Skip to content


Srinivasa Baliga Vs. Gopalakrishna Pai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1177 of 1983
Judge
Reported inILR1986KAR943
ActsKarnataka Rent Control Act, 1961 - Sections 21(1) and 21(4); Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantSrinivasa Baliga
RespondentGopalakrishna Pai
Appellant AdvocateH.B. Datar, Senior Counsel for ;B.V. Acharya, Adv.
Respondent AdvocateV.P. Mallayya, Adv. for R-1 to R-4 and ;H.R. Venkataramanaiah, Adv. for R-2
Excerpt:
.....landlord pleads need of space and proves it by oral and documentary evidence. desire to have more parking space is not adequate either. what is required to be proved is the genuine need. need is not intention nor intention need, unless need is established. if the need is established, intention' or desire automatically follows. if mere desire is established, then need does not get established. this is something which the courts below must keep in mind having regard to the language of clause (h) of proviso to sub-section (1) of section 21 of the act.;on the evidence on record, the need apart from being not pleaded was never proved. it is in that sense that the court did not acquire jurisdiction to pass an order under clause (h);-- section 21(4) -- mandatory requirement that partial..........two documents that the deputy commissioner or the licensing authority has opined that the car parking space is inadequate. in that circumstance, notwithstanding the assertion on oath by d.w-1-the tenant, that the landlord had bean left with adequate space within the cinema theatre complex for parking cars, the munsiff came to the conclusion that the petitioner landlord had proved that there was no adequate place for parking the cars and therefore directed eviction. though one more ground was urged under clause (p) of the proviso to section 21(1) of the act, it was not pressed nor any evidence was lead in that behalf by the petitioner-landlord. therefore, that ground was dismissed as not available to the landlord. aggrieved by the same, the landlord preferred the revision before the.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. This is a tenant's revision under Section 115 of the C.P.C. directed against the order of the Learned District Judge, Dakshina Kannada, Mangalore, dated 13th December. 1982. The order is made in CRP No. 93/1980 on the file of the Learned District Judge. That revision before him was also filed by the tenant-petitioner against the order of the Munsiff. Dakshina Kannada, Mangalore, made in HRC. No. 280/1973 on his file. The question involved in this revision has been pending for long in the Courts, there is no doubt. As on this date, it is over 12 years. It is equally unnecessary for me to state that both the Courts below have held against the tenant. Therefore, he is in this Court under Section 115 of the C.P.C.

2. The facts leading to this petition may be briefly stated as follows : The petitioner-tenant by virtue of a lease said to have been entered between himself and his landlord, the respondents, came to possess 1050 sq. ft. adjacent to Roopavani Talkies owned by the respondents-landlords The conditions of the lease were such that any structure, erected on the said 1050 sq. ft. of open space would not enure to the benefit of the petitioner-tenant. After building some structure thereon the tenant has been using it as an extension to his hotel for purpose of serving refreshments etc. The lease as above was for a period of five years and expired on 31 8 1973. Soon, therefore, the petitioner filed a petition in the Court of the Munsiff, Dakshina Kannada. Mangalore, seeking eviction under the Karnataka Rant Control Act, 1961, (hereinafter referred to as the Act) on the following grounds :

(d) That the applicants require the demised property for turning it into a car park. Besides there is a well in the demised property which is at present covered up and remaining unused. The Cinematograph Rules framed by the Government of Mysore requires the applicants to keep at ready use thousands of gallons of well water for the purpose of fire fighting. As such well water is a necessary to the applicants. In view of these felt necessities the applicants bona fide require the demised property for their use and occupation.'

(Underlining mine)

It may be mentioned that the petition was preceded by issue of lawyer's notice to which the tenant suitably replied. The tenant resisted the petition while admitting most of the averments in the following manner :

'4. The averments in the petition para 3(d) are not admitted. It is denied that applicants require the demised property for turning into a car-park. It is also denied that the well in the property is required for the purpose of fire fighting. The alleged requirement of the petitioners is neither true, bona fide nor reasonable. The same is only a rule to extract higher rental from the opponent.'

On those pleadings essentially, the parties went to trial and adduced evidence oral and documentary in support of their respective cases.

