Karnataka High Court
S. Shivanathan (Deceased) By L.Rs vs S.G. Narayana on 29 January, 1998
Equivalent citations: 1998(4)KARLJ514
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER
1. Counter of respondent 1 to I.A. No. III is filed.
2. Mr. M. Papanna fairly submits that he may be permitted to withdraw I.A. No. III.
3. Hence, I.A. No. III is dismissed as withdrawn.
4. This revision by the petitioners-landlords is directed against the order dated 25-2-1992 of the II Additional District Judge, Mysore, passed in RRP No. 21 of 1985 dismissing the landlord's revision and confirming the Trial Court's order dated 15-12-1984 that was passed rejecting landlord's petition under Section 21(1)(f) and (h) of the KRC Act, 1961 ('the Act' for short).
5. Heard the arguments of Mr. M. Papanna, learned Counsel for petitioner.
6. Heard the arguments of Mr. Shankarappa, learned Counsel representing for respondent 1.
However, he further sought adjournment of the case submitting that Mr. M.T. Nanaiah, learned Counsel for respondent 1 was out of station, his request for adjournment was declined since this matter was a part-heard matter and was repeatedly posted for further hearing.
7. The facts leading to this revision are stated hereunder.--
Admittedly, the petition schedule premises consisted of the vacant site and the superstructure of the sawmill of the dimensions 20' x 80' on it. On 29-6-1977 the petitioner (hereinafter referred to as the 'landlord') filed the eviction petition under Section 21(1)(a), (h) and (f) of the Act against respondent in the Court of the Munsiff at Mysore seeking delivery of the possession of the premises on the said grounds. The case pleaded by him in the petition was that the said premises was leased out by him to respondent 1 (hereinafter referred to as the 'tenant'), on 5-6-1957 on the monthly rent of Rs. 50/- for a period of 15 years with the option for renewal of the lease for a further period of 5 years on payment of rent at Rs. 55/- per month, that the said premises was unauthorisedly leased out by the tenant to respondent 2 (hereinafter referred to as 'sub-lessee') and that the premises was refluired by the landlord for his use and occupation for himself and his son to carry on their business therein.
8. The petition was resisted by the tenant and sub-lessee. Objection statement of the tenant was filed in the Trial Court denying the petition averments that the premises was leased out to him in the manner stated in the petition, that there was no written agreement on lease between him and the landlord. It was further specifically pleaded by the tenant in his written statement.--
"The premises at the time of lease by the petitioner was vacant site and it was leased by the petitioner as a vacant site and the same was taken on lease by this respondent for the purpose of putting up the sawmills several years back on a monthly rent of Rs. 50/- and subsequently, rent has been enhanced to Rs. 55/- per month at the instance of the petitioner".
9. As regards the landlord's case of alleged sub-lease pleaded in the petition, the same was met by the tenant at para 4 of the written statement thus.--
"The 2nd respondent is not at all a necessary party to the proceedings. The 2nd respondent has been permitted by this respondent to run the sawmill constructed and built by this respondent on the vacant site taken on lease by him from the petitioner".
10. The other petition averments were stoutly denied by the tenant in his objection statement. The sub-lessee did not file any separate statement of objections but the one that was filed by the tenant was adopted by him.
11. Parties went for the trial and the landlord Shivanathan got himself examined as P.W. 1, documents Ex. P-1 to P-20 were also brought in evidence on record. The tenant was examined as R.W. 1 and another witness on his behalf as R.W. 2. The documents at Ex. R-1 to R-5 were produced by him in his evidence.
12. After the arguments of learned Counsel of both parties were heard by the learned Trial Munsiff, he proceeded to pronounce his impugned order dated December 16, 1981. On the pleadings of the parties the following material points for determination were raised by him in his impugned order:
"11. Now the points that arise for consideration are:
(a) Whether the petitioner proves that the 1st respondent has unlawfully sublet the schedule premises in favour of the 2nd respondent and he is liable for eviction under Section 21(1)(f) of the KRC Act?
(b)Whether the petitioner proves that he requires the schedule premises for his own use and occupation and his requirement is bona fide as well as reasonable?
(c) Whether the petitioner proves that he will be put to greater hardship by refusing an order of eviction?
(d)What order?"
13. No point was raised by the learned Magistrate on the petitioner's claim for eviction of the premises on the ground under clause (a) of Section 21(1), ofcourse, justifiably for want of required pleadings in the petition.
