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K. Veerabasappa Vs. the Court of District Judge at Chitradurga and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 10173 of 1977
Judge
Reported inAIR1979Kant40
ActsKarnataka Rent Control Act, 1961 - Sections 3, 21, 21(1) and 50(2); Constitution of India - Articles 226, 226(1) and 227
AppellantK. Veerabasappa
RespondentThe Court of District Judge at Chitradurga and ors.
Excerpt:
- code of civil procedure, 1908. order 47 rule 1: [v. jagannathan, j] review of judgment and decree in regular second appeal position of an illegitimate son coparcenary properties ruling in the case of smt. sarojamma v smt. neelamma, [reported in ilr 2005 (3) kar 3293; 2005 (5) klj 66; 2005 (3) kccr 2053; 2005 air kar r 1894; air 2005 noc 422; 2006 (1) civil l.j. 145] consideration of held, one of the grounds for seeking review is that there is an error apparent on the face of the record and not an erroneous decision on facts, held, an error on a point of law is apparent on the face of the judgment with regard to the entitlement of an illegitimate child to a share in the property of his father, irrespective of the nature of the property. hence, the matter requires to be reviewed......order1. on 20-3-1971 the petitioner filed an application under s. 21(1)(h) of the karnataka rent control act 1961 (hereinafter referred to as 'the 1961 act') in the court of the munsiff, davanagere, for eviction of respondent no. 3(hereinafter referred to as 'the respondent') who is admittedly in occupation of premises bearing door no. 591/1 situated in davanagere city more fully described in the schedule annexed to the petition, which was resisted by the respondent. in his application, the petitioner principally pleaded that the premises were required to run the business concern of 'kirwadi veerabhadrappa & sons' and 'kirwadi anjanappa and sons' and later amended as 'kirwadi anjanappa and brothers'. in the objections statement filed, the respondent denied the plea of bona fide.....
Judgment:
ORDER

1. On 20-3-1971 the petitioner filed an application under S. 21(1)(h) of the Karnataka Rent Control Act 1961 (hereinafter referred to as 'the 1961 Act') in the Court of the Munsiff, Davanagere, for eviction of respondent No. 3(hereinafter referred to as 'the respondent') who is admittedly in occupation of premises bearing Door No. 591/1 situated in Davanagere City more fully described in the Schedule annexed to the petition, which was resisted by the respondent. In his application, the petitioner principally pleaded that the premises were required to run the business concern of 'Kirwadi Veerabhadrappa & Sons' and 'Kirwadi Anjanappa and Sons' and later amended as 'Kirwadi Anjanappa and Brothers'. In the objections statement filed, the respondent denied the plea of bona fide requirement of the premises pleaded by the petitioner and did not raise any objection as to the maintainability of the application filed by the petitioner. On a consideration of the evidence placed by the parties, the learned Munsiff, by his order dated 10-11-1971, rejected the application of the petitioner inter alia holding that the petitioner could use the upstairs portion of the petition schedule premises and therefore there was no justification to allow the application filed by the petitioner for eviction of the respondent. On an appeal filed by the petitioner, the learned District Judge, by his order dated 12-10-1973, affirmed the order of the learned Munsiff which was challenged by him before this Court in Civil Revn, Petn. No. 621 of 1974. In the said Civil Revision Petition, the petitioner contended that the ground or finding on which the Courts below had refused his claim for eviction of the respondent viz; that the upstairs 1st floor was suitable for his occupation had been arrived at without affording him an opportunity to establish whether it was suitable or unsuitable for his occupation and therefore the same was vitiated. Accepting the said plea of the petitioner Nesargi J; by his order dated 5-12-1974 (Exhibit A), set aside the orders of the Courts below and remitted the case to the learned Munsiff only to ascertain the suitability or unsuitability of the area available in the 1st floor of the petition schedule premises. As the principal contention of the petitioner depends on the terms of the remand order passed by Nesargi J; it is useful to set out the material portions of that order.

'...Such an opportunity has to be, in the interest of justice provided, because, unless the premises is found to be suitable or unsuitable, no conclusion can be drawn merely on the basis of that much of area being available to the petitioner-landlord. The conclusion of the two Courts below that because that much an area is available and that area is equal to the area of the schedule premises therefore, the claim of the petitioner-landlord is not reasonable and bona fide, cannot be sustained. Such a conclusion can be sustained only if it had been further found that the area in the first floor of the schedule premises is suitable to the petitioner-landlord to run his business. In that view of the matter, the orders of the two Courts below cannot be sustained...'

