Karnataka High Court
R. Sohanlal Jain vs M. Channappa on 24 February, 1998
Equivalent citations: 1998(3)KARLJ361, 1998 A I H C 3727, (1998) 3 KANT LJ 361 (1998) 2 RENCJ 468, (1998) 2 RENCJ 468
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER
1. Since the petitioner-tenant and the respondent-landlord are the same in these revision petitions, with the consent of learned Counsel appearing for the parties, these revision petitions are taken up together for hearing and disposed of by this common order.
2. In the course of this order, the petitioner and the respondent will be referred to as the tenant and landlord respectively.
3. A few facts that may be relevant for the disposal of these revision petitions, may be set out as hereunder:
(a) The tenant is in occupation of two premises bearing Nos. 85/1 and 85/2, each measuring 8' x 23', situated on 27th Cross, 4th Block, Jayanagar, Bangalore.
(b) H.R.R.P. No. 790 of 1991 and H.R.R.P. No. 791 of 1991 are filed challenging the Order dated 16th of November, 1990 made in H.R.C. No. 426 of 1989 and H.R.C. No. 427 of 1989 by the Court of the Additional Small Cause Judge, Bangalore (hereinafter referred to as "the Small Cause Judge"), directing eviction of the tenant under Section 21(1)(a) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as "the Act"), in respect of the premises bearing Nos. 85/1 and 85/2 occupied by him.
(c) In H.R.R.P. No. 1294 of 1993 and H.R.R.P. No. 1295 of 1993, the tenant has called in question the correctness of the order dated 27th of September, 1993 made in H.R.C. No. 8932 of 1980 and H.R.C. No. 8933 of 1980 respectively by the learned Small Cause Judge directing eviction of the tenant under Section 21(1)(b) and (h) of the Act in respect of premises bearing No. 85/1 and 85/2 respectively occupied by them.
(d) The monthly rent of the premises bearing No. 85/1 is Rs. 100/- and that of the premises bearing No. 85/2 is Rs. 160/-. The landlord instituted H.R.C. Nos. 426 of 1989 and 427 of 1989 against the tenant on the ground that the tenant had committed default in payment of the rent due in respect of the said two premises from 1st of November, 1987 till 30th of September, 1988; and as such, the tenant was liable for eviction under Section 21(l)(a) of the Act. The landlord also instituted proceedings against the tenant in H.R.C. Nos. 8932 of 1980 and 8933 of 1980 under Section 21(l)(c) and (h) of the Act. It is the case of the landlord that the tenant, without the written permission of the landlord, had removed the common wall put up separating premises bearing Nos. 85/1 and 85/2; and as such, the tenant is liable for eviction under Section 21(l)(c) of the Act. It is his further case that the landlord has been carrying on business in Cycle Shop and sale of Spare Parts of Cycle, in premises bearing No. 15, Tata Silk Farm, Bangalore, and his landlady one Smt. Kariyamma has been insisting upon him to vacate the said premises as she required the said premises reasonably and bona fide for the purpose of the business to be carried on by her grandson one Sri Anand. Therefore, according to the landlord, there has been imminent threat of his eviction; and the premises in occupation of the tenant is ideally suited for the purpose of his business and, therefore, the same is reasonably and bona fide required by him for his self occupation.
(e) The tenant resisted the claim of the landlord. In so far as the claim made by the landlord for eviction of the tenant under Section 21(1)(a) of the Act is concerned, it is the case of the tenant that in view of the pendency of C.R.P. Nos. 770 and 771 of 1987 before this Court, the tenant continued to pay the rent to Sri T.S. Ramachandra, Advocate then appearing for him; and, therefore, he has not committed any default in payment of rent; and as such, is not liable to be evicted under Section 21(1)(a) of the Act. It is his further case that though he had received notice Exhibit P-2 dated 26th of October, 1988 in respect of both the premises occupied by him, since he continuously paid the rent to his Counsel, he did not find it necessary to contact his Advocate and to see that the rents were paid within two months from the date of the demand made by the landlord.
(f) In so far as the claim made by the landlord for eviction under Section 21(1)(c) of the Act is concerned, it is the case of the tenant that the landlord himself had removed the common wall before the tenant was inducted to the said premises, after the earlier tenant one Hameed, who has been examined as R.W. 1 in the course of the proceedings before the Trial Court, vacated the said premises.
(g) With regard to the claim made by the landlord under Section 21(1)(h) of the Act, it is the case of the tenant that there is no threat of eviction of the landlord from the premises wherein he has been carrying on the business; and if an order of eviction is passed, the tenant will be put to greater hardship than the landlord.
