Karnataka High Court
G. Subramanya Udupa vs D. Ramappa on 6 January, 1995
Equivalent citations: ILR1995KAR540, 1995(3)KARLJ152, 1995 A I H C 3035, (1996) 1 RENCJ 477, (1995) 2 RENCR 200, (1995) 1 RENTLR 771
JUDGMENT Bharuka, J.
1. The Revision Application filed at the instance of the tenant is one under Section 115 of the Code of Civil Procedure against the revisional order of the District Judge, whereby it was held that the petitioner is liable to be evicted from the suit premises on the ground of personal necessity of the landlord, as also on the ground that the petitioner has acquired a suitable alternative premises of his own. The said grounds are covered by Clauses (h) & (p) of the Proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961 (hereinafter in short the Act).
2. Some of the foundational facts as found by the Courts below on the basis of pleadings and the evidence recorded, may be noticed at the threshold. The respondent is the landlord of the suit premises and the petitioner is the tenant. The suit premises comprises of one room, one big hall, one kitchen and one store room and petitioner runs a hotel therein. Contiguous to this premises, there is another premises comprised of one room, one hall, a kitchen and a bathroom, which has been occupied by the landlord and is living therein with 8 or 9 relatives being son-in-law of his brother and his family, being wife and the children. At the time of the impugned order, the age of the respondent have been found as 71 years. Therefore, now he is of the age of about 76 years. It is also an admitted fact that subsequent to acquiring of the premises in question, the petitioner has constructed a building of his own located at a distance of about 2 - 2 1/2 miles from the schedule premises with floor area of 400 Sq.ft. in Arakere, which according to the petitioner is being used by him for his residential purpose.
3. The respondent had filed the eviction petition before the learned Munsiff at Shimoga. Having lost the same, preferred a revision before the District Judge, under Section 50(2) of the Act. The learned District Judge disagreeing with the findings of the learned Munsiff, came to the conclusion that the respondent bonafide needs the schedule premises for his own use. Keeping in view the accommodation available, and the extent of need of the respondent, he did not find it feasible to order any partial eviction. Weighing the comparative hardship based on the need and available accommodation, he took the view that hardship faced by the landlord needs a more favourable consideration. Coming to the question of alternative site, he on the basis of the evidence led, has recorded a finding of fact to the effect that the premises constructed by the petitioner is a suitable alternative premises for running his hotel business. According to him, only because his own premises is situated at a little distance from the schedule premises or that it may result in lowering the income of the petitioner are not the grounds on which the suitability of an alternative premises can be rejected.
4. Mr. Jagannatha Shetty, learned Counsel appearing for the petitioner has assailed the impugned revisional order on the ground that the findings recorded by the learned District Judge are not only perverse keeping in view the evidence brought on record, but per se contrary to law as laid down by this Court in various reported Judgments. With respect to the findings of personal necessity as held by the first revisional Court, his submission is that the personal necessity can be a good ground for seeking eviction from a tenanted premises only if the same is required for the personal use of the landlord or his family members as defined under the Act or the persons who are economically dependant on him. According to him, in the present case, the personal need of the respondent is not based on his own requirements, but he has sought the eviction because the disputed premises was required for accommodating some of his relations, who cannot even be termed as his legal heirs. By referring to evidence, he has tried to show that those relations, who are residing with him are admittedly not economically dependant on him and therefore their need cannot ,be termed as the need of the respondent thereby entitling him to seek eviction under the Clause (h) of the Proviso to Section 21 (1) of the Act. In support of this part of the submission, he has relied on a Decision of This Court in the case of RADHAKRISHNAN v. THAYAPPA SETTY .
5. On the other hand, Mr. Mohan, appearing for the respondent by reference to another Decision of this Court in the case of M. NARASIMHA BHAKTA v. JAYANTHILAL GOKULDAS ILR (Karnataka) 1982 (1) 155 has submitted that the word 'himself' as used under the said clause cannot be confined by including and extending only to such persons, who are economically dependant on the landlord. Rather, according to him, the need of accommodation either for the landlord or for the persons whom he desires to live with him has to be left at his discretion, provided that discretion is shown to have been exercised bonafide.
6. Mr. Mohan has further strenuously contended that the questions pertaining to either the bonafide need including the incidental questions of partial eviction and comparative hardship, as also that pertaining to suitable alternative accommodation are essentially the questions of fact and this Court keeping in view the limited jurisdiction under Section 115 of the Code of Civil Procedure cannot embark on a jurisdiction by way of reappraisal of the evidence to substitute its own findings in relation to those aspects. In support of this part of the submission, he has referred to various Supreme Court Judgments to which I will be referring shortly. Now before examining the rival contentions on merits, I would like to examine the extent of jurisdiction, which can be exercised by this Court under Section 115 CPC in view of the law laid down by the Supreme Court in this regard.
