Karnataka High Court
S.N. Nagaraja Setty vs Bramalavathamma on 13 March, 1990
Equivalent citations: AIR1991KANT1, ILR1990KAR1535, AIR 1991 KARNATAKA 1, (1991) 1 RENCR 462 (1990) 2 RENTLR 156, (1990) 2 RENTLR 156
ORDER
1. The tenant has come up in revision against the order of the District Court, which directed the eviction of the tenant from the entire premises, whereas, the trial court had directed only partial eviction. The entire premises in quest ion here, is it self is a portion of a house bearing Door No. 365/6, The monthly rent is Rs.80/-; the schedule premises is in Mysore City.
2. The landlady, for want of her own accommodation has been residing in her married daughter's house at Tumkur; she has no other premises of her own in mysore; her desire is to spend her old-age in her own house. Earlier there was an order of eviction; the District Court revised it and remitted back the matter to the trial Court to consider the question of partial eviction after affording further opportunity to lead evidence; the tenant adduced some evidence and a Court Commissioner was appointed to gather information as to the schedule premises and to find out the feasibility of dividing the premises.
3. The sole question before the trial court, therefore, was the question of partial eviction. The Commissioner has reported that the premises in the occupation of the tenant consists of two rooms measuring 6' 2" X 5' 1" and 6'3" X 10' 3" respectively which was Constructed by dividing a hall by a dwarf wall with a height of 7.1" X 10.3" having 11" thickness. The age of the building is 60 years, Walls are built up of brick in mud. The hall and the rooms and half portion of the kitchen are having Managalore tile roofing and the other half portion of the kitchen and open space is having zinc sheet roofing. The height of the main hall is of 19.7" at the entrance and 15' 3" on the sides with gabled roofing.
4. The tenant's evidence shows that the hall measures 11' X 16' and the Kitchen measures 8' x 12'. There is a bath-room and a toilet and a vacant open space at the rear measuring 7' X 8'. The building was south facing and he suggested the dividing of the house south to north. The Commissioner however observed that "except building a first floor portion in the existing premises, the building cannot be divided into two portions conveniently". However, he observed in the report, that, the kitchen can be converted into a small room and a small kitchen measuring 1.8"+ 5' 4" X 5' and 6.9" X 10'. The bath-roor measures 4.11" X 5.2" which cannot be conveniently divided to accommodate two rooms.
5. The trial court made its own estimation of the requirement of the landlady and indulged in speculation by observing that the right side window could be converted into a door and in the said room (i.e., the first room measuring 6' 2" east-west) and in the northern room, further doors can be inducted in the walls and make them part of the kitchen; in other words, the western walls of the two rooms may be extended south-north till the northern extreme, either by wooden slabs or small brick walls, as may be desired by the parties; the existing wooden wall's height also may be raised further; and one portion may be given to the landlady as she will be residing alone; in the open space at the rear, she may put up a toilet for her use; as the kitchen is spacious, a corner of it may be used for bathroom or as a place for bath. The western portion may be left with the tenant.
6. The District Court reversed this order. The District Court held that the partition contemplated by the trial court was neither practical nor feasible and independent enjoyment of the respective portions by the landlady and the tenant was not possible. The age of the building, the heavy expenditure required for the alterations directed by the trial court and the resulting inconvenience are the factors establishing that this kind of order for partial eviction was unreasonable.
7. I do not find any erroneous approach adopted by the District Court. The partial eviction contemplated by S. 21(4) of the Karnataka Rent Control Act, 1961, should be an eviction from such a portion as would make enjoyment of the remaining portion with the tenant vis-a-vis, the enjoyment of the portion given to the landlord reasonably possible. Reasonableness of the division of the premises has to be considered by the court. Conjectures, speculations and im-aginery possibilities are entirely out of consideration here; court has to examine the question from a practical point of view. This is not a division of theoretical rights between L parties; but, a partition resulting in compelling the parties to enjoy in practical life, the two portions of a premises separately. In the process of reducing the comparative hard-
ships of the parties under S.21(4), court cannot and should not create a situation of permanent hardship.
8. Normally, the premises should be capable of separate enjoyment without such alterations or modifications; the expenditure to be incurred to effectuate the partial eviction and separate the two portions should be only marginal and incidental. A far reaching alteration, requiring almost new Addition and constructions, will be compelling the landlord to put up a new premises, in the guise of separating the partially vacated premises.
9. The trial court has acted unreasonably and arbitrarily in this case, in holding that the small extent of open speace at the rear be used to put up a toilet by the landlady and a corner of the kitchen be used for taking bath or putting up a bath-room there; it ignored the age of the building when it directed the opening up of the walls to put up the doors. It has not even considered whether the arrangement made by it will be convenient for the parties to live in comfort and amicably.
10. The jurisdiction under S. 21(4) of the Act is an equitable jurisdiction, though created by the statute. Great care is required of the court while exercising the power under S. 21(4) to order partial eviction the court cannot compel a helpless or poor landlady to spend further, for the construction to bifurcate a single premises into two; capacity of the landlord is one of the most relevant factors to be considered here. The term "landlord" does not convey that, in every case, he or she is economically stronger than the tenant. Under the general law, the landlord cannot seek eviction from a part of the premises; this provision for partial eviction is the statutory innovation and has to be construed as part of the consideration of comparative hardships. The language of this part of S. 21(4) by itself does not empower the court to direct the landlord to effect alteration or add further construction to the leased premises, as incidental to the partial eviction. The section contemplates making of an order of partial eviction only; in other words Court is entrusted with the power to apportion the premises as it stands and direct eviction from one portion. However, as incidental to this power, court may in appropriate cases, direct, slight alteration or modification in the structure; this is only as an exceptional measure, when the admitted facts point out that no inconvenience, injustice or hardship would result to the parties having regard to the situation of the premises, its structure, the financial condition of the landlord and other relevant factors. A mere possibility of putting up dividing walls and availability of a small open space where a construction can be put up (ignoring the advantages of having the open space left as it is), by themselves are not sufficient to order partial eviction.
11. The requirement of the landlady under S.21(1)(h) has been concurrently found to be reasonable and bona fide. The only question therefore, here, is the correct-ness of the order made under S. 21(4). On this, the order of the trial court was rightly reversed by the District Court.
12. The learned counsel for the tenant stated before me that, his client has already started constructing his own house and in a few months it will be ready; he further stated that, the tenant was employed in a private company. These facts will be relevant while granting time to the tenant to vacate the schedule premises.
13. Consequently, this petition falls and is dismissed, however, the tenant is granted time till the end of September 1990 to vacate and deliver vacant possession of the schedule premises to the landlady, subject to the condition he pays the rent to the landlady promptly and regularly. No costs.
14. Revision dismissed.