Karnataka High Court
Subhash Jadhav S/O Hanamantrao Jadhav ... vs Ravishankar Rasalkar S/O Dattarao ... on 21 February, 2007
Equivalent citations: 2008(1)KARLJ529, AIR 2007 (NOC) 2441 (KAR.) = 2007 (5) AIR KAR R 588, 2007 (5) AIR KAR R 588
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This revision is filed under Section 115 of the Civil Procedure Code by the revision petitioner - tenant to set aside the order dated 08.07.2005 passed by the Principal District Judge, Gulbarga, in RRP No. 11/2004 confirming the Order passed by the Principal Civil Judge (Junior Division), Gulbarga, in HRC No. 110/1996 dated 09.09.2004.
2. The brief facts leading to this case axe that the respondent herein being the owner landlord, constructed the premises at plot No. 45 of Super Market, Gulbarga. Both the respondent and his brother are running readymade cloths in the portion of the shop premises. Prior to the setting up of said business, the respondent herein leased a portion of the shop in the ground floor measuring 6'x20' to these revision petitioners to carry on the business i.e., Taxi hire business in the year 1979. Later on, the revision petitioners took another portion of the said shop measuring 20'X10' adjoining to the above mentioned premises for running the money lending business. The respondent - landlord and his brother who started business in readymade cloths in the remaining portion of the shop on the ground floor only. The present accommodation is insufficient for them. The request was made to the revision petitioners in the month of October 1991 to vacate both the portions of the premises and deliver vacant possession of the same. They promised to vacate during Deepavali 1993. They have not paid the arrears of rent from April 1992 onwards at the rate of Rs. 800/- per month for each portion. Instead of vacating the premises as promised, the petitioners filed a suit in O.S. No. 811/1993 before the Principal Kunsiff, Gulbarga. Subsequently, vacated the portion of the premises measuring 19'X20' and paid the rents up to October 1993 and promised to vacate the petition schedule premises by Deepavali 1994. But, the revision petitioners-tenants failed to keep up their promise neither vacated the said premises nor paid the rent. The petition schedule premises is required for the respondent to store articles - bales containing textiles and to provide the Toilet facility to the employees of his shop. The revision petitioners used to put off the electrical switches of the motor in the middle causing nuisance to the respondent and also the other tenants who are in occupation of the first and second floors of the building started complaining of shortage of water. The revision petitioners are misusing water from the Tank by giving it to others and to petty hotel keepers and others to keep their utensils by collecting the rent and water charges, without the consent of the respondent-landlord. Therefore, the eviction petition filed by the respondent under Section 21(1)(a)(d)(f)(h) and (p) of the Karnataka Rent Control Act. During the pendency of the eviction petition, Karnataka Rent Act 1999 came into force. Therefore, after considering the evidence placed on record by both the parties, Trial court allowed the eviction petition filed under Section 27(1)(a) of the Karnataka Rent Act, but dismissed the eviction petition filed under Section 21(1)(d)(f)(h) and (p) of the Karnataka Rent Control Act, directing the revision petitioners to pay the arrears of rents within one month and on failure, he shall vacate and hand over the vacant possession to the respondent-landlord. But, the respondent-landlord challenged this Order before the learned principal District Judge, Gulbarga, in RRP.11/2004. After considering the material on record, the learned District Judge allowed the revision petition directing the revision petitioners to vacate the petition premises within two months. Now, the revision petitioners being the tenants have challenged these two orders in this revision petition.