'.... I allow C. R. P. No. 621 of 1974 set aside the order in question and direct the records be remitted to the Court of the Munsiff, Davanagere, for disposal of H. R. C. Application No. 17/1971 afresh according to law after giving opportunity to both the sides to adduce evidence only in regard to suitability of the area available in the first floor of the schedule premises to run the business of the petitioner-landlord.

No order as to costs.

Sd/- M. S. Nesargi.

Judge.'

2. In my considered opinion, a faithful compliance to the remand order of this court required the learned Munsiff to ascertain only the suitability or unsuitability of the area available in the first floor of the schedule premises and if he found that that area was unsuitable, he should have allowed the application of the petitioner and if he found that that area was suitable to dismiss his application for eviction of the respondent. A fortiori the evidence to be placed by the parties and to be recorded should have been confined only to that question and to no other question. But that did not exactly happen before the learned Munsiff. It is now necessary to notice a few developments that took place before the learned Munsiff.

3. On 10-11-1975 the respondent filed an application for amendment of his objection statement virtually to add a plea as to the maintainability of the application filed by the petitioner for eviction. In his affidavit in support of the application for amendment, the respondent stated that under a registered partition deed dated 21-7-1971 the schedule premises had fallen to the share of one K. V. Eshwara, one of the sons of the petitioner, and therefore he had no right to maintain his application for eviction against him. This fact was not something that happened after the disposal of the revision petition by this Court, but was in existence even before the disposal of the application by the learned Munsiff on the first occasion and in any event before the revision petition was decided by this Court. Without really comprehending the true scope of the remand order, the learned Munsiff, by his order dated 14-1-1976 allowed I. A. No. 12 filed by the respondent, the result of which was that the learned Munsiff considered himself free to examine the maintainability of the application filed by the petitioner. Another application made by the petitioner for amendment of his application viz, I. A, No. 13 to substitute the words 'Kirwadi Anjanappa and Sons' as 'Kirwadi Anjanappa and Brothers' was also allowed by the learned Munsiff on 5-3-1976. On the evidence placed by the parties in the light of the remand order of this Court and also the amended objection statement of the respondent, the learned Munsiff, by his order dated 28-6-1976 (Exhibit D) found (I) that the application filed by the petitioner was itself not maintainable, (2) that the upstairs portion of the premises was suitable for locating the office and (3) that grater hardship would be caused to the respondent if an order of eviction is passed and in that view rejected the application of the petitioner for eviction. Aggrieved by the said order, the petitioner filed a revision petition in Civil Revision Petition No. 11 of 1976 before the District Judge, Chitradurga, who, by his order dated 7-2-1977 (Exhibit F) has dismissed the same. In revision, the learned District Judge had disagreed with the finding of the learned Munsiff that the upstairs portion of the premises was suitable for use of the petitioner. On a critical examination of the oral and documentary evidence on record, the learned District Judge has found that the upstairs vacant premises was not suitable for carrying on the business of the petitioner. But on the second question viz., on the maintainability of the application of the petitioner, the learned District Judge has agreed with the finding of the learned Munsiff and has therefore maintained his order. In this writ petition under Art. 226(1)(b) and (c) of the Constitution, the petitioner has challenged the orders of the learned District Judge affirming the order of the learned Munsiff. As this writ petition arises out of orders passed by regular Civil courts, their validity can be examined under Art. 227 of the Constitution also.

4. Shri M. R. Janardhana, learned counsel for the petitioner, strenuously contended that the remand order of this Court prohibited the Courts below from examining the maintainability of the petition and on the finding of the learned District Judge, the petitioner was entitled for an order of eviction against the respondent. Shri S. G. Sundara Swamy, learned counsel for the respondent, while refuting the contention of the learned counsel for the petitioner, supported the order on other grounds also which will be noticed by me and dealt later.