(h) The learned Small Cause Judge, on appreciation of the evidence adduced in H.R.C. Nos. 426 of 1989 and 427 of 1989, has found that the claim made by the tenant that he had paid the rent every month to his learned Counsel to be paid over to the landlord, cannot be believed. He further held that even otherwise, it is not in dispute that the tenant has failed to take any steps to pay the rent even after the receipt of the legal notice issued to the tenant as provided under Section 21(1)(a) of the Act calling upon the tenant to pay the rent; and the explanation given by the tenant that he did not find it necessary to contact his Advocate after receipt of the notice Exhibit P-2 is unacceptable and it cannot be treated as a sufficient cause to avoid an order of eviction against the tenant. In that view of the matter, the learned Judge has passed an order of eviction against the tenant under Section 21(1)(a) of the Act in respect of both the premises.
(i) With regard to the claim of the landlord seeking eviction of the tenant under Section 21(1)(c) of the Act is concerned, the learned Small Cause Judge has found that the landlord has not made out a case under Section 21(1)(c) of the Act, but he has held that the removal of the common wall in between Premises bearing Nos. 85/1 and 85/2, attracts the provisions of Section 21(1)(b) of the Act.
(j) In so far as the claim of the landlord for eviction of the tenant under Section 21(1)(h) of the Act is concerned, the learned Small Cause Judge has held that the claim made by the landlord is both reasonable and bona fide; and if an order of eviction is not passed, the landlord will be put to greater hardship than the tenant. Having regard to the nature of the business carried on by the landlord and the tenant and the accommodation available, the learned Judge has held that partial eviction cannot be ordered.
4. Sri H.B. Datar, learned Senior Counsel appearing along with Sri M.H. Datar, made the following submissions.
(a) Firstly, he submitted that the finding recorded by the learned Small Cause Judge that the tenant is liable to be evicted under Section 21(1)(a) of the Act is erroneous in law. He pointed out that the affidavit filed by Sri T.S. Ramachandra coupled with his oral evidence as R.W. 3, clearly establishes that the tenant had regularly paid the rent every month to his Advocate, who is a senior Member of the Bar practicing in this Court; and under these circumstances, the learned Small Cause Judge was totally unjustified in rejecting the case of the tenant that the tenant has paid the rent every month to his Counsel with instruction to pay the rent to the Counsel for the landlord. He pointed out that the finding that the Account Books Exhibits R-6 to R-9 are got up documents, is totally erroneous in law. He further submitted that since the tenant has paid the rent to his Counsel, the explanation given by the tenant that he did not think it necessary to contact his Counsel after the receipt of the legal notice Exhibit P-2 calling upon the tenant to pay the rent, must be held to be sufficient cause within the meaning of sub-section (2) of Section 21 of the Act. He submits that in a matter like this, the Court must take a liberal view of the matter taking into consideration that the Act is a beneficial legislation and intended to protect the tenant from arbitrary eviction.
(b) Secondly, he submitted that the evidence of R.W. 1, who was the earlier tenant in respect of the premises bearing No. 85/2, R.W.2, who is in occupation of the premises very close to the premises in question, and R.W. 3, one Abdul Hameed, who is also carrying on business in the premises very close to the premises in question, establishes that the landlord himself has removed the existing wall in premises bearing No. 85/2; and, therefore, the order of eviction should not have been passed by the learned Small Cause Judge under Section 21(1)(b) of the Act. He further submitted that at any event of the matter, the Order of eviction could not have been passed under Section 21(1)(b) of the Act in respect of the premises bearing No. 85/1, as the wall in question was in the premises bearing No. 85/2.
(c) Thirdly, he submitted that the finding of the learned Small Cause Judge that the landlord has made out a case for eviction of the tenant under Section 21(1)(h) of the Act, is also erroneous in law. Elaborating this submission, he pointed out that the premises, which was in occupation of one Bangaru Sathyanarayana Setty having fallen vacant and the landlord having taken possession of the said premises pursuant to the execution proceedings in Ex. Case No. 1127 of 1975; and thereafter having taken one Jugraj Gandhi as Partner to carry on partnership business in the said premises, it must be held that the claim of the landlord that he required the petition schedule premises, is neither bona fide nor reasonable as the said premises was subsequently let out to the said Jugraj Gandhi. He further pointed out that the two premises occupied by one Narasimha Setty also having fallen vacant, it is not permissible for the landlord to seek eviction of the tenant.
