Karnataka High Court
M/S. Kaiser-I-Hind-Depot (By ... vs G.R. Kote on 31 January, 2000
Equivalent citations: ILR2000KAR1384, 2000(3)KARLJ303, 2000 A I H C 2436, (2000) 3 KANT LJ 303
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
ORDER
1. This revision under Section 50(1) of the Karnataka Rent Control Act, 1961 (for short, 'the Act') is directed against the order of the Judge, Court of Small Causes, Bangalore, dated 28-11-1996 in H.R.C. No. 2658 of 1987. Revision petitioner is the respondent-tenant and the respondent herein is the petitioner-landlord. Hereinafter, I shall refer to the parties as they are shown in the eviction petition for the purpose of convenience.
On 29-3-1987 petitioner filed petition under Section 21(1)(h), (j) and (p) of the Act and subsequently on 28-1-1995 gave up the claim under Section 21(1)(j). Respondent opposed the application. Therefore, the parties went into trial, examined the witnesses and the Court by the impugned order refused eviction under Section 21(1)(p) of the Act, however allowed the application under Section 21(1)(h) and directed the tenant to vacate and handover vacant possession of the premises within six months from the date of the order. Tenant has now challenged the order of eviction under Section 21(1)(h) of the Act. Petitioner-landlord has not challenged the rejection of the application under Section 21(1)(p) of the Act.
2. Heard the learned Counsels for both the parties. Perused the papers.
3. Brief history of the case is as follows:
Premises in question is a non-residential premises consisting of two storeys situated in Chickpet, a prime commercial centre in the City of Bangalore. It measures according to the petitioner 10' x 30' but according to the respondent it is about 9' x 26.5'. It has neither water facility nor toilet facility, undisputably there is no bathroom. It has come in evidence that the premises was purchased by the father of the petitioner and in partition fell to the share of the petitioner. Respondent, a partnership firm, dealing in the sale of Kanjeevaram Sarees is in occupation of the premises for over 40 years having taken it on lease from the father of the petitioner on a monthly rent of Rs. 175/-. Respondents-1(a) to (c) are the partners of the partnership firm called M/s. Kaiser-I-Hind-Depot.
4. On 29-9-1987 petitioner filed this eviction petition seeking eviction on the ground that the premises is 80 years old and as such it requires repairs, almost every shop in Chickpet has been demolished and re-constructed and therefore it is necessary that the premises in question must also be demolished and reconstructed. Further, it is pleaded that petitioner is a highly qualified Engineer and has done postgraduate course in Engineering at West Germany, maintains automobile workshop at Bangalore and is carrying on intensive work of reconditioning and heavy repairs. In his family, he, his wife, two sons, daughter-in-law and a grandchild live and he is in a rented premises. First son Balaji Kota is a Senior Engineer in NGEF, Bangalore and draws salary of Rs. 2,300/-. Second son Kota G. Kamakshaiah Setty is trained in jewellery business by his uncle Dhruvakumar, a leading jeweller at Coimbatore and the premises is required to accommodate his second son and see that he settles in jewellery business. Further, petitioner pleaded that respondent has purchased a very big property at Shankar Mutt and has reconstructed and the respondent could as well shift his business to the newly acquired area. No need to elaborate on this point for the reason that the landlord has not challenged the finding of the Trial Court on 21(1)(p). Things as it stood, petitioner examined himself, his son P.W. 2 and P.W. 3 his brother Dhruvakumar in the year 1993. Thereafter, in the year 1995 made an application for amendment and sought for eviction on the ground that the premises is required for his residence for the reason that he lived in a rented premises and on an application by his landlord in H.R.C. No. 2559 of 1992, the Court on 11-7-1994 ordered eviction and he is directed to vacate and handover vacant possession of the said premises by the end of December 1996. Thus, petitioner sought for eviction on the ground that the premises in question is required not only for his residence but also for non-commercial purpose.
