Karnataka High Court
Mrs. Dulcine Emerenciana Rego Alias ... vs Lohithaksha And Others on 18 July, 2000
Equivalent citations: ILR2000KAR3923, 2001(2)KARLJ161
ORDER Chidananda Ullal, J.
1. All these revision petitions were filed under Section 115 of the CPC to challenge the common order dated 26-7-1999 in Revision (Rent) Petition Nos. 111 and 112 of 1993 and 16 of 1994 passed by the learned District Judge, Dakshina Kannada, Mangalore. In passing the said common order, the learned District Judge had set aside the common order of eviction dated 11-11-1993 in H.R.C. Nos. 128, 129 and 130 of 1991 passed by the learned III Additional Civil Judge (Junior Division), Man-galore and further dismissing the said eviction petition filed by the petitioner herein.
2. Before proceeding further, I feel it appropriate to narrate the history of litigation between the parties. For convenience, the parties henceforth are referred to as they were arrayed before the Trial Court.
3. That, the petitioner-landlady in all leased four shops to four tenants by name, Gangadhar Bangera (respondent in H.R.C. No. 127 of 1991 in respect of shop Door No. 1015/3), Lohithaksha (respondent in H.R.C. No. 128 of 1991 in respect of shop bearing Door No. 1/15/1015), Herald Rego (respondent in H.R.C. No. 129 of 1991 in respect of shop bearing Door No. 1/15/1015(1) and Peter Albuquerque (respondent in H.R.C.No. 130 of 1991 in respect of shop bearing Door No. 1/15/1015(2)), before the learned III Additional Civil Judge (Junior Division), Mangalore (henceforth in brief referred to as the Trial Court'). That, the petitioner had examined herself as P.W. 1 and her younger son by name Agnel Periera as P.W. 2 and her elder son by name John Francis Pereira as P.W. 3 and she had also marked in her evidence in all Exs. P. 1 to P. 13. On the other side, the respondents-tenants had examined themselves as R.W. 1 in all the eviction cases. In the evidence of the tenant-Gangadhara Bangera examined as R.W. 1 in H.R.C. No. 127 of 1991 he had not produced any document whereas, the tenant-Lohithaksha in H.R.C. No. 128 of 1991 had examined himself as R.W. 1 and had produced 6 documents marked as Exs. R. 1 to R. 6. In the like manner, the tenant, Herald Rego had examined himself as R.W. 1 in H.R.C. No. 129 of 1991 and had produced two documents marked as Exs. R. 1 and R. 2 whereas the tenant-Peter Albuquerque had examined himself as R.W. 1 in H.R.C. No. 130 of 1991 and had produced Exs. R. 1 to R. 10.
4. That, the Trial Court on appreciation of the material evidence both oral and documentary adduced by the landlady on the one side and the respondents-tenants on the other had passed common order dated 11-11-1993 allowing all the eviction petitions filed under Section 21(1)(h) of the Karnataka Rent Control Act, henceforth in brief referred as 'the Act' and further directing the respondents-tenants in all the eviction petitions to vacate the respective schedule premises within a period of 3 months.
5. Having been aggrieved thereby, all the above four tenants had filed four independent revision petitions. The tenant-Gangadhara Bangera had filed R.R.P. No. 6 of 1994, Sri Lohithaksha had filed R.R.P. No. 112 of 1993, so also the tenant, Peter Albuquerque and tenant-Herald Rego had filed R.R.P. No. 111 of 1993 and R.R.P. No. 16 of 1994, respectively before the learned III Additional District Judge, Dakshina Kannada District, Mangalore, henceforth for convenience referred to as 'First Revisional Court'.
6. That, the tenant-Gangadhara Bangera filed R.R.P. No. 6 of 1994 had given up the same by filing a memo and that the said revision petition came to be dismissed and the petitioner-landlord had since taken the possession of the said shop premises bearing Door No. 1/15/1015(3).
7. That, before the 'First Revisional Court' the tenant-Herald Rego had filed an LA. to adduce evidence in first revision petition and that he did in view of the fact that the earlier LA. to amend the objection statement filed against the main petition came to be allowed. The said amendment was only to bring to the notice of the Court that the shop premises under occupation of the tenant-Gangadhara Bangera bearing shop premises No. 1015/3 was made over by him to the petitioner-landlady as he abandoned his first revision petition in Revision (Rent) Petition No. 16 of 1994, before hearing the same.