5. Before examining this contention, it is necessary to examine whether the finding of the learned District Judge on the suitability or otherwise of the area available on the first floor, is sustainable as the consideration of this question would arise only in such a situation and not otherwise. S. 50(2) of the 1961 Act empowers the District Judge to examine the correctness of the order sought to be revised which necessarily means that the District Judge can reappreciate the evidence on record and arrive at a different finding. I find that the learned District Judge, on a critical appraisal of the evidence on record, has found that the upstairs portion of the first floor area as not suitable for carrying on the business of the petitioner. Shri. S. G. Sundara Swamy, learned counsel for the respondent, is unable to point out that the finding of the learned District Judge on the suitability of the first floor area being on a question of fact is liable to be upset on any of the grounds on which this Court can interfere under Arts. 226 and 227 of the Constitution. I, therefore, hold that the finding of the learned District Judge on the unsuitability of the first floor is unexceptionable and therefore the case of the parties has to be examined accepting the finding of the learned District Judge in preference to the finding of the learned Munsiff on that question.

5-A. I have carefully examined the orders of the Courts below on this question. Both the Courts below have proceeded to examine the maintainability of the petition and record their evidence against the petitioner on the assumption that the remand order of this Court was an open remand and therefore there was no prohibition to examine and decide that question. I am of the opinion that no useful purpose would be served by referring to the reasons stated by the Courts below on the contention urged by the petitioner before me and I now therefore proceed to examine the same without reference to their views.

6. It is seen from the remand order of this Court, the one and the only issue or question on which this Court directed the learned Munsiff to enquire into and decide was the suitability or unsuitability of the area available on the first floor of the petition schedule premises to run the business of the petitioner-landlord. If, on a consideration of the evidence to be placed by the parties and if the learned Munsiff came to the conclusion that the first floor was suitable, he has necessarily to dismiss the petition for eviction against the respondent. If he came to the conclusion that the upstairs portion was not suitable, he was required to allow the petition for eviction against the respondent. In my considered opinion, the remand order of this Court did not permit the learned Munsiff to make a roving enquiry and decide all questions. In my considered opinion, the remand order of this Court is a restricted order of remand and is not an open remand and therefore did not arise or occur after the remand order of this Court. I have earlier noticed that the registered partition had taken place even before the learned Munsiff first decided the petition and in any event well before this Court decided Civil Revn. Petn. No. 621 of 1974. A remand was necessitated on only one issue viz., the suitability or unsuitability of the upstairs portion as the Courts below had decided that issue contrary to the principles of natural justice and without evidence on record. If the Courts below on the earlier occasion had not committed such a mistake and there was evidence to finally decide the case, this court would have finally decided the matter one way or the other and that disability of this Court on that occasion cannot be made a ground to defeat the just claim of the petitioner as has happened now on altogether a new ground. We should also remember that it was open to the respondent to urge for an open remand and for this Court to make an open remand so as not to tie the hands of the learned Munsiff. In the absence of any other legal proceeding by the respondent, the restricted order of remand of this Court has become final, binding and conclusive and it is not open to any of the parties or for any Court to enlarge the scope of the remand order that too by a side wind (window) as has happened in this case. In my considered opinion, if such a course is permitted, it is destructive of all judicial discipline and will strike at the every root of the efficacy and binding nature of an order of a superior court on the parties to a dispute and the necessity of a subordinate Court to faithfully implement an order of the superior Court. By this I should not be understood as stating that in a remanded case, a subordinate Court cannot allow an application for amendment at all or that an order of remand should be implemented even without reference to any change in law or any other valid circumstances which can neither be predicted nor exhaustively catalogued. In my opinion, this was not one such and therefore the restricted order of remand should have been faithfully implemented by the learned Munsiff.

7. In Bhopal sugar Industries Ltd. v. Income-tax Officer, Bhopal : [1960]40ITR618(SC) , the Income-tax Officer, Bhopal, rejected the claim of the assessee for certain deductions of agriculture income claimed before him. In a Second appeal filed by the assessee, the Income-tax Appellate Tribunal, Bombay, directed the Income-tax Officer, Bhopal, to ascertain the average transportation charges and dispose of the case of the assessee. On the failure of the Income-tax Officer, Bhopal, to carry out the directions of the Income-tax Appellate Tribunal, the assessee moved the Judicial Commissioner, Bhopal, for a writ of mandamus to the Income-tax Officer, to implement the directions of the Income-tax Appellate Tribunal, Bombay. In that writ petition filed by the assessee, the learned Judicial Commissioner found that the Income-tax Officer had disregarded the directions of the Income-tax Appellate Tribunal but declined to issue a writ taking the view that the very order of the Income-tax Appellate Tribunal was itself erroneous against which the assessee moved the Supreme Court in an appeal, In reversing the order of the learned Judicial Commissioner, the Supreme Court held thus (at p. 185):-

'(8) We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destruction of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal.

