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A. Ekambara Vs. K. Leela - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCRP No. 274 of 1985
Judge
Reported inILR1985KAR2233; 1985(2)KarLJ246
ActsKarnataka Rent Control Act, 1961 - Sections 21(1)
AppellantA. Ekambara
RespondentK. Leela
Appellant AdvocateP. Vishwanatha Shetty, Adv.
Respondent AdvocateS.S. Sripathy, Adv.
DispositionRevision pettion dismissed
Excerpt:
.....that building acquired was not put to the use nor was intended to be put to the use to which tenanted building was put.;question that arose for consideration is 'whether a person carrying on certain business, in a premises of which he is a tenant, if acquires a building suitable for carrying on such business, can avoid eviction under clause (p) of the proviso to sub-section (1) of section 21 of the karnataka kent control act, 1961, merely because the building so acquired is intended to be used or is used for carrying on a different business'?;the situation envisaged in section 21(1)(p) is a tenant's liability for eviction from a tenanted building, if he acquired a suitable building either before or after the coming into operation of part-v of the act relating to control of eviction..........became a tenant of the petition premises in the year 1958 on a term lease and carried on the hotel business therein under the name and style 'nehru lunch home' till a double storeyed building in that town became available to him, to which building he shifted his hotel business and carried on in it, the hotel business which was being run in the petition premises, under the name and style 'hotel sujatha'. the accommodation in that building, it has been stated, was increased by adding another storey to that building. her further case was that after theshifting of the hotel business by the said narasappa from the petition premises, he had sub-let it to a third party. it was also her case that the petition premises had been damaged by making substantial structural alterations to the.....
Judgment:
ORDER

Venkataehala, J.

1. Whether a person carrying on certain ' business in a premises of which he is a tenant, if acquires a building suitable for carrying on such business, can avoid eviction under clause (p) of the Proviso to sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961 ('the Act'), merely because the building so acquired is intended to be used or is used for carrying on a different business, is the question which is raised for my determination in this revision petition.

2. Material facts, which have led to the raising of the above question for determination in this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908, are briefly these : In the year 1976, Smt. K.Leela, the Respondent here, filed in the Court of Munsiff at Mangalore ('Trial Court') an eviction petition under Section 21 of the Act, against B. Narasappa, the father of the petitioners here, respecting a non-residential premises ('the petition premises') in Mangalore town of which he had been a tenant on amonthly rent of Rs. 120/-. The case set out by her in the petition was that the said Narasappa became a tenant of the petition premises in the year 1958 on a term lease and carried on the hotel business therein under the name and style 'Nehru Lunch Home' till a double storeyed building in that town became available to him, to which building he shifted his hotel business and carried on in it, the hotel business which was being run in the petition premises, under the name and style 'Hotel Sujatha'. The accommodation in that building, it has been stated, was increased by adding another storey to that building. Her further case was that after theshifting of the hotel business by the said Narasappa from the Petition premises, he had sub-let it to a third party. It was also her case that the Petition premises had been damaged by making substantial structural alterations to the premises.

The grounds raised by her for eviction of the said Narasappa from the Petition premises on the basis of the said allegations, were;(i) acquisition of a suitable building by Narasappa; (ii) unlawful sub-letting of the petition premises by him; and (iii) making permanent structural alterations to the petition premises by him, coming within the purview of clauses (p), (f) and (c) respectively of the proviso to sub-section (1) ofSection 21 of the Act. In a statement of objections filed by him, Narasappa contested the claim for eviction made by the petitioner on various grounds. He, while denied the allegations made against him regarding unlawful sub-letting of the petition premises and making permanent structural alterations to the premises, also denied flatly the allegations made against him regarding acquisition of a building of his own for carrying on the hotel business which he had carried on in the petition premises. According to him, theallegations in the petition that he had obtained a suitable building near about for his restaurant business and he is running the same under the name and style 'Hotel Sujatha' and he has increased the accommodation in that 'Hotel Sujatha' by adding a third floor, were all false.

3. In the Trial Court, while the respondent here (the landlord) examined herself as P.W.I in support of her case, Narasappa (the tenant) examined his son, Gangadhara, as D.W.I in support of his defence. That Gangadhara, in the course of his evidence, made specific admissions relating to acquisition of a suitable building by his father for running the hotel business, which was run in the petition premises, and also increasing the accommodation of the building so acquired by adding one more storey to it. The admissions ran thus :

'Sujatha Hotel belongs to my father. He opened Sujatha hotel in the month of September 1967. And he constructed the hotel afterpurchasing the site. Till about 2 years ago, it was only a 2 storeyed building and now it is having third floor also. There is a restaurant, meals section and the Bar also, in Hotel Sujatha.'

However, relating to the business that was run in the petition premises, it was stated by him thus :

'At present, he (father) is running the liquor business in the said premises. And he is personally managing the said business. My brother, Ekambar and myself are assisting his business.'

4. The Trial Court, by taking into consideration the admissions made by D.W.1 his other evidence and also the evidence of P.W.I (the landlord), recorded findings of fact to the effect that the respondent (Narasappa) had obtained a suitable building for his restaurant business and he is running the same under the name and style 'Hotel Sujatha', that Narasappa had increased the accommodation in the said Sujatha building by adding the third floor to the original two floors building and that the landlord had proved that the respondent had shifted his restaurant business from the petition premises to the Sujatha building. These findings of fact recorded by the Trial Court made it reach the conclusion that the landlord had made out a ground for eviction of Narasappa under clause (p) of