5. Respondent strongly opposed and contended that the claim is neither reasonable nor bona fide. Petitioner made successive applications for evicting him more than once and having failed in all those applications made the present application. There are innumerable contradictions and variations from petition to petition for instance in one petition he said the premises is 100 years old and in another application 80 years old and requires reconstruction. However, he gave up those pleas and contends that the premises is required both for residential and non-residential purpose. In fact, in the whole of Chickpet majority of the premises are commercial premises, premises in question has no water facility nor toilet facility, petitioner even if he so desires cannot convert the premises in question for residential purpose and his desire is fanciful and the intention is only to evict and as such the claim by the petitioner is neither reasonable nor bona fide, respondent therefore prayed for rejecting the application. Second son of the petitioner is looking after his father's automobile shop and there is no need for him to start business in jewellery, he did not have any training with his uncle as pleaded. The claim is totally false.
6. It would be necessary to note that in the year 1967 petitioner instituted eviction proceedings in H.R.C. 1166 of 1967 under Section 21(1)(h) and (i) of the Act and after contest that petition came to be dismissed on 10-4-1972. Appeal before the District and Sessions Judge in H.R.C. Appeal No. 111 of 1972 did not yield any better result and the appeal was dismissed on 8-1-1973. It would appear that the revision petitioner challenged that order in revision before this Court but that revision was not admitted. Second round of litigation started in the year 1979. Petitioner filed H.R.C. No. 490 of 1979 under Section 21(1)(h) and (j) of the Act and in the year 1980 consequent upon conferring power on the Small Causes Court to try eviction cases, this case was transferred to Small Causes Court and registered as H.R.C. No. 2800 of 1980. This application on 11-6-1982 was dismissed for default and non-prosecution. It would appear that the landlord thereafter made an application in Miscellaneous 521 of 1982 under Order 9, Rule 13, Civil Procedure Code for setting aside that ex parte order, even that application was not pursued and on 26-3-1983 petition was dismissed as not pressed, Third round of litigation started in the year 1984. Petitioner filed H.R.C. No. 565 of 1984 under Section 21(1)(i) and (j) of the Act, that application was opposed, evidence was recorded and it is stated that on 5-3-1986 recording of evidence-was completed. Thereafter, on 4-9-1987 petitioner made an application under Order 23, Rules 1 and 3 read with Section 151 of Civil Procedure Code seeking permission to withdraw the petition with liberty to file fresh eviction petition, that application was allowed and the petition was dismissed as withdrawn. It is thereafter on 29-9-1987 present application for eviction is filed under Section 21(1)(h), (j) and (p) of the Act. However, on 28-1-1995 claim under Section 21(1)(j) was given up.
7. Petitioner examined himself as P.W. 1, his second son Kamesh G. Kota as P.W. 2 and his brother Druvakumar as P.W. 3 and closed the case by producing documents Exs. P. 1 to P. 5. On behalf of the respondent-firm, one of the partners M.R. Srinivasan as R.W. 1 and two other witnesses are examined. Two witnesses are examined to substantiate the respondents plea that petitioner has an automobile workshop and that is looked after by P.W. 2, in fact R.W. 2 was visiting the said automobile workshop for servicing his scooter and on one occasion obtained the receipt Ex. R-7, Ex. R-10 is the original of Ex. R-7. Learned Judge after hearing both the parties and considering the evidence both oral and documentary, by impugned order has refused eviction under Section 21(1)(p) of the Act but ordered eviction under Section 21(1)(h).
8. Sri B.S. Keshava Iyengar, learned Senior Counsel submitted that the Trial Court has committed a serious error in not considering the entire evidence in determining the claim of the landlord that the premises is required both for residential and non-residential purpose and as such, conclusions reached are erroneous. The Court in appreciating the evidence should have kept in mind the conduct of the parties, the Court has not objectively assessed the evidence and suddenly jumps to the conclusion that petitioner has made out a case under Section 21(1)(h) of the Act and that is not sustainable in law. Material particulars have not been pleaded in the petition for eviction, it is only after two to two and half years after filing this application for eviction amends the petition and seeks for personal use and occupation, the order obtained in H.R.C. No. 2559 of 1992 is collusive and only to suit his present case, Court has not considered the evidence of P.Ws. 2 and 3 and R.Ws. 2 and 3 in the right perspective and the discussion of the evidence is not proper and wholly disconsolate. In support of his arguments relied on the decision of this Court in D'Sauza A. v Rama Rao (deceased) by L.Rs.