8. That, the First Revisional Court in consideration of the material evidence both oral and documentary adduced by the petitioner-landlady and the tenants and further the evidence adduced by the petitioner-landlady and the tenant-Herald Rego in R.R.P. No. 16 of 1994 as stated above had passed the impugned order. As pointed out as above, in passing the said common order, the First Revisional Court had set aside the common order of eviction passed by the Trial Court and further dismissed all the eviction petitions pertaining to the said three tenants in H.R.C. Nos. 128 to 130 of 1991. To challenge the said common order passed by the First Revisional Court, the landlady is before this Court in filing the above three second revision petitions under Section 115 of the CPC.
9. The learned Counsel for the petitioner-landlady in all these revision petitions, Sri D'Cunha, had taken me through the common order that came to be passed by the Trial Court in the first instance and further the impugned order that came to be passed by the First Revisional Court. He had also taken me through the evidence adduced by his party as well as the tenants before the Trial Court as well as the additional evidence adduced by the tenant-Herald Rego and further the evidence adduced by the landlady in the Rent (Revision) Petition No. 16 of 1994 before the First Revisional Court.
10. Sri D'Cunha had also taken me through the petition averments in one of the petitions at length, for, the petition averments are common in all the four petitions. It was argued by him that in filing the eviction petitions, the case that was made out by his party was that, all the above four shop premises under the occupation of the above four tenants were bona fide required by the petitioner for the purpose of accommodating her eldest son, John Francis Pereira (P.W. 3) and the younger son, Agnel Periera (P.W. 2) and that, when the petitioner-landlady wanted two out of the four shop premises as one unit to run Supermarket business by her eldest son P.W. 3, she wanted the other two shop premises for the purpose of running an office of Chartered Accountant by her younger son P.W. 2 as he had passed Chartered Accountant examination. While taking me through the reasoning part of the order that came to be passed by the Trial Court with regard to the bona fide needs of the petitioner-landlady and further reasoning part with regard to the comparative hardship therein, Sri D'Cunha submitted that the same was a well-considered order and despite that the First Revisional Court had interfered with the said order even to set aside the eviction order in respect of all the three tenants and because of that, the landlady is before this Court in filing these revision petitions to challenge the same insofar as the same related to the three tenants and barring the tenant-Gangadhar Bangera in H.R.C. No. 127 of 1991 as he vacated his portion of the premises after filing his First Revisional Petition in Rent (Revision) Petition No. 16 of 1994 before the First Revisional Court by filing a memo thereto as stated above.
11. Sri D'Cunha had also argued that the First Revisional Court had misconstrued the case of the petitioner-landlady altogether inasmuch as it came to the wrong conclusion to say that when the second son, P.W. 2, did not depend economically upon the petitioner-landlady and furthermore he settled permanently in Behrain, he did not require two shop premises under occupation of tenant-Peter Albuquerque and Gangadhar Bangera since he had settled there along with his wife and children and further the other son P.W. 3 since secured permanent employment in Souza Furniture Mart in Mangalore. Sri D'Cunha had argued that the petitioner-landlady was sick and old inasmuch as at the point of time of examining herself she was 56 years and she could not manage her own affairs. Furthermore, while drawing my attention to the petition averments, Sri D'Cunha had also argued that the case of the petitioner-landlady in filing the eviction petitions before the Trial Court was that her eldest son P.W. 3 had fallen sick due to weather conditions in Bombay since the same was not congenial to him and that therefore P.W. 3 wanted to come down to Mangalore to stay with her to run his own supermarket business. While turning to the case of requirement of other two of the shop premises to run a Chartered Accountant office by her younger son P.W. 2, Sri D'Cunha had also argued that at the first instance, the said son having passed his C.A. examination was pursuing his training in Bangalore and thereafter having secured some alternative job for the time being he had moved out of India to take up a temporary assignment in Behrain and it is for that reason all the four eviction petitions came to be filed by her on the ground of bona fide use and occupation. According to him, that well-considered aspect of the case by the Trial Court, the First Revisional Court had totally misconstrued to pass the impugned order by it. Therefore, he submitted that the First Revisional Court had entered into an error to come to the wrong conclusion that there were no bona fide on the part of the petitioner-landlady to have the petition schedule premises for running supermarket and Chartered Accountant Office by her two sons.
