Karnataka High Court
Chunilal B. Shah vs Smt. Shanthakumari on 26 March, 2003
Equivalent citations: 2003(3)KARLJ592
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. The petitioner, an octogenarian, aggrieved by the order of eviction suffered by him on 27th September, 1997 preferred the present revision petition and after nearly six years the question whether the landlady would succeed in her endeavour and realise the fruits of this long drawn legal battle waged by her to recover the possession of her property from her never-say-die tenant is to be determined now, in this revision, nearly one and half decades after she first moved the Court below for relief.
2. Of that there could be no doubt that this legal battle was fought passionately and bitterly, at times the parties going for each other's jugular veins the tenant taking the lead in this regard by filing an application under Section 340(2) read with Section 195(1)(b) of the Cr. P.C. for holding a preliminary inquiry as to the commission of an offence punishable under Sections 193 and 209 of the IPC by the landlord, followed closely by a similar application by the landlord for the said same relief against the tenant both of which I would dispose of in the course of this order. But, first things first, I would address myself to the core dispute in issue between the parties. During the interregnum between the filing of the revision and its final hearing because of the unlucky turn of events during which phase she also lost her daughter, for whose benefit the premises was sought by her, the respondent-landlord who had succeeded both under Clauses (h) and (p) of Section 21(1) of the Karnataka Rent Control Act, 1961 ("the repealed Act", for short), had perforce to give up her claim under Clause (h) of Section 21 of the repealed Act and having done so, the benefit of eviction ordered under Section 21(1)(h) is no longer available to her and she could only defend in this revision the eviction order obtained by her under Clause (p) of Section 21(1) of the repealed Act.
3. The premises in question is the residential premises situate in the ground floor of No. 12, 5th Main, Gandhinagar, Bangalore-9 and the petitioner has been the tenant of the premises since 1964. Gandhinagar area is a busy commercial hub but this does not appear to be the primary reason why the parties are going at each other hammer and tongs. That there appears to be some bad blood between the parties is quite palpable from the manner in which this litigation is being fought. The respondent-landlord set up the case under Clause (p) of the repealed Act in the Court below on the ground that the petitioner-tenant and his family members are owning properties at Bangalore and, therefore, he does not require the premises and that she is entitled to an order of eviction under Clause (p) of Section 21(1) of the repealed Act. The Court below framed an issue on this aspect of the case at issue (3) which reads thus:
"(3) Whether the petitioner proves that respondent has acquired alternative accommodation during the subsistence of the tenancy?"
The Court below dealt with this issue in paragraph 8 of the impugned order and the reasoning assigned by the Court below for answering this issue in the affirmative goes thus:
"... but if we look into the admissions extracted from his mouth, it becomes clear that his sons have acquired palacious buildings in Bangalore City and petitioner is residing with them and he has kept the petition premises under lock and he has paid some of the electricity bills only to overcome the contention taken by the petitioner that he is not residing in the petition premises".
The petitioner challenges this finding recorded by the Court below on the ground that the petitioner having severed his joint status with his sons and residing alone in the petition premises the fact that petitioner's son has come into possession of some property as owner thereof would not enure to the benefit of the respondent-landlord for obtaining an order of eviction under Clause (p) of Section 21(1) of the repealed Act. During the pendency of this revision, the Karnataka Rent Control Act, 1961 was repealed in toto and in its place the Karnataka Rent Act, 1999 ('the Act', for short), has come into force with effect from 31st December, 2001 and by virtue of Section 70(2)(b) all pending proceedings shall be continued and disposed of by the Court seized of the matter in. accordance with the provisions of this Act. Section 27(2)(j) of the Act is the provision which corresponds to Section 21(1)(p) of the repealed Act. The relevant provision under the Act has undergone a slight change in its form from the corresponding provision of the repealed Act. The provision in its present form reads:
"27. Protection of tenants against eviction.--(1)....
(2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely.--
...... .... ....