(d) Finally, Sri Datar pointed out that each of the premises in occupation of the tenant measures 8' x 23' and since the learned Small Cause Judge has observed in the course of his Order that the premises 20' x 30', which was in the occupation of one Narasimhaiah Setty, is not required by the tenant, the need of the landlord would be satisfied if an Order for partial eviction is made in respect of one out of the two shops, which is the subject matter of dispute in these revision petitions. He also pointed out that the tenant as in possession of two premises, each measuring 10' x 10'; and in that view of the matter, the premises measuring 8' x 23' must be held to be sufficient.
5. Sri Udaya Holla, learned Counsel appearing for the respondent-landlord, strongly supported the rinding recorded by the learned Small Cause Judge. In so far as the first submission of Sri Datar in respect of the finding under Section 21(1)(a) of the Act is concerned, he pointed out that the learned Small Cause Judge, after appreciating the evidence on record, has categorically found that the tenant has fabricated the Account Books Exhibits R-6 to R-9. In this connection, he referred to me the evidence of Sri T.S. Ramachandra, the then Counsel for the tenant, wherein he had stated that the tenant was not regular in paying the rent to him and the arrears of rent for ten months he had received only in November 1988; and submitted that therefore, the learned Judge was totally justified in taking the view that the tenant has fabricated the documents to show that he was regularly paying the rent to his Counsel. Sri Holla further pointed out that the evidence of Sri Ramachandra, though has been examined on behalf of the tenant, as a matter of fact, clearly supports the case of the landlord. He further submitted that even assuming that the tenant had regularly paid the rent to his Counsel for the purpose of payment to the landlord, there was absolutely no justification for the tenant not to take steps to pay the rent within two months immediately after the receipt of the notice Exhibit P-2 dated 26th of October 1988 demanding rent from the tenant. He pointed out that the tenant is a well established businessman, who has all the facilities of contacting his Counsel over the Telephone and the place of the business of the tenant is hardly 8 to 9 K.Ms., from the place of the residence of his Counsel; and under these circumstances, he submitted that the explanation of the tenant that he did not find it necessary to contact his Counsel after the receipt of the notice Exhibit P-2 can never be believed; and, therefore, it must be held that the tenant, as a matter of fact, did not pay the rent to his Counsel as claimed by him. He further submitted that even otherwise, the explanation given by the tenant cannot be held to be sufficient cause within the meaning of sub-section (2) of Section 21 of the Act. He also pointed out that this is the second time the tenant has committed default; and even on an earlier occasion, the tenant had committed default in payment of rent for a period of 13 months and the same was paid after issue of the legal notice Exhibit P-1 dated 7th of November, 1987, only on 12th of November, 1987 and, therefore, the tenant being a chronic defaulter, is not entitled for any consideration at the hands of this Court. He pointed out that while considering the sufficient cause shown by the tenant and also appreciating the veracity of the stand taken by the tenant, the previous conduct of the tenant in committing default in payment of the rent also has to be taken into account. He further pointed out that it is not the case of the tenant that he was having financial difficulties or some other problem, on account of which the rent could not be paid within two months from the date of receipt of the notice, but, on the other hand, the evidence on record shows that the tenant is financially sound; and from his own statement, it is clear that on account of total indifference, he has failed to pay the rent to the landlord.
(a) Sri Holla further submitted that the finding of the learned Small Cause Judge, even under Section 21(1)(b) of the Act is also not liable to be set aside as the learned Judge, on appreciation of the evidence on record, has given a categorical finding that the tenant has committed an act contrary to the provisions of Section 108(o) of the Transfer of Property Act.
(b) With regard to the claim of the landlord for eviction of the tenant under Section 21(1)(h) of the Act is concerned, Sri Holla pointed out that there is already an order of eviction passed against the landlord in respect of the premises occupied by him in H.R.C. No. 2698 of 1988 by the learned Additional Judge, Court of Small Causes, Bangalore City, which is the subject matter of dispute before this Court in H.R.R.P. No. 89 of 1996; and therefore, it cannot be said that the claim made by the landlord for eviction of his tenant is not reasonable and bona fide. He also pointed out that there is absolutely no merit in the claim made by the tenant that the landlord has come into possession of any vacant business premises either during the pendency of the proceedings or at any time immediately prior to the filing of the eviction petition against the tenant. In this connection, he submitted that in so far as the premises occupied by Narasimhaiah Setty is concerned, the landlord sought eviction of the said Narasimhaiah Setty under Section 21(1)(c) of the Act and during the pendency of the proceedings, the dispute was settled recognising the sub-tenant as a tenant; and, therefore, the landlord did not come into possession of the premises, which was in the occupation of the said Narasimhaiah Setty during the pendency of the proceedings as contended by the learned Counsel for the tenant. He further submitted that in so far as the premises bearing No. 38/4, which was in the occupation of the said Narasimhaiah Setty and in respect of which the landlord secured possession is concerned, the said premises is a residential premises located in the first floor of a building situated in the III Block, Jayanagar, Bangalore, and the said premises was mortgaged by means of an usufructuary mortgage; and since it is a residential premises, the same is not suitable for being utilised as a commercial premises and, therefore, the landlord could not occupy the same.
