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Antony Angeline Vs. B. Vijaya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. Nos. 1405 and 1422 of 1985
Judge
Reported inILR1986KAR1866
ActsKarnataka Rent Control Act, 1961 - Sections 21(1) and 50(2); Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantAntony Angeline
RespondentB. Vijaya
Appellant AdvocateH.G. Hande and B.V. Acharya, Advs.
Respondent AdvocateP. Vishwanatha Shetty, Adv.
DispositionPetition dismissed
Excerpt:
.....that it is not required for his own use and occupation.; - section 50(2) -- revisional powers of district judge include re-appreciation of evidence on record and are wider than that of high court.;the district judge is empowered to go into the correctness of the order under revision in order to further the ends of justice. therefore, even the revisional jurisdiction is wide enough to include re-appreciation of evidence on record if the munsiff has failed to correctly appreciate the same evidence. if that is not done, then whatever interpretation the munsiff gives to the evidence on record would become final and cannot be re-appreciated in revisional jurisdiction even by this court. that could not have been the intention of the legislature in employing wider language.... the revisional..........premises nos. 315 and 314 are under a common roof and premises no. 313 is under the extended roof. premises no. 313 is in occupation of the one of the revision petitioners in this court and premises no. 315 is kept vacant. but that really does not affect the real situation. the commissioner's report, which has been perused by me, clearly indicates that all the three premises are under one roof. the normal meaning to be attached to the expression 'extended roof' is that the original roof is extended further. no other meaning is possible. if the roof is extended, it merely means it continues. it does not mean that the roof is a separate roof by itself. if that is so, whether the landlord was under the extended roof or under the original roof does not make any difference. what the.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

These two revision petitions filed under Section 115 C.P.C. are directed against the common order dated 4-2-1985 passed by the learned District Judge D. K., Mangalore, in H.R.C, Civil Revision Petitions Nos. 131 and 132 of 1983 on his file. The facts leading to these revision petitions may be briefly stated as follows :-

1. Respondent in these petitions purchased the petition premises bearing Nos. 313, 314 and 315 in the City of Mangalore from the previous owner on 16-11-1976. Soon thereafter he issued notices under the provisions of the Karnataka Rent Control Act 1961 (hereinafter referred to as 'the Act') seeking the two tenants of premises bearing Nos. 313 and 314 to vacate the same as he required the said premises for his own bonafide use and occupation. It will be useful to set out that premises No. 315 was kept vacant by the landlord though it had been in the occupation of a tenant before and he had vacated. In that circumstances the respondent/landlord reported the vacancy and kept the said premises released in his own favour by the Rent Controller of Mangalore for his occupation. The tenants in premises Nos. 313 and 314 did not vacate. Therefore, he presented eviction petitions under Section 21(1)(h) of the Act in the Court of the Munsiff at Mangalore. They were numbered as H.R.C. Nos. 1 and 2 of 1977 respectively. The petitions were clubbed together and disposed of by the Munsiff by a common order dated 18-7-1983. The Munsiff did not accept the plea of the landlord that the same was required for his own use and occupation and that the vacant premises available to him for his occupation was more than sufficient for his requirement He also held that the purchase made by the landlord was by way of investment and cot for his own use and occupation. This last finding was recorded on the plea of the tenant in premises No. 314 that he himself wanted to purchase the building from the previous owner and she did not sell it to him but sold to the landlord at a price which was only Rs. 5,000/- more than what he had offered. He had further contended that the very fact that the vacant premises was left unoccupied showed that the landlord's intention was no more than to derive profit form the purchase. There was no evidence other than the oral evidence of the parties before the Trial Court barring a few documents marked, which do not have any relevance for the issue in the petitions.

2. The landlord's plea before Munsiff was that he lived with his cousin ; that the total number of people living were 24: that he and 15 others were going to live in the property he purchased and therefore he wanted premises Nos. 313 and 314 as well for his occupation. He has spoken to these facts in his oral evidence on oath. What is sought to be made out to be material discrepancy in the oral evidence is that the cousin referred to in the pleading is a step-brother. His family consists of only himself, his wife and a child while the remaining 13 members are close relatives not answering to the definition of 'family' as defined under Section 3 of the Act nor dependant on him. Having regard to these facts, the learned Munsiff held in favour of the tenants conceding that the bonafides were not established by the landlord and that the vacant, premises was more than adequate for his needs i.e., the need of himself, his wife and the child. Aggrieved by the same, the landlord preferred two revision petitions against the. said common order of the Munsiff in the Court of the District Judge at Mangalore.