3. the landlord examined himself and got marked the documents Exs. P1 to P3. Ex. P2 is the inspection report of the Deputy Commissioner, the competent authority under the Karnataka Cinema (Regulations) Rules and Ex. P3 is the renewal of licence for cinematograph shows for the year 1979. Ex. P2 is of the year 1974 and is made approximately one year after the petition was filed. It can be seen from those two documents that the Deputy Commissioner or the licensing authority has opined that the car parking space is inadequate. In that circumstance, notwithstanding the assertion on oath by D.W-1-the tenant, that the landlord had bean left with adequate space within the cinema theatre complex for parking cars, the Munsiff came to the conclusion that the petitioner landlord had proved that there was no adequate place for parking the cars and therefore directed eviction. Though one more ground was urged under clause (p) of the proviso to Section 21(1) of the Act, it was not pressed nor any evidence was lead in that behalf by the petitioner-landlord. Therefore, that ground was dismissed as not available to the landlord. Aggrieved by the same, the landlord preferred the revision before the District Judge under Section 50(2) of the Act.

4. In the revision, the Learned District Judge has taken pains to discuss not that evidence so much which was on record, but apparently what was submitted by the Advocates during the arguments about the availability of the space within the area of the cinema theatre retained by the landlord before the lease as per Ex. P1. He has brushed aside the fact that open space was available for car parking on the sole ground that it was required for the visitors of the cinema to move about freely and in that circumstance, has confirmed the order of the Learned Munsiff and rejected the revision.

5. In this Court, the tenant has pointed out two infirmities. That apart from there being no detailed pleading, as to the requirement of the landlord, the evidence did not disclose the need of the landlord by which he was expected to establish good faith In accordance with the language of Section 21(1)(h) of the Act. The thrust of the argument is that unless the landlord, seeking eviction, on the ground that he requires the premises for his own use and bona fide occupation pleads in detail his needs and establishes the plea by cogent evidence, it cannot confer jurisdiction on the Court to pass eviction order under that particular provision.

6. On the other hand. Sri Venkataramanaiah, Learned Counsel for the respondent landlord has contended that it cannot 69 a jurisdictional question, and this Court sitting under Section 115 C.P.C. cannot resort to appreciating the evidence and exercise jurisdiction which is not vested in the High Court under Section 115 C.P.C. He contends as such, because in support of his contention reliance was placed on the decision of the Supreme Court in the case of Managing Director, Hindustan Aeronautical Ltd. Hyderabad & anr. v. Ajit Prasad Tarway, : (1972)ILLJ170SC . In the said decision the Supreme Court held that the High Court should not interfere even if the order was right or wrong or in accordance with law or not, unless the Court below had exercised the jurisdiction illegally or with material irregularity. There cannot be any quarrel with the ruling laid down by the Supreme Court It more or less follows the very language of Section 115 C.P.C. There are plethora of decisions to indicate as to what constitutes lack of jurisdiction, want of jurisdiction, improper exercise of jurisdiction and illegal exercise of jurisdiction. That would depend on the facts of each case. What is lack of jurisdiction or want of jurisdiction may not be the same as illegal exercise of jurisdiction. In the instant case what we should bear in mind is the fact that the landlord is authorised by stature to move the Court for eviction of the tenant only on satisfying that a ground is available to him tor the purpose of eviction. If he does not make out that ground either in the pleading or after pleading by not producing evidence in support of the pleading, then the Court ceases to have jurisdiction to grant him an order of eviction. It is in that sense that this Court can look at evidence to see whether the Court had acquired jurisdiction to give a particular relief under a particular provision of law. Therefore mere look at the evidence and the pleadings do not amount to come to a different conclusion on re-appreciating the evidence on record. Such exercise is confined to detect any error of jurisdiction and no more and that is always permissible under Section 115 C.P.C.

7. In the instant case, I have already set out the pleading in the course of the order earlier. Whatever details are furnished, those details speak of the requirement of water for fighting the fire in accordance with the requirements of the Rules governing exhibition of cinematographic pictures or movies. The plea in regard to the requirement of car parking space is very inadequate. That need cannot be inferred even by the most difficult process of reasoning. This Court speaking through late Sabhahit J., in the case of D'Souza v. Rama Rao, 1978 (1) KLJ 235 observed that it was for the landlord to mention in his Petition the details of his requirement and for that reason he had to adduce evidence on those points, then only the Court would be in a position to decide objectively whether that requirement is bona fide and reasonable. That observation was made in the light of the enunciation of the Supreme Court in the case of Mutulal v. Radhalal, : [1975]1SCR127 clearly laid down that the test to be applied was an objective one and not subjective one. It also held in the said case that a mere assertion of the landlord did not satisfy the requirement of the statute to prove the bona fide requirement or good faith of the need of the premises for the use of the landlord himself.

8. I have taken, in other cases, somewhat more moderate view of the pleadings. If the opposite party understands the pleadings to mean something and files his counter to that then, even inadequate plea would meet the requirement of law as long as a valid issue or point for determination can be raised.

