Karnataka High Court
K. Ramachandra Mayya vs Sanjeeva S.Putran (Deceased) By L.Rs on 13 July, 1999
Equivalent citations: ILR1999KAR3306, 1999(6)KARLJ370
Author: K.R. Praseada Rao
Bench: K.R. Praseada Rao
ORDER
1. This is a tenant's revision petition filed against the order of eviction passed in Revision (Rent) Petition No. 138 of 1986 on the file of the learned District Judge, D.K., Mangalore, confirming the order of eviction passed by learned II Additional Munsiff, Mangalore, in H.R.C. No. 67 of 1981 on the ground under Section 21(1)(p) of the Karnataka Rent Control Act ('Act' for short). For the sake of convenience, I shall refer to the parties as arrayed in the Trial Court.
2. The original petitioner died during the pendency of this proceeding and his L.Rs are brought on record. Petitioner filed H.R.C. No. 67 of 1981 in the Trial Court seeking for eviction of the respondent-tenant from the petition schedule premises on the ground under Section 21(1)(b), (c), (f) and (p) of the Act alleging that, he is in occupation of the petition premises bearing Door No. 5-4, situated in Kotenkar Compound at Idya Village within the limits of Surathkal Municipality, Mangalore Taluk, on a monthly rent of Rs. 155/- and that, he is also in occupation of another premises belonging to the petitioner bearing No. 5-5/1 as a tenant on a monthly rent of Rs. 136/-. It is his further case that, the old numbers bearing 5-20, 5-21 and 5-22 of the petition premises consist of three tenements. Respondent has taken the petition schedule premises for his residential purpose. According to the petitioner, the respondent resided in the said premises till the month of May 1980 and thereafter, shifted his residence to newly acquired premises at B. Narayana Rao's compound located in Survey No. 50/2 near Kaveri Sana of Idya Village. Petitioner therefore sought for the eviction of the respondent from the petition premises on the ground under Section 21(1)(p) of the Act. Petitioner also alleged that, the respondent has converted a portion of the petition premises as storeroom + godown, contrary to the agreement and, he has stocked materials like aluminium vessels, stainless steel materials, stationery books and papers, plastic goods, drums of paints etc., and that, he is doing business in other premises No. 5-5/1. It is further alleged that the respondent had erected permanent structures in the petition premises altering the original premises and he has sublet a portion to one R.D. Costa, who has stored biscuit tins, soft drinks etc., in that premises. Petitioner also alleged that, the respondent has caused damage to the petition premises to the extent of Rs. 12,000/- and sought for the eviction of the respondent on the grounds under Section 21(1)(b), (c) and (f) of the Act. Respondent filed his objections in the Trial Court contending that, he has taken the three tenements in the premises at different times and in the first instance, premises bearing Door No. 5-20 was taken on lease on a monthly rent of Rs. 50/- and, premises bearing No. 5-21 was taken on lease on a monthly rent of Rs. 45/-. Both the said premises were taken for non-residential purpose. Premises No. 5-22 was taken subsequently by him for residential purpose on a monthly rent of Rs. 60/-. He denied that, he made any alteration in the petition premises or that he had put up any permanent structures. He also denied that, he has shifted his residence in the month of May 1980 to B. Narayana Rao's compound. He also denied the allegation made that he had sublet portion to one R.D. Costa. He contended that, he is continuing in occupation of petition premises bearing old Door No. 5-22, making use of the same for his residential use and the other two premises are being used by him for non-residential purpose.
3. Trial Court recorded the evidence adduced by both parties and allowed the eviction petition only on the ground under Section 21(1)(p) of the Act. The Trial Court held that, the said ground under Section 21(1)(p) of the Act is established on the basis of the evidence adduced relating to the subsequent development which was brought to the notice of the Court by the petitioner in the evidence adduced by him that the respondent acquired vacant possession of the suitable new building through his wife in Thadambail locality in the year 1983. Aggrieved by the said order of eviction passed by the Trial Court, tenant filed Revision Petition No. 138 of 1986 in the First Revisional Court. Landlord also filed Rent Revision Petition No. 190 of 1986 aggrieved by the order passed by the learned Munsiff dismissing the eviction petition on the ground under Section 21(1)(b), (c) and (f) of the Act. After hearing the arguments advanced by the learned Counsel appearing in the First Re-visional Court, learned District Judge dismissed both the revision petitions, confirming the order of eviction passed against the respondent under Section 21(1)(p) of the Act. The tenant, therefore, approached this Court in the present revision petition.
4. I have heard the elaborate arguments advanced by learned Counsel appearing on both sides.
5. Learned Counsel for the revision petitioner Sri Udaya Holla has raised the following contentions in support of his argument that the order of eviction passed by the Court below against the respondent-tenant under Section 21(1)(p) of the Act cannot be sustained:
(1) Both the Courts below ought to have held that the eviction petition filed is not maintainable since the lease in respect of the three tenements of the petition premises is not a composite lease.
(2) Both the Courts below have overlooked the fact that the respondent-tenant has not acquired a building of his own suitable for his residential accommodation and non-residential use.
(3) Both the Courts have failed to notice that there is variation between pleading and proof in respect of the ground under Section 21(1)(p) of the Act.
6. In reply to the above contentions raised by the learned Counsel for the revision petitioner, it is submitted by the learned Counsel for the respondent-landlord that, on the admission of the tenant himself that he has treated the tenancy as a composite tenancy and he is paying the consolidated rent of Rs. 155/- per month, the Courts below were justified in holding that the eviction petition is maintainable in respect of the three tenements particularly When they are given only single number as 5-4. He further contended that, both the Courts below were justified in holding that the respondent-tenant has acquired suitable building for his occupation through his wife and so he is liable for eviction on the ground under Section 21(1)(p) of the Act. It is also contended by him that, there is no merit in the contention of the learned Counsel for the revision petitioner that there is variance between pleadings and proof in respect of the ground under Section 21(1)(p) of the Act, since the evidence adduced by the landlord in respect of the said ground is based on subsequent event, in respect of which, no pleading could be given in the eviction petition.
7. I shall now examine the merits of the respective contentions urged by the learned Counsel appearing on both sides.
8. In support of the contention that the eviction petition is not maintainable, the learned Counsel for the revision petitioner pointed out that, the landlord himself admitted in his evidence that the three tenements bearing different door numbers were taken on lease at different times under separate lease agreement and that, each of the said tenements was given on rent separately. It is therefore contended by him that, one eviction petition filed in respect of the three tenements which were leased out under different lease agreements is not maintainable. I would have accepted this contention had there not been an admission by the tenant himself in his evidence that he treated the tenancy as single tenancy and he is paying aggregate rental amount in respect of the entire petition premises which is now given new Door No. 5-4. So whatever may be the position at the inception of tenancy, now the fact remains that the tenancy is treated as single tenancy by the tenant himself in respect of the entire petition premises which is given only one Door No. 5-4. In this view of the matter, in my view, the Courts below were justified in holding that the eviction petition is maintainable in respect of the entire petition premises.
9. I shall now proceed to examine the main contentions raised by the learned Counsel for the revision petitioner that no ground under Section 21(1)(p) of the Act is made out for ordering eviction of the tenant from the petition schedule premises. At this stage, I find it necessary to refer to the said provision of Section 21(1)(p) of the Act which reads as follows:
"That the tenant whether before or after the coming into operation of this part has built, or acquired vacant possession of, or been allotted, a suitable building".
10. This is one of the grounds mentioned under Section 21(1)(p) of the Act for granting an order of eviction against the tenant. It is clear from the language of the above provision that the tenant need not be the owner of the building acquired by him for the purpose of ordering his eviction if it is found to be suitable for the purpose for which the tenanted premises has been let out to him and is being used by him. If the tenant has built a premises or acquires vacant possession of any other premises either by lease or by mortgage or under licence or if the tenant has been allotted a suitable building by the Rent Controller, the provisions of Section 21(1)(p) of the Act will be attracted. The main object and intent of the above ground provided under Section 21 of the Act to withdraw the protection given to the tenant from eviction, the moment he secures a suitable alternative accommodation for his occupation and to make the tenanted premises available for the occupation of another tenant. In the present case, it is admitted by the respondent-tenant in his evidence that, in the year 1980 or 1981, his wife and children have shifted to a new house situated at Thadambail in Surathkal which is about a mile from the shop and presently they are residing in the said new house. It is also in his evidence that, his wife is even doing business in a portion of that premises. Thus, it is not disputed by the respondent that the said new building is suitable both for residential and non-residential use. In view of the said admission of the respondent, I do not find any merit in the arguments advanced by the learned Counsel for the revision petitioner that the said new building is not suitable for use as godown for non-residential purpose. It is pointed out by him that, two tenements of the petition premises were let out to him for use as godown by the original landlord. Though the respondent herein denied the said contention and claimed that all the three tenements were let out only for the residential use, as it is now found that the newly constructed building which is in occupation of the family members of the respondent-tenant is being used as both residential and non-residential purposes, in my view, it is unnecessary to go into the question whether two of the tenements were let out for non-residential use as claimed by the tenant. However, petitioner has also produced some documents to show that all the tenements were being used for residential purpose before they were let out to the respondent. Petitioner produced the Ration Card standing in the name of his sister which is marked as Ex. P-1 to show that his sister was residing in the premises bearing No. 5-20 upto February 1974 before it was let out to the respondent. He also produced the certified copy of the eviction order obtained by him against his previous tenant one Ramakrishna Pillai in Small Cause Suit No. 40 of 1972 on the file of the I Additional Munsiff, Mangalore, which is marked as Ex. P-2 in respect of the tenement bearing 5-21 to show that the said tenement was also being used for residential purpose by the said tenant and that, after securing vacant possession of the said premises, it was let out to the respondent. These circumstances, no doubt, probabalise his conten-
tion that, even two tenements 5-20 and 5-21 were let out to the respondent for residential use and not to be used as godown. But, both parties have not produced original lease agreement in support of their respective contentions. However, I find it unnecessary to go into the merits of the said respective contentions since it is found that the newly constructed building is also found suitable for non-residential use and since it is being used both for residential and for non-residential purpose by the family members of the respondent-tenant. Though important question raised by the learned Counsel for the petitioner is that, since the said newly constructed building admittedly stands in the name of wife of respondent, it cannot be said that, it is a building acquired by the respondent himself for his personal use and occupation and both the Courts below have misconceived the provisions of Section 21(1)(p) of the Act and have erroneously held that the said ground is attracted, to order for eviction of the tenant from the petition premises. In support of his contention, that a building acquired by the wife as a tenant cannot be considered as the building acquired by the tenant himself he relied upon a decision of the Supreme Court in B.R. Mehta v Smt. Atma Devi and Others, and another decision of the Delhi High Court in Smt. Revti Devi v Kishan Lal. The later decision is referred in the above decision of the Supreme Court wherein it was held as follows:
"The tenant-husband, cannot be made to lose his tenancy in respect of demised premises because of his wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation. If a wife or husband acquires a property and the other spouse if he/she is the tenant, has a legal right by virtue of such acquisition and stay there, then only can such acquisition or allotment of premises would disentitle or attract the provisions of clause (h) of Section 14(1), otherwise the whole purpose would be defeated. In other words, if for all practical and real sense the tenant, acquired, built or was allotted another residence, then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises.
From the fact that the wife of the tenant was allotted a temporary Government accommodation, it cannot be said that there was admission regarding possessing of alternative accommodation, by virtue of which the tenant could lose tenancy".
11. Strongly relying upon the above ruling of the Supreme Court, learned Counsel for the revision petitioner contended that the provisions of Section 21(1)(p) of the Act are not attracted to the present case since the newly built house admittedly belongs to the wife and the tenant has no legal right to occupy the said premises. He also relied upon the law laid down by the Delhi High Court in the above referred decision in Smt. Revti Devi's case, supra, wherein it was held that the "mere occupation of a new residence by the tenant without any legal right to do so would not be covered by proviso (h) to Section 14(1) of the Delhi Rent Control Act, 1958. If he goes to stay in the house of his wife, legally speaking he has no right as such to stay and can be turned of from the house at any time by its legal owner, namely the wife. There is no law according to which the husband and the wife can be deemed to be one person. Therefore, where proviso (h) requires that the tenant himself should acquire vacant possession of another residence before he can be liable for eviction. The force of its language cannot be whittled down by arguing that proviso (h) would apply even if it is not the tenant himself but his wife or his other relation acquired such other residence. Therefore, as a general proposition of law, acquisition of other residence must be by the tenant himself before proviso to sub-section (1) of Section 14 of the Act can apply".
12. This decision has been referred by the Apex Court in the above referred decision in B.R. Mehta's case. But, I find it necessary at this stage to refer to some more observations of the Apex Court in the above decision while dealing with the question as to whether building acquired by the wife or husband of the tenant can be considered as the building acquired by the tenant himself or herself. In para 4 of the above judgment, their Lordships have referred to another earlier ruling of the Supreme Court rendered in Prem Chand v Sher Singh, which was also a case under the Delhi Rent Control Act, 1958 and Section 14(1)(h) of the Act. In that case, the respondent-tenant was out of possession since October 9, 1976 and he was dispossessed during the pendency of the appeal before the Rent Control Tribunal. Respondent's son was a business executive, who was at one time allotted a flat by his employers. On December 12, 1980 the respondent's wife purchased a flat at Saket from the Delhi Development Authority at a cost of Rs. 1,20,000/-. The flat was available to the respondent though his explanation is that, it had been let out by his wife to their son. The respondent thereafter has now no case to be put back in possession of the flat in dispute. Hon'ble Chief Justice Chandrachud (as he then was) while delivering the judgment of the Court observed that, the Court had allowed the appellants to amend their applications for possession by pleading that the respondent had acquired possession of a vacant residence within the meaning of Section 14(1)(h) of the Delhi Rent Control Act, 1958. Having considered the averments of the parties on the point at issue, it was held in that case that the respondent had through his wife acquired vacant possession of a residence in Delhi and in that view of the matter was held not entitled to retain old tenanted premises.
(emphasis supplied)
13. After referring to above earlier decision, it was held that if the wife or husband acquires a property and the other spouse if he or she is the tenant, has a legal right by virtue of such acquisition to stay there, then only can such acquisition or allotment of premises would disentitle or attract the provisions of clause (h) of Section 14(1), otherwise the whole purpose would be defeated. In other words, if for all practical and real sense, the tenant, acquired, built or was allotted another residence, then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises. It is also to be noted here that, in the above ruling of the Supreme Court the Court has taken into consideration the peculiar facts of that case which are, that the wife being Government officer was temporarily allotted quarters which she is liable to vacate immediately on her transfer and that the said premises in such a situation will not be available for the tenant by way of alternative accommodation.
14. Having regard to the above principles enunciated in the above decision, it must be seen whether the tenant in the present case has any legal right to stay in the newly constructed building which admittedly stands in the name of his wife. It has come in the evidence of respondent that himself and his wife are on cordial terms and immediately after construction of the new house, all his children along with his wife have shifted to that building. But, he could not give any reason as to why he did not choose to shift to that house to stay with his family members. It is not the case of the respondent-tenant that, his wife for any reason did not allow him to stay in that house and turned him down nor it is his case that there are any compelling circumstances for him to stay away from his wife. Admittedly, the conjugal relations subsist between the husband and wife. Under these circumstances, I find it difficult to accept the contention of the respondent that, notwithstanding the construction of a new house, he is compelled to reside in the tenanted premises. It is obvious that he is continuing in occupation of the petition premises only to show that he has not vacated the petition schedule premises. In fact, it is found from the report of the Court Commissioner-Advocate who was appointed in the Trial Court that the petition premises was found locked when he visited that premises in furtherance of the commission warrant issued to him, after passing an ex parte order to enable the Commissioner to make a surprise inspection of the said premises. Thus, it appears that there is no impediment for the respondent to shift to newly constructed house which is already in occupation of his wife and children. As already pointed out by me under provisions of Section 21(1)(p) of the Act, it is not the requirement of law that a tenant must be the owner of a newly built or acquired house which is suitable for his occupation. So in the context of the language of the said provision, the legal right of the tenant to stay in the house of his wife cannot be considered in a narrow sense that he must be a co-owner along with his wife to occupy the said premises. In my view, the said legal right can be a right flowing from the conjugal relationship between the parties when a husband is entitled to seek for restitution of conjugal rights if his wife stays away from him without any justification, the husband is equally entitled as a matter of right to go and stay with her in the house belonging to her as long as she does not refuse to entertain him in that house. In the instant case, the respondent has not examined his wife to show that she is not willing to allow him to stay with her in the newly constructed house belonging to her. In the absence of any such evidence of the wife of the respondent, it cannot be presumed that the respondent will not be allowed to stay in that house or that there are any compelling reasons for her to stay away from him by setting up a separate house. Thus, if we take all these totality of the circumstances, an inference can be safely drawn that the respondent-tenant has secured an alternative accommodation suitable for the residential and non-residential use through his wife. Further, the Court cannot lose sight of the fact that the new building was constructed after filing the eviction petition. So, it is also probable that, to get over the provisions of Section 21(1)(p) of the Act, tenant might have obtained the licence for construction of the new house in the name of his wife and got the newly constructed building entered in her name in the property tax register. So, merely because the licence is obtained in her name and the property is shown in the tax assessment registers in her name, no inference can be drawn that the said building must have been constructed by the wife only with her exclusive funds and income without financial assistance from the tenant-husband. In fact, there is absolutely no evidence on record to show that the said building has been constructed only with the funds provided by the wife. Except the respondent saying that his wife has been doing business for the last 10 years, no details are given about the nature of the business which she is doing. There is not even a whisper in the evidence of the respondent that his wife owns any landed property or any other property from which she was getting sufficient income to meet the expenses of the construction of new house. On the other hand, the evidence of the respondent shows that he is running a private bus besides doing business in the other shop bearing No. 5-1 taken on rent from the petitioner himself. In fact, it is the respondent who disclosed that the newly built house was constructed at a cost of Rs. 50,000/-. So, I do not think that his wife could have built the said house without taking the financial assistance from the husband.
15. In this view of the matter also, I am unable to accept the contention of the learned Counsel for the revision petitioner that the respondent-tenant has no legal right to stay in the said newly constructed building merely because it stands in the name of his wife.
16. Thus, in any view of the matter I find that the Courts below were completely justified in holding that the ground under Section 21(1)(p) of the Act is made out by the petitioner for ordering eviction of the respondent from the petition schedule premises. It is no doubt pointed out by the learned Counsel for the revision petitioner that, there is no pleading in respect of the suitability of the said newly constructed house for residential and non-residential use, in the petition averments. But, as it is found that, only on the basis of the subsequent development the landlord could place on record that the tenant has acquired the said newly constructed house through his wife and adduced evidence that, it is suitable both for residential and non-residential purpose, the absence of the pleading in respect of the said newly constructed building in my view, cannot be the basis for not taking into consideration the evidence adduced in respect of the said ground. Since the said house was con-
structed subsequent to the date of filing of the eviction petition, petitioner could not introduce the pleading in respect of the same in the original petition. Petitioner could have no doubt made the averments in respect of the said ground by seeking for the amendment of the petition on the basis of the said subsequent events. But, as all the Courts are entitled to take into consideration the subsequent events at the time of the final hearing of the eviction proceedings particularly when evidence is also placed on record in respect of the said subsequent events, the absence of pleading in respect of the subsequent events is not a ground to reject the said ground, particularly in view of the fact that in the original eviction petition the ground under Section 21(1)(p) of the Act is also taken. According to the petitioner, by the date of filing the eviction petition the respondent has shifted to another house situated in B. Narayana Rao's compound located in Sy. No. 50-2. He has therefore taken the ground under Section 21(1)(p) of the Act in the original eviction petition. But, after filing the eviction petition since respondent acquired a newly built house through his wife, petitioner adduced evidence in support of the ground under Section 21(1)(p) of the Act. So this cannot be considered as a case where there is variance between pleading and proof. Learned Counsel for the respondent herein-landlord brought to the notice of this Court that this being the second revision under Section 115, CPC this Court is not entitled to interfere with the concurrent finding on question of fact recorded by the Trial Court and the first Appellate Court, unless it is shown that the Courts below exercised the jurisdiction illegally or that the findings suffer from any inherent defects. In support of this contention, the following decisions of the Supreme Court are relied upon:--
1. Patel Valmik Himatlal and Others v Patel Mohanlal Muljib-hai,
2. Managing Director (MIG), Hindustan Aeronautics Limited, Balanagar, Hyderabad and Another v Ajit Prasad Tarway, Manager (Purchase and Stores), Hindustan Aeronautics Limited, Balanagar, Hyderabad,
3. Vinod Kumar Arora v Smt. Surjit Kaur.
17. In the instant case, as it is found that the finding recorded by the Courts below that the respondent acquired a suitable vacant building through his wife attracting the provisions of Section 21(1)(p) of the Act, does not suffer from any inherent defects, I am unable to hold that the Courts below have exercised jurisdiction illegally calling for interference by this Court.
18. For all the above reasons, this revision petition is dismissed with costs confirming the order of eviction passed by the Court below. At this stage, learned Counsel for the revision petitioner prays for granting one year time to the tenant to vacate the petition premises and he offers to file an undertaking that he would vacate the premises within that time, without going for any further appeal. Hence, one year time is granted to the tenant to vacate the petition schedule premises, subject to the filing of an undertaking and payment of rents up-to-date and future rents that may become due.