Karnataka High Court
K.N. Suryanarayana Setty vs K. Sattarkhan And Others on 5 January, 1995
Equivalent citations: AIR1995KANT252, ILR1995KAR521, 1995(2)KARLJ551, AIR 1995 KARNATAKA 252, (1995) ILR (KANT) 521, (1995) 2 KANT LJ 551, (1996) 1 RENCJ 526, (1995) 2 RENCR 159, (1995) 1 RENTLR 762
ORDER
1. This revision petition under Section 10 of the Karnatka Rent Control Act, 1961 ('Act') for short) is presented by the landlord having failed before the trial Court. The landlord has sought eviction of the respondents under Section 21(1)(h) of the Act in respect of the shop premises bearing No. 6 situated in Jumma Masjid Road, Bangalore City who have been in occupation of the said premises since the year 1971, and the petitioner has been seeking their eviction since the year 1984.
2. In the petition it is stated that the shop in question is situated in Jumma Masjid road and that the petitioner is residing in the residential portion of the building in the ground floor and first floor bearing No. 5. It appears that there are altogether three shops in row out of which the middle one is already in the occupation of the petitioner which he got vacated by filing an eviction petition and the same is being used by him for his silk and cotton yarn business.
3. It is the case of the petitioner that he is in need of shop premises No. 6 which is in the occupation of the respondents, "for the use of one of his sons to conduct a provisioncum-grocery shop." It is also stated in the petition that he is also in need of another shop premises No. 5 in the occupation of another tenant by name Narayandas in inspect of which the petitioner had also filed an eviction petition. It appears the said eviction petition has since been allowed and against the said order the tenant of shop No. 5 has preferred revision in this Court.
4. In the statement of objections filed by the first respondent he has pleaded that he is not the tenant of the petition schedule premisess and that a partnership firm is doing business in silk yarn in the said premises in the name and style of "Royal Silk Traders" of which he is one of the three partners. In view of this objection it appears an application was field by the petitioner in the trial Court, and the other two partners were also impleaded and respondents. In the objection statement motive is attributed to the petitioner for filing the eviction petition stating that he has been evicting all the tenants in the building "for prospective exploitation of the property". It is denied that the sons of the petitioner are in need of accommodation for purpose of starting any business. It is alleged that the sons of the petitioner are students and that they would take up salaried jobs and as a matter of fact one of the sons is already employed in Government service.
5. The respondents have pleaded that the entire area in which the shop premises in question is situated is dominated by silk business and it is not a suitable place for starting of provision-cum-grocery stores. The respondents have questioned the bona fide and reasonable requirement for starting of the business by the sons of the landlord. They have also pleaded that greater hardship would be caused if eviction were to be ordered, more so in view of the fact that silk yarn business is mostly confined to Cubbonpet area in which Jumma Masjid road is situated.
6. Sri P. Vishwanath Shetty, learned Counsel for the respondents submitted that the petition is lacking in material particulars. The learned Counsel submitted that the petitioner has not given the name of the sons/s who intend/s running the provision/ grocery shop in the premises, and that he has not pleaded how much money he desires to invest, the floor area required for the said business and the preparation he has made for starting of the said business. The learned Counsel contended that in view of the fact that these material particulars are not pleaded no amount of evidence on the said question, for want of pleadings, would establish the bona fide and reasonable requirement of the petitioner.
7. In the statement of objections, the respondent has not pleaded that the petitioner is not possessed of sufficient means to start the business. In his evidence the petitioner, as P.W. 1 has stated that he intends to invest a sum of Rs. 20,000/- initially in the business and even though he does not have "cash on hand" he can get loan to the extent of Rs. 2 lakhs against the security of his building.
8. In the additional statement of objections filed by the respondents, they have pleaded that the petition schedule property was mortgaged by the petitioner in favour of a third party and the said third party had assigned the mortgage in favour of the respondents. On that basis the respondents have pleaded that they are in occupation of the petition schedule premises not as tenants but as mortgagees with possession.
