1. This is a tenant's revision petition under Section 115 of the Civil Procedure Code, which is directed against the order dated 3rd July 1978 passed by the II Addl. District Judge, Belgaum, in H.R.C.R.P. No. 37 of 1976 whereby the landlord's eviction petition has been allowed. For the sake of convenience the parties will be referred herein according to their status as landlord or tenant.
2. The petitioner herein is the tenant under the respondent in respect of a non-residential premises situated at Belgaum. The landlord (respondent herein) sought for eviction of the tenant on the ground under Section 21(l)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act'). The case of the landlord is that he has no occupation. That he has three grown up sons who are also unemployed and for whom some employment has to be provided. Therefore, he requires the premises in question for his bona fide use and occupation for the purpose of commencing the business of boarding and lodging therein to provide avocation for himself and his sons and for his residence in a portion thereof.
3. The tenant disputed the landlord's claim for possession of the premises on the alleged ground as not being bona fide and reasonable. It is averred that the landlord and his sons have no experience in such business. He has further stated that the landlord owns several buildings in Belgaum besides the suit premises where he can reside and run his business. He has attributed oblique motives to the land-lord in filing the petition. He claims to have spent consider-able amounts for the improvement of the premises and established his business in the course of years ; that he has no other non-residential premises of his own and cannot get a suitable alternate accommodation to run his business, and hence, he will be put to greater hardship in the event of his eviction from the premises.
4. Upon consideration of the evidence on record, the Trial Court rejected the landlord's claim for possession of the premises on the alleged ground. The Trial Court has further held that greater hardship would be caused to the tenant in the event of his eviction from the premises. The landlord having preferred a Revision Petition under Section 50 of the Act, the District Judge has, on a re-appraisal of the evidence and material on record reversed the findings and order of the Trial Court and allowed the landlord's eviction petition. The District Judge has held that the landlord has established his bona fide and reasonable requirement of the premises for the purpose of commencing and carrying on the business in lodging and boarding in the petition premises. He also found that greater hardship would be caused to the landlord if an order of eviction is refused. However, he has rejected the landlord's plea that the premises is also required for his residential purposes.
5. When this matter came up for hearing before this Court earlier, it was noticed that while the Trial Court had considered the feasibility of partial eviction of the tenant from the premises without recording any finding as required under sub-section (4) of Section 21 of the Act, the District Judge had altogether failed to record any finding in that behalf. Hence, the matter was remitted to the District Judge, Belgaum, with a direction to call for a finding from the trial Court and forward the same along withhis own finding thereon. The District Judge accordingly called for a finding from thePrincipal Munsiff at Belgaum. The Trial Court after recording additional evidence as adduced by both the parties, gave a finding that the premises is capable of partition and that no hardship would be caused either to the landlord or to the tenant by passing a decree for eviction in respect of a part of the premises. However, on a re-appreciation of the evidence, including the additional evidence, the District Judge by his order dated 10th January 1984 held that the petition premises is structurally incapable of division into two suitable portions and that the parties cannot carry on their respective business without hardship to each other, and hence, this is not a case wherein a decree for partial eviction could be passed. Accordingly the District Judge recorded his negative finding on this point and submitted the same to this Court.
6. Mr. Sundaraswamy, the Learned Counsel for the tenant, contended that the whole approach of the Learned District Judge iscolored and manifestly perverse. The order of the Learned District Judge is based upon a wrong assumption of law to the effect that the Court has to start with the presumption that the requirement of the landlord is bona fide Mr. Sundaraswamy particularly drew my attention to the observation of the Learned District Judge in para-11 of his order which reads thus :
'The Court has to start with the presumption in such cases that the claim of requirement by the petitioner is bona fide The burden has been satisfactorily discharged by the petitioner in this behalf.'
Therefore, according to Mr. Sundaraswamy, the order is vitiated and comes within the purview of Clause(c) of Section 115(1) of the C.P.C, warranting interference by this Court in its revisional jurisdiction. In this connection Mr. Sundaraswamy has relied upon the decision of this Court in Mahboobsab - v. - Ramachandrappa Narayanappa Kampli 1984(1) K.L.J. 303. While explaining the scope of revisional powers of this Court under Section 115(l)(c) of the C.P.C. on the application of the ratio of the decision of the Supreme Court in Pandurang- v. -Maruti Ban, : 1SCR102 this Court has observed thus :
'It is clear from Pandurang's case that this Court, exercising its powers under Section 115 CPC can interfere with a decision of the Sub-ordinate Court on the ground that that Court had committed an error on law or facts only if that error had relation to or is concerned with question of jurisdiction of the said Court.'
