course of his chief-examination shows that his business guests also come often from abroad to the petition schedule premises. It is also in his evidence that his married daughter has gone abroad, though he states that she has gone abroad only for one year. All this indicates that the respondent is comfortably placed in life and do not belong to that class of tenants who would be put to serious difficulties on account of his incapacity to pay either higher rent or advance to secure an alternate accommodation. Even according to him, his Company will pay rent upto Rs. 3,000/- per month. Further, he also admits in his evidence that number of apartments have come up very close to the petition schedule premises. Under these circumstances, if the advanced age of the petitioner and the need of the petitioner made out for the accommodation of her daughter and her family is taken into consideration, I am of the view that the petitioner will be put to greater hardship than the respondent if an order of eviction is not passed. It is also necessary to point out that in this revision petition, since I am inclined to grant only partial eviction of the petition schedule premises, I have no hesitation to take the view that the respondent will not be put to any hardship if an order of eviction is passed against the respondent.
11. It is now well-settled that Courts are required to consider the feasibility of granting partial eviction. The principle regarding partial eviction is also now well settled, is a limb of comparative hardship as provided under Section 2(4) of the Act, As noticed by me earlier, the petition schedule premises consists of ground floor and the first floor. The evidence on record shows that there are three bedrooms in the ground floor with a drawing-cum-dining, a kitchen, a bathroom and there are two bedrooms in the first floor consisting of a drawing-cum-dining, small verandah, a kitchen and a bathroom. As on this date, the family of the petitioner's daughter consists of herself, her husband and their two sons aged 20 years and 18 years. Both of them are students. May be that after a few years, the family of the petitioner's daughter in the event of the grand children of the petitioner getting married and settling down in Bangalore, may require larger accommodation. But, as on this date, in my view, the accommodation in the ground floor of the petition schedule premises should, to a large extent, satisfy the requirement of the petitioner to accommodate her daughter and her family. Three bedrooms in the ground floor of the petition schedule premises can be conveniently used by the daughter and her family members. This will, to a large extent obviate the hardship, if any, that may be caused to the respondent as the respondent can conveniently continue to stay in the first floor of the premises which admittedly consists of two bedrooms, a drawing-cum-dining, a veranda, a kitchen, etc. Admittedly, the family of the respondent consists of respondent, his wife and their son. The respondent's daughter, who is married, has already gone abroad, even according to the case of the respondent. Even if the evidence of the respondent that his daughter has gone abroad only for a year is accepted as true, it is not likely that she and her husband would stay with the respondent. In fact, it is not his case also. Therefore, while considering the claims of the petitioner and the respondent, I am of the view that a reasonable balance can be struck and both can be relieved of their comparative hardship in the facts and circumstances of the present case by ordering partial eviction of the petition schedule premises insofar as the ground floor portion is concerned. Since the petitioner is residing in a premises which is described as an outhouse and which is admittedly in the rear portion of the petition premises and the petitioner and her sister-in-law are of advanced age and the number of members in the family of the daughter of the petitioner is four as against three in the family of the respondent, I am of the view that the order of eviction has to be in respect of the ground floor of the petition schedule premises instead of the first floor, as alternatively submitted by Sri Kumar on the ground that the wife of the respondent is unable to climb the first floor on account of her bad health. Further, the evidence of the respondent shows that there is a separate entrance for the first floor from outside the building, in addition to the one from inside. Therefore, no inconvenience is caused to the parties, and partial eviction can be conveniently ordered.
Re: Question (iii):
12. Now, the only question is whether, in the facts and circumstances of the case, it is just and proper to make an order directing eviction of the respondent in respect of the entire petition schedule premises in exchange of the premises occupied by the petitioner, as alternatively submitted by Sri Kumar. I am of the view that even assuming, as contended by Sri Kumar, that it is permissible for this Court to make such an order, having regard to the facts and circumstances of the case, this is not one such case where such an order should be made. The averments made in the petition, to a large extent, indicate that the petitioner wanted her daughter and son-in-law to reside in the petition schedule premises, which is situated almost adjacent to the premises occupied by her. She wants the eviction of the respondent from the entire petition schedule premises. There is no foundation laid in the course of the evidence for exchange of the petition schedule premises for the premises occupied by the petitioner for passing an order of eviction against the respondent. Under these circumstances, the principle laid down by this Court in the case of Saroja, supra, relied upon by Sri Kumar, in my view, does not support an order being made for exchange of the premises occupied by the petitioner for passing an order of eviction against the respondent in respect of the entire petition schedule premises. While considering the case of comparative hardship and partial eviction, I have come to the conclusion that it would be in the interest of justice to order partial eviction of the petition schedule premises limiting it to its ground floor. Therefore, in the facts and circumstances of the case, I do not find any justification to make an order directing the petitioner to exchange the premises occupied by her either for passing an order of eviction against the respondent in respect of the entire petition schedule premises or in exchange for the ground floor of the petition schedule premises in respect of which an order of eviction is required to be passed against the respondent.
13. For the reasons aforesaid, the order dated 8th of December, 1995 made in H.R.C. No. 10320 of 1993 by the VI Additional Judge, Court of Small Causes, Mayo Hall, Bangalore, is set aside and in its place, an order of eviction is passed against the respondent insofar as the ground floor of the petition schedule premises is concerned and the claim of the petitioner for eviction insofar as the first floor is concerned, it is hereby rejected.
14. However, having regard to the facts and circumstances of the case and keeping in view that only partial eviction has been ordered, the respondent is given two months' time from today to vacate and hand over vacant possession of the ground floor of the petition schedule premises, in respect of which an order of eviction is passed, to the petitioner.
15. Since only an order for partial eviction has been made, till the parties by mutual consent either agree between themselves in respect of the rent to be paid by the respondent for the first floor of the building or till the fair rent is fixed as provided under law, the respondent is directed to pay only 50% (fifty per cent) of the rent agreed for the entire petition schedule premises.
16. In terms stated above, this petition is partly allowed and disposed of. However, no order is made as to costs.