(j) that the tenant, his spouse or a dependent son or daughter ordinarily living with him has whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted a residence or as the case may be a commercial premises:
Provided that the Court may in appropriate cases allow the tenant to vacate the premises within such period as he may permit but not exceeding one year from the date of passing of the order of eviction".
4. I have heard learned Counsel Mr. M.G. Kumar, learned Counsel for the petitioner-tenant and Mr. G.S. Visweswara, learned Counsel for the respondent-landlord.
5. The argument advanced by learned Counsel Mr. M.G. Kumar is, the landlord having failed to establish that the tenant, his spouse or dependent son or daughter living with him had acquired vacant possession of a residence, the order of eviction passed by the Court below under Section 21(1)(p) of the repealed Act cannot be sustained. The learned Senior Counsel Mr. G.S. Visweswara submitted that the various release deeds executed between the members of the tenant's family leave nothing to doubt that the tenant had the benefit of vacant possession of a residence which he could occupy and which in fact he had occupied, the finding recorded by the Trial Court under Clause (p) does not call for any interference in this revision. Relying on the circumstance that the tenant has not been living in the tenanted premises which, according to him, is established by the Commissioner's report, learned Senior Counsel Mr. Visweswara submits that this litigation is being pursued by the tenant only with an object of wreaking vengeance against the landlord despite the fact that he is not actually living in the petition premises. It is his case that he is living comfortably with his son. It is his firm assertion that the petition premises is absolutely not required by the tenant for his living but the tenant is holding on to it in order to get at the landlord and he could afford to do so given the measly rent which is Rs. 200/- per month which is a very paltry sum considering the affluence of the tenant. Mr. M.G. Kumar disputes this statement by contending that the tenant is very much residing in the petition premises. Several decisions have been cited at the Bar by both the learned Counsels in support of their respective rival contentions. I would first refer to the case-laws to know whether the ratio in those decisions are applicable to the facts of the present case.
6. In Gantusa H. Baddi (deceased) by L.Rs v. Meerabai G. Pai and Ors., the Apex Court was examining the question whether the acquisition of accommodation by a firm in which the tenant is a partner is sufficient to expose the tenant to eviction. Negativing the contention taken by the landlord in that respect, the Apex Court observed:
"Under Section 21(1)(p) the tenant is liable to be evicted if 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. The language of the provision is clear and unambiguous and given its plain grammatical meaning, it is susceptible of only one construction that it is only when the tenant has built or acquired vacant possession of or has been allotted a suitable building, then only the provisions of Section 21(1)(p) of the Act are attracted and not otherwise. The expression "tenant" has been defined in Section 3(r) and howsoever wide meaning to the said definition be given, it will not bring within its scope, a partnership firm of which the tenant himself may be a partner".
The decision of the Apex Court in the above case purely turned on the answer to the question as to whether the partnership firm could be brought within the scope of the definition of a tenant. Acquisition of accommodation by the partnership firm of which the tenant is a partner for the purpose of carrying out its business could never be equated with the factum of acquisition of an alternative accommodation by the tenant himself for his private residence because a partnership firm has a separate legal existence of its own and any acquisition by the firm of some accommodation would not enure to the benefit of the tenant as the purpose for such acquisition is for the benefit of the firm alone and not for the benefit of its partners. It is based on this understanding of the law that the Apex Court rejected the claim of the landlord in the said case. The facts in the said case are so far removed from the facts of the present case that it would be most improbable to apply the dictum of the said case to the facts of the present case which stands on a totally different footing.
In Anandi D. Jadhav (deceased) by L.Rs v. Nirmala Ramchandra Kore and Ors., the Apex Court was seized of a matter where eviction was sought on the ground that sons of the tenant, who is their mother, had built a house and, therefore, she is liable to be evicted for having acquired alternate accommodation. Rejecting the plea of the landlord, the Court held:
"On sons of tenant, who is their mother, building a house the landlord cannot seek eviction of tenant on grounds having acquired alternate accommodation. From the scheme of the provision it is discernible that it is only when the tenant gets a right to reside in a house other than the demised premises on the happening of any one of the three alternatives mentioned therein, namely, either by building or by acquiring vacant possession of or by allotment of a house, that the landlord can seek recovery of possession of the demised premises from the tenant".
