Karnataka High Court
G.N. Murthy And Anr. vs B. Mangilal on 28 June, 1996
Equivalent citations: ILR1998KAR1189, 1998 A I H C 829, (1998) 2 RENCR 88
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
ORDER M.B. Vishwanath, J.
1. This revision petition under Section 50(1) of the Karnataka Rent Control Act (for short 'the Act') has been filed by the two petitioners-landlords, who are the mother and son against the respondent-tenant challenging the order dated 27.9.1993 passed in H.R.C.No. 1230/ 1988 on the file of the V Additional Judge, Court of Small Causes, Bangalore City. The learned H.R.C. Judge dismissed the eviction petition filed by the petitioners under Section 21(1)(h) and (p) of the Act.
2. The petition schedule premises is a shop (non-residential) forming part and parcel of premises Nos. 8 and 9 situate at T.N. Shetty Lane, Avenue Road Cross, Bangalore 560 053.
3. The petitioners' case is :
The respondent took the premises on lease from the father of the first petitioner (Gopalakrishna) under a lease deed dated 21.11.1980 on a monthly rent of Rs. 495/-. The respondent has been carrying on business on the petition schedule premises. The petition schedule shop was allotted to the share of the first petitioner and his younger brother G. Krishna Murthy on a compromise between the petitioners and the other sons of Gopalakrishna Setty in O.S.No. 4715/1980. The first petitioner has no business of his own at present. The first petitioner has sufficient experience and funds. The petitioners' requirement is reasonable and bonafide. Hence, eviction has to be ordered under Section 21(1)(h) of the Act. The petitioners will be put to greater hardship if eviction is not ordered.
4. The respondent has premises of his own at Magadi Road and he has been carrying on business under the name and style 'Sandeep Textiles'. The respondent is liable to be evicted on the ground under Section 21(1)(p) of the Act.
5. In the objections filed by the respondent-tenant he has contended that he has paid Rs. 2,65,000/- advance. The first petitioner is desirous of starting textile business in the petition schedule shop is concocted. The first petitioner was kept vacant two shop premises both in the ground floor and in the first floor of the petition schedule building. If the first petitioner really wanted to start the textile business he could have opened his business in the shops which he has kept vacant. The first petitioner has not filed any eviction petition against the other tenants in the building because they have paid huge amount of pagadi and advance and have been paying high rent. The petitioner's requirement is not reasonable and bonafide.
6. It is not true that the respondent has been running his own business at Magadi Road in Bangalore under the name and style of 'Sandeep Textiles'. The respondent will be put to greater hardship if eviction is ordered. The petitioners have sufficient accommodation. No hardship will be caused to the petitioners and the eviction petition has to be dismissed.
7. On behalf of the petitioners the first petitioner has got himself examined as P.W.1, On behalf of the respondent, he has got himself examined as R.W.1.
8. As has already been stated, the learned H.R.C. Judge dismissed the eviction petition.
9. So far as the ground under Section 21(1)(p) of the Act (acquiring vacant possession of a suitable building) is concerned, there is absolutely no evidence placed by the petitioners that the respondent has built or acquired vacant possession of a suitable building. The conclusion of the H.R.C. Judge that the petitioners have not made out a ground under Section 21(1)(p) is unexceptionable. In fact, no serious arguments were addressed on the ground under Section 21(1)(p) of the Act.
10. Now I take up the ground under Section 21(1)(h) of the Act.
11. The learned H.R.C. Judge has held that there is relationship of landlord and tenant between the first petitioner and the respondent. The first petitioner has disputed the payment of Rs. 2,65,000/- as advance under Ex.R-2 by the respondent in favour of his father. The H.R.C. Judge has come to the conclusion that Ex.R-2 produced by the respondent shows that he has paid Rs. 2,65,000/- as advance to the father of the first petitioner. I agree with the learned H.R.C. Judge that the respondent has paid advance of Rs. 2,65,000/- to the first petitioner's father.
12. It is well established that under the House Rent Restriction Act, the revisional Court can take notice of the subsequent events.
13. Without pronouncing on the point whether the impugned order passed by the H.R.C. Judge deserves to be set aside or confirmed, this Court can conveniently pass a suitable order taking into consideration the subsequent event in this case.
14. The first petitioner - P.W.1 has admitted in evidence that out of 5 shops in the first floor in the same building, 3 shops have fallen to his share. He has further admitted that 2 shops out of 3 shops which have fallen to his share were in occupation of the tenant Uttamchand. There is no dispute that this Uttamchand was carrying on textile business. The first petitioner belongs to a trading community and at present he is unemployed and if he says that he wants to start his own business, I am of opinion, it is only too natural and the requirement is reasonable and bonafide.