(9) It must be remembered that the order of the Tribunal dated April 22, 1954 was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income-tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that in the circumstances of this case it was open to him to say that the order of the Tribunal was wrong and, therefore, there was no injustice in disregarding that order. As we have said earlier, such a view is destructive of one of the basic principles of the administration of justice.'

8. In Bhopal Sugar Industries Ltd.'s case : [1960]40ITR618(SC) two legal principles have been firmly laid down by the Supreme Court. One is, it is an imperative duty of a subordinate Court or an authority to implicitly give effect to a remand order of a superior Court or an authority and the other is that it is not open to any Court or authority to examine the validity of a remand order that has become final in any other legal proceeding. In Jagadeeswara Express v. Mysore Revenue Appellate Tribunal (1964(2) Mys LJ 373) a Division Bench of our High Court, and in M. L. Das and sons v. Sampatmull Bothra : AIR1954Cal103 A Division Bench of the Calcutta High Court, have enunciated the same principles. In my opinion, on the principles enunciated by the Supreme Court in Bhopal sugar Industries Ltd.'s case and our High Court in Jagadeeswara Express's case and the High Court of Calcutta in M. L. Das's case, it has to be held that the Courts below in dismissing the application of the petitioner on a ground other than the one on which this Court remitted the matter, committed a manifest error of law apparent on the face of the record resulting in grave failure of justice to the petitioner and therefore calls for my interference under Arts. 226 and 227 of the Constitution.

9. Shri S. G. Sundra Swamy, learned counsel for the respondent, strenuously contended that in granting relief under the 1961 Act, the Courts below were justified in taking into consideration the subsequent events and were justified in refusing relief to the petitioner. Elaborating his contention, Shri S. G. Sundra Swamy urged that in deciding the bona fide requirements of the petitioner, the Court has to take into consideration the relevant circumstances as they exist at the time of the hearing of the case and on that principle, the orders of the Courts below did not suffer from any error of jurisdiction or manifest illegality and therefore does not call for the interference of this Court. In support of his contention, Shri S. G. Sundara Swamy strongly relied on the observation of this Court in T. N. Shankar Rao and Brothers v. S. A. Wajid (1971 (2) Mys LJ 29); the rulings of the Supreme Court in Pasupuleti Venkateswaralu v. Motor and General Traders : [1975]3SCR958 ; and Rameshwar v. Jot Ram : [1976]1SCR847 . In Shankara Rao's case decided by our High Court and in Pasupuleti Venkateswaralu's case the question as to whether a restricted remand order can be defeated by subsequent events did not arise for consideration. I have also pointed out that the partition which is claimed to be the basis for holding that the petition of the petitioner was not maintainable did not happen subsequent to the remand order and the same had been effected even before the learned Munsiff first decided the case. In my opinion, there is no inconsistency in holding that a restricted remand order is required to be implemented faithfully and there is no prohibition for the Courts in taking (into consideration) subsequent events. In my opinion, the principles enunciated by our High Court in Shankar Rao's case and the Supreme Court in Pasupuleti Venkateswaralu's case have no application to the case and the case is governed by the principles enunciated by the Supreme Court in Bhopal Sugar Industries Ltd.'s case : [1960]40ITR618(SC) . I, therefore, hold that there is no merit in this contention of Shri S. G. Sundara Swamy, learned counsel for the respondent.

10. Shri S. G. Sundara Swamy learned counsel for the respondent, contended that since the petitioner had not challenged the order dated 14-1-1976 of the learned Munsiff allowing I. A. No. 12 for amendment of the objection statement, it is not open for this Court to examine and decide whether the Courts below were justified in travelling beyond the scope of the restricted remand order. In my opinion, the learned Munsiff by allowing I. A. No. 12-application for amendment cannot and did not intend to set at naught the restricted remand order of this Court. The only effect himself free to examine the questions raised and permitted by the learned Munsiff. In my opinion, the failure of the petitioner to challenge the order dated 14-1-1976 of the learned Munsiff on I. A, No. 12 cannot take away his right to challenge the final orders passed by the Courts below holding that his petition itself was not maintainable. I, therefore, hold that there is no merit in the contention of Shri. S. G. Sundara Swmay and therefore reject the same.