(c) With regard to the contention advanced on behalf of the tenant that the landlord has come into possession of the premises bearing No. 60, 27th Cross, Jayanagar, which was in the occupation of Bangaru Sathyanarayana Setty is concerned, he submitted that the landlord came into possession of the said premises on 20th of August, 1977. In this connection, he drew my attention to Exhibits R-3 and R-4 to show that the landlord took possession of the said premises on 20th of August, 1977. He submitted that immediately after taking possession of the said premises, the landlord entered into a deed of partnership with one Jugraj Gandhi to carry on business in partnership in the said premises; and subsequently in the year 1981, the landlord came out of the partnership letting out the said premises to the said Jugraj Gandhi, who was carrying on business along with the landlord in the said premises; and, therefore, according to the learned Counsel, the landlord has not come into possession of any premises either during the pendency of the proceedings or at any time immediately prior to the filing of the eviction petition against the tenants.
(d) In so far as the claim for partial eviction is concerned, Sri Holla pointed out that the total area of the two premises put together measures 16' x 23'; and having regard to the nature of the business carried on by the landlord, the entire premises would be required by the landlord. He further pointed out that the landlord was earlier carrying on business in two premises, each measuring 10' x 10', together measuring 10' x 20', but in view of the pressure brought by his landlady, the landlord had to surrender one of the shops measuring 10' x 10' retaining the other shop. In this background, if the claim of the landlord is considered, he submits that it cannot be said that the demand made by the landlord for eviction of the tenant from the entire premises can be treated as either unreasonable or unjustified.
6. In the light of the submissions made by learned Counsel appearing for the parties, the questions that would arise for my consideration in these petitions, are the following:
(1) Whether the order of eviction passed against the tenant in H.R.R.P. Nos. 790 and 791 of 1991 under Section 21(1)(a) of the Act is unsustainable?
(2) Whether the order of eviction passed against the tenant in H.R.R.P. Nos. 1294 and 1295 of 1993 under Section 21(1)(b) of the Act is unsustainable?
(3) Whether the finding recorded by the learned Small Cause Judge that the landlord requires the petition schedule premises reasonably and bona fide for the purpose of his business is justified?
(4) Whether, in the facts and circumstances of the case, partial eviction in respect of one of the premises out of the two premises occupied by the tenant, could be made?
(5) Whether the tenant or the landlord will be put to greater hardship if an order of eviction is passed or not passed?
7. I have elaborately heard Sri H.B. Datar, learned Senior Advocate appearing along with Sri M.H. Datar, for the petitioner, and Sri Udaya Holla, learned Counsel appearing for the respondent.