In B.R. Mehta v. Smt. Atma Devi and Ors., the Apex Court explored the true meaning of the expression, 'tenant has before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence' in terms of Clause (h) of Section 14(1) of the Delhi Rent Control Act, 1958 and reached the following conclusion:
"If a wife or a husband acquires a property and the other spouse if he/she is the tenant, has as a legal right by virtue of such acquisition to go and stay there, then only can such acquisition or allotment of premises 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. That is the rationale behind the scheme".
In Ganpat Ram Sharma and Ors. v. Smt. Gayatri Devi, the Apex Court dealing with the pleadings that should essentially be pleaded and also the burden to be discharged by the landlord seeking eviction on the ground of availability of alternative accommodation to the tenant, remarked:
"The landlord in order to be entitled to evict the tenant under Section 14(1)(h) must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. 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 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".
7. The case-law on the point brings out the essential requirements that a landlord should establish for getting an order of eviction on the ground that the tenant has acquired an alternative accommodation. The landlord in order to be entitled to an order of eviction against the tenant under this ground must establish one of the alternative facts positively, either that the tenant has built or acquired vacant possession of or has been allotted a residence. Mr. M.G. Kumar, learned Counsel for the appellant, submitted that the landlord in the present case having failed to establish either one of the alternative facts positively, the tenant has to succeed in this appeal and the order of the Court below has to be set aside. The relevant provision as well as the case-laws do not provide any leeway on this point but, then, there is another dimension to this case which is factual and which cannot be ignored by the Court deciding the entitlement of the landlord to an order of eviction and the learned Senior Counsel Mr. G.S. Visweswara relies on this factual circumstance that the tenant is, in fact, not at all residing in the petition premises and he has been fighting this litigation only to get at the tenant and not because he does not have a shelter over his head. I think this is an aspect which the Court cannot ignore especially when there are sufficient material on record to show that the tenant is as a matter of fact is not residing in the petition premises. The case-laws relied on by Mr. M.G. Kumar certainly would have clinched the issue but for this material fact that the tenant is not actually residing in the premises. The order of eviction passed by the Court below under Clause (p) is also based on the appreciation of this vital factor in the case. Now let me advert to the pleading and the evidence adduced in the case in this regard. The landlord has pleaded in the petition regarding the tenant owning property in the following terms:
"The petitioner submits that the respondent is owning property at Bangalore City and he does not require the schedule property and the respondent is not liable to continue in the present schedule property at Bangalore City.
In evidence before Court, the husband of the petitioner-landlord deposed:
"Chandulal has got property in the name of his wife at Cunning-ham road. Again I say it is at South End Street, Kumara Park West. I have produced certified extract of the Khatha extract it is Ex. P. 3. He has got another property in the name of his son. Sampangirama Temple Street Property extract is Ex. P. 4. The respondent and his son are residing together".
It has been elicited in the cross-examination of the husband of the petitioner as:
"It is not true to suggest that respondent is no way concerned to the property in Ex. P. 4. It is not true to suggest that as per Ex. P. 12, respondent is not residing in a property shown in Ex. P. 4".
Ex. P. 12 is the voters' list and the name of the petitioner figures therein as a resident of the property shown in Ex. P. 4 which admittedly belongs to the son of the petitioner. It is in the background of the pleading and evidence on this aspect that the Court below accepted the case of the landlord and ordered the eviction of the tenant. To put matters beyond doubt and to ascertain the fact whether or not the tenant is still occupying the premises, this Court appointed a Commissioner at the instance of respondent-landlord to inspect the premises and submit a report. The Commissioner submitted his report. Some relevant notes in the Commissioner's report necessary for deciding this aspect are quoted below:
"It is submitted that at the time of visit the premises was locked. Within 5 minutes the petitioner Sri G.B. Shah came there at the spot.