11. In my opinion, on the terms of the earlier restricted order of remand of this Court, this is the only question that really requires to be examined by me and all other questions including the question of maintainability on which the Courts below have found against the petitioner do not really call for my examination. However, as the Courts below have examined this question and as my order is subject to appeal, I propose to briefly indicate my views on the maintainability of the petition found against the petitioner by the Courts below.

12. Shri M. R. Janardhana, learned counsel for the petitioner, strenuously contended that the Courts below committed a manifest illegality in holding that the petition filed by the petitioner was not maintainable. Shri M. R. Janardhana maintained that the petitioner continues to be a landlord within the meaning of that expression occurring in S. 3(b) of the 1961 Act and the need for which the petition had been filed and accepted by the learned District Judge had not ceased to exist, Shri S. G. Sundara Swamy, learned counsel for the respondent, while refuting the contention of the learned counsel for the petitioner and supporting the orders of the Courts below, maintained that on the basis of the principles enunciated by Venkataswami J. In Sha Seshmal v. Venkatarathnam (C. R. O. No. 1651 of 1974 decided on 9-4-1975) (Kant) the petition made by the petitioner was not maintainable.

13. The case of the petitioner is that he is the landlord of the schedule premises within the meaning of that term occurring in S. 3(b) of the 1961 Act as on the date of his petition as also on the dates the Courts below had to consider his application for eviction against the respondent. It is not in dispute that the respondent has been paying the rents of the schedule premises at all times and even to this day to the petitioner, notwithstanding the registered partition dated 21-7-1971. Both the Courts below have concurrently found that the petitioner is the landlord of the schedule premises. Shri S. G. Sundara Swamy, learned counsel for the respondent, also did not dispute this position and therefore I have to examine the case of the parties on the maintainability of the petition on the basis of this finding from two aspects (i) that in the partition, the schedule premises has fallen to the share of Shri K. V. Eshwara as found by the Courts below and (ii) what is the real nature of the claim made by the petitioner for eviction established in Courts below.

14. Apart from the fact that the petitioner is the landlord, he happens to be the father of K. V. Eshwara for whose benefit even according to the Courts below, he is seeking eviction of the respondent. As on the day the petition was filed which is pending for the last 7 years, Shri K. V. Eshwara was a minor. It is not also in dispute that K. V. Eshwara had been admitted to the benefits of a partnership firm called 'Kirwadi Anjanappa and Brothers' consisting of 4 major sons of the petitioner. Kirwadi Anjanappa as P.W. 4 in his evidence has sworn that K. V. Eshwara was also a partner of 'Kirwadi Anjanappa and Brothers' whose testimony is not rejected by the learned District Judge. Before the learned Munsiff, K. V. Eshwara filed more than one application to implead himself as a party to the proceedings which was very unreasonably rejected by the learned Munsiff and the observation of the learned District Judge that K. V. Eshwara has not supported the petitioner is factually wrong. In the original petition as also at all times, the case of the petitioner is that the petition schedule premises is required for carrying on the business of a firm called 'Kirwadi Veerabhadrappa and Sons' or 'Kirwadi Anajanappa & Brothers', that they themselves have faced eviction at the hands of their landlord Gowda Basalingappa and therefore the schedule premises is required for their own bona fide use and occupation and this part of the case of the petitioner also is accepted by the learned District Judge. From these admitted or proved facts, we have to examine whether the petition for eviction is maintainable or not.

15. S. 21(1)(b) of the 1961 Act reads thus:--

'21(1): Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant:

'Provided that the Court may on an application to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:- (b) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purposes of the trust;'