3. An attempt before the District Judge was made by the landlord to place additional material by way of an affidavit disclosing the details of the persons who were going to stay with him in the new premises if it was available to him, The learned District Judge did not take that additional material on record in the sense he has not relied upon that additional material to reach the conclusion and reversed the order of the Munsiff. The reasoning adopted by the learned District Judge was that the fact that the landlord had kept premises No. 335 vacant released in his favour by the Rent Controller ; the fact that he wanted to provide not only for his immediate members of the family but also for others who would also reside with him and to which fact he had spoken in the evidence tendered before the Trial Court on oath'. That included besides his mother several other close relatives. He took the view that there was no bar under the Act for a owner to provide residence for others other than his immediate members of the family. He apparently construed the expression 'his own use and occupation' occurring in Clause (h) Sub-section (1) of Section 21 of the Act liberally to include all persons whom the landlord was to provide for along with himself. He did not give prominence to the assertion that the purchase of the house by the landlord was only an investment. He carefully analysed the evidence on record, such as the Commissioner's report, as to the type of the premises in respect of which the petitions had been filed and came to the conclusion that though the premises had 3 separate numbers was in fact under one roof and therefore capable of providing larger accommodation to a single family by very minor alterations.

4. On account of the reversal of the order of the Munsiff the tenants have preferred these two petitions inter alia contending (i) that the District Judge has exceeded his jurisdiction in re-appreciating the evidence on record and coming, to a different conclusion notwithstanding the fact that he was only a revisional authority and not an appellate authority ; (ii) that the District Judge had erred in considering the needs of other relatives than the immediate members of the family of the landlord as the need of the landlord contrary to the law laid down by this Court in the ease of Dr. Syed Sibgathulla v. C. M. Abdul Azeez Khan, ILR (Karnataka) 1982(1) 463; (iii) that the District Judge came to an erroneous conclusion by misreading the evidence in as much as the extended roof was over the premises bearing Nos. 313 and not 315 which had been kept vacant by the landlord.

5. I do not think there is much force in the contentions advanced. Undoubtedly under Sub-section (2) of Section 50 of the Act the jurisdiction of the District Judge is only revisional. In the decision relied upon by the Learned Counsel for the tenants in the case of Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, : AIR1980SC1253 the Supreme Court has explained the similarity between the Appellate Authority as well as Revisional Authority. The Supreme Court in that case was dealing with the revisional remedy provided under the corresponding Act in Tamil Nadu. But, the language employed in Sub-section (2) of Section 50 of the Act and that of the Tamil Nadu Statute are in pari materia. Undoubtedly every Revisional Authority exercising its power in that jurisdiction must necessarily hear the difference between a revision and an appeal. Revisional jurisdiction normally understood having regard to their occurrence in the Civil Procedure Code and Criminal Procedure Code, the Courts in India over the years have exercised jurisdiction restrictedly. But in recent times several statutes provide a revision by a higher authority as a remedy using language wider than the language used in the two Codes mentioned.

6. The District Judge is empowered to go into the correctness of the order under revision in order to further the ends of justice. Therefore, even the revisional jurisdiction is wide enough to include re-appreciation of evidence on record if the Munsiff has failed to correctly appreciate the same evidence. If that is not done, then whatever interpretation the Munsiff gives to the evidence on record would become final and cannot be re-appreciated in revisional jurisdiction even by this Court. That could not have been the intention of the Legislature in employing wider language. I take support to reach the above conclusions from the observations made by their Lordships of the Supreme Court in the case of Sri Raja Lakshmi Dyeing Works, : AIR1980SC1253 in para-4 as follows :

'It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.'

In otherwords, if there is concurrent finding of facts by two Courts, the High Court's jurisdiction, even if the revisional power is couched in wider language than what is used in Section 115 CPC, the High Court should not re-appreciate the evidence but accept the finding of facts. That dicta cannot be applied where there is divergent finding of facts

7. In the present cases, the District Judge has only the finding of facts recorded by the Munsiff. There was no other authority in between which confirmed these facts. Therefore, revisional powers of the District Judge are wider than that of the High Court. In any event if Section 115 CPC is read in its entirety, than this Court refuses to interfere with the order which is sought to be revised if that would not meet the ends of justice.

8. The primary consideration for the Court is whether injustice will be done by revising the order. If this Court comes to the conclusion that no injustice will be done if the order is revised, then it will not be fettered by technicalities or restrictions imposed by all the sub-sections of Section 115 CPC. If this principle is borne in mind, then what the Learned District Judge has. done is not in excess of his jurisdiction, but well within his jurisdiction. There are a plethora of decisions of this Court, both by Single Judges and Judges in Division Bench who have interpreted specifically the scope of Sub-section (2) of Section 50 of the Act and consistently ruled that the District Judge has wider powers to go through the entire records and pass such order which would meet the ends of justice, Therefore, the first contention is rejected.