12. Sri D'Cunha had also submitted that the First Revisional Court was influenced by an extraneous reason that his party had moved the Corporation of the City of Mangalore two years earlier to filing of the petitions to obtain a sanctioned plan for the purpose of putting up a residential apartment on the land where the petition schedule premises were situated and further enjoining the rear part of the said land belonging to the petitioner-landlady. In this regard, it was his argument that the said act of obtaining the plan had occurred in the hands of his party about 2 years earlier to the date of filing of the petitions and it was born on evidence of the petitioner-landlady as well as P.W. 2 that the said programme of putting up the residential apartments came to be given up when the contractor who had been engaged, defrauded the petitioner-landlady. He had also added in this context that two years gap between obtaining of the sanctioned plan and filing of the eviction petition was too long a period to impute motives for filing the eviction petition as against the tenants for the second time. According to Sri D'Cunha, the approach of the First Revisional Court was totally wrong and it is because of that, it had reached an erroneous conclusion to dismiss the three eviction petitions filed by the petitioner-landlady.
13. The other limb of argument of Sri D'Cunha was that the First Revisional Court had misdirected itself in not considering the comparative hardships of the contending parties before it, probably, Sri D'Cunha argued so, for the reason that, in tune with the case of the petitioner-landlady, her eldest son P.W. 3 had already reached Mangalore by resigning his job in Godrej Company at Bombay and that he was forced to work in a Furniture business at Mangalore on temporary basis and he continued to be in Mangalore to the knowledge of the other side and furthermore, the other son P.W. 2 had to get back to Behrain to pursue temporary avocation as he had chosen to take up the same there for the time being. Therefore, he submitted that the impugned order passed by the First Revisional Court is liable to be set aside in allowing all these revision petitions and further to restore the order passed by the Trial Court evicting all the tenants. In support of his argument, he had also cited as many as eight decisions and they are as follows:
1. ILR 1982 Kar. 463;
2. Syed Nazmuddin v N.S. Krishna Murthy ;
3. M/s. Ranjit Commercial Enterprises Private Limited, Madras v P.R. Ashokanand ;
4. Orders in H.R.R.P. No. 208 of 1999, DD: 2-2-2000 ;
5. K.N. Suryanarayana Setty v K. Sattarkhan ;
6. M.S. Zahed v K. Raghavan ;
7. Fakirasa v Shekharayya ;
8. G. Subramanya Udupa v D. Ramappa.
Out of the above decisions, I feel that the last decision he has cited before me has got relevance to the case in hand. I have referred to that here below to the occasion.
