Karnataka High Court
N. Ramaprasad (Deceased) By L.Rs vs C.N. Kumar on 29 May, 1998
Equivalent citations: AIR1998KANT313, 1998(4)KARLJ293, AIR 1998 KARNATAKA 313, (1999) 1 RENCJ 67, (1998) 2 RENCR 381, (1998) 4 KANT LJ 293, (1998) 2 RENTLR 314
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
ORDER
1. This is a tenant's revision under Section 50(2) of the Karnataka Rent Control Act (hereinafter referred to as 'the Act' for short). Additional Small Causes Judge, Bangalore on 21-3-1992 while rejecting the claim of the landlord for eviction under Section 21(1)(a) and (j) of the Act in HRC. No. 1897 of 1986 directed the eviction of the tenant under Section 21(1)(p) of the Act. This order is under challenge in this revision petition.
This revision is filed on 15-4-1992 and it would appear that in the meantime on 2-4-1992 tenant N. Ramaprasad died and therefore this revision petition is filed along with the application LA. No. I under Order 22, Rule 4 read with Section 151, CPC with a prayer to bring the L.Rs (4 sons) of the deceased revision petitioner on record in place of the tenant. I would refer to the petitioner-landlord and respondent-tenant (deceased) as they were arrayed in the eviction petition, as landlord and tenant for the purpose of convenience.
2. The landlord sought for eviction of the tenant from the premises bearing old No. 35 and new No. 85 situated in St. John's Church Road, Bangalore City hounded on the west by Netaji Road, south by St. John's Road and east and west by private property. Premises was leased for the purpose of running an industry. Though the tenant resisted the petition contending inter alia that there exists no relationship of landlord and tenant, did not press it at the trial as I could see from the record.
3. It is undisputed that the landlord is the absolute owner of the property in question though in fact it was purchased by his father on behalf of the minor somewhere in the year 1953. Ex. P-1 is the sale deed. Tenant took it on lease in the year 1958 for running an industry under the name and style 'Vijayalakshmi Industries'. It is also not disputed that somewhere in the year 1974 certain portion measuring 10' x 40' from out of the vacant area in the disputed premises was taken over by the Corporation of the City of Bangalore for widening the Church Road. It is also undisputed that the tenant purchased certain land at Kacharkahalli, Hennur Road in the year 1983 or 1984, put up certain building in the said vacant land for the purpose of running an industry and in fact shifted major portion of the machinery (60% according to the evidence of R.W. 1) to the newly put up building immediately after construction and started functioning from there. It is therefore, in the year 1986 landlord made an application for eviction on the ground that the tenant is a defaulter and has not paid the rent within two months after the receipt of the statutory notice, that the building is old and dilapidated and needs immediate demolition and reconstruction, that the tenant has acquired a suitable building and therefore he is liable for eviction under Section 21(1)(a), (j) and (p) of the Act.
Tenant resisted the application contending inter alia that there exists no relationship of landlord and tenant, that he was never in arrears of rent at any time except for few months and even that arrears is paid during the pendency of the trial, that the building needs no demolition and that the new acquisition is not suitable for the purpose of carrying on the business which he started and continued in the disputed premises.
4. Landlord examined himself as P.W. 1 and produced documents Exs. P-l to 37. Tenant or any one of his sons are not examined, it is only the manager who is examined as R.W. 1 and documents Exs. R-1 to 22 were marked on behalf of the tenant. Learned Trial Judge on hearing the Counsel for both the parties and considering the evidence both oral and documentary by the impugned order rejected the claim of the landlord under Section 21(1)(a) and (j) but directed eviction of the tenant under Section 21(1)(p) of the Act holding that the acquisition of the building during the pendency of the tenancy is suitable for the purpose of running the industry, the business which is carried on in the disputed premises. It may be noted here that the landlord in evidence conceded that he would not press his claim for eviction under Section 21(1)(a) of the Act and that was also not pressed at the hearing.
5. Heard the learned Counsel for the tenant/revision petitioner and the landlord/respondent.
6. The main thrust of the argument of the learned Counsel for the tenant is that the Court has erred in not recording a finding whether the new acquisition is 'suitable' and an alternate accommodation for carrying on the business which was carried in the disputed premises and therefore the order is liable to be set aside. He also relied on the decision of this Court in Fakirasa v Shekharayya.
Learned Counsel for the landlord respondent on the other hand contended that not only there is enough pleading in regard to the suitability or otherwise of the alternate accommodation available to the tenant, but sufficient evidence is placed on record to establish that the acquisition by the tenant is a suitable building and since the tenant has alternate accommodation for running an industry is liable to be evicted. He also relied on two decisions of this Court one in R. Anantha Rao v Indumathi alias Lakshmi Bai and the other in A. Ekambara and Another v K. Leela.