14. On evaluation of the aforesaid evidence of the parties the learned Munsiff arrived at and recorded his negative findings on Point Nos. (a) to (c). As a result, the petition was dismissed by his impugned order which when challenged by the former in revision before the District Court in RRP No. 21 of 1995, it came to be confirmed by the learned District Judge by his impugned order dated January 20, 1992.
15. In the light of the pleadings and the evidence on record Mr. Papanna rightly submitted that he would not press the revision for consideration on the grounds under clauses (a) and (h) under Section 21(1) of the Act. But he contended that there was a good case for the landlord under clause (f) of Section 21(1). Therefore, he argued his case on the ground under clause (f) of Section 21(1) of the Act only. As such the concurrent negative findings of both the Courts below on clauses (a) and (h) of Section 21 will have to be confirmed and the same are confirmed.
16. Adverting to the landlord's case under clause (f) of Section 21(1) of the Act, Mr. Papanna representing the landlord heavily relied on the undisputed documentary evidence at Ex. P-11, P-12 and Ex. R-3 as also the evidence of the tenant R.W. 1 himself bearing on this issue. He assailed the correctness and validity of the conclusions of both the Courts below on the landlord's case under clause (0 under Section 21(1) and maintained that the same are legally incorrect and erroneous. To support this contention reliance was placed by him on decisions of Supreme Court in Dr. K.A. Dhairyawan and Others v J.R. Thakur and Others and Firm Sriniwas Ram Kumar v Mahabir Prasad and Others . Support was also drawn from a Division Bench decision of this Court in M/s. Sudarshan Trading Company Limited, Bangalore v Mrs. L. D'Souza. From the evidence of landlord (P.W. 1) and of R.W. 1 tenant it transpires that indisputably the petition schedule vacant site was originally leased by the landlord to the tenant's brother Parthasarathy even prior to 1951 who had been in actual possession and enjoyment thereof as a tenant and was running his sawmill therein and that the registered lease deed Ex. P-11 dated 3-5-1951 came to be executed between the landlord and Parthasarathy spelling out therein terms and conditions of the lease of the premises. One of the terms of lease under Ex. P-11 was that it was for a period of 10 years commencing from 6th May, and its another term was that Parthasarathy was to surrender possession of the demised site together with the superstructure erected thereon by him to his landlord without claiming any compensation in respect thereof. It is also an admitted fact that during subsistence of the lease under Ex. P-11 another registered agreement Ex. P-12, dated 5-4-1957 between the landlord and Parthasarathy was entered into in modification of Ex. P-11. This modification was that a portion of the premises demised under Ex. P-11 was surrendered by Parthasarathy to the lessor to be let it out to M/s. Burma Shell to run the petrol bunk and that the lessee Parthasarathy shall continue as a tenant under the lessor in respect of the remaining portion of the lease hold property bearing Municipal No. 1131/11. Clause (2) of Ex. P-12 described the state of the demised property so left over to the lessee Parthasarathy as under:
". . . . the lessee is already in and the lessor thereby confirm the said possession of the lessee".
There was a stipulation as regards surrender by Parthasarathy of the demised premises to the lessor contained in clause (4) of Ex. P-12 as follows:
"Clause (4):. .... such construction, addition or alteration to the present construction and the lessee shall not be entitled to any compensation thereof".
The lease agreements Ex. P-11 and Ex. P-12 between the landlord and tenant's brother Parthasarathy are facts admitted by R.W. 1 tenant in his evidence.
Further, he (R.W. 1) has deposed, as pleaded, in his examination in chief:
"I am doing business in the schedule premises from 1962. Before that my brother S.G. Parthasarathy was doing business in the schedule premises".
Again he states:
"I began to pay rent to the petitioner from 1962. At that time I was paying a rent of Rs. 50/- p.m. Rent was enhanced to Rs. 55/-p.m. in 1970 to 1971".
As regards parting with the possession of the petition premises (together with the sawmill construction) in favour of sub-lessee (R-2) is though denied by R.W. 1, he has, infact, stated in his examination-in-chief that he had given the machineries of the said sawmill to R2 (sub-lessee) to run the business as he was forced to go to Belgaum for 3 years from 1977. He has further stated:
"there was a registered agreement between me and the second respondent. The original is lost. Therefore, I have produced the certified copy of the agreement Ex. R-3".
It is in his further evidence that the licences Ex. R-4 and R-5 to run the said sawmill continued in the name of his brother Parthasarathy himself.