3. Heard the arguments.
4. It is argued by the learned Counsel appearing for the petitioners-tenants that though the respondent herein filed an eviction petition for his own use and occupation of the premises measuring 6'X20', but failed to prove before the Court about sub-lease of the premises by allowing petty hotel keepers to store their utensils during night hours, and etc. In the petition schedule premises which is in the ground floor below the staircase electricity meters of the entire buildings consisting small shops of the respondent, sump, pump-set, etc., are installed. The petition schedule premises is not fit for storing the bundle of garments received by the respondent from the supplier for sale and it is not suitable for constructing a toilet in the petition schedule premises, as the sump, pump-set, electricity meters, etc., are installed. It is argued that the Trial Court has rightly dismissed the eviction petition filed under Section 21(1)(d)(f)(h) and (p). But, the learned Principal Sessions Judge has not properly considered the evidence placed on record by the revision petitioners. It is argued that at the request of the respondent-landlord, the premises measuring 10'X20' has been vacated and handed over to the landlord, but he filed the eviction petition claiming the petition schedule premises for his bona fide use and occupation and for recovery of arrears of rent, etc. It is argued that the Trial Court is right in dismissing the revision petition filed under Sections 21(1)(a)(d)(f)(h) and (p) by the respondent. It is contended that Ex.R.1 is the approved plan obtained by the respondent from the competent authority, i.e., from, the Corporation, Gulbarga. It clearly indicates that the toilets are already existing in first floor and second floor. Therefore, the employees of the respondent shop can make use of the existing toilets in first floor and second floor. Therefore, it is not the honest desire of the landlord to vacate the schedule premises. It is further contended that even though the revision petitioners acquire any residential premises, it is not possible for then to run the Taxi hire business. Since the revision petitioners built up a goodwill in Gulbarga City that too in Taxi business, if they are evicted then they will be put to great hardship and inconvenience than the respondent. Therefore, the Order passed in allowing the revision petition filed under Section 46 of the Karnataka Rent Control Act, 1961, is challenged and prayed to allow this revision by setting aside the orders passed by the Principal District Judge, Gulbarga.
5. In view of these contentions, the Counsel for the revision petitioners has relied on a decision reported in Ghaziabad Development Authority v. Balbir Singh AIR 2004 SCN 6863. That apart, ha has also argued that the scope of revision petition is very limited. But, the learned Sessions Judge insisted the revisional jurisdiction in the setting aside the Order passed by the Trial Court. In support of his contention, he relied on a decision in the case of: Bhojraj Kunwarji Oil Mill and Ginning Factory and Anr. v. Yogaraj Sinha Shankerisinha Parikar and Ors. .
It is held that under Section 115 of Civil Procedure Code only on the ground that a different view on facts elicited was possible, it is not permissible to interfere with the Order of the Trial Court in exercise of the revisional jurisdiction.
6. It is argued that where the findings of fact of Trial Court is mainly based on oral evidence, it should not ordinarily be disturbed by the first appellate Court, i.e., learned Sessions Judge without giving proper reasons. To this effect he has relied on the decision rendered in the case of: Madhusudan Das v. Smt. Narayanibai (Deceased) By L.RS., and Ors. .
It is argued that the learned District Judge wrongly exercised the discretion in upsetting the order and finding recorded by the Trial court. To this affect he has relied on the decision rendered in Uttar Pradesh Co-Operative Federation Ltd. v. Sunder Bros., Delhi .
7. As against this, the learned Counsel for the respondent-landlord submitted that of course, the Trial Court has allowed the eviction petition filed by the respond ant under Section 21(1)(a), but dismissed the petition filed under Section 21(1)(d)(f)(h) and (p). It is argued that the revision petitioners being tenants have misused the premises of the landlord, by sub-letting the front portion to run the hotel to some other parson by collecting rants, etc. The shop measuring 6'X20' is suitable to convert the same into godown to keep the bales of garments and also to construct the toilet for the use of his employees. Therefore, he submitted that the Trial Court is not right in dismissing the petition under Section 21(1)(d)(f)(h) and (p) of the Karnataka Rent Control Act, 1961. It is argued that the learned Sessions Judge has rightly appreciated the material on record and allowed the revision petition. The petitioners have failed to rebut the evidence. The burden is always on the revision petitioners - tenant to rebut the presumption in favour of the respondent-landlord. The toilet, which is in the first floor and second floor of the shop premises cannot be used by the employees of respondent by climbing the stairs of the said floors and the revision petitioners have not vacated the schedule premises despite agreeing to evict it under Section 27(2)(r), it is a right of the employees of respondent most of them are woman working in the shop. It is argued that respondent-landlord requires petition schedule premises for keeping the stock of bundles/bales of garments and to provide toilet facility to his employees. It is contended that since the revision petitioners have not challenged the Order passed in the eviction petition filed under Section 21(1)(a) of the Karnataka Rent Control Act, 1961, the bona fide requirement of the premises has been proved. Therefore, it is contended by the learned Counsel for the respondent that this is not a fit case for interference by this Court in a revision filed under Section 115 of Code of Civil Procedure, and prays to dismiss the petition with costs.