8. Now, let me examine each of the questions that would arise for my consideration in these revision petitions.
Re: Question (1):
9. It is not in dispute that the tenant had committed default on an earlier occasion in payment of 13 months' rent for the period upto the end of October, 1987 and the rent for 13 months was paid on 12th of November, 1987 in one lump sum by means of a cheque subsequent to the issue of the legal notice Exhibit P-1. It is also not in dispute that the landlord issued notice Exhibit P-2 dated 26th of October, 1988, which was received by the tenant on 29th of October, 1988, calling upon the tenant to pay the arrears of rent due from 1st of November, 1987 and pursuant to the said notice, arrears of rent due for 10 months was paid only on 7th of March, 1989 by means of a cheque, after filing of the eviction petitions by the landlord against the tenant. The evidence of Sri T.S. Ramachandra, the former Advocate for the tenant, and the endorsement made on the letter enclosing the cheque written by the said Advocate for the tenant, clearly show that the Counsel for the landlord received the cheque towards the payment made for the said ten months' rent without prejudice to the rights of the landlord. However, as noticed by me, it is the case of the tenant that in view of the pendency of the proceedings before this Court in the revision petitions filed by the landlord challenging the order passed by the learned Small Cause Judge rejecting the claim of the landlord on the earlier occasion for eviction of the tenant, he paid the rent every month to his former Advocate regularly and, therefore, there was no default on his part in paying the rent to the landlord. It is his further explanation that though he had received the notice Exhibit P-2, since he paid the rent to his Advocate regularly, he did not find it necessary to contact his Advocate after the receipt of the legal notice Exhibit P-2 calling upon him to pay the arrears of rent due from November 1987. The learned Small Cause Judge, on appreciation of the evidence and after careful consideration of the Account Books Exhibits R-6 to R-9, has held that the tenant has fabricated the Account Books to support his false plea that he had regularly paid the rent every month to his Advocate to be paid over to the Counsel for the landlord and there is no truth in the said plea. I have been taken through the judgment of the learned Small Cause Judge. In view of the evidence on record, I do not find any error in the said finding recorded by the learned Judge. The evidence of Sri T.S. Ramachandra, the former Advocate for the tenant, who has been examined as R.W. 3 in H.R.C. Nos. 426 and 427 of 1989, clearly indicates that the tenant was not paying rent regularly to him. It is useful to extract the relevant portion of his evidence, which reads as hereunder:
"The respondent was paying the rents to me for being paid to the Advocate for the petitioner-landlord. Witness volunteers that the respondent was cannot give all the dates on which the respondent had paid rent to me between the period from 1st October, 1988 till the copy of the petition in this was shown to me by the respondent. The respondent had paid me 10 months rent in November 1988. Earlier he had paid me 3 months rent".
The said evidence given by the former Counsel for the tenant clearly falsifies the case of the tenant that he was regularly paying the rent every month to his Counsel for the purpose of paying it over to the Counsel for the landlord. However, the Account Books Exhibits R-6 to R-9 sought to be relied upon by the tenant, show that the tenant was paying rent every month to his Counsel. If the evidence of the Counsel for the tenant is accepted as true, which I am inclined to accept, I do not find any infirmity in the finding recorded by the learned Judge that the tenant has fabricated the Account Books. Further, even assuming that the tenant had paid the rent regularly to his Counsel as claimed by him, I do not find any justification for the tenant not to tender the rent after the receipt of notice Exhibit P-2. It is his explanation that since he has paid the rent to his Counsel, he did not meet his Counsel after the receipt of the notice Exhibit P-2 and before receipt of the eviction notice. It is useful to extract the relevant portion of the evidence of the tenant, who has been examined as R.W. 1, which reads as hereunder:
"Because I was paying rent to my Advocate every month I did not meet him after the receipt of the notice of petitioner's Advocate and before the receipt of Court notice".
Therefore, from the stand taken by the tenant, it is clear that after the receipt of the notice Exhibit P-2, he did not even bother to contact his Advocate to find out as to why though he had paid the rent to him regularly, he was issued with the legal notice and whether there was any default on the part of his Advocate. Further, he has also not taken any steps to comply with the demand made in the notice Exhibit P-2. If the stand taken by the tenant is appreciated in the light of the statement made by his former Counsel, Sri T.S. Ramachandra, that the tenant was not regular in paying the rent to him, it is clear, as observed by me earlier, that the tenant did not pay the rent regularly to his Counsel and it was paid in one lump sum as stated by his Advocate in his evidence extracted above. Further, it is also necessary to point out, as rightly submitted by the learned Counsel for the landlord, that the place of residence of the former Counsel of the tenant is hardly 8 to 10 K.Ms. away from the residence of the tenant. The tenant is a very prosperous businessman. Even according to the submission made by Sri Datar at the Bar, his yearly turnover is more than Rs. 50 lakhs. The