7. In the case of MOHAMMED SULEMAN AND ORS. v. SUKUMAR MUKHERJEE AND ORS. 1968 (10) S.C.N. 449, the Supreme Court after noticing its earlier Judgments on the subject has held thus:
"Unless one or the other facet of jurisdiction of the Court trying the case arises for decision, the High Court has no competence to interfere with the judgment under appeal. It was immaterial whether the trial Court and the first appellate Court had concurred or differed on their conclusions. The High Court can interfere only if the case falls within the scope of Section 115; otherwise the decision of the appellate Court is binding on the parties. Quite clearly the facts of the present case did not attract Section 115 of the Civil Procedure Code."
8. In the case of THE MANAGING DIRECTOR, HINDUSTAN AERONAUTICS LTD. BALANAGAR, HYDERABAD AND ANR. v. AJIT PRASAD TARWAY, MANAGER (PURCHASE & STORES) HINDUSTAN AERONAUTICS LTD. BALANAGAR, HYDERABAD , it has been held thus:
"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, , and D.L.F. Housing & Construction Co.(P) Ltd. New Delhi v. Sarup Singh, ."
9. In the case of VINOD KUMAR ARORA v. Smt. SURJIT KAUR , it has been held by Their Lordships that the High Court will be competent to reject the findings even on facts if it finds that the findings of the Courts below are based on conjectures and surmises or that the same has been recorded by losing sight of uncontroverted relevant piece of evidence.
10. Similarly, in the case of JOHRI SINGH v. SUKHPAL SINGH AND ORS. , it has been held by the Apex Court that as the conditions precedent for exercise of revisional jurisdiction under Section 115 CPC, it must be shown to the High Court that the Courts below have rendered their findings in breach of any provision of law or that they have committed any error of procedure, which was material in nature and has affected the ultimate decision. It has further been held that in absence of the said conditions precedent, the High Court cannot interfere with the findings of the Courts below, however it may have differed from the conclusions of that fact findings Courts either on questions of fact or law.
11. I n view of the taw laid down by the Supreme Court as noticed above, it has to be examined that the findings recorded by the learned District Judge in any way suffers from lack of jurisdiction or that he has committed any material irregularity in the matter of procedure or that his findings are unsustainable because of having relied on conjectures and surmises or has been recorded by ignoring any material piece of evidence having bearing on the issues between the parties. In the absence of existence of any of the said conditions, even if it is found that the findings recorded by the lower revisional Court is wrong, that cannot be interfered with.
12. Under Clause (h) of Section 21(1) of the Act, a landlord can seek eviction, inter-alia, on the ground that the premises are reasonably and bonafide required by him for occupation by himself. Controversies have arisen more than once with regard to the interpretation of the expression "occupation by himself." In respect of House and Rent Control Legislations, question raised is whether the expression 'occupation by himself' should be confined to the exclusive need of the landlord alone or it can be extended to the need of other persons as well who for good reasons have been residing with him and if the word "himself" is extended to other persons as well, what should be the nature of relationship of such persons with the landlord so as to justify an eviction on this ground.
13. In the case of Mst. BEGA BEGUM AND ORS. v. ABDUL AHAD KHAN , while interpreting the provision of J & K Houses & Shops Rent Control Act, 1966, it has been held that the word 'own occupation' must not be shown narrowly interpreted so as to indicate only the actual physical possession of the landlord personally and nothing short of that
14. In RAGHAVENDRA P. MUDHOI v. HANMANT R. KULKARNI , dealing with the interpretation of Section 21 (1)(h) of the Act, this Court held thus:
"Clause (h) of Section 21(1) of the Act does not provide for the requirement of the family or things like that. It specifically mentions the use of the landlord himself. 'Himself' should not be so read narrowly to confine it to the person of the landlord and no one else. The word 'himself' occurring therein in the first clause of Clause (h) of Section 21(1) of the Act should be given a meaning wide enough to include his requirement. If a landlord's requirement includes need for occupation of larger family consisting of not only himself and his wife but that of his brothers and their wives who have chosen to live with him, then the wider definition should include the brothers also. The choice of residence with other members must be left in a civilized society to the owner of the house. One may choose to have his parents living with him; one may choose to have his brothers living with him; some even may choose to have friends live with them. Determining on the facts of each case that choice of freedom should not be curtailed unless it is demonstrable that enlargement of the members of the family is fraudulent ex-facie or on proof. In the view, I have taken, I must necessarily uphold the view taken by the District Judge. Therefore, there is no error of law in that view taken by the learned District Judge, the order of the District Judge is confirmed and the revision petition is dismissed."
15. In the case of Radha Krishnan v. Thayappa Setty it has been held that seeking of eviction of the tenant for the benefit of his son, who is living elsewhere carrying on his independent business cannot be said to be the requirement of the father within the meaning of Section 21 (1)(h) of the Act.