8. Having heard the arguments, I have carefully examined the materials placed on record. No doubt, the respondent is the owner of the entire premises No. 45 in Super Market, Gulbarga. The prayer sought by the petitioners to set aside the Order passed by the Principal District Judge on 08.07.2005 and portion of the Order passed by the Trial Court under Section 21(1)(a) of the Karnataka Rent Control Act, 1961, in so far as it relates to the revision petitioners calling upon then to vacate the schedule premises. Since, the revision petitioners have complied with the said Order, respondent has not seriously disputed about the payment of arrears of rent due by the petitioners. Of course, a sanctioned plan has been obtained by the respondent before constructing the premises from the competent authority. In the plan duly sanctioned, the accommodation available in the first floor is shown. Now, the revision petitioners are in occupation of the petition schedule premises. A perusal of the sketch reveals that below the staircase where electrical meters, etc., are installed the space is wide enough to construct the toilet and there is sump below the staircase. As the petitioners are doing a Taxi business since 1979, it is contended by the revision petitioners that they have built up a goodwill. I find no reason or cause preventing them from vacating the petition schedule premises, since the revision petitioners have admitted that they have got an alternative premises is available for occupation to continue their taxi hire business. Therefore, the Trial Court is right in allowing the eviction petition under Section 21(1)(a) of Karnataka Rent control Act but wrongly dismissed the eviction petition filed under Section 21(1)(d)(f)(h) and (q).
9. Moreover, how the revision petition filed under Section 151 of Civil Procedure Code and its maintanability has been not satisfactorily explained by the revision petitioners. Of course, in the year 2004, arrears of rent has been deposited by them. Under Section 45 of the Karnataka Rent Control Act, the payment of rent as and when it fell due is mandatory. Whereas, in the instant case, the respondent has not paid the rents for one year and hence, the learned District Judge has rightly observed in its order that the tenants were irregular in payment of rents. Under Section 27(2)(r) of the Karnataka Rent Control Act, presumption is always available for the landlord to chose any of the premises which is in occupation of the tenant for his personal us a and occupation, it is not the casa of the petitioners that the entire floor is occupied by the owner himself. It is an admitted fact that the respondent is doing business in readymade garments. Ka cannot store the entire consignment received in the shop itself. Hence, the respondent requires the petition schedule premises for storing the bundles of garments received by him. It is the contention of the revision petitioners that the landlord can make use of the premises available in first and second floors of his building. It is to be noted that, the tenants cannot dictate terms to the landlord to occupy particular premises. Of course, in cross-examination of R.W.1, it is elicited that the revision petitioners have purchased some residential premises in Gulbarga City, and this fact has not been denied by the tenants-revision petitioners. The residential premises acquired by the revision petitioners is on the main road or sub-road is not forthcoming as they have not produced the relevant documents. When once the landlord sought for eviction of a tenant under Section 21(1)(r) on the basis of requirement of the premises for his bona fide use and occupation, it is for the revision petitioners -tenants to rebut such evidence, which is not done so in the instant case. It is also a well settled law that the landlord is the best judge of his requirement for residential or non-residential premises, which is in occupation of a tenant. He has a complete freedom on the premises to evict a tenant. Therefore, considering the facts and circumstances of the case, the finding recorded by the Trial court and by the lower appellate revisional Court after considering the entire evidence on record, I find no good grounds to interfere with the impugned Orders. Therefore, viewed from any angle, I do not find any good reason to set aside the impugned Orders.
10. Accordingly, the revision petition is liable to be dismissed as devoid of merits. Hence, the revision petition is hereby dismissed. However, the revision petitioners are granted six (6) months' time to vacate and hand over the vacant possession of the petition schedule premises to the respondent landlord. To that effect, the revision petitioners shall file an affidavit undertaking that they will vacate and hand over the vacant possession of the petition schedule premises to the respondent - landlord within six months from today, i.e., on or before 21.08.2007 and they shall regularly pay the rents to the landlord.