9. The petitioner in his deposition has stated that he has five sons, out of whom the first son is employed and the remaining four sons are unemployed and are depending entirely upon him for their maintenance. He has stated that if the petition schedule premises were to be available to him he would set up the 4th and 5th sons, namely, Chandrasekhar and Satishkumar to run provision stores. In his evidence the petitioner has deposed that he was running a 'Video show' in one of the halls in the first floor, and since he could not secure licence he closed the said business and the said hall is now being used by him and his family members for residential purpose. He has stated that the entire building is constructed on site measuring 35'x45'. In cross-examination he has admitted that he had previously filed Eviction Petitions in H.R.C. No. 895/66 and 5751/66. H.R.C. No. 895/66 was filed by the petitioner against one Bhimrao who was the tenant in the first floor of the building and the said H.R.C. petition was allowed and after the said Bhimrao vacated the premises he himself has occupied the first floor of the premises for his residence. H RC 5751 / 66 was filed by him to get rid of one Munirathanam who was in occupation of the middle shop out of the three shops and after he was evicted the petitioner himself has set up silk yarn business assisted by his sons. He has also stated that he had filed HRC 3278/84 against one Narayan who is in occupation of another shop on he western side of the petition schedule property in which as already noticed, the trial Court has passed an eviction order against which the said Narayana has preferred revision petition before this Court in C.R.P. 871/93 which is pending consideration. Besides the petitioner, two sons of the petitioner have been examined. K.S. Chandrashekhar who is 4th son of the petitioner has deposed that he has studied upon B.Com. and that he intends to set up a provision store in the petition schedule premises and that the funds for the same would come from his father. Similarly, Satishkumar the 5th sons has deposed that he has studied up to SSLC and he is unemployed.
10. The fact that the 4th and 5th sons are unemployed is not seriously disputed by the respondents since nothing is suggested in the cross-examination that they have been employed.
11. The trial court on the question of maintainability of the petition has held that in so far as the mortgage pleaded by the respondents is concerned, the same is not proved by the respondents, since no original documents have been produced by the respondents showing that the mortgage was assigned in their favour by the third party. The trial court has also found that the mortgage has since been redeemed by the petitioner and even otherwise what was mortgaged in favour of a third party by the petitioner was premises bearing No. 5 and the petitioner scheduled premises bearing No. 6. The trial court has also held, on the basis of the invitation card issued by the first respondent for the marriage of his daughter wherein he has described himself as Proprietor of Royal Silk House, that the first respondent is the tenant of the premises. Even otherwise in view of the fact that the remaining two partners have since been impleaded there is no substance in the contention of the respondents that the petition as against them is not maintainable. Accordingly, the trial Court on the question of maintainablity has held in favour of the petitioner.
12. Regarding the experience of 4th and 5th sons to carry on the business in running a provision stores, the trial Court has found that for running a provision stores, not much of experience is necessary and in view of the fact that the sons of the petitioners come from a business family they would be capable of running a provision stores. However, the trial Court has dismissed the petition mainly on the ground that the petitioner has not produced any material as regards the arrangement made by him for running of the provision stores, and there is nothing on record to show that the petitioner is possessed of sufficient funds to run the provision stores. The trial Court has noticed the evidence of the petitioner that he would like to invest a sum of Rs. 20,000/- initially for running of the provision stores and that a sum of Rs.4000/- is readily available with him for starting the business. As a matter of fact, the petitioner has stated in his evidence that he is capable of raising funds to the extent of Rs. 20,000/-immediately from his existing business.
13. Sri N. Kumar, learned Counsel appearing for the petitioner submitted that the trial court was clearly in error in coming to the conclusion that the premises in question is not bona fide and reasonably required by the petitioner, merely on the ground that no evidence is produced by the petitioner as regards the arrangement made by him, and that he has sufficient funds to start the provision stores. In this context the learned Counsel relied on the decision of the Supreme Court in Mattulal v. Radhe Lal. , wherein a similar question arose for consideration. In paragraph 13 the Supreme Court has observed thus:
"13. The respondent, however, contended that the finding of the Additional District Judge that the respondent did not bona fide require the Lohia Bazar shop for the purpose of starting new business as a dealer in iron and steel materials was vitiated, firstly because he erroneously assumed that unless the respondent showed that he had made preparations for starting this new business, such as making arrangements for capital investment, approaching Iron and Steel Controller for the required permits etc., if could not be said that the respondent bona fide required the Lohia Bazar shop for such new business, and secondly because he relied wrongly and unjsutifiably on the fact that the respondent had asked for possession of the whole Lohia Bazar shop and not merely a portion of it. Now there can be no doubt that these two circumstances relied upon by the Additional District Judge were wholly irrelevant. It is difficult to imagine how the respondent could be expected to make preparations for starting the new business unless there was a reasonable prospect of his being able to obtain possession of the Lohia Bazar shop in the near future. It is a common but unfortunate failing of our judicial system that a litigation takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with that result and unless the respondent could be reasonable sure that he would within a short time be able to obtain possession of the Lohia Bazar shop and start a new business, it would be too much to expect from him that he should make preparations for starting the new business. Indeed, from a commercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permits and receipt of stocks of iron and steel materials when he would not know whether he would at all be able to get possession of the Lohia Bazar shop, and if so, when and after how many years."