It is further observed:
'To attract clause (c) the subordinate Court having had jurisdiction over the matter should have exercised its powers but in the exercise of its jurisdiction it should have acted illegally or with material irregularity'. If the law, conferring jurisdiction with powers to decide a question, has also prescribed a procedure following which that Court could exercise its jurisdiction or suggests the manner or method to deal with the question or lays down guidelines following which that Court should approach the question any failure on the part of that Court in observing the above would amount to that Court exercising it s jurisdiction either illegally or with material irregularity within the meaning of clause (c) of sub-section (1) of Section 115 C.P.C.'
In that case the Court was considering the question whether the lower Court had approached the question of hardshipkeeping in mind the guidelines available in the relevant pro-visions and as laid down by the binding authorities.
7. In M/s. Chandrana Bros -vs Jalajalaxmi : AIR1985Kant33 this Court has on a review of the earlier case law, including Pandurang's case, has explained the scope of Section 115(l)(c) of the C.P.C. as follows:
'In the light of the above, the scope of Section 115(I)(c) CP.C . may be stated and illustrated as follows though not exhaustively. Asubordinate Court should have jurisdiction and it should exercise it, It should commit an Act in exercise of such jurisdiction. In doing so there should be no breach of some provisions of law or material irregularity i.e., committing some error of procedure in the course of the trial, that may have affected the ultimate decision ; which can only have a relation to jurisdiction. For example grabbing at jurisdiction. Though a subordinate Court has jurisdiction to decide finally on facts, such as, in an application under Section 5 Limitation Act, and concludes on facts and if such conclusion is not based on evidence or material avail-able or if such conclusion is arrived at after ignoring crucial evidence or material, the High Court has jurisdiction under Section 115(1)(c) to interfere with such an order as the ultimate decision on these facts relates to jurisdiction of theCourt .If a subordinate Court renders a decision contrary to the law laid down by the High Court of a State or takes a wrong view of a legal provision, the High Court does have jurisdiction under Section 115(3) C.P.C., to interfere with such decision. The High Court has no jurisdiction to interfere in a decision of a subordinate Court on interpretation or construction of document though interpretation or construction of a document is generally deemed to be a question of law.'
8. On this question it was contended by Mr. Krishnamurthi, the Learned Counsel for the landlord that although the District Judge has in the early part of the order stated that the Court has to start with the presumption in favour of the landlord, he has in fact not proceeded on the said assumption as it becomes apparent from the subsequent parts of his order. He has in fact followed the decision of the Supreme Court in Muttulal- v. -Radhelal : 1SCR127 and the decision of this Court in D'Souza -vs.- Rama Rao 1978(1) KLJ. 235.
9. In Muttulal - v. - Radhelal the Supreme Court has observed thus:
'It is now well settled by several decisions of this Court including the decision in Servant T. B.'s case and Kalla Soni's case, that mere assertion on the part of the landlord that he requires the non-residentialaccommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to deter-mine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non-residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show, the burden being upon him, that he genuinely requires the non-residential accommodation for the purpose of starting or continuing his own business.'
Having applied the objective test as pointed out by the Supreme Court in the above case, the Learned District Judge has found on the basis of the evidence on record that the requirement of the landlord is both bona fide and reasonable. That there is an element of need in the landlord's claim, since he and his three major sons are unemployed ; that he has the necessary financial capacity to carry on the business ofrunning a boarding and lodging house, which does not require any specialised skill orknow how. He has further held that the premises with the available accommodation therein is ideally suited for running the said business.
10. It was further contended by Mr. Sundaraswamy that there is no plea that landlord and/or his sons have thenecessary experience to commence and carry on the proposed business. Hence, his Petition is liable to be rejected for lack of material particulars.