14. The learned Counsel for the tenants, Herald Rego, in H.R.R.P. No. 1017 of 1999, Sri K. Giridhar had fully supported the impugned order passed by the First Revisional Court. It was argued by him that it is borne on evidence that the petitioner-landlady attempted to dislodge her four tenants in view of the circumstances that the tenant-Peter Albuquerque had moved the Corporation of the City of Mangalore by issuing a legal notice Ex. R. 9 that the petitioner-landlady should not be issued with commencement certificate in pursuance of the building plan she had obtained from it for the purpose of putting up a residential apartment as stated above. Sri Giridhar had pointedly drawn my attention to one of the conditions in Condition No. 4 of the sanctioned plan which was to the effect that Ex. R. 6-building licence would not entail the petitioner-landlady to evict her tenants. Sri Giridhar had also argued that Ex. R. 6-building licence came to be issued to the petitioner-landlady and it is thereafter for the reasons best known to her, she had filed the above four eviction petitions as against his party and three other tenants. Sri Giridhar had also argued that two years gap between the two dates 29-6-1989, the day on which the earlier petition came to be filed and 21-6-1999, the day on which the eviction petition in question came to be filed on the second occasion could not be termed as too long a period to impute motives. According to him, it is only when one of the tenants i.e., Peter Albuquerque had moved the Corporation of the City of Mangalore to stop issuing the commencement certificate to the petitioner-landlady to construct the apartments as proposed by her earlier, to wriggle herself out of the situation, the landlady had resorted to the eviction petitions before the Trial Court. According to him, there was no bona fides at all in filing the eviction petitions in question. It was also pointed out by Sri Giridhar that P.W. 2-younger son having passed his CA not only moved himself to Behrain in pursuit of a permanent avocation, besides he had also moved along with his family members to settle permanently at Behrain and on the other hand that the eldest son P.W. 3 had also taken up permanent job in a Furniture Mart in Mangalore and it is that aspect of the case, the First Revisional Court had rightly appreciated to reject all eviction petitions in question in allowing the three eviction petitions before it. He further pointed out that other son P.W. 3 had not only got an appointment in a furniture mart in Mangalore, but petitioner-landlady and P.W. 3 had taken vacant possession of one of the shop premises bearing Door No..1015/3 in H.R.C. No. 127 of 1991 originally under the occupation of Gangadhara Bangera and that, if at all there was any bona fides worth the name on the part of the petitioner-landlady, nothing prevented her to make P.W. 3 to move to the said shop premises, at least to start some kind of business.
15. Therefore, Sri Giridhar submitted that the First Revisional Court had taken a second look in the right way and it had thus passed the right order rejecting the eviction petitions in respect of three shop premises now under occupation of the tenants, Lohithaksha, Peter Albuquerque and his party Herald Rego. Even otherwise, on the point of hardship also, Sri Giridhar submitted that the petitioner since having one of the shop premises originally under the occupation of Gangadhara Bangera, P.W. 3 could as well do his business in the said portion of the premises.
16. The learned Counsel for the tenant, Lohithaksha, Sri Ram Bhat on the other side also supported the impugned order passed by the First Revisional Court. He had also adopted the argument of Sri Giridhar. He had also added that this Court cannot forget for a moment that his party is a poor carpenter and eking out his livelihood by running a furniture workshop in the subject premises and it is that aspect of the case, the First Revisional Court appreciated in the matter of consideration of the point of comparative hardships.
17. In the light of the above arguments advanced, now the sole point that arises for my consideration is whether the impugned order passed by the First Revisional Court be termed as erroneous to allow these three eviction petitions.
18. Now I consider the above point here below.
19. I have gone through the order that came to be passed by the Trial Court at the first instance as well as the impugned order that came to be passed by the First Revisional Court more than once. I have also gone through the records of the Trial Court as well as the First Revisional Court meticulously. On going through the impugned order, I find that the First Revisional Court was influenced by three prime circumstances to reach the conclusion that the petitioner-landlady had not made out a case for bona fide use and occupation of the shop premises, they are:
(i) That the younger son of the petitioner-landlady, Agnel Pereira (P.W. 2), had not only moved out of India on permanent basis since he had taken up avocation at Behrain, but he had also moved out his family i.e., his wife and children to Behrain and that if at all P.W. 2 wanted a Chartered Accountant Office, he could run his Chartered Accountant Office as well in the residential house situated in the rear side of the petition schedule premises.
(ii) That the eldest son, Francis Pereira (P.W. 3), had taken up avocation to work in a Furniture Mart under the name and style Souza Furniture Mart at Mangalore.
(iii) That the petitioner-landlady was having a shop premises in her name at Urva Market and that the said shop premises would have been used for the purpose of running the business by P.W. 3 and furthermore, one of the shop premises under the occupation of Gangadhara Bangera had fallen vacant and that would have been used alternatively for the purpose of running the supermarket business of P.W. 3.
20. Yet another reason assigned by the First Revisional Court in that regard was that the petitioner-landlady did not amend the petition averments to say that the said portion of the occupation of Gangadhara Bangera was not sufficient for the purpose of running the business.