17. P.W. 1 landlord has stated in his examination-in-chief that the petition premises was leased by him to the first respondent on the same terms and conditions incorporated in Ex. P-12 executed by Parthasarathy. It is elicited in his cross-examination for the tenant that for about 5 to 6 years after executing Ex. P-12 lease deed in 1957, Parthasarathy carried on the said sawmill business in the premises till 1964 when he went to Bangalore in 1964. The further material information elicited from P.W. 1 in his cross-examination is that, 'it is true that Narayan was running the sawmill after Parthasarathy went to Bangalore. It is true that I was collecting rent from Narayan". The Trial Court's negative conclusion on the relevant Point No. (a) relating to clause (f) of Section 21(1) made at para 17 of its impugned order is as reproduced below:
"As stated supra, the subject-matter of the lease is vacant site and under Ex. R-3, the 1st respondent has agreed to lease the building and the machinery. It shows that the superstructure is leased by this respondent 1 to the 2nd respondent. When the subject-matter of the lease is an open site and the superstructure is leased, then it will not amount to sub-lease".
Similarly, the District Court's relevant observation made in this regard in its impugned order is as follows.--
"In view of the above discussion, I am of the opinion that the evidence on record establishes that what was leased to Parthasarathy in 1951 and again in 1957 and continued in favour of 1st respondent after Parthasarathy shifted to Bangalore was only the vacant land without the asbestos shed. Evidence discloses that it was the lessee that put up the asbestos shed after taking the lease of the vacant land from the petitioner. Hence even if 1st respondent had parted with possession of the shed to the 2nd respondent, it does not amount to subletting".
Thus, both the Courts below have recorded their concurrent findings on the basis of evidence on record, both documentary and oral, that the superstructure of the sawmill on the petition land of the landlord was, infact, let out by the tenant (R1) to R2-sub-lessee under Ex. R-3 registered lease deed dated 6-2-1975. The undisputed contents of Ex. R-3 further disclose that the said sawmill was let out by the tenant to R2 for a period of 5 years on a monthly rental as stipulated therein. The relevant clauses in Ex. R-3 for our purpose are Clauses 2 and 3 which are reproduced below:
"2. The lease shall come into effect from 6-2-1975 and will be in force for five years commencing from 6-2-1975.
3. The lessee shall pay rents at the following rates to the lessor during the period of lease, for the premises leased to him.
(i)for the period of first 12 months at Rs. 375/- per month.
(ii)for the next 12 months at Rs. 400/- per month.
(iii)for the next period of 12 months at Rs. 425/- per month.
(iv)for the fourth period of 12 months at Rs. 450/- per month.
(v) for the fifth and last period of 12 months at Rs. 475/-per month".
Therefore, the contents of Ex. R-3 registered lease deed dated 6-2-1975 undoubtedly establish the fact, as has been rightly concluded by both the Courts below, that the said sawmill was let out by the tenant to R2 sub-lessee for a period of 5 years commencing from 6-2-1975. There is no dispute either before me about this fact.
18. But then the material question that calls for consideration is the legality and correctness of the further finding of the Courts below that R1 was the absolute owner of the superstructure of the sawmill and not the landlord and, therefore, the transaction under Ex. R-3 between R1 tenant and R2 does not amount to sub-lease,
19. Mr. Papanna assailing the correctness and validity of this part of the findings of the Court-below contended that according to the condition contained in clause (4) of Ex. P-12 lease deed dated 5-4-1957 the landlord had become the absolute owner of this sawmill superstructure as well on expiry of the 15 years period stipulated therein which period expired on 5-4-1972 and, therefore, on and with effect from 5-4-1972 this superstructure also became the subject of lease along with the vacant land in favour of the tenant, he having come by possession of the petition premises subject to same terms and conditions of the lease as are stipulated in Ex. P-12. In other words, Mr. Papanna's argument was that R1 tenant having admittedly taken possession of the property from his lessee brother Parthasarathy in the year 1962 during subsistence of lease under Ex. P-12 and from then onwards he having continued as a tenant under the landlord with respect there to it logically follows that continuation of R1's tenancy under the landlord was subject to the same terms and conditions that are spelt out in Ex. P-12. One of the conditions of Ex. P-12 stated at clause (4) being that on expiry of the period of 15 years from the date of its execution i.e., 5-4-1957 the tenant was bound to surrender possession of the sawmill superstructure together with the vacant land and that the said period of 15 years having expired on 4-5-1972 the tenant's ownership over the superstructure automatically stood transferred in favour of the landlord. Mr. Papanna argued that thus the lease of the sawmill by R1-tenant to R2 (sub-lessee) under Ex. R-3, dated 6-2-1975 was subsequent to the date of acquisition i.e., 5-4-1972, by landlord of the ownership of the sawmill structure. Legally therefore, it was a clear case of unlawful subletting of the landlord's premises by the tenant to R2. To substantiate this proposition support was drawn by Mr. Papanna from the Supreme Court decision in Dr. K. A. Dhairyawan's case, supra. The relevant facts of that case are stated at para 2 in that decision. The material portion thereof is extracted below:
"Under the terms of the lease the lessee had to construct within six months from the date of the lease a double storeyed building consisting of shops on the ground floor and residential rooms on the upper floor. The cost of construction was to be not less than Rs. 10,000. The construction had to be to the satisfaction of the lessors' engineers. There were certain restrictive covenants in the lease. The building had to be insured for at least Rs. 12,000 in the joint names of the lessors and the lessees with an insurance firm approved by the lessors. If the building was damaged or destroyed it had to be repaired or restored by the use of the insurance money received from the insurance company. On the termination of the lease either at the end of twenty-one years or earlier, the lessees were to surrender and yield up the demised premises including the building with its fixtures and appurtenances to the lessors without any compensation for the same. On May 14, 1948, shortly before the lease was to expire, the appellants who were then the trustees of the temple gave notice to the respondents to deliver possession of the demised premises and the building on the expiry of the lease, that is to say, on May 22, 1948. On May 19, 1948, the respondents replied that they were entitled to the benefits of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the Act, and that the appellants were not to interfere with their possession. All that they could get was the rent under the lease from the respondents. On July 23, 1948, the appellants gave the respondents notice to quit the building only as in their opinion the Act did not apply to it. On July 27, 1948, the respondents, replied asserting that the Act did apply to it. The appellants, accordingly, filed the present suit in the High Court on September 1, 1948".
20. The appellant before Supreme Court were the trustees of the said temple who were the lessors. On construction of the building in terms of the lease deed the lessees therein had let out the portions of the building to various other tenants. On expiry of the term of the lease, when the lessors wanted the tenants of the building to pay rent to them in respect of the respective portions of the building in their occupation, the tenants took the defence that the lessors are not the owners of the building and that the tenants are protected from eviction by the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Then the suit was filed by the lessors in Bombay High Court against lessees and defendants for the relief of declaration that they were entitled to the building rent by virtue of the said surrender clause in the said lease deed dated May 23, 1927 on expiry of the stipulated term of the lease thereon. Negativing the contention of the tenant and upholding the lessors claim on construction of Section 108 of the Transfer of Property Act and the relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Supreme Court held:
"Normally, under Section 108 of the Transfer of Property Act, before the expiry of the lease, a lessee can remove all structures and building erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership, therefore, of the building in this case was not with the lessors but was with the lessees. Under Section 108 of the Transfer of Property Act, there was nothing to prevent the lessees contracting to hand over any building or structure erected on the land by them to the lessors without receiving any compensation. In other words, although under Section 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessors without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however did not transfer the ownership in the building to the lessors while the lease subsisted".
21. Finally the order was passed by the Supreme Court in the following terms.--
"The appellants are entitled to a declaration that the building constructed on the land demised under the lease, Ext. A, belongs to the Mankeshwar Temple Trust and the said trust is entitled to recover all the rents and profits from the same and the respondents have no right, title and interest therein since the expiration of the said lease".
22. The defence case pleaded by the tenant in his objection statement, the evidence given by him at the trial as also the contents of admitted material documents Ex. P-1, P-12 and Ex. R-3 convincingly prove and establish the case that tbe tenant took possession of the petition premises consisting of the vacant land and the sawmill superstructure in the year 1962 from his lessee brother Parthasarathy before the expiry of the stipulated lease period of 15 years in Ex. P-12 and that he stepped into the shoes of his brother Parthasarathy as a tenant with the implicit consent of the landlord and continued enjoying the same as such. This admitted position on the part of the tenant leaves no room to doubt that his continuation and enjoyment of the property as a tenant under the landlord was in the circumstances subject to the terms and conditions of Ex. P-12 lease deed and he could not escape or wriggle out from the consequences thereof. Therefore, he would be bound by the most material clause (4) of Ex. P-12 by virtue of which the demised property together with the superstructures stand surrendered to the landlord on and with effect from 5-4-1972 with the result the latter became the owner of the sawmill superstructure as well with effect from the said date i.e., 5-4-1972. Therefore, the resulting legal position, as has been enunciated by the Supreme Court in the case of Dr. K.A. Dhairyawan, supra, is that the tenants' occupation of the superstructure was as a tenant thereof under the landlord apart from being a tenant of the letter's vacant land. Therefore, it was not permissible for the tenant under sub-clause (f) of Section 21(1) of the Act to let it out to the sub-lessee (R2) under Ex. R-3 registered lease deed dated 6-2-1975. This lease of the sawmill by the tenant to the sub-lessee was in clear breach of the clause (f) of Section 21(1).
23. Then the next material question that arises for consideration is: could the landlord be granted the relief under clause (f) on the basis of such a case which stands made out by the admissible material and evidence on record in the absence of the same having been pleaded by him in the petition. The argument of Mr. Papanna to this effect was seriously refused by learned Counsel for R-2, sub-lessee.
24. Mr. Papanna's argument enjoys ample support of the authority of the Supreme Court in Firm Sriniwas Ram's case, supra and of this Court in M/s. Sudarshan Trading Company Limited's case, supra. Therefore, his contention that even when a plaintiff fails to plead a case in support of the relief prayed such a relief could be granted to him if the same stands made out by the defendant's admitted case in bis written statement and the evidence at the trial is entitled to acceptance. In the case of Firm Sriniwas Ram, supra, dealing with such a situation, the Supreme Court has ruled:
"A plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff. On a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit".
25. In the case of M/s. Sudarshan Trading Company, supra, one of the material points which had arisen for consideration of Division Bench of this Court was:
"Whether in view of the circumstances that even 10 years lease as set up by the appellant came to an end in July, 1982 the Court can take into account the subsequent event and affirm the decree of ejectment?"
26. While discussing this point, this Court has reiterated the legal principle laid down by Supreme Court in Dr. K.A. Dhairyawan's case, supra, though the case was not referred to in its decision. At para 19 of its judgment the High Court while discussing this point has quoted with approval the following proposition of Kerala High Court in Kamalaksha Pai v Keshava Bhatta .
"It is certainly not open to a defendant on whose plea a Court seeks to grant relief to the plaintiff to contend that such a course should not be resorted to and that the facts set out by him should not be accepted. It may happen that a Court chooses to take a defendant at his word and grant a relief to the plaintiff. On that footing the former should not then turn round and say that the Court should not believe him. Every party must pay the penalty for his being treated as honest in Court.....".
"5. Order 7, Rule 7, CPC, while enjoining upon every plaintiff to state specifically the relief which he claims either singly or in thealternative,allows the Court to grant reliefswhich may always be given by it as it may think "to the same extent as if it had been asked for". Where a relief is asked for in the plaint on a certain basis, the fact that the plaintiff asks virtually for the relief on a different ground. ..... The law is, therefore, clear that the plaintiff can be granted the relief he seeks. If he could have put forward as an alternative ground the facts pleaded by the defendant to make out an earlier lease (sic)".
27. These authoritative pronouncements of Supreme Court in Dr. Dhairyawan's case, supra, and of this Court in M/s. Sudarshan Trading Company Limited's case, supra, fully supports the case for the landlord put forward by his learned Counsel Mr. Papanna that on proof of landlord's ownership of the superstructure of the sawmill and on clear proof of the unlawful sub-letting of the petition premises by the tenant in favour of R2-sub-lessee under the registered lease deed dated 6-2-1975 at Ex. R-3 which being the case of tenant himself, the landlord is entitled to a decree of eviction against the tenant on the ground under clause (f) of Section 21(1). Therefore, I find that the revision is entitled to succeed on this score.
28. Hence, the revision is allowed on the ground under clause (f) of Section 21(1) of the Karnataka Rent Control Act. The impugned order dated 25-2-1992 of the District Judge passed in RRP No. 21 of 1985 and the impugned order of the Trial Court dated 15-12-1984 passed in HRC No. 366 of 1977 are both set aside so far as they relate to dismissal of petitioner's-landlord's petition under Section 21(1)(f) of the Act is concerned. The landlord's eviction petition under Section 21(1)(f) of the Act is allowed. Respondents are directed to deliver vacant possession of the petition premises to the landlord within one year from this date i.e., 29-1-1998 together with the sawmill superstructure subject to regular payment of monthly rent with respect thereto by R1 to the landlords (petitioners). It is made clear that respondent 1 is entitled to remove and take away all the machineries of the sawmill from the petition premises leaving the sawmill superstructure intact for delivery thereof to them. Respondent 1 shall not create any interest with respect thereto whatsoever in favour of any third party whomsoever. In case if he fails to put the petitioners (landlords) in vacant possession of the petition premises in terms of this order, the latter are entitled to get delivery thereof through Court in execution of the order at the cost of respondent 1.
29. In the circumstances, parties to bear their own costs.