7. On a careful consideration of the evidence both oral and documentary and the rival contentions, I am not persuaded to accept the argument advanced on behalf of the revision-petitioner that the learned Trial Judge has committed an error in directing the eviction under Section 21(1)(p) of the Act. Permitting the tenant to continue in the tenanted premises, who is shown to have acquired a building before or after the commencement of that Chapter of the Act or during the pendency of the tenancy, fit for continuing the business which he was doing in the tenanted premises, on the ground of sufficiency or little inconvenience would certainly frustrates the very object of the legislation. In the instant case, there is overwhelming evidence indicating that the new acquisition is not only larger in extent but eminently fit for continuing the business which the tenant was carrying on in the tenanted premises. The evidence also demonstrates that immediately after constructing an industrial shed in accordance with the approved plan shifted major portion of his activity to the new acquisition and in fact for certain years just before the initiation of eviction proceedings he had totally stopped all activities in the tenanted premises. In these circumstances, it is rather difficult to find fault with the finding of the learned Trial Judge in the matter.
8. A plain reading of clause (p) of sub-section (1) of Section 21 of the Act makes it crystal clear that the landlord would be entitled to succeed if it is established that the tenant whether before or after coming into operation of this part of the Act has built or acquired vacant possession or been allotted a suitable building. Suitability or otherwise of the building, as held in the case of Fakirasa, supra, is required to be examined and determined by the Court on the facts and circumstances of each particular case. In the instant case, it is no longer in dispute that the tenant acquired vacant site during the pendency of the tenancy viz., in the year 1983 and thereafter put up construction after obtaining approval of the plan Ex. P-7 from the authority and in fact started functioning though in fact he contends that he continued to do the business even in the disputed premises. When once the landlord establishes that the tenant acquired certain building and further establishes prima facie that it is suitable for running the business which the tenant is doing in the disputed premises, then the burden shifts on to the tenant to establish that it is not a suitable building or an alternate accommodation.
9. Supreme Court while examining a similar situation in Ganpat Ram Sharma and Others v Gayatri Devi, has declared the law in the following words:
"It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession of or has been allotted a residence, whether it is suitable or not and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts".
(emphasis supplied)
10. As I have said earlier, it is no longer in dispute that the respondent-tenant acquired vacant site measuring much more in area than the disputed premises in Kacharkanahalli, put up a neat and a permanent building on the said land (Ex. P-7 plan and photos Exs. P-19 to 30) and started an industry in the said building. The dispute is only in respect of the distance from the disputed premises. What emerges from the evidence of R.W. 1 is that the leased premises measured only 8,000 square feet out of which 2,000 square feet has been taken by the municipality for widening the Church Street whereas the land acquired in Hennur Road measures 33,400 square feet and building is put in an area of 17,000 square feet consisting of two floors built in an area measuring 7,500 square feet with concrete roof and the rest is of asbestos sheet roof. It has also come in his evidence that immediately after the construction in about 1983-84, 60% of the machinery were shifted from the leased premises and started functioning. His evidence is that certain activity viz., electroplating is being continued in the disputed premises and the office and the show-room are also located in the leased premises. The building acquired is for expanding the business and therefore the landlord is not entitled to evict the tenant.
11. It is significant to note that the tenant who was very much available has not stepped into the box. R.W. 1 besides being a manager of the industry as claimed by him is also an attorney, Ex. R-5 is the power of attorney, executed by the tenant constituting his son R. Umapathy aged 34 years and R.W. 1 the manager as his attorney. It is further significant to note that this R. Umapathy is brought on record in revision as petitioner No. 1(b). All the other three sons of the original tenant are majors but not even one has stepped into the witness box nor this Umapathy. It is clear from the answer elicited in the cross-examination of R.W. 1 that the tenant was attending to the day-to-day business even on the day R.W. 1 has examined but still he does not step into the witness box. This requires to be borne in mind while appreciating the evidence of R.W. 1 and the case of the tenant as pleaded. The relevant portion in the evidence of R.W. 1 reads thus:
"Ramprasad attends the factory and office every day. Not correct to suggest even today he has attended the factory. Witness states Ramaprasad being sick is at home. I met him personally today at his house before coming to this Court.
It is true all correspondence with the petitioner pertaining to the property were signed by Ramaprasad. Yesterday Ramaprasad was in the factory from morning till evening".