9. It was next contended that 'landlord's own use and occupation' does not include the use of his relatives other than those enumerated in Section 3 of the Act, i.e., the immediate members of the family who have the right to inherit the tenancy or who are the legal heirs of the landlord. That would not be the correct approach to see the scope of Clause (h) of Sub-section (1) of Section 21 of the Act. The provision has fallen for consideration in many decisions. 'His own use' has been enlarged to include the use of a dependant son or a dependant daughter. In cases of Joint Hindu Family it is further enlarged that if the property in question is owned by joint family, the use of any one of coparceners would be a use of the family and therefore, the Kartha of such family can maintain a Petition under Section 21(1)(h) of the Act.

10. The reliance placed on the decision of the Division Bench of this Court in the case of Dr. Syed Sibgathulla1 by the Learned Munsiff, in my view, is totally erroneous and is not attracted to the facts of these cases. What their Lordships in the said case held was that a landlord cannot seek possession of the premises for the exclusive occupation of a relative who is unconnected with his family. That would not be the requirement of the premises in question for the 'landlord's use and occupation'. If the landlord was not going to reside in that house or his dependant son or dependant daughter, then it would cease to be his own use. A mere distant relative occupying it exclusively without the landlord residing there takes away the landlord's right under Section 21(1)(h) of the Act. That is my understanding of the Division Bench ruling.

11. In the instant case, it is not that the landlord does not want to live in the premises in question. He wants to live with his near and dear relatives like agnates and cognates who are now residing in the step-brother's house. Undoubtedly the landlord purchased the premises for himself. But, no Court can take away the right of an individual to provide accommodation for his near and dear relatives if he on his own volition chooses to do so. No restriction can be imposed on that right of an individual by restricting use of the premises to himself and the members of his family. As long as the landlord shows animus intention to reside in the premises with his relatives, there is no compelling reason to draw an inference that it is not required for his own use and occupation. I think the learned Munsiff totally misunderstood the scope of the ratio decidendi of Dr. Syed Sibgathulla's case, ILR (Karnataka) 1982(1) 463 on which he relied upon. Therefore, the District Judge was correct in over-ruling it and come to a different conclusion.

12. The last contention that the District Judge misread the evidence by holding that the landlord cannot be subjected to the hardship of living under the extended roof of the premises while the tenants would be comfortably living in the adjoining regular portion of the premises, in my opinion is not a serious lacuna. Indeed, he has made that error stating so. The evidence is to the contrary. Premises Nos. 315 and 314 are under a common roof and premises No. 313 is under the extended roof. Premises No. 313 is in occupation of the one of the revision petitioners in this Court and premises No. 315 is kept vacant. But that really does not affect the real situation. The Commissioner's report, which has been perused by me, clearly indicates that all the three premises are under one roof. The normal meaning to be attached to the expression 'extended roof' is that the original roof is extended further. No other meaning is possible. If the roof is extended, it merely means it continues. It does not mean that the roof is a separate roof by itself. If that is so, whether the landlord was under the extended roof or under the original roof does not make any difference. What the learned District Judge meant was that the landlord should not be subjected to stay in what constitute a verandah of the house and not proper house by itself.

13. In this view of the matter, I do not think it is a fit case in which this Court should interfere with the finding recorded by the District Judge as it serves the ends of justice.

14. A word about comparative hardship must be mentioned by me. The learned District Judge has gone into that aspect in detail. I am inclined to agree with his reasoning. For over 9 years the landlord has been litigating to seek possession of the total property which he purchased at a cost of Rs. 43,000/-. The frail attempt made to suggest that he intends to sell out is without foundation. Everyone who has the capacity to invest to own a house of his own likes to live in it unless he has more than one in the same town. That there is dearth for accommodation in every large town in the Country is common knowledge. The reasons are various. But, the statute cannot be so read as to protect only the tenants and not those persons who want to acquire property for their own use and occupation.

15. From the date of threat of eviction the tenants ought to have made some efforts to seek alternative accommodation. I do not see anything in the evidence or in the pleadings of the tenant which is suggestive of that.

16. The District Judge has given 4 months time to vacate from 4-2-1985. That time has practically lapsed. As a rule I decline to extend the time by more than a month. Having regard to the fact that this premises is situated in coastal Karnataka where the monsoon has set-in and persists till the end of September 1985, I modify the order of the District Judge and direct that the tenants should put the landlord in possession of the premises on or before 30th day of September 1985. Mr. P. Vishwanatha Shetty, learned Counsel who has appeared for the landlord by way of caveat has no objection for the extension of time as done above.

Subject to the above, these two petitions are dismissed.


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