11. In the instant case the tenant in his pleading had questioned the capacity of the landlord to commence and carry on the business of lodging house. It cannot be that the tenant was taken by surprise or embarrassed in his defence by the non-mention of the fact that the landlord and his sons had no experience in the proposed business. A perusal of the evidence of both the parties goes to show that the parties joined issue on this aspect and there was no element of surprise for the tenant to meet the case of the landlord on this point. From the evidence of the tenant as well as the suggestions put to the landlord and his sons in their cross-examination, it is apparent that the tenant was not seriously disputing the landlord's capacity to commence and carry on the proposed business. All that was suggested by the tenant is that since the nature of the business is new for the landlord and his sons, it would be reasonable for them to have made a humble beginning by starting the said business in the three shops attached to the premises, which had become vacant. In fact it was seriously suggested to the landlord that he could commence and carry on the proposed business in the new block of residential houses which the landlord had constructed in 1975 and let out for residential purposes. That property however was admittedly unsuitable for the proposed business purpose. The tenant does not dispute that the landlord and his sons are unemployed after the closure of the landlord's business. But the emphasis of his defence appears to be that he would be put to greater hardship if he is to vacate the premises in view of the fact that he has an established business and it is not possible for him to find a suitable alternate accommodation to continue his business.
12. The landlord has stated that he was carrying on business as a transport operator and truck business which was closed in the year 1971. He has stated in his evidence that it does not require much experience to commence and carry on the said business. One of the sons has further stated that they intend to take the help of some friends who have experience in the said line. On the basis of the evidence the Court below found that the landlord's family is a trading family and considering the nature of the proposed business not much skill and experience is required to commence and carry on the same in the premises.
13. In Bega Begum - v. - Abdul Ahad Khan the Supreme Court has observed thus :
'If the plaintiffs had proved that their necessity was both genuine and reasonable, that the present premises which belonged to them were required for augmenting their income as the income so far received by them was not sufficient for them to make the two ends meet, there could be no question of a mere desire but it is a case of real requirement of genuine need. In fact the irresistible inference which could be drawn from the facts is that the plaintiffs had a pressing necessity of occupying the premises for the purposes of conducting hotel business so as to supplement their income and maintain themselves properly.'
Again at para 13 it is observed :
'It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the land-lord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. The Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need.'
With reference to similar facts and circumstances the Court has further observed at paras 21 and 22 :
'In view of our findings it has been established that the landlords have not only a genuine requirement to possess the house, but it is necessary for them to do so in order to augment their income and maintain themselves properly. Being the owners of the house they cannot be denied eviction and be compelled to live below the poverty line merely to enable therespondents to carry on their flourishing hotel business at the cost of theappellants. This shows the great prejudice that will be caused to the plaintiffs of their suit is dismissed. The plaintiffs, have already produced material before the Court to show that their income does not exceed more than Rs. 8.000/- to Rs. 9.000/- per year as the yearly income-tax paid by them is Rs. 70 to Rs. 80 only. There is no other means for them to augment their income except to get their own house vacated by the defendants so as to run a hotel business. It was vehemently contended by Mr. Andley that there is nothing to show that the plaintiff Mohd. Yusuf or his mother had any experience of running the hotel, and, therefore, it is fruitless to allow them to run the hotel by evicting the respondents, Mohd. Yusuf isadmittedly doing shoe business and has got sufficient experience of business. Nothing has been brought on the record to show that he is incapable of running a hotel in the premises. The building belongs to him and there, is no reason for us to think that he cannot establish a hotel business.
On the other hand the defendants have been running the hotel for last 30 years and must have made sufficient profits. To begin with, the defendants had taken the lease only for 10 years, which now by virtue of the statute has been extended to 30 years which is a sufficiently long period for which the plaintiffs have been deprived of the possession of the house. There is thus no equity in favour of the respondents for continuing in possession any further.'
It appears to me in the circumstances that the landlord cannot be denied the relief claimed merely on the ground that he has not stated in his pleading about his experience or capacity to commence and carry on the proposed business. Further, considering the nature of the business it cannot be said that it is of such a nature as to require special skill or know how to rule out the possibility of the landlord commencing or carrying the same. Further the mere fact that the two sons of the landlord were, making attempts to get employment after getting their names registered in the employment exchange also cannot give rise to a reasonable inference that they are not eager to do any business and that their requirement is not bona fide and reasonable. I am clearly of the opinion that the landlord has established that his requirement of the premises for starting a lodging and boarding business is both genuine and reasonable and even imperative, because he was without employment after closure of his earlier business since 1971 and his three grown up educated sons required employment to have sufficient income to afford them a decent and comfortable living.