evidence also shows that the tenant and his children are assessees for income tax. In this situation, if the tenant, even after the receipt of the notice Exhibit P-2, does not take any steps to pay the rent to the landlord, can the stand taken by the tenant that since he paid the rent to his Counsel, he did not contact his Advocate, be treated as sufficient cause within the meaning of sub-section (2) of Section 21 of the Act? In my view, certainly. It cannot be so treated. As noticed by me earlier, the tenant has committed default on an earlier occasion and he has paid 13 months' rent in one lump sum. The rents in respect of both the premises is only in a sum of Rs. 260/- (Rs. 100/- + Rs. 160/-). Therefore, in the facts and circumstances of the case, the only inference I can draw from the conduct of the tenant, is that the tenant intended to cause inconvenience and hardship to the landlord in recovering the rent due from him presumably on account of the fact that the landlord had earlier initiated eviction proceedings against the tenant under Section 21(1)(h) of the Act. It is not the case where the tenant is in financial difficulties or was prevented from paying rent on account of any other justifiable reasons. It is a case where the tenant, who is financially well placed, is refusing to pay the rent to the landlord inspite of the legal notice issued. In my view, while the provisions of the Act are intended to protect a tenant from arbitrary eviction by the landlord, the provision contained in Section 21(1)(a) of the Act is also intended to provide minimum guarantee to the landlord to secure payment of rent regularly for which he is entitled. In this background, the provision contained in sub-section (2) of Section 21 of the Act has to be considered. Clause (ii) of sub-section (2) of Section 21 of the Act requires a Court to satisfy itself that the tenant had sufficient cause for the default to pay or tender the rent within the period referred to in Section 21(1)(a) of the Act. A totally false plea and indifferent attitude shown by the tenant even after the receipt of the notice as required under Section 21(1)(a) of the Act calling upon the tenant to pay the arrears of rent, in my view, cannot be considered as sufficient cause. The cause shown for the default in payment of the rent within the period referred to in Section 21(1)(a) of the Act, must appeal to a reasonable mind that the tenant had fairly good reason not to pay the rent within two months from the date of receipt of the notice. The action of the tenant, in the circumstances, must be fair, reasonable and bona fide. It is the Court in a given case, having regard to the totality of the circumstances pleaded by the tenant, to satisfy itself whether the cause shown is sufficient cause for the default to pay rent or not within the time prescribed. Therefore, I have no hesitation to hold that the finding recorded by the learned Judge that the tenant has not shown sufficient cause, is unexceptional and not liable to be interfered with.
Re: Question (2):
10. Having considered the finding recorded by the learned Small Cause Judge and also the evidence on record, I am of the view that the finding of the learned Judge that the tenant is liable to be evicted under Section 21(1)(b) of the Act, is also not liable to be interfered with. It is the specific case of the landlord that the partition wall in between premises Nos. 83/1 and 85/2 was got removed by the tenant for the purpose of his business convenience without his consent. However, it is the case of the tenant that he did not remove the partition wall, but it was got removed by the landlord himself before the tenant was put in possession of the premises bearing No. 85/2 after taking possession thereof from the earlier tenant one Ahmed, who has been examined as R.W. 1. The said Ahmed, who has been examined as R.W. 1 on behalf of the tenant, at paragraph-5 of his deposition, has stated that on 1st of May, 1996, he had vacated the shop as there was no stock in his shop except the weighing scale etc., and on the same day, the wall was removed by the landlord. The tenant, who has been examined as R.W. 4 in H.R.C. No. 8932 of 1990, at paragraph-7 of his deposition in the cross-examination, has stated that 2 to 4 days prior to 1st of May, 1996, Ahmed had vacated the shop, and he has taken possession of the said shop on 1st of May, 1996 and when he took possession of the same, there was no common wall in the shop; and the landlord by removing the common wall, had let out the shop of the said Ahmed to him on 1st of May, 1996. Therefore, according to the said Ahmed, who was a tenant earlier in respect of the premises bearing No. 85/2, he had vacated the premises on 1st of May, 1996 and on that day, his landlord removed the partition wall. However, according to the tenant himself, the said Ahmed had vacated 2 to 4 days prior to 1st of May, 1996 and when he was put in possession of the premises on 1st of May, 1996, there was no partition wall. In the light of these material contradictions and several other contradictions, referred to by the learned Small Cause Judge, at Paragraphs 10 and 11 of the judgment, he has categorically held that the case set up by the tenant that the landlord had removed the common wall between premises No. 85/1 and 85/2, cannot be accepted. In my view, the said finding recorded by the learned Judge is totally justified and does not call for interference by me in exercise of my revisional jurisdiction. It is not disputed that the removal of the bifurcating wall of the premises in question attracts the provisions of Section 21(1)(b) of the Act. Consequently, the same is required to be affirmed and the tenant is liable for eviction under Section 21(1)(b) of the Act.