9. Sri R.B. Sadashivappa, learned Counsel per contra contended that the finding of the Trial Court as to the requirement of the petitioner is based on proper appreciation of evidence. The evidence of the petitioner and his witnesses clearly make out that the premises would be put to both commercial and non-commercial use, petitioner having suffered a decree of eviction, was required to shift and as he has no other alternative building in Bangalore he is compelled to convert the non- residential premises in question both for his residence and to settle his son in business, there is no bar in law in converting non- residential premises both for residential and non-residential purposes, and whether or not there are certain facilities, is for the petitioner to attend to it after evicting the respondent, it is not for the tenant to direct as to what facility should be there and these factors have been taken into consideration by the Court in determining the genuineness or the requirement of the petitioner and as such it calls for no interference. He also contended that in a revision under Section 50(1) of the Act this Court cannot re-appreciate the evidence and come to a different conclusion, appreciation of evidence by the Trial Court being just and proper no interference is warranted. He further contended that petitioner being in a rented premises not required to wait till his landlord seeks his eviction and even before he could as well ask his tenant to vacate and make available the premises for his use. Here in the instant case, petitioner suffers a decree and that is required to be taken in considering the evidence which the Trial Court has rightly done and thus there are no grounds warranting interference by this Court in exercise of revisional powers.
10. I have considered the rival contentions carefully, both the learned Counsels took me through the whole of evidence, I also read it to satisfy whether the finding recorded by the Trial Court is based on proper appreciation of evidence and correct.
11. Let me now consider the arguments regarding this Court's power to have a look at the evidence in the case in revision under Section 50 of the Act. Learned Counsel Sri Sadashivappa inviting my attention to the decision of the Apex Court in Sarla Ahuja v United India Insurance Company Limited, and argued that in a revision reappraisal and reappreciation of evidence by High Court to reach different finding is not permissible. Apex Court was considering the scope and purport of Section 25-B(8) of the Delhi Rent Control Act (59 of 1958) which is not shown to be similar to Section 50(1) of the Act. However, it would be relevant to note the observations made by the Apex Court which reads thus:
"No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact finding Court is wholly unreasonable. A reading of the impugned order shows that the High Court has over-stepped the limit of its power as a revisional Court. The order impugned, on that scope, is hence vitiated by jurisdictional deficiency".
In another recent case in M.S. Zahed v K. Raghavan, Apex Court dealing with the scope and purport of Section 50 of the Act has said that it cannot be said that the High Court has no jurisdiction to go into the question of correctness of finding of fact reached by the Court of Small Causes on relevant evidence. Apex Court has referred to earlier decision of the Supreme Court in M/s. Bhoolchand and Another v M/s. Kay Pee Cee Investments and Another. In that case the Court was considering the scope and purport of Section 50 of the Act. The Court while so considering has declared the law in the following words:
"6.......
However, the power of revision is not narrow as in Section 115, Civil Procedure Code but wider requiring the High Court to examine the impugned order for the purpose of satisfying itself as to the legality or correctness of such 'order or proceeding' which enables the High Court to 'pass such order in reference thereto as it thinks fit'. It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness. The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact. In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact. It is significant that the revision provided is directly against the Trial Court's order and not after a provision of appeal on facts. All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original Court; and the revisional power under Section 50 of the Act even though wide as indicated must fall short of the Appellate Court's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties".
In the latter decision in M.S. Zahed's case, supra, Apex Court referring to the above said observation has said:
"12.........
But once the present Act has enabled the High Court to look into the correctness of the orders sought to be revised, it cannot be said that the High Court would be disabled from considering the question whether the findings of fact reached by the Court of Small Causes were correct or not in the light of the evidence on record. It is axiomatic that revisional power cannot be equated with the power of reconsideration of all questions of fact as Court of First Appeal. Still the nature of the revisional jurisdiction of the High Court under Section 50 of the Act will have to be considered in the light of the express provisions of the Statute conferring such power. On the express language of Section 50, sub-section (1) of the Act, therefore, it cannot be said that the High Court had no jurisdiction to go into the question of correctness of findings of fact reached by the Court of Small Causes on relevant evidence".