21. The first point in my considered view, that the First Revisional Court had considered the matter of requirement of the younger son of the petitioner-landlady (P.W. 2) as above appears to be just and proper, for, as observed by the First Revisional Court, P.W. 2 had not only moved out of India having taken avocation in Behrain but in addition to that, he had also moved out his wife and children from India to settle there on permanent basis. Let apart P.W. 2 had also deposed in his evidence before the Trial Court that he was not dependent economically on the petitioner-landlady. If it is true that P.W. 2 had taken avocation in Behrain on temporary basis as argued by Sri D'Cunha nothing prevented him to produce acceptable evidence before the Trial Court to that effect; but interestingly enough, in the case in hand he had not done that before the Trial Court and instead he had sent a letter to his Advocate during the pendency of the revision petition before the First Revisional Court marked as Ex. P. 14 through P.W. 1 to say that he would be coming down to Mangalore for the purpose of starting a Chartered Accountant Office as he had proposed.
22. Therefore, it appears to me that the reasoning of the First Revisional Court with regard to the requirement of her son P.W. 2 appears to be just and proper. However, I do not contribute to the view of the First Revisional Court with regard to the requirement of P.W. 3, for, admittedly, in filing the eviction petitions, the petitioner-landlady had contended that out of the four shop premises, two shop premises under the occupation of tenants, Peter Albuquerque and Gangadhara Bangera had to be converted as one unit for the purpose of running the Chartered Accountant Office by P.W. 2 whereas, the other two shop premises under the occupation of tenants, Herald Rego and Lohithaksha had to be converted into yet another unit for the purpose of running the super market by other son P.W. 3. The said evidence of P.W. 1-landlady was also corroborated by the evidence of P.Ws. 2 and 3. The First Revisional Court while dismissing the eviction petitions in question gave twin reasons, firstly, that the landlady had her own shop premises in Urva Market and second that the shop premises under the occupation of Gangadhara Bangera could be used for these purpose of running the business by P.W. 3. But that reasonings of the First Revisional Court appears to be totally opposed to the material evidence on record, for, the petitioner-landlady P.W. 1 in her evidence had deposed that the portion of the shop premises was surrendered by her to Mangalore City Corporation and furthermore it was suggested to her in her cross-examination that the said shop premises was alienated by her about 4 years earlier. If the said shop premises was admittedly alienated, as suggested to P.W. 1-landlady, it is obvious that the shop premises at Urva Market was not at all available for P.W. 3 to do business in the said shop premises.
23. Yet another admitted circumstances is that the eldest son P.W. 3 having come down to Mangalore had taken up an avocation in Souza Furniture Mart and that could be only on abandonment of his job at Godrej Company in Bombay and further that his family had also come down to Mangalore to live with the petitioner-landlady. On going through the evidence adduced by P.W. 2 as well as P.W. 3, it is clear that they wanted the shop premises under the occupation of the tenants, Herald Rego and Lohithaksha for P.W. 3 for the purpose of running his super market business. As I see, it is also in their evidence that the portion of the premises under the occupation of Gangadhara Bangera and Peter Albuquerque were bona fide required by the petitioner-landlady for the purpose of running the Chartered Accountant Office by P.W. 2. Further, on going through the evidence of tenant-Lohithaksha, I have also noted that such tenant had also deposed that out of 4 shop premises, his shop premises was the larger one, whereas the other shop premises was smaller ones. If the evidence of P.W. 1 very well corroborated by the evidence of her two sons P.Ws. 2 and 3 was to the effect that the portions of the shop premises under the occupation of the tenants, Herald Rego and Lohithaksha was convenient for running the super market business by P.W. 3, it could not be said that there was mala fide on the part of the petitioner in seeking eviction of the said two tenants from the said shop premises under their occupation in H.R.C. Nos. 128 and 129 of 1991. But now the point is what the petitioner-landlady is going to do with the portion of the premises, she had secured from the hands of the tenant-Gangadhara Bangera. I feel that the comparative hardships of the parties in this context has to be appreciated and equities have to be worked out in between them now.