14. This takes me to the question of comparative hardship that may be caused to either of the parties by allowing or refusing the eviction order as the case may be ; and the feasibility of ordering a partial eviction of the tenant. The Learned District Judge has considered this matter at great length and found that greater hardship would be caused to the landlord in the event of refusing to pass an order ofeviction. It is found that the tenant has a flourishing hotel business opposite to the premises in question of which he is the owner. There is also no doubt that the tenant has the necessary resources and capacity to find furtheraccommodation for his business if needed. On the question of feasibility of partial eviction he found that it is not only impracticable but the same is impossible without causing undue hardship and inconvenience to both the parties. The Learned District Judge has considered in the first instance whether thepremises is structurally capable of partition. He has found that the shape of the building does not permit of aconvenient division and it is not possible as suggested by the Trial Court to divide the premises into two portions.
15. Mr. Sundaraswamy has contended that the Learned District Judge having made a legally wrong approach in arriving at his findings both on the question of the landlord's requirement of the premises under Section 21(l)(h) of the Act as well as regarding the feasibility of making an order for partial eviction as required under Section 21(l)(4) of the Act, had committed a substantial and patent error of law warranting interference by this Court in its revisional jurisdiction under Section 115 of the C.P.C. As such he has contended that this Court can enter into the merits of this case in order to prevent injustice being done to the tenant.
16. On the other hand Sri V. Krishnamurthi contended that the findings of the learned District Judge cannot be called into question under Section 115 of the CPC as being perverse, much less manifestly perverse. He furthersubmitted that as long as there is no error of jurisdiction it is not open for this Court to invoke its revisional jurisdiction under Section 115 of the C.P.C.
17. Mr. Sundaraswamy relied upon the case of Kasturibhai and Bros - v. - Firm Mohanlal : AIR1969Guj110 for the proposition that the factors which the Court considers in judging the bona fides or reasonableness of the requirement may have also to be considered again in the context of greater hardship. If the requirement of the landlord is not reasonable for the whole of the premises and when partial decree could be passed without hardship to either side, the question would be resolved on the ground contemplated under Section 21(4) of the Act. While considering an analogous provision of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) [i.e. Section 13(2),] the Gujarat High Court has observed at page 117 thus :
''One of the most important factors in considering the question of greater hardship is, what other reasonable accommodation is available for the landlord or the tenant. The Court would have to put in the scale other circumstance which would tilt the balance of hardship on either side, including the financial position, both of the landlord and the tenant, the financial means available to them for securing alternativeaccommodation either by purchase or by hiring one, the nature and the extent of the business....Thus three contingencies might arise. If the balance swings on the side of the landlord, so that there is greater hardship left to the landlord as a result of this statutory balance-sheet of hardship, theand lord must get the entire decree. If, however, the resultant balance of hardship in this balance-sheet is nil in the sense that there is a just balance and the scale swings on neither side, then, the case is one of a partial decree. It is only when the greater hardship is on the side of the tenant and the balance or the scale tilts in his favour that the decree would be refused.'
18. Mr. Sundaraswamy next relied upon a decision of the Bombay High Court in Kishan Rao - v. - Narayan, : AIR1979Bom74 Whileconsidering the scope and ambit of the similar provision under the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), the Court has observed at para 17 :
'The operation of the second part begins when once the comparative hardship has been found. If the comparative hardship is much more on the tenant no question of passing a decree in favour of the landlords arises. If the comparative hardship is greater so far as the landlord is concerned an option arises for passing a decree for eviction under Section 13(l)(g) - A bona fide need is again circumstanced by reasonableness of the demand and it is in the concept of reasonableness that eviction of the entire premises or part thereof seems to fall.......While judging that evidence of the landlord the Court will take into consideration under the second part of sub-section (2) the reasonableness of the demand and try to find out whether in spite of the hardship being larger on the land-lord a lesser allocation of the space would meetthe ends of justice in such a manner that there will be no hardship on either party.'
Mr. Krishnamurthi also relied upon certain observations in the same decision at page.76 (para-ll) where it is observed :
'The legislature therefore thought that a provision should be further made by which the Court will be called upon to consider the possibility of dividing the premises, where it is practical to do so and where thedivision leads to a situation where no hardship would be caused either to the tenant or to the landlord by passing a decree of that type.'
It is further observed at para-24 page-79.
'...When the total circumstances of a case are being considered by the Court in the light of the pleadings of the parties and the evidence led, it is enough if the Court is aware that while passing a decree for eviction against a tenant a division of the premises is permissible and under certain circumstances it can bring about a situation where the needs of both thelandlord and tenant are satisfied without there being any hardship on either of them. If the Court disposes of the case with the awareness of these provisions either by express discussion or by implication where the facts speak for themselves, the Rent Court had done its duty properly and there is no infirmity of any kind either in the procedure or in the substantive disposal of the dispute.'