Tenant-respondent was a proper person to say as to whether his new acquisition was suitable or an alternate building for the purpose of carrying on business. He does not enter into the witness box nor his son who was also constituted as an attorney under Ex. R-5 to fight the litigation, it is only the manager who enters the witness box and tries to claim that the new acquisition is not suitable for the purpose of carrying on the business which was carried on in the tenanted premises. However, he concedes that it was acquired to expand their activity. The relevant portion in his evidence in examination-in-chief reads thus:
"Schedule premises was not sufficient for our industry. We wanted to expand the industry. Also we know that Corporation would acquire a portion of the schedule property. Therefore, we purchased 30 guntas of agricultural land".
12. The relevant documents are Ex. R-7, plan of the new industry built on Hennur Road and the photographs Exs. P-19 to 22. It has also come in the evidence of R.W. 1 that the consumer goods were not manufactured and certain electrical equipments etc. are manufactured as against order, more importantly by the defence establishment. The relevant portion reads thus:
"It is true to suggest that 'Vijayalakshmi Industries' prepare the articles only against orders received with specification. It is true to suggest that our Industries does not manufacture consumer goods like T.V. and tape recorders but prepare parts required for such articles".
So it is clear that even if the tenant shifts his business from the leased premises acquired by him during the year that would not disturb his business. It is also clear from certain admissions, that after new construction, they stopped their activity completely in the tenanted premises. Ex. P-4 is an important document in this behalf. This is a letter by the deceased tenant N. Ramaprasad dated 8-10-1985, it would be better and convenient to reproduce the letter as that would clinches the issue as to whether the newly acquired premises is, suitable and alternate building or not.
"Dear Shri Kumar, I am pleased to enclose herewith a Cheque No. 222350 dated 8-10-1985 for Rs. 6,800 towards rent for the months of February 1985 to September 1985 (8 months) @ Rs. 850/- per month, as I am finding it extremely difficult to pay the rent at old rate due to complete collapse of my business at the above premises, due to construction of an under-bridge, which fact you know very well.
Further I am continuing to pay electricity charges @ Rs. 750/-per month, although I am not using power and even my request for shifting of telephone to the new premises, has been turned down by the Bangalore Telephones as the new factory is beyond 5 Kms. from the Ulsoor Exchange. Due to shut down of production in the old premises I also incurred heavy losses and good business contacts.
I sincerely hope you will extend your co-operation in my difficult days. You will appreciate that I had readily agreed for the enhancement of rent when you approached me last time. I also regret very much for the 'delay in remitting payment due to acute financial difficulties. With regards, Yours sincerely, Sd/-
N. Ramaprasad".
(emphasis supplied) In addition to the evidence of R.W. 1, letter by the deceased tenant also makes it crystal clear that immediately after constructing the building in the newly acquired land at Kacharkanahalli, Hennur Road, tenant stopped any type of activity in the leased premises atleast for a considerable length of time. If any one were to start or continue to run an industry undisputably he has to obtain licence under the Factories Act. Petition for eviction is filed in the year 1986. R.W. 1 is examined in Court on 2-11-1989. No licence for running the factory in the disputed premises for the years 1986-87, 1988-89 and 1989-90 are produced to substantiate the case of the tenant. On the other hand, R.W. 1 states that the application for renewal for the year 1990 is made and the matter is still pending. This one another circumstance coupled with the admission made by R.W. 1 clearly establish that the premises acquired by the tenant during the pendency of the tenancy is suitable for the purpose for which the disputed premises is taken on lease.
13. Tenant cannot seek any assistance from the decision of this Court in Fakirasa's case, supra. It has been held in that case that suitability or otherwise requires to be examined on the facts and circumstances of each case and further it has been declared that insufficiency of space in the newly acquired building would not be a sufficient defence or ground of non-suitability. The relevant portion reads thus:
"I have stated earlier that the tenant only pleaded insufficiency of space in the new building to carry on his trade in which there was sale of galvanised pipes and electrical appliances. That would not be sufficient defence on the ground of non-suitability".