Firstly in interpreting Section 21 of the 1961 Act as observed by our Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde : [1978]3SCR198 , it should be noted that the 1961 Act does not deprive the landlord altogether of his right to property, obtain a decree for eviction and the same has to be respected also. Secondly, in my opinion, the petitioner cannot be said to be a rent-farmer, rent-controller or estate-manager within the meaning of those expressions occurring in explanation to sub-section (4) of S. 21 of the 1961 Act to exclude him from the meaning of the term 'landlord' occurring in S. 3(b) of the 1961 Act. An analysis of S. 21(1)(b) of the 1961 Act shows that it confers a right on the landlord to seek eviction if he establishes that the premises is reasonably and bona fide required for his won occupation or for the occupation of any person for whose benefit the premises are held by him apart from the case of a trustee, with which I am not concerned in this case. Section 21(1)(b) of the 1961 Act in terms provides for filing a petition by one person on behalf of another person. Section 21(1)(b) does not require that the very person for whose benefit the premises are held by the landlord, should file a petition for eviction. The right conferred by the 1961 Act cannot be defeated by ignoring the provision or treating it a surplusage as the Legislature normally does not waste its words in an enactment. I do not see any infirmity in the landlord who is the father of K. V. Eshwara and the other sons who are the partners of a partnership firm, in seeking for eviction of the respondent. In my opinion, the Courts below in holding that the petition is not maintainable, have committed a manifest error of law apparent on the face of the record.

16. Let me now examine whether the decision of Venkataswami J. in Sha Seshmal Nainmal v. G. C. V. Venkatarathnam Setty (C. R. P. No. 1651 of 1974 decided on 9-4-1975) (Kant) has settled the principle as held by the Courts below that the petition filed by the petitioner for eviction is not maintainable. I have carefully read the order of Venkataswami J. In Sha Seshmal Nainmal's case. In Sha Seshmal Nainmal's case, the landlord sought for eviction for running the business, the landlord had made an admission that his son had been divided, was residing separately and carrying on a separate business in rented premises. On those facts, Venkataswami J. Decided that the requirements of the landlord in the case were not genuine and bona fide. The observations of Venkataswami J. on the question are found in para 7 of his order which reads thus:--

'7 The next question to be considered in this context is whether the father could provide accommodation for a son who is divided in every respect, namely, both as to property and business, as concluded by the court below. One thing is clear from the circumstances on record, that it is nowhere to be seen that the father has taken upon himself the responsibility to maintain the son or the son in fact is dependent on his father. In such a situation, it would be clear that for all purposes the son acquires a status wholly different from his father in the eye of law in the context of the provisions of the Rent Control Act. The inevitable result of this discussion is that it is unreasonable to accept the stand of the landlord that the premises were required reasonably and bona fide for his occupation within the meaning of the ground enumerated in Clause (h) of S. 21(1) of the Rent Control Act. The conclusions of both the courts below on this point are clearly unsustainable.'

In my considered opinion Venkataswami J. Has not laid down as a principle that under S. 21(1)(b) of the 1961 Act, a landlord and father as in the present case cannot maintain a petition for eviction for the running of a business of his son. In my opinion, the case is not an authority for any such proposition. It is only a decision on the facts of that case and is not a precedent for holding that the application filed by the petitioner in the present case is not maintainable. I am therefore of the opinion that the reliance placed by the Courts below on the decision on Venkataswami J. Is plainly erroneous in law.

17. As the Courts below have dismissed the application filed by the petitioner, they were not required to consider the question of relative hardship that would be caused by granting or refusing a decree for eviction. In my opinion, having regard to the scope of the restricted remand order of this Court, the question of considering the relative hardship by the Courts below or by this court does not arise. Even if it arises, on the facts and circumstances of this case, I am of the opinion that greater hardship would be caused to the landlord by refusing a decree for eviction for which reason he is entitled for a decree for eviction.

18. In the light of my above discussion, I am of the opinion that the impugned orders suffer from manifest errors of law apparent on the face of the record and have resulted in substantial failure of justice to the petitioner and he is entitled for a decree for eviction against the respondent. I, therefore, quash the impugned orders by issue of a writ of certiorari and allow the petition filed by the petitioner in H. R. C. No. 17 of 1971 on the file of the learned Munsiff, Davanagere.

19. Admittedly, the respondent has been carrying on his business for more than decade and he cannot be thrown out from the schedule premises overnight and therefore he has necessarily to be given a reasonable time for vacating the schedule premises. In his evidence, the respondent has stated that he and his son who are living jointly, are running a hotel business in some other premises. On these facts, I am of the opinion that the petitioner (respondent?) should be granted 3 months' time from this day to vacate the schedule premises subject to the condition that he pays all the arrears of rents accrued so far and also continues to pay the rents for the period permitted by me. Ordered accordingly.

20. Rule made absolute.

21. In the circumstances of the case, I direct the parties to bear their own costs.

22. Petition allowed.


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