24. It is in the evidence of P.W. 1-mother and P.Ws. 2 and 3-sons that Herald Rego is not in India. It is relevant to point out in this context that when the copy of legal notice was tried to be served on the said tenant, the covers Ex. P. 6 came to be returned with an endorsement that he was out of India. The said endorsement had been made by the Postal Authority. One cannot forget for a moment that the said endorsement was made by the Postal Authority during the course of performance of its normal duties. I Would not have taken note of the said piece of evidence alone, but for the circumstances that in Ex. R. 1-the power of attorney executed by the said tenant-Herald Rego, reads that his power of attorney was his next friend to take care of his business on the ground that he would be moving Madras, Calcutta and Bombay, whereas the said power of attorney holder examined as R.W. 1 in that case, had deposed that he was working in the shop premises under the said tenant-Herald Rego. Furthermore, I have also taken' the judicial notice of the circumstances that the Court notice issued by the Trial Court came to be served on mother of the tenant Herald Rego in his absence. The said summons served on his mother on 6-7-1991 is found at page No. 3 of the Trial Court records. In the rear side of the said summons, it had been recorded as hereunder:
"Received the copy of Notice with petition copy on behalf of my son.
Sd/- (Winney J. Rego) 6-7-1991 Wit:-- Sd/- (Prema Rego) w/o. Herald Rego 11-7-1991"
Therefore, I am convinced that the tenant-Herald Rego is not in India and he is out of India in pursuit of some other avocation, he being a technical man; of course before the First Revisional Court he had adduced his side of evidence, whereas before the Trial Court he was represented by his Power of Attorney holder even to give evidence on Ms behalf and that one can say that he might have come to India to tender his evidence to strengthen his case that he is very much in India. If the said tenant is not doing the business in the subject premises leased to him and it is kept under lock and key as deposed by the P.Ws. 1 to 3, I do not think, any hardship would be caused to him in the event he were to be evicted from the premises. It is the case of the landlady-P.W. 1 and her sons P.Ws. 2 and 3 that the portions of the premises under the occupation of Lohithaksha and Herald Rego were suitable for this purpose of running the supermarket by P.W. 3 and the other two portions are convenient for P.W. 2 for running his Chartered Accountant Office and if that be the evidence on record it could not be said that P.W. 3 could have commenced his business in supermarket in the portion under the occupation of Gangadhara Bangera, one made over to the petitioner-landlady. But the point is whether the tenant-Lohithaksha be evicted to facilitate P.W. 3 to run his business in the facts and circumstances of the case that a portion of the premises under the occupation of the tenant-Gangadhara Bangera in the extreme other end is available for the landlady. To me it appears that the tenant-Lohithaksha, however, can be accommodated in the said portion of the premises originally in the occupation of the tenant, Gangadhara Bangera bearing Door No. 1/15/1015(3) on the very terms upon which the said tenant, Gangadhara Bangera, had occupied the same. To come to the conclusion I have equally taken note of the overall circumstances including the circumstances that the tenant-Peter Albuquerque who runs his engineering business in premises in No. 1/15/1015(2) is living in poor circumstances as he is seriously ill and hard-pressed in life. I feel that the reasoning part of the First Revisional Court in the point of comparative hardships to him, in the event he were to be evicted from the subject premises has to be very well endorsed by this Court. In para 33 of the judgment of the First Revisional Court, it had been observed therein with regard to hardship of the said tenant-Peter Albuquerque. To quote the same, the same reads as follows:
"33. Peter Albuquerque, the tenant of the premises in H.R.C. 130 of 1991 is running engineering workshop installing machinery in the shop in question. He has taken high tension power line for his workshop investing three lakh rupees. He is having 15 workers. Of late he has suffered a paralysis stroke. He and his family members and workers are spending the income from the said workshop for their livelihood. If eviction is ordered they will be put to great hardship. No suitable shop premises are available for shifting the said workshop".