14. In another decision of this Court learned single Judge dealing with the scope and purport of Section 21(1)(p) of the Act has held that the requirement for the new building for expansion of the business is no ground and the landlord is entitled for possession of the building, the moment he establishes that the newly acquired building is suitable for the business which the tenant transacted in the tenanted premises. In Dr. M. Shashibhushan v M/s. Bata India Limited and Another, it is declared as under:
"It is not the case of the tenant that the newly constructed building in which it is now carrying on the business is not suitable for the purpose for which the petition premises is being used. Admittedly, the basement portion of the new building is used for storing or godown purposes. However, the case of the tenant appears to be that in view of its increasing business, requiring additional accommodation for the said purpose, it is not possible to vacate the petition premises. The learned Trial Judge seems to proceed on the premise that since it is not the landlord's case that the additional construction put up by the tenant is mainly used for the alleged purpose of locating its godown, the alleged ground is not available to him for eviction. He hag further held that although the entire new premises is being used by the tenant for his business, the petition premises being very convenient and economical as a godown, clause (p) is not attracted so as to entitle the landlord to seek the tenant's eviction on that ground. It seems to me that this approach of the learned Trial Judge is wholly erroneous and not consistent with the object of the provision. It is abundantly clear from a perusal of clause (p) that the suitability of the building built, acquired or allotted necessarily has reference to the premises in the occupation of the tenant and has no nexus or relevance to his further requirement on account of increase in the volume of his business, as in the instant case. Admittedly, part of the building which constitutes the basement is suitable for locating a godown and in fact serves the purpose for which the premises had been taken on lease. In the circumstances, the landlord is entitled to succeed on this ground".
Similar view is taken by this Court in A Ekambara's case, supra.
15. A close look at the pleadings clearly makes out that the landlord not only pleaded necessary material to constitute ground under Section 21(1)(p) of the Act, but also said that the newly acquired building is suitable for the purpose of carrying his business of Vijayalakshmi Industries (paras 4 and 5 of the petition). Furthermore, the petitioner supported his case by not only stepping into the box but also by producing certain documents which are referred to above. On the other hand, tenant who disputes the suitability and who was fit and capable of giving evidence does not step into the box. His son who was major aged about 34 years who is also an attorney of R.W. 1 and who was managing the industry as mentioned in Ex. R. 5 does not step into the witness box. R.W.1-Sri P. Moses Zavier, Manager states that the new acquisition is for the purpose of expansion of the business. The consistent view of this Court is that the acquisition of a building for expansion of business or sufficiency or insufficiency of the newly acquired premises or the convenience or inconvenience is not sufficient to disentitle the landlord from seeking eviction under Section 21(1)(p) of the Act so long as he establishes that the tenant acquired a building during the pendency of the tenancy and that was suitable for carrying on the business for which he had taken the disputed premises. In the instant case, evidence of R.W. 1 very clearly establishes that the building acquired was not only bigger in extent than the disputed premises but it is also suitable and immediately after completion of the construction, the tenant started manufacturing certain equipments and that did not in any way disturbed his business, no matter even if it is at a little distance from the disputed premises. It has also come in evidence that the size of the disputed premises was shortened after acquisition by the Corporation. In these circumstances, it is rather difficult to fault the finding of the learned Trial Judge that the acquisition by the tenant during the pendency of tenancy was suitable as alternate premises and therefore the revision petition fails.
16. Before parting, it may be noted that the revision petitioner made an application I,A. No. III under Order 41, Rule 27 read with Section 151, CPC for permission to produce certain photographs and bills as additional evidence in the matter. It is settled law that additional evidence can only be permitted in certain circumstances and not as a matter of course. Sub-clauses (a) and (b) of sub-rule (1) of Rule 27 of Order 41 are certainly not attracted. Certain documents could be permitted to be produced as additional evidence under sub-clause (a) of sub-rule (1) of Rule 27 of Order 41 if only it is established that the party seeking to produce additional evidence was unable to get that evidence during the trial even after exercising due diligence. In the affidavit filed along with the application no such ground is made out. What is said in the affidavit is that certain observations are made by the Trial Court in the impugned order and only to overcome that observation certain documents are required and therefore they are produced. Relevant portion reads thus:
"It is admitted by the respondent that he has not gone to the petition premises. Oral evidence to the said effect was adduced. In view of this, the above said photos and bills were not produced. However, since the Trial Court has held that there is no documentary evidence to show that the petitioners are still doing business in the petition premises, the said photos and bills are produced by way of additional evidence to arrive at a just conclusion".
The finding of the Trial Court is based not only on evidence of R.W. 1 but also the admission made by the deceased tenant in his letter Ex. P-4. Whatever that may be, the ground pleaded is certainly not a ground for permitting the party to adduce additional evidence under Order 47, Rule 1, CPC and therefore LA. No. III is rejected.
17. In the result and for the reasons hereinabove stated, petitioner fails and accordingly this revision is dismissed. Revision petitioner is directed to vacate and handover vacant possession of the disputed premises on or before 31-8-1998. In the peculiar circumstances of the case, 1 direct each party to bear their own costs.