In view of the settled legal position, it is clear that this Court can have a second look at the evidence for limited purpose of ascertaining whether the approach and appreciation of the evidence by the Trial Court is proper and correct.
12. It is further contended by Sri R.B. Sadashivappa, learned Counsel for the respondent that there is no bar in law for the petitioner to seek eviction of a tenant in occupation of a non-residential premises, for the use of the* landlord both for residential and non-residential purpose. In support of his arguments, he relied on several decisions. In view of the clear provision in the Act, in my humble view there is no need to go in for elaborate discussion on this point. Section 11 of the Act prohibits conversion of residential building to non-residential building except with the permission in writing of the Rent Controller. Sub-section (2) of Section 11 of the Act also provides for deemed conversion in case if the Controller fails to pass an order on the application within 60 days from the date of application. Except this there is no other provision debarring conversion of non-residential premises to residential premises, may be for the obvious reason that there is acute shortage of residential premises in growing towns and cities in the State. However, in support of his arguments, relied on certain decisions first in the series is M/s. Maulavi Abdur Rub Firoze Ahmed and Company v Jay Krishna Arora. In this case, Supreme Court was considering certain provisions in West Bengal Premises Tenancy Act. The next decision relied on is also of the Supreme Court in Shri Balaganesan Metals v M.N. Shanmugham Chetty and Others. The Court was considering the Tamil Nadu Buildings (Lease and Rent Control) Act. In that case, landlord occupied part of the building for residential purposes and tenant occupied remaining portion for non-residential purpose. The Court said that the need of tenanted premises for additional accommodation for residence is tenable. The next decision is of this Court in Ramu v C.H. Ramakrishna. Justice Shivashankar Bhat (as he then was) considering the scope of Section 21(l)(h) and Section 21(4) of the Act declared that it is not illegal for the landlord to use non-residential premises for residence. Another learned Single Judge of this Court in M/s. Akberali Sons Estate v M/s. Pen Shop and Others, has said that there is no bar in law to convert non-residential premises into residential premises. It is necessary to note the observations made by the Apex Court in M/s. Maulavi Abdur Rub Firoze Ahmed's case, supra, which reads thus:
"8........
The law does not require that the landlord must need the premises for his own occupation only for the purpose to which they were being put by the tenant. It may well be that a tenant cannot put the demised premises to any other use. But there is no bar in law in the way of the landlord requiring the business premises for his residential occupation and vice versa, provided the premises are capable of being put to different uses, as they seem to be in this case".
It is therefore clear that there is no bar in converting non-residential premises to residential premises, but in such cases what the landlord-petitioner is required to establish is that the premises in question is capable of being put to different use. Therefore, what is necessary to examine in the instant case is whether the premises in question could be put to both non-residential and residential use as sought for by the petitioner.
13. In cases where the landlord seeks eviction of his tenant in occupation of non-residential premises on the ground that it is required by him both for residential and non-residential premises, pleadings must be clear and it must also contain all relevant particulars. Next the evidence must be consistent with those pleadings and convincing for the reason that the approach of the Court in cases of residential and non-residential premises would normally be different. If there are contradictions and variations in the pleadings and proof that would certainly weaken the case of the landlord and in such cases conduct of the party assumes importance in the matter of appreciation of evidence, as it touches bona fides.