25. At this stage, the learned Counsel for the respondent, Sri Giridhar, submitted that there was not even a suggestion in the cross-examination of Herald Rego before the Trial Court that he was out of India. He had further pointed out at this stage that when Herald Rego came to be examined before the First Revisional Court, there was no suggestion to him that he had gone abroad. It has in fact created some anxiety in me and I therefore had to do further exercise to go through the evidence adduced by the said tenant-Herald Rego in examining his power of attorney before the Trial Court. As I see, there was, in fact, a suggestion to the said witness (P.A. Holder) before the Trial Court that the tenant-Herald Rego had gone abroad. However, I do not think it is necessary for the petitioner-landlady to put that suggestion before the First Revisional Court since he had been examined in person before the First Revisional Court on some other point. As a matter of fact, the respondent tenant-Herald Rego had adduced his side of the evidence before the First Revisional Court only with regard to the amendment of the objection statement he made with regard to non-using of the portion of the premises under the occupation of Gangadhara Bangera that had fallen vacant and further with regard to the employment the eldest son P.W. 3 had taken in Souza Furniture Mart at Mangalore. It is pertinent to observe in this context that even in his evidence adduced before the First Revisional Court, nowhere he had stated that he had not left India to deny inexistence of the landlady.
26. In reaching the above conclusion, I have not forgotten that the petitioner herein had resorted to the instant revision petitions under Section 115 of the CPC, for, as pointed out by the learned Counsel for the revision petitioner, Sri D'Cunha that the instant revision petitions are directed against the common order passed by the First Revisional Court in reversing the order of eviction passed by the Trial Court. Therefore, it is obvious that the petitioner-landlady is before this Court with the divergent findings by the Courts below. Sri D'Cunha had also placed before a decision of this Court in Subramanya Udupa's case, supra, on the point that when there is divergent finding, it is available for the Second Revisional Court to reappreciate the evidence on record. Having gone through the said decision of this Court, I am of the considered view that the said reported decision has got total application to the instant case; for that reason, I too have reappreciated the evidence adduced by P.Ws. 1 to 3 before the Trial Court as well as before the First Revisional Court to pass this common order in the Second Revision Petition.
27. To reach the above conclusion as stated above, I have also considered the comparative hardships of the tenant-Peter Albuquerque, in the event, he were to vacate from the premises. In this context, I have weighed the circumstance, firstly, that the Trial Court rightly observed that the said tenant is living in a hard way as he had suffered paralytic stroke and that he had invested heavily on machinery for the purpose of his engineering business and secondly that the need of P.W. 3 was specifically in respect of the premises under occupation of the tenants by name Herald Rego and Lohithaksha and furthermore the younger son of the landlady had permanently settled in Behrain having taken an avocation and furthermore settled his family members there along with him. Let apart, the cause of the tenant-Lohithaksha, in a way is equally championed as he is directed to be accommodated by the petitioner-landlady in the portion of the premises formerly under the occupation of the tenant-Gangadhara Bangera, no matter that the same is reasonably smaller accommodation-wise.
28. In view of the above conclusion, I have reached, I feel that the revision petitions in H.R.R.P. Nos. 1015 and 1017 of 1999 merit consideration whereas the revision petition in H.R.R.P. No. 1016 of 1999 does not. In the result, I pass the following:
ORDER
(i) H.R.R.P. No. 1015 of 1999 stands disposed with a direction to the tenant-Lohithaksha to vacate the petition schedule premises within a period of three months from this day in allowance of the original eviction petition in H.R.C. No. 128 of 1991 filed against him before the Trial Court and further in modification of the common order hereunder challenge passed by the First Revisional Court insofar as the same related to him to accommodate him in the alternative shop premises as aforementioned. Accordingly, he is at liberty to exercise an option to occupy the premises bearing Door No. 1/15/1015(3) previously under the occupation of the tenant by name Gangadhara Bangera who had vacated after making over the possession thereof to the petitioner-landlady. Such an exercise he has to do before this Court within a period of one month from this day. It is also added that occupying that portion by him is as per the terms and conditions of lease of that portion to the said tenant-Gangadhara Bangera and as things prevailed at the point of time of vacating from that portion of the shop premises i.e., Door No. 1015/3 by the said tenant, Gangadhara Bangera.
(ii) H.R.R.P. No. 1016 of 1999 stands dismissed.
(iii) H.R.R.P. No. 1017 of 1999 stands allowed in allowing original H.R.C. No. 129 of 1991 before the Trial Court and further setting aside the impugned order in so far as the same related to him. The respondent tenant-Herald Rego, is hereby directed to quit and vacate the shop premises within a period of 3 months from this day.
(iv) In the peculiar facts and circumstances of the case, I direct the parties to bear the respective side of the cost in these three H.R.R.PS.