The facts narrated by the Supreme Court in the aforesaid decision appear to be identical with the facts of this case.
14. In Mohamed Safiullla v. S. S. Ganapthy Rao, (C.R.P. 872 of 1975, D.D. 4-3-1977), this Court has held that the evidence to show that the landlord possessed sufficient funds to start a shop in electrical goods, that he had taken any steps in securing the necessary licence to start such a shop and that he was competent to run such a business, was wholly irrelevant while considering bona fides of the claim of the landlord.
15. On the question of want of material particulars in the pleadings, the learned Counsel for the petitioner submitted that as a matter of fact the petitioner has stated in clear terms of in the petition that the petition schedule permises is required for setting up of a provision store by his sons and the fact that he has not mentioned their names would not be in any manner bear on the question of bona fides or reasonableness on the part of the petitioner to set up the business in provision stores.
16. In Chokadi Venkataraman v. Kashim Saheb, ILR 1985 Kar 1972, this Court relying on the decision in Mst'. Bega Begum v. Abdul Ahad Khan, has ruled that the landlord cannot be denied the relief merely on the ground that he has not pleaded about his experience or capacity to carry on the proposed business. In the said decision this Court has also held that considering the nature of the business it cannot be said that it is of such a nature which requires special skill or know how to rule out the possibility of the landlord commencing or carrying the same and the mere fact that two sons of the landlord were making attempts to get employment after getting their names registered in the employment exchange also cannot give rise to a reasonable inference that they are not eager to do any business and that their requirement is not bona fide and reasonable.
17. On the other hand, Sri P. Vishwanath Shetty, learned Counsel appearing for the respondents emphasised that since pleadings formed the basis for establishing the bona fide and reasonable requirement, it is essential that all material particulars which would bear on the said question must be found in the pleadings. In this regard, the learned Counsel referred me to the decision in D'Souza v. Rama Rao, 1978 (1) Mys. LJ 235, wherein this Court has expressed the view that where a landlord requires non-residential accommodation in the occupation of the tenant for the purpose of starting a business, the landlord must mention in his petition the details of his requirements, and it is only then the Court would be in a position to appreciate and decide objectively whether his requirement is bona fide and reasonable and it is not proper for the Court to start with any initial presumption or assumption in favour of the landlord.
18. That was a case, where what was pleaded in the petition was different from what was deposed by the landlord and his son for whose sake the landlord sought eviction of the tenant in occupation of a shop premises. In that context this Court held that in the petition though a specific case was made out that he requires the suit shop for starting a business in sports goods, foot wear and departmental stores, the said version was entirely denied and during evidence P.W.2 who wanted the shop for doing business confined his claim only for doing business in readymade garments which was not averred in the petition at all.
19. In the instant case the petitioner has stated, as noticed above, that he bona fide and reasonable requires the petition schedule premises to set up two of his unemployed sons to start a provision store and in my view the said pleading cannot be said to be vague or obsure for purpose of establishing the bona fide and reasonable requirement.
20. The learned Counsel for the respondent Sri P. Vishwanatha Shetty invited my attention to certain passages in the decision of Mattulal's case, referred above, wherein the Supreme Court has rules that mere desires on the part of the landlord is not enough but there should be an element of need and the landlord must show, the burden being upon him -- that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business.
21. In Abdul Haq v. Mahboob Khan, ILR 1987 Kar 3853, on the facts of the case and the nature of the business sought to be established, this Court has held that when the landlord seeks eviction of the tenants on the ground that he requires the premises for his business, he must state what business he wants to start, what arc his requirements for thai business apart from the fact that he has sufficient finance lo back up such a business, particularly when it is a new venture, and how much area is required for his business, to establish bona fides.
22. For starting of a provision stores, in the nature of things, no elaborate arrangement or preparation is necessary. No expensive furnitures or other accessories are required. All that would be required is one or two racks to start with to keep the articles of daily use to be sold in the shop premises; and to start a provision store it cannot be said that the funds required to be invested would be a large sum. One could star! a provision store with a small amount of Rs. 4000/ - to 6000/-. Therefore, the finding of the trial Court that the petitioner has failed to show what arrangement he has made for establishing the provision store or how much fund is readily available with him to establish his bona fides is unrealistic.
23. The decisions relied upon by the learned Counsel for the respondents as regards the arrangement made by the landlord and the finance available with him would be certainly relevant if he intends to establish business on a large scale. But to establish a small business, in my view, no such preparation or arrangement is necessary. The 'cash on hand' factor looses its relevance more so with drastic changes in the economic policies, and cash is freely available through the medium of financial institutions. In the instant case since it is on record that the petitioner wants to start a provision store on a small scale that too initially within an amount of Rs. 4000, and taking consideration the fact that the property itself is situated in a highly commercialised area, the Court could proceed on the basis that the petitioner is in a position to establish a provision store business in a small scale to start with.
24. One more factor which weighed in the mind of the trial Court in dismissing the petition was that the landlord has been evicting all the tenants one after another from the year 1966. As already noticed, it is in the evidence of the petitionerthat he had instituted two H.R.C. petitions previously -- one against Bhimarao who ultimately vacated the shop in his occupation. After getting it vacated it is not as if the petitioner has let out the middle shop to others, but on the other hand he himself has been in occupation. The first floor of the building after it was not vacated is in the occupation of the petitioner for residential purpose. The fact that he had evicted two tenants previously is not a factor to be taken into consideration to suspect the bona fides of the petitioner.
25. In so far as the question of hardship is concerned, the first respondent in his evidence has stated that apart from the petition schedule premises he has a big manufacturing unit on Mysore Road. He has stated that he has got a silk twisting factory on Mysore Road in premises measuring 70' x 40'. He has also stated that it is his production centre. He has also stated that he has got a house in Frazer Town and the same measures 40' x 60'. He has stated that the factory premises has got a first floor wherein he has installed the machinery. According to his evidence, the property on Mysore road is worth about Rs. 5 lakhs. He has denied the suggestion that his house is worth Rs. 10 lakhs. However, he has admitted that he has got landed property in Rama-nagaram which is worth about Rs. 7 to 8 lakhs. The respondent is using the petition schedule premises for the purchase and sale of silk goods. It is more in the nature of trading. The learned Counsel for the respondent, contended that since the business of trading in silk yarn is mostly on Jumma Masjid road, the respondents would be put to greater hardship if they were to be evicted from the petition schedule premises.
26. The petitioner in his evidence has stated that on Jumma Masjid road apart from silk trading so many other commercial activities take place and the silk trading business in course of time is reduced to a considerable extent. He has stated that there arc number of provisions stores in the vicinity and other business establishments apart from silk trading.
27. The first respondent has stated in his evidence that no shops are available anywhere in the vicinity to take on lease to enable him to shift his business. The growth of the city is taking place at a frequentic pace and shifting of traditional business centres from one place to another has become common. The fact that the respondent has to shift his business elsewhere cannot be a ground for rejecting the claim made by the petitioner-landlord. It is not as if the first respondent is incapable of finding alternative accommodation in Bangalore with the resources, which admittedly he has got.
28. On behalf of respondents, no submission made regarding the possibility of partial eviction before this Court. Even otherwise, since the petitioner is setting up a provision stores, consisting of articles of human consumption, it would be inadvisable to permit a silk yarn shop immediately adjacent to it. Besides, the width of the shop facing the road is only ten feet. It is impracticable to divide it into two parts.
29. It is a matter of common knowledge that eviction proceedings in courts are long drawn. Though in statute, it is provided to be a summary proceeding, as a matter of fact, the litigation is prolonged and oftentimes it is dragged on for over 10 to 15 years. Consequently, the original pleadings of the parties get distorted with the natural changes in the circumstances of the family marriages, births, and deaths. Courts have to take into account these inevitable changes in the family structure, the changes in family values and the style of living. In the instant case, the sons of the petitioners were very young when the eviction petition was presented. As on today, all of them have grown up and the desire of the petitioner, like that of any other father, to set them up an independent business is genuine and a natural one.
30. In the view I have taken, the order dated 15-10-1988 passed by the trial Court in HRC 3279/84 dismissing the petition filed by the petitioner under Section 21(1)(h) is set aside and the application of the petitioner seeking eviction of the respondents under Section 21(1)(h) of the Act is allowed.
31. Taking into consideration the circumstances of the case and the fact that the first respondent has been using the premises as sales outlet since 23 years, three months time is granted to the respondents to vacate and deliver vacant possession of the petition schedule premises to the petitioner subject to the condition that they shall continue to pay the rents regularly. No costs.
32. Revision allowed.