........
G.B. Shah opened the front door which leads to verandah. The Commissioner found that the verandah contains full of dust. Then he opened the next door, which is also locked, which leads to a hall. There are no furnitures, except one cane chair in that hall. Again Mr. G.B. Shah opened another door which was locked, which leads to another big room. There is one cot, two old tables and two chairs. Then Mr. G.B. Shah opened yet another door which leads to the kitchen. In the kitchen the Commissioner did not find any oven or any stove for cooking. There are some steel tumblers and drinking glasses in the cupboard. There is a gas cylinder in the kitchen.
4. Then Mr. G.B. Shah took the Commissioner to the bathroom. There was no water coming from the tap. The bathroom does not look as it being used for taking bath, though there is a geyser. Next G.B. Shah took the Commissioner to the lavatory. It looks as if it is not used for quite some time and there was also no water coming from the tap. There was one unused washing basin kept in one place.
..... ....
Since Mr. G.B. Shah represented the Commissioner that he was out for a while along with his daughter-in-law and arrived just within 5 minutes of visit of the Commissioner to the spot, the Commissioner is not in a position to say that the premises is not being used for residential purposes".
Mr. M.G. Kumar relies on the observation made by the Commissioner that the Commissioner could not say definitely that the tenant was not residing in the petition premises and submits that the finding of the Court below to the contrary, therefore, could not be upheld. This submission cannot be accepted as there is overwhelming evidence to show firstly in the form of voters' list where the name of the petitioner figures wherein his residence is shown as Cunningham Road and nextly, the observations made in the Commissioner's report should leave no doubt in anyone's mind that the petition premises is not being used as residence by anyone.
8. The question then arises whether the landlord will be entitled to get the tenant evicted from the petition premises under Clause (j) of Section 27 on the establishment of the fact that he is residing with his son in a different premises. Clause (j) is to the effect that the Court may order for the recovery of possession of the premises on the ground that the tenant, his spouse or a dependent son or daughter ordinarily living with him has whether before or after the commencement of this Act built or acquired vacant possession of or has been allotted a residence or as the case may be a commercial premises. It is argued by learned Counsel Mr. M.G. Kumar that in the light of interpretation of this clause by the Supreme Court in the cases referred to supra, the landlord would not be entitled to an order of eviction. But in those cases cited by Mr. M.G. Kumar the tenants were residing in the tenanted premises and had not occupied the vacant possession of the premises which was acquired by their spouse or sons. The objective behind the clause is to ensure that a tenant is not deprived of accommodation merely on the premise that his spouse or children acquired vacant possession of any premises and it is to emphasise this aspect that the Apex Court has made it a condition precedent that the tenant should have the legal right to occupy the newly acquired premises. But where it is shown that the tenant has not been actually residing in the petition premises and he is residing with his son in his son's own residence, the question whether or not the tenant has a right to occupy the premises acquired by his son recedes to the background and it must be held that the tenant has the benefit of vacant possession of a premises and is living there comfortably which disentitles him and deprives him of the right to continue to reside in the petition premises. The rule of law, for functional success, must run close to the rule of life. The statutory provisions must be tested on the touchstone of societal factors. The Court is bound to advance the cause of justice and should not encourage any person to convert law into a weapon merely to wreak vengeance against any other person. It is most improbable that the tenant who is 85 years old is staying all alone in the petition premises away from his son who is having a palatial house in a prominent locality of the city. Technicality by itself alone ought not to permit the Court to decide an issue since justice oriented approach is the call of the day presently. Judicial approach must be justice oriented and viewed from this angle I have no doubt in my heart and mind that the landlord is entitled to an order of eviction under Clause (j) of Section 27 of the present Act. In the peculiar circumstances of the case, I do not find any illegality or irregularity in the order of the Court below which has recorded the same finding. The revision petition is, therefore, liable to be dismissed.
9. That takes me next to the applications LA. Nos. V and VI filed by the parties under Section 340(2) read with Section 195(1)(b) of the Code of Criminal Procedure. Section 340 reads:
"340. Procedure in cases mentioned in Section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (I) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary.--
(a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the First Class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed.--
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court. (4) In this section "Court" has the same meaning as in Section 195". (emphasis supplied)
The power under the provision becomes exercisable by the Court only on its forming an opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 which appears to have been committed in relation to a proceeding before Court. The three essential ingredients whose existence the Court should satisfy itself about before exercising the power under the provision are, (1) there must be an application made to it; (2) the Court should form an opinion that it is expedient in the interest of justice that an enquiry must be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 of the Cr. P.C.; and (3) the offence must appear to have been committed. What is very relevant to the present case is the complaint was never made before the Court below where it is now alleged, in this revision, that an offence had been committed in relation to a proceeding before the Court below. It is noteworthy that the parties never broached this matter of perjury nor did they file any application before the Court below. The words, 'When, upon an application made to it ..... any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court....' as found in Sub-section (1) of Section 340. Sub-section (2) of Section 340 brings out clearly that there must be an application made to the Court before which an offence is alleged to have been committed in or in relation to a proceeding before that Court. The person alleging a commission of offence under Section 195 must present the application only before the Court before which an offence is alleged to have been committed in relation to a proceeding in that Court in order that the said Court could exercise its jurisdiction and make an order. Sub-section (4) of Section 340 states:
"In this section, 'Court' has the same meaning as in Section 195".
For the purposes of Clause (b) of Sub-section (1), the Court has been described in Sub-section (3) of Section 195 as, 'a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section'. Without more, the High Court is not a Court to which an application can be presented for the 6rst time when it is exercising its revisionary powers, for taking action under Section 340 complaining of alleged commission of an offence under Section 195 by a party in relation to a proceeding before a Court subordinate to it. The right to present such an application is available only before the Court seized of a proceeding in which or in relation to which the alleged offence is said to have been committed. As the offence under Section 195 is alleged to have been committed before the Court below the application ought to have been presented to it. Only when an application is presented to it and no action is taken by it that this Court could derive the power under Sub-section (2) of Section 340 and exercise it. Therefore, I find that in the absence of any application made to the Court below which alone could form an opinion in the matter and exercise jurisdiction to determine the application made to it, this Court sitting in revision cannot entertain such an application to determine whether or not it is expedient to hold an enquiry as to the alleged commission of the offence by either of the parties in relation to a proceeding in the House Rent Controller Court. This Court simply does not have that jurisdiction. Several decisions have been cited at the Bar touching the need to take action under Section 340 but because of the inherent lack of jurisdiction and the parties having failed to make out a case of perjury in the Court below where alone it could have been made out, I find no need to refer to any of these decisions. I also do not find any need to direct the parties to file a complaint in this regard to the Competent Court as such a procedure is not envisaged in Section 340 of the Cr. P.C. and there is no enabling provision in Section 340 for making of an order by the revisional or the Appellate Court to that effect. Therefore, I find no merit in these applications and LA. Nos. V and VI are, accordingly dismissed.
10. Insofar as I.A. No. VII filed for additional evidence is concerned the same has been filed by the learned Counsel for the appellant in order to show that the appellant has not built or acquired vacant possession of or been allotted a residence and that the property referred to by the respondent-landlord is owned by the son of the appellant. As this Court had formed a definite opinion from the material already on record that the appellant had not built or acquired vacant possession of or been allotted a residence, there was no need for me to consider LA. No. VII. Therefore, it is ordered to be filed.
11. Coming back to the main issue, for the reasons aforestated, I find no merit in this revision petition and it is, accordingly, dismissed. As the petitioner is not residing in the petition premises it would meet the ends of justice if he is given two months time to remove his effects kept in the premises and to deliver vacant possession of the same to the landlord.