Re: Question (3):
11. It is not in dispute that the landlord was originally carrying on business in two shops each measuring 10' x 10' and in all measuring 10' x 20' in Cycle and sale of spare parts and Cycle tyres. The evidence on record also shows that there is no dispute that during the pendency of the proceedings, out of the two shops, the landlord surrendered one shop measuring 10' x 10' in favour of his landlady, who is the respondent in H.R.R.P. No. 89 of 1996. It is also not in dispute that the order of eviction is passed against the landlord in respect of the remaining shop, which has been challenged by the landlord in H.R.R.P. No. 89 of 1996. I have been taken through the order challenged in H.R.R.P. No. 89 of 1996. I have heard the learned Counsel in the said petition. Though the order is yet to be pronounced in the said petition, which is taken up for hearing along with these petitions, I am of the view that the said revision petition is liable to be dismissed. Therefore, from the undisputed facts, it would be clear that the landlord would be without any premises either rented or of his own, for the purpose of the business he has been carrying on for the last over three decades. Exhibit P-12, a copy of the H.R.C. petition filed seeking eviction of the tenants, also shows that in the year 1989, three of the sons of the landlord were studying. If the passage of time is taken into account, it could be reasonably held that the three sons of the landlord are now aged 27 years, 24 years and 21 years respectively. Further, I also do not find any merit in the submission of the learned Counsel for the tenant that during the pendency of the proceedings, the landlord has come into possession of any business premises. Exhibits R-3 and R-4 show that the landlord came into possession of the business premises, which was earlier in the occupation of one Bangaru Sathyanarayana Setty, on 1st of May, 1976 i.e., long prior to the filing of the eviction petitions against the tenants. In fact, the premises bearing No. 85/2 was let out to the tenant on 1st of June, 1976. The eviction petitions were filed under Section 21(1)(h) of the Act in the year 1980. The evidence on record shows that after taking possession of the premises occupied by Sri Bangaru Sathyanarayana Setty, the landlord entered into a partnership with one Jugraj Gandhi and carried on business in partnership in the said premises till the year 1981, during which time, the partnership came to be dissolved and the said Jugraj Gandhi continued in the said premises as a tenant. Therefore, if the landlord was carrying on business in partnership with the said Jugraj Gandhi and in 1981 on dissolution of the partnership, if the landlord continued the said Jugraj Gandhi as tenant in respect of the premises belonging to the landlord taking into account that he was earlier partner in the business, it is not possible to take the view that the landlord had come into possession of the premises which was available for his exclusive occupation and still he let it out to a tenant. The overall circumstances has to be taken into account and if that is taken into account, it is not possible to take the view that the landlord, as a matter of fact, came into actual possession of the premises. What has been done by the landlord is that he has created a lease in favour of Jugraj Gandhi in respect of the premises in question where he was already in possession along with the landlord.
12. Now, the only other question is whether the landlord has come into possession of the premises, which was in occupation of one Narasimha Setty as contended by Sri Datar appearing for the tenant. Exhibit P-9, the certified copy of the eviction petition filed against Narasimha Setty, shows that the eviction petition was filed against the said Narasimha Setty and one Ramesh under Section 21(1)(f) of the Act on the ground of sub-lease. The joint memo Exhibit P-9 shows that in the course of the proceedings, the dispute was settled between the parties by recognising the said Ramesh as a tenant and consequently, the eviction petition came to the dismissed. Therefore, it is clear that the landlord has not come into actual possession of the premises earlier occupied by the said Narasimha Setty or the said Ramesh. Except the assertion of the tenant, there is no other material to show that the landlord has actually occupied the premises, which was in possession of the said Narasimha Setty. It is no doubt true that the landlord has come into possession of the first floor of the premises bearing No. 38, III Block, Jayanagar, Bangalore. However, it is not in dispute that the said premises is a residential premises situated on the first floor of a building. Exhibit P-10 also shows that it is the first floor of a building. Exhibit P-20, the registered mortgage deed, shows that usufructuary mortgage was created in respect of the said premises in favour of one C. Ramesh as security for a sum of Rs. 10,000/- taken as loan by the landlord. Since the said premises is a residential premises and is located in the first floor of the building, it is not possible to take the view that the said premises is suitable to be used as a commercial premises for business of the landlord. It is also necessary to point out that the landlord is residing in the first floor of the building where the petition schedule premises are located. The material on record also shows that the landlord had become old and it is his case that on account of his old age, it would be more convenient and suitable for the landlord to carry on his business in the petition schedule premises. Further, it is also in evidence that the petition schedule premises is located just opposite to the Jayanagar Shopping Complex, which is a busy business locality. Therefore, in the facts and circumstances of the case and on the basis of the evidence on record, I am fully satisfied with the claim made by the landlord that he requires the petition schedule premises reasonably and bona fide for the purpose of his business. Further, the learned Judge, in the impugned order, has considered all these matters in greater detail and has taken the view that the claim made by the landlord is reasonable and bona fide. I do not find any infirmity in the said finding recorded by the learned Small Cause Judge which calls for interference in exercise of my revisional jurisdiction under Section 50 of the Act.
Re: Question (4):
13. Even with regard to the claim made by the tenant for partial eviction on the basis of the materials on record, I am of the view that the tenant must fail. It is not in dispute that the total area of the two petition schedule premises is only 16' x 23'. The landlord was carrying on business for the last three decades in two premises in all measuring 10' x 20'. As noticed by me earlier, three of his sons have now grown up. Here is a case where the tenant is financially very sound. As observed by me earlier, even according to the submission made by the learned Counsel for the tenant, that the yearly turnover of the tenant is more than Rs. 50 lakhs. The evidence of the tenant shows that all the members of his family are income-tax assessees. The evidence on record further shows that the tenant was putting up a three storeyed residential building very close to the petition schedule premises. It is not in dispute that the tenant's son Ashok is carrying on business in the name and style as "Vishal" in a premises measuring 20' x 20' which is also situated on the 27th Cross, IV Block, Jayanagar, Bangalore, where the schedule premises is situated. The evidence of the tenant also shows that the building where his son Ashok has taken a shop, was constructed during the pendency of the eviction proceedings against the tenant and there were four vacant shops available in the said building. It is necessary to point out that the partial eviction is a limb of comparative hardship. Under these circumstances, if a landlord, who has been carrying on business as observed by me earlier for the last over 30 years seeks eviction of a tenant, who is financially sound and whose son has acquired a business premises very close to the premises in question and where equally suitable alternate premises were available, and if he fails to secure it, can it be said that in such cases, an order of partial eviction has to be passed? In such circumstances, partial eviction cannot be ordered as the tenant will not be put to any hardship by not ordering partial eviction. The object behind ordering partial eviction is to protect a tenant who is not able to secure suitable alternate accommodation either for want of or availability of accommodation or on account of his financial constraints. As observed by me earlier, this is not the position in the case on hand. The tenant is capable of finding out alternate premises and as observed by me earlier, alternative premises were available. Merely because the learned Small Cause Judge, in the course of the order, has observed that the landlord would be satisfied with the premises measuring 8' x 23', it cannot be taken advantage of by the tenant. In my view, if the entire judgment with reference to the evidence on record is perused, it is obviously a typing error. Instead of 16' x 23', it has been referred to as 8' x 23'. Further, the premises measuring 16' x 23' can never be considered as a very large premises. The eviction petition is of the year 1980. The developmental activities that are being carried out and also the demand of the three sons of the landlord for the premises in question, also cannot be ignored by this Court on account of passage of time. Therefore, I do not find any merit in the claim of the tenant for partial eviction of the tenant.
Re: Question (5):
14. The only other question that remains to be considered, is with regard to the comparative hardship. What I have stated while considering the claim of the tenant for partial eviction would, in equal force, apply to the question of comparative hardship also. As noticed by me earlier, here is a tenant who is financially sound; who has acquired a residential building consisting of three floors; and whose son has admittedly acquired a premises measuring 20' x 20' very close to the petition schedule premises where he is carrying on the similar business. As noticed by me earlier, the evidence of the tenant shows that there were vacant shop premises available close to the petition schedule premises which he did not think it necessary to occupy. Exhibit P-20, the mortgage deed, itself shows that the landlord had to mortgage a residential portion of the building belonging to him as security for raising a loan of Rs. 10,000/-. The eviction petition is pending for the last over 18 years. As observed by me earlier, this Court also cannot ignore the fact that three sons of the landlord have grown up. Therefore, I am fully satisfied that if an order of eviction as ordered by the learned Small Cause Judge, is not confirmed by this Court, the landlord would be put to greater hardship than the tenant. The learned Small Cause Judge has considered this question in greater detail. I do not find any infirmity in the said finding recorded by the learned Judge.
15. In the light of what is stated above, I do not find any merit in these revision petitions. Therefore, they are liable to be dismissed.
16. Accordingly, the revision petitions are dismissed with costs of Rs. 2,000/-.
17. At this stage, Sri M.H. Datar, learned Counsel for the tenant, prays for some reasonable time for the tenant to vacate the petition schedule premises.
18. As noticed by me, the eviction petition is of the year 1980. Though it is the case of the tenant that the business his son is carrying on, is a separate business of his son and the tenant has no interest in the said business, I cannot ignore the evidence of the tenant wherein he has stated that the shop premises occupied by his son were constructed during the pendency of the eviction proceedings and there were four shops available in the said building. Still the tenant, as observed by me earlier, who is financially very sound, does not consider it necessary to make any alternate arrangement. Since the tenant is financially very sound, I am of the view that it would not be difficult for him to secure an alternate premises even if it is required. However, having regard to the facts and circumstances of the case, three month's time is granted to the tenant for vacating the petition schedule premises.