14. Premises in question measures, let us assume 10' x 30' which means 300 sq. ft. It consists of 2 floors. Undisputably, respondent is transacting business in the building for over 40 years. It has also come in evidence and the particulars furnished in the Schedule also makes out that the premises in question is bounded both on the east and west by shops. Further, it has come in evidence that there are common walls in between these buildings. It has also come in evidence that there is neither water facility nor toilet facility in the said building. Petitioner is a highly qualified Engineer, aged 56 years (in the year 1987). He was maintaining automobile engineering workshop and his first son is a Senior Engineer in NGEF, a Government undertaking. The other son has also completed Engineering Course and according to him, is trained in jewellery and he intends to start jewellery shop. This would unmistakably demonstrate that father and two sons are educated and the family enjoy both social and economic status. They enjoy certain other facilities, they live in a house constructed on a site measuring 40' x 60'. Though he admits in one breath that he comes from a rich family, thereafter says he is not rich now. It reads:
However, it has come in evidence that he has a big site in Visweswarapuram, another posh locality in the City of Bangalore. In the circumstances, would it be possible to conceive that the petitioner in whose family there are 5 adult members and a child whom I have referred to supra would be able to squeeze in the leased premises in question and also allow P.W. 2 to have his business in jewellery. Building may have two storeys, but the question would be whether in a total area of about 600 sq. ft, petitioner could provide sufficient area for their living keeping in tune with the status they enjoy and also provide space for running the business. It has come in evidence of P.W. 2 that he intends having showroom and use first floor for repairing and polishing. Therefore, one has to see whether the petitioner in an area now available could provide for a showroom, provide space for polishing and repairing and also for dwelling, where petitioner and his son are highly qualified engineers and who have enjoyed certain facilities where they live, more particularly after providing modern facilities which normally possessed by people of that status. In appreciating and considering the request for putting the premises both for residential and non-residential premises one cannot lose sight of the fact that on either side of this building there are buildings with common wall and the road in front of the house is a small road and most of the premises in the area are used for commercial purposes and it is one of the old and prime centres for business activities. When I consider the evidence of P.Ws. 1, 2 and 3 and the relevant documents in the background of these circumstances, find considerable merit in the arguments advanced on behalf of the learned Senior Counsel on behalf of the respondent-tenant (revision petitioner herein).
15. Sri Sadashivappa, learned Counsel, submitted that the fact that there were earlier proceedings for eviction, should not come in the way of considering the evidence in the present case, what is required in a situation like this is as to whether on the date of present application petitioner has made out a case for eviction under Section 21(1)(h) of the Act. In support of his arguments, he relied on the decision of the Apex Court in Smt. Mehrunnisa and Another v Smt. Visham Kumari and Another In that case, notice was issued in the month of July 1976 terminating the tenancy contending that the premises was required for using it as an office for her husband, a practising lawyer. But no action was taken thereafter. Again, another notice is issued in the month of July 1977 stating that the premises was required for her cloth business which she intended to start, no action was taken on the second notice also. Third notice was issued in the month of October 1979 repeating the same allegations contained in the second notice, but on the last occasion the petitioner filed a suit for eviction on the basis of notice issued on 12-10-1979. In the plaint it is alleged that she intends to start cloth business and the tenant has defaulted in payment of rent. Apex Court said that in a situation like this, notwithstanding the fact that no action was taken on earlier two petitions, what the Court required to consider was the genuineness of the requirement pleaded in the last of the notice on which action was taken. In the instant case, facts and circumstances are little different. On earlier occasions sought eviction for demolishing and reconstruction and also for personal use. On the last occasion though sought for demolition, subsequently gives up and further says that it is required both for residential and non-residential purpose. The building is according to him 80 or 100 years old and the area is less than 10' x 30'. Learned Advocate also relied on several other decisions in support of his arguments that what is required in a case of this nature is as to whether on the date of application there was need and it is both bona fide and reasonable or the requirement pleaded is only a desire and fanciful. There cannot be any quarrel over this proposition. The genuineness of the need pleaded in the last application has to be considered. He also relied on two other decisions in support of his argument that a landlord living in a rented house and seeking eviction of his own premises need not wait till an order of eviction against him. True, he need not wait till he suffers an order of eviction. Here in the instant case, the plea that he suffers an eviction order is questioned on the ground that it is a collusive decree and therefore Court is required to examine whether what is alleged is true or not. Petitioner-landlord need not necessarily wait for his tenant to take action for eviction while asking his tenant to vacate to accommodate him, so long as his requirement is both reasonable and bona fide.