15. The respondent has admitted in his evidence recorded on 30.8.1993 that it is possible for him to carry on his business in the first floor.
16. The petition schedule shop premises are in the ground floor. It is argued by the learned Counsel for the respondent-tenant that the respondent is a heart patient and he cannot climb stairs. There is no force in his argument because there is no medical evidence to show that the respondent is a heart patient and cannot climb stairs.
17. If really the respondent was too weak to climb steps to go to the first floor, he would not have stated in his evidence that he made enquiries about the vacancy in the first floor or in the ground floor. The respondent has further admitted in his evidence that one Uttamchand had been carrying on the textile business in the first floor of the petition schedule building.
18. The respondent has himself filed I.A.No.4 producing material to show that Uttamchand vacated both the two shops in which he was carrying on the textile business and which have fallen to the share of the first petitioner herein. This is clear from the certified copy of the Execution Petition No. 1830/1993 dated 1.8.1994. These two shops in the first floor have been kept vacant by the first petitioner since then.
19. It is argued by the learned Counsel for the respondent-tenant that the first petitioner can himself occupy the two shops vacated by Uttamchand. It is not for the tenant to dictate to the landlord which premises are suitable to the landlord.
20. The learned Counsel for the respondent-tenant relied on the decision AMARJIT SINGH v. KHATOON QUAMARIAN 1. ' where it has been laid down by the Hon'ble Supreme Court that if a landlord could have reasonable accommodation after his need arose and he by his own conduct disentitled himself to that property by letting it out for higher income, he would be disentitled to evict his tenant on ground of his need.
21. This authority of the Supreme Court does not apply to the facts of this case. In the case cited by the learned Counsel for the respondent-tenant, what the landlord did was to let out the premises which became subsequently vacant to some other tenant. That is not the position here. The first petitioner-landlord has kept the premises vacated by Uttamchand vacant even to this day and he is ready to offer the two shops vacated by Uttamchand to the respondent-tenant. Surely he has been losing rents from 1.8.1994. If he had let out those two shops, he would have received substantial advance or security deposit. The fact that the first petitioner has kept the shop premises vacated by Uttamchand vacant shows the bonafides in the offer made by him.
22. The learned Counsel for the respondent-tenant argued that in the evidence before Court, the first petitioner has stated that he wants to use the shop premises vacated by Uttamchand for residential purpose. He also brought to my notice the say of the first petitioner in his evidence that he is not willing to give the premises vacated by Uttamchand to the present respondent-tenant.
23. This evidence of the first petitioner could be ignored. That is why I said earlier that suitable order could be conveniently passed in this revision petition taking into consideration the subsequent event.
24. It is argued by the learned Counsel for the respondent-tenant that the first petitioner got possession of the two shops from Uttamchand not in pursuance of any eviction order, but in pursuance of the order passed by this Court in C.R.P.No. 1458/1989. That does not make any difference. The fact remains that the first petitioner who got possession of the two shops which were in occupation of Uttamchand has kept them vacant even to this day as has been already stated. The two shops which have fallen to the share of the first petitioner and which have been kept vacant by him are as big as the petition schedule premises.
25. For the aforesaid reasons, I am of opinion, if the respondent is ordered to vacate the petition schedule shop premises in the ground floor and occupy the two shops in the first floor vacated by Uttamchand in the same building, ends of justice will be met. In view of the nature of the order that I am going to pass, I have not considered the other point viz., partial eviction. Greater hardship would not be caused to the respondent-tenant if he is ordered to occupy the two shop premises vacated by Uttamchand and which have fallen to the share of the first petitioner and which have been kept vacant after vacating the suit schedule shop premises in the ground floor.
26. The advance paid by the respondent-tenant to the father of the first petitioner shall be subject to adjustment according to law in respect of the first floor premises after the respondent occupies the two shops in the first floor.
27. I pass the following order :
The impugned order passed by the learned H.R.C. Judge dismissing the eviction petition is set aside. The respondent shall handover possession of the petition schedule premises to the first petitioner and occupy the two shops in the first floor vacated by Uttamchand which have been kept vacant by the first petitioner. The respondent is granted 18 months from today from the date of this order to vacate the petition schedule premises and handover vacant possession to the first petitioner. The eviction petition H.R.C.No. 1230/1988 filed by the first petitioner and his mother stands allowed as stated herein. No costs.