16. Conspectus of the Judicial pronouncements regarding reasonable and bonafide requirement of the landlord for occupation of premises for himself has been interpreted liberally with an objective test to ascertain as to whether the need of accommodating a person in his premises bonafide and reasonably enures to the need and requirement of the landlord himself. The word 'himself' as used in the Section necessarily takes within its sweep the requirement of accommodating such persons in the premises which becomes necessary for the benefit and comfort of the landlord. I am not ready to accept that only persons who are economically dependant on the landlord can be taken within the sweep of the expression 'himself'. In the case like the present one, where the landlord is a bachelor aged about 76 years definitely because of his old age and impairing health needs company and persons to look after his health every now and then. Such person has to necessarily depend on some of his relations and friends in whom he can have confidence and for availing these personal benefits, he has to necessarily provide accommodation to such relations. Seeking provision for the accommodation of his near and dears, who are willing to look after him at the close of his life is in pragmatic sense more a need for himself because this demand will be for his own necessity. In general, an affectionate company and care are imperative need of a aging person. This view of mine is squarely substantiated by two Bench Decisions of Calcutta High Court in the cases of DEOKINANDAN BOOBAN v. HARA SUNDAR SARKAR 1988(1) Calcutta Law Journal 278 and ARORA AND SONS v. DEBI PRASAD KHANNA .
17. In Deokinandan Booban's case (supra), the plaintiff, who was an aged person had sought ejectment of the tenant inter alia on the ground of reasonable requirement on the plea that he and his wife are aged couple and as such, they want her married daughter, son-in-law and their children to live with them. On these facts, the Division Bench held thus:-
"When an old landlord and his aged wife have only the married daughter as their only child and required the tenanted premises for the occupation of the daughter and her family so that they might live with them and they might be properly looked after and take care of in their old age, such requirement would not in law, be the requirement of that daughter or her family, but would be the requirement of the landlord for his own occupation within the meaning of Section 13(1)(ff) of the West Bengal Premises Tenancy Act."
This view, on some what similar facts has- been followed with the approval by the subsequent Division Bench in the case of M/s Arora and Sons (supra).
18. In the present case, it has been found as a matter of fact, which has not been denied by the petitioner, that the respondent with his relations is residing in a small premises which is wholly insufficient for even a reasonable living. The learned District Judge keeping in view these facts has held that the schedule premises is reasonably and bonafide required for the occupation of the respondent. I do not find any error with this finding so as to warrant any interference in the revisional jurisdiction of this Court under Section 115 CPC. As noticed above, the Court below after giving due consideration to the accommodation available in the schedule premises has recorded a finding against the petitioner in respect of partial eviction, as also comparative hardship. These findings as well needs no interference.
19. A plea was raised on behalf of the petitioner that it is incumbent upon the Courts to record a finding of partial eviction since in not doing so they will be acting without jurisdiction, in this respect, reliance was placed on the Decision of the Supreme Court in the case of RAHMAN JEO WANGNOO v. RAMCHAND AND ORS, AIR 1970 SC 413 . and the case in MANJUNATHA RAMACHANDRA KAMATH v. H.N. KAMATH . In this regard, I may notice, the learned District Judge, confronted with the question of examining the issue pertaining to partial eviction, had called for a finding from the learned Munsiff in that regard after giving the parties reasonable opportunity of leading evidence. But, the learned Munsiff by his order dated 24.9.1988 expressed his inability to record any finding in respect of partial eviction since despite opportunities, the contesting parties refused to adduce any evidence on the issue. Therefore, in keeping with the materials on record, the learned District Judge has recorded his own finding in this regard.
20. So far as the question of alternative suitable premises is concerned, Mr. Jagannatha Shetty has tried to impress upon me that keeping in view the evidence on record, no reasonable man can come to the conclusion that the house constructed by the petitioner can be a suitable place or premises for running the hotel as compared to the schedule premises, where the same is being run. His submission is that so far the house constructed by the petitioner is concerned, it is residential in nature and that cannot be used for running a hotel, which will be an activity pertaining to non-residential premises. He may be right in saying so. But whenever a person intends to use a building for non-residential purpose, he has to undertake some legal formalities. It is not the case that the building is not capable of being used as a hotel. But, then for using the building for that purpose, some permissions or licence may be required to be obtained from the statutory authorities. Apart from this, it cannot be doubted that the shifting of the hotel to a distant place may affect the earning capacity of the petitioner. But then, these are grounds for taking a different view on a question of fact. Suitability of a premises for a particular purpose, is essentially an inferential fact drawn on the assessment of certain basic facts. That being so, despite all my sympathies for the petitioner, keeping in view the limited jurisdiction which I can exercise, I find myself unable to interfere with the finding of the learned District Judge. In any view of the matter, since the respondent has to succeed on the ground of personal necessity, the ground of alternative accommodation is not of much consequence.
21. For the reasons as aforesaid, the Revision Application is dismissed. But, in the facts and circumstances of the case, there will be no order as to costs.
22. After the order was dictated, the learned Counsel for the petitioner has prayed that since the petitioner is running the hotel since 1972 and it may be difficult on his part to vacate the same immediately, six months time may be granted for vacating the premises. Learned Counsel for the respondent agrees to that request.
23. Accordingly, petitioner is directed to vacate the premises within six months from today.