16. In Zahed's case, cited supra, Supreme Court has clearly said that the requirement pleaded by the landlord has to be bona fide and reasonable and if any of those two elements of requirement is missing or both the elements are missing on the facts of the case, no decree for possession can be passed in favour of the landlord. It is therefore each case has to be judged on its own facts and circumstances. It would be useful and necessary to refer to the relevant observation which reads thus:
"(B) Kamataka Rent Control Act (22 of 1961), Section 21(1)(4) --Eviction -- Need of premises -- Claim by landlord -- Must be reasonable and bona fide.
In the instant case in the light of the available accommodation with the plaintiff-landlord, it cannot be said that his requirement for additional space is reasonable though it cannot be doubted that it is a bona fide one. However, for the purpose of applicability of Section 21(1)(h), the requirement of the plaintiff-landlord has to be both bona fide and reasonable. If any of these two elements of requirement is missing or both the elements are missing on the facts of the case, no decree for possession can be passed in favour of the landlord under this provision".
In that case, landlord Zahed sought for eviction of the tenant on the ground that he required the leased premises as additional accommodation to accommodate his guests whenever they visit his house. Trial Court accepted the case of the petitioner and granted eviction. In revision before this Court in H.R.R.P. No. 1693 of 1991 disposed of on 1-4-1997 Sangalad, J., allowed the application, set aside the impugned order on the ground that the requirement pleaded is not reasonable in K. Raghavan v M.S. Zahed, aggrieved landlord approached the Supreme Court under Article 136 of the Constitution of India. Apex Court, dealing elaborately as to the requirement pleaded declared that no case is made out by the plaintiff for interference under Article 136 of the Constitution of India. However, in view of the fact that the tenant after the hearing sought for 5 years time to vacate, the Apex Court in the interest of doing complete justice and in exercise of powers conferred under Article 142 of the Constitution of India disposed of the appeal, granted time to the tenant till 31-12-2002 to vacate the premises. After considering the accommodation available in the premises in occupation of the landlord, Apex Court said that on an application under Section 21(1)(h) of the Act requirement pleaded has to be both bona fide and reasonable and if any one of the elements is missing, landlord is not entitled to eviction.
17. In the instant case, at the first instance petitioner sought for eviction on the ground that he has to settle his second son P.W. 2 in business. It is averred in the petition that his second son P.W. 2 has completely learnt trade of jewellery and he wants to start his independent business at Bangalore. It is not necessary that every person who intends settling or doing any business should have experience in that particular field. It is for the landlord to select the business he likes depending on the market and other circumstances. But when once it is pleaded that he had a training in a particular trade at a particular point of time enabling him to settle in that particular business, he is required to establish it by cogent and convincing evidence. In para 9 (earlier petition) and in para 5 (amended petition) petitioner has clearly stated in the following words:
"Petitioner's second son has completely learnt the trade of jewellery and he wants to start his independent business at Bangalore".
Eviction petition is filed on 29-9-1987. It would thus make it appear that between 4-9-1987, the day on which he withdrew his earlier eviction petition H.R.C. No. 565 of 1994 and filed this petition on 29-9-1987 P.W. 2 had complete training in jewellery under P.W. 3-Dhruvakumar at Coimbatore for a period of nearly 4 years. Now, let us turn to the evidence of P.Ws. 1 and 2 to ascertain whether their evidence fit in with the averments made in the petition. Ex. P-1 is the certificate dated 6-1-1993 issued by P.W. 3 and in the certificate he states that:
"Kamesh G. Kota, son of G.R. Kota of Bangalore is working in my jewellery shop and establishment from the year 1989. He has worked in all our departments from designing, manufacturing, sales and purchase".
So petitioner did not have training under P.W. 3 at any time before 1987, it is only in the year 1989. The oral evidence of P.W. 2 is also to the effect that he had training under P.W. 3 for about 4 to 5 years from the year 1989:
This would indicate that petitioner was still under training on 8-11-1993 when he was examined. Now let us see what P.W. 3 says. He states:
Thus, the evidence of P.Ws. 2 and 3 in regard to the training P.W. 2 contradicts what has been pleaded in the petition filed in the year 1987 and demonstrates as rightly pointed out by the learned Senior Counsel that P.W. 2 did not have any training in the jewellery when the application was filed in the year 1987. One another circumstances in the evidence of P.Ws. 2 and 3 unmistakably demonstrates that the witnesses are deposing pulpably false and as such the need or the requirement pleaded is neither reasonable nor bona fide. The mere fact that the tenant is in occupation of the premises for over 30 years by itself should not influence either way in considering the evidence adduced by both the parties, there should be objectivity in assessing the evidence.
P.W. 2 states in cross-examination that even on the day he was cross-examined viz., on 20-11-1983 he was doing business in jewellery in a small scale and his uncle is assisting him. Relevant portion reads thus:
This again fortifies the inference that the witnesses are not coming out with truth.
18. An attempt is made by the respondent to show that petitioner has an automobile shop, P.W. 1 sits there and transacts business. P.W. 2 having completed the course in Engineering is trained in the field of automobile repairs and he is attending to repairs of the vehicles. R.Ws. 2 and 3 are examined in this behalf. In appreciating their evidence and the document produced in this behalf, it would be necessary to keep in mind the averments made in para 4 of the petition. It is clearly stated that the petitioner is a highly qualified Engineer and has done postgraduate in Engineering in West Germany, is maintaining automobile engineering workshop at Bangalore and he is carrying on intensive work of reconditioning and heavy repairs. Exs. R. 6 and 9 are one and the same and they are the circulars issued by the Karnataka Government Secretariat Co-operative Union, Vidhana Soudha, Bangalore, dated 4-1-1993. It is circulated as spoken to by the witness amongst its members informing that whomsoever wants to exchange scooter or purchase scooter under gift scheme and those who are interested in joining jewellery scheme could contact Sri G.R. Kota and the contact address given reads:
"Sri G.R. Kota, B.E., R.E.F.A., VDG (West Germany) A.F.S. (U.S.A.), Koustubha Sales and Services, No. 21, M.M.V. Road, Opposite to Vasavi Temple, V.V. Puram, Bangalore-4 Authorised Services and Spare Parts Dealers for Bajaj Auto Limited. (5% Discount on Services and Spare Parts)".
Undoubtedly, it refers to the petitioner. The particulars of the scheme is also given in the circular. Nothing much is elicited either in the cross-examination of R.W. 1 or R.W. 2 suggesting that these two witnesses are deposing false and that there was no such circular. On the other hand, it is suggested to P.W. 2 that he is looking after the workshop of his father. True, he denies the suggestion. But the evidence of R.W. 2 coupled with the documents Exs. R. 4, 6, 7, 9 and 10 indicate that in the automobile shop owned by the petitioner P.W. 2 is attending to the business. It is elicited in the cross-examination of P.W. 1 that he has acquired a big site in Visweswarapuram. I have already said above that this is one of the posh localities in the City of Bangalore. Suggestion is that the automobile workshop is established just opposite to the residence of the petitioner in Visweswarapuram. Averment in the petition is also that he is having an automobile engineering workshop at Bangalore. The address we see in Ex. R-6 also reveals that the workshop and the authorised service station are situated in Visweswarapuram, Bangalore. Thus, it would clearly lead to irresistable conclusion that petitioner is having an automobile workshop and in that P.W. 2 is attending to the business. A close look at paras 8 and 9 in the judgment would reflect that the learned Trial Judge has completely overlooked or ignored this evidence and after saying that the evidence of so and so is supported by the evidence of so and so jumps to the conclusion that the requirement of the petitioner is both reasonable and bona fide. In a case of this nature where there were successive petitions for evictions from the year 1967 till the year 1987, Court should have been more circumspect in examining the evidence of P.Ws. 1 to 3 and more importantly when their evidence is so inconsistent with what is pleaded in the application for eviction, though in fact they were examined long after the petition, the Court ignores those inconsistencies and suddenly comes to the conclusion that the requirement pleaded is both reasonable and bona fide which is neither proper nor correct.
19. It is then contended by Sri Keshava Iyengar, learned Senior Counsel for the tenant-revision petitioner that eviction of the petitioner is a make-believe story and the decree is one of collusive in nature. One Srinivasachar filed eviction petition against the petitioner in this case in H.R.C. 2559 of 1992. Ex. R-13 is the copy of the order dated 11-7-1994. A glance at Ex. R-13 would reveal that the petitioner therein sought for eviction of the premises bearing No. 267, 2nd 'B' Main Road, Girinagar, I Phase, Bangalore on the ground of personal requirement, adduced evidence and in fact respondent was also examined, respondent is the petitioner herein and at that point of time application under Order 23, Rule 3, Civil Procedure Code was filed and the Court granted eviction. It is in respect of the premises bearing No. 267. It is elicited in the evidence of P.W. 1 that the phone he has in the house bears the number 6601013. It is also suggested that the address shown in Telephone Directory relates to premises bearing No. 167. Ex. R-14 is the extract of the Telephone Directory relating to 6601013, as against this number name of the person shown is Kota G.R., 167, II B Main, 1st Phase, Girinagar, Bangalore-85. Phone is not installed in the house bearing No. 267. No particulars are given as to whether he was in occupation of that house in the year 1987 (year in which petitioner filed the eviction petition after withdrawing the earlier eviction petition on 4-9-1987) or when he occupied the house and if really he was in rented house in 1987, why did he not ask for eviction of the premises both for residential and non-residential purpose, why did he give up the prayer for eviction under Section 21(1)(j) in the year 1995 and pleaded requirement for residence, find no clear pleading or evidence. Even after reading the evidence carefully to find out the correctness of the finding, I find no convincing answers or satisfactory explanation. Whatever those discrepancies may be, it is not shown that subsequent to the order on 11-7-1994 in that eviction proceedings any action is taken by the landlord to put the decree in execution, for the reason that the order required the tenant to vacate by the end of December 1996. When we read the whole of the evidence carefully, it leads to an inference that the decree in eviction proceedings must have been obtained for the purpose of the present case. Whatever that may be, I have said above the evidence adduced on behalf of the petitioner in the instant case, is not convincing and sufficient to draw an inference that the requirement pleaded by the petitioner is both reasonable and bona fide. I have also said that the other requirement pleaded viz., that the premises is required for his son to settle in business is also not satisfactorily established.
20. In concluding I may say that the conclusions arrived at by the Trial Court is not based on proper appreciation of evidence adduced by both the parties, it suddenly jumps to the conclusion that the requirement is both reasonable and bona fide even without considering whether the leased premises is capable of being put to both residential and non-residential use. The Court has also ignored/omitted certain material aspects of the evidence and draws conclusion there being no satisfactory evidence to support it.
21. Revision petitioner-respondent is transacting business in the area for over 40 years and it is not that he should be continued forever. Landlord is certainly entitled for eviction if he were to establish any one of the grounds available to him under Section 21 of the Act. But mere fact that the tenant is there for over 40 years is not sufficient to presume that the ground pleaded by the landlord-petitioner is both reasonable and bona fide. It is not shown that the respondent has any other alternate premises to continue his business. It is no doubt true that several questions are put to R.W. 1 suggesting that so many commercial complexes have come up in that area and no attempt has been made by the respondent to secure any accommodation in any one of those premises. May be that the respondent is inactive in securing alternative premises and may be that he should have made a serious attempt to secure an alternate premises in view of successive eviction petitions, but that will not in itself sufficient to say that the respondent will not be put to greater hardship if eviction is ordered. On the other hand, circumstances would establish that if eviction is ordered, respondent-tenant would be put to greater inconvenience compared to the hardship petitioner would suffer if eviction is refused. Therefore, on the ground of relative hardship also respondent-tenant is entitled to succeed. Question of partial eviction cannot be considered having regard to the location of the building and its size. Revision petitioner-tenant cannot be asked to part with certain portion of the premises which would not enable the petitioner to use it for both residential and non-residential purpose. Therefore, partial eviction is also not feasible. Therefore revision petitioner-tenant succeeds.
22. In the result and for the reasons hereinabove stated, this revision is allowed. Order impugned dated 28-11-1996 in H.R.C. No. 2658 of 1987 is hereby set aside and the eviction petition is dismissed. Parties to bear their own costs.