19. In the case of P.A. Machiah which is quoted at para-25 with approval in the case of Kishan Rao - v. - Narayan it is observed :
'Each one may seek to acquire or retain possession of the entire premises by establishing greater hardships to himself or seek to acquire or retain only part of the premises by proving no hardship to either. Each one may even try to bring his case under both the parts and seek relief alternatively taking no chances. This must, in turn, depend in no small measure, on the urgency and extent of the needs of both, availability of alternate accommodation, the extent of the accommodation in dispute, degree of adaptability of the parties and suitability of the portion of the premises and variety of other factors. Suffice it to note that it is not difficult to conceive of cases where mere part of the premises may not suit the requirements of the either under any circumstances and of his own deliberate choice, each one of them may rather choose to concentrate on first part and try to acquire or retain the entire premises by proving his greater hardship than even think of pressing for any portion of the premises.'
20. It is thus clear that the requirement of comparing the need of a landlord with that of a tenant will apply even to a case of partial eviction. The Court would have to strike a just balance between the land lord and tenant so that no injustice is done to either of the two parties. In granting the Petition under Sec. 21(l)(h) of the Act in respect of portion of a building alone the Court must act reasonably, that is to say, that the division should be made in a manner that the needs of both are satisfied. The jurisdiction to make an order of eviction in respect of a part of the premises does not entitle the Court to divide the premiseswhimsically in a manner which may not be useful for either of the two parties. Accordingly before passing any such order, the Court must satisfy itself that no hardship is going to be caused either to the landlord or tot he tenant. The division of the property made must be workable. In the instant case, on the admitted and proved facts and circumstances, the Learned District Judge found that the division of the property intotwo parts is not feasible. This finding cannot be said to be erroneous.
21. In my opinion the Learned District Judge was also right in holding that simply because the petitioner and his sons are beginners in the proposed business, it cannot be held that a portion of the premises could meet their requirement, unmindful of the practical difficulties, inconveniences and hardship which will be caused to both the parties. The admitted and established facts in the case lead to theirresistible conclusion that the premises is incapable of division into two portions and that the parties cannot carry on their respective businesses without hardship to each other and hence, this is not a case wherein partial eviction could be ordered. The very idea of two differentproprietors running their separate lodging business in the same building sharing certain essential amenities in common is also repugnant to the smooth running of the business of either party. The partial eviction as suggested besides being impracticable would cause more hardship to the landlord and hence this would not be a just solution which would strike an even balance to leave no resultant hardship to either side.
22. It is submitted by Mr. Krishnamurthi that under Section 115 of CPC the High Court can supplement thereasoning to justify the findings of the Court below, but cannot substitute its own findings for the findings of the Court below. This is in the context of re-examining the feasibility of partial eviction, in respect of which the District Judge has given a clear finding.
23. In Bhaichand Ratnashi - v. - Laxmishankar Tribhovan the Supreme Court has in the context observed below :
'One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant. The Court would have to put in the scale other circumstances which would tilt the balance of hardship on either side, including financial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation. Under Section29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under Section 115 of the Code of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying it-self that the decision was according to law. It cannot be said that the Courts below failed to apply their mind to the requirements of Section 13(2) of the Act, as to comparative hardship or their finding wasmanifestly perverse or erroneous. That being so, the High Court could not substitute its own finding for the one reached by the Courts below on a reappraisal of the evidence.'
24. It is satisfactorily established by the evidence on record that partial eviction necessarily involves structural alterations of the premises which besides being impracticable from the point of view of the proposed business to be carried on by the landlord, is also detrimental to the property which is admittedly a very old structure. The restrictions placed on the landlord's right to recover possession of the premises under the Act cannot be stretched to the extent where the landlord should suffer such consequence of a partial eviction.
25. The impugned order is based upon pure findings of facts arrived at by the learned District Judge on the basis of the evidence and material on record. The approach of the learned District Judge in my opinion is neither incorrect nor his findings perverse so as to warrant interference by this Court in its revisional jurisdiction under Section 115 of the C.P.C. There is no error of jurisdiction either to render the findings of the Court below revisable under Section 115 of the C.P.C.
26. In the result, the Civil Revision Petition is dismissed. The tenant is granted one year's time from to-day to vacate and deliver possession of the premises to the landlord.