9. The case on hand appears to fall into the latter category of the tenant understanding the plea as is evident from his objection statement. In the circumstances, the landlord in the instant case need not be penalised for the inadequate plea as parties went to trial on an issue understanding each other's pleadings in a particular manner. But that does not ipso facto, constitute proof. The proof in the instant case according to the Munsiff is based on Exs. P2 and P-3. Ex. P-2 is the inspection note, where one of the endorsements is that, the car parking space is inadequate. That endorsement clearly envisages that the theatre in question had parking space for cars, but not adequate. It does not suggest that there was lack of space. The Learned Munsiff took Ex. P-3 also as supporting the petitioner-landlord. Ex. P-3 is the endorsement stating that the parking space provided, in the theatre should be marked by stripes to indicate the direction of parking towards the wall or a compound. In fact, the second document, clearly establishes that there was car parking space in existence in the theatre in 1979, the year in which the renewal was made. Therefore, the real issue to be raised on the pleadings, inadequate as it was, was how much more parking space was required in order to satisfy the statutory imposition made in that behalf on a cinema theatre owner. Under the Karnataka Cinema Regulations and the Rules framed thereunder for every 50 seating capacity sanctioned for the theatre, space for parking one car should be provided. It is in evidence that the seating capacity of the theatre is under 980. In that sense the minimum car parking space that should be provided by the theatre owner is space for 18 cars.

10. It is not enough if the landlord pleads need of space and proves it by oral and documentary evidence. Desire to have more parking space is not adequate either. What is required to be proved is the genuine need. Need is not intention nor intention need, unless need is established. If the need is established, intention or desire automatically follows. If mere desire is established, then need does not get established. This is something which the Courts below must keep in mind having regard to the language of Clause (h) of proviso to Sub-section (1) of Section 21 of the Act. This has been repeatedly pointed out by the various rulings of this Court, On the evidence on record, the need apart from being not pleaded was never proved. It is in that sense that the Court did not acquire jurisdiction to pass an order under clause (h). It is for this reason that this Court has to come to the conclusion that though the statute has vested the jurisdiction in the Court, the Court failed to exercise the jurisdiction vested in it in not examining the evidence in its proper perspective and therefore has committed an error of jurisdiction.

11. The next question is, whether there has been failure to exercise jurisdiction vested in it. Section 21(4) of the Act mandatorily requires the Court to examine first, the question whether the landlord's bone fide requirement for his own use and occupation can be met out by partial eviction of the tenant from the petition premises. Naturally, the space required in the instant case would very much depend upon the need established assuming that the need was for the minimum car parking space stipulated by Rules. Then the Court has to examine, whether 1022 Sq. ft. space is required for parking the cars. That has not been done. The Supreme Court has laid down and this Court has followed that ruling to the effect that it is a mandatory requirement, that partial eviction must first be considered. That not having been done either by the Court of the Munsiff or by the District Judge in revision, them is total failure to exercise jurisdiction vested in the Court.

12. For these two reasons the petitioner must succeed get the orders in question set aside. They are accordingly set aside.

13. The matter does not end there. There appears to have been some human or inhuman drama in this case. This revision came up for hearing for the first time in this Court on 31-3-1983. On that day, the Learned Single Judge directed notice and stay as is apparent from the order dated 19-4-1983. The Court Stenographer did not type the word 'Stay' after notice in respect of the order made on 31-3-1983. In the result, execution was taken out for delivery of possession on 16-4-1983 at Mangalore. Warrant was issued on the same day and possession was also delivered. On that evening the Counsel of the tenant appears to have moved the Munsiff for stay of possession at home at about 7.30 p.m. but it was too late. The premises was taken possession by the landlord and the structures erected by the tenant were demolished and converted into open space that is the positions in which the parties are placed when this order has been made.

14. In the result after having set aside the order I remand the matter to the Munsiff, Mangalore to decide the question raised before him in the light of the observations made by this Court, in the light of the evidence already recorded but subject to appointment of a Commissioner to make a spot inspection of the theatre and give a clear picture to the Court as to the vacant space available around the theatre excluding the premises leased out to the respondent. The parties may be permitted to issue such directions as they may desire to the Commissioner for additional information to be noted in the Commissioner's report. If the Court feels the necessity, it may direct a sketch being prepared of the entire premises showing both the premises occupied by the tenant and the premises in possession of the landlord on the date of petition in order to have a better picture of the state of things that exist. The parties are free to examine the Commissioner if found necessary and subject him to cross examination. After considering the report of the Commissioner and the evidence of the Commissioner if any, the Munsiff shall dispose of the matter in accordance with law, The possession of the landlord of the petition premises will be subject to final orders of the Munsiff. The matter shall be disposed of by the Munsiff within two months from the date of the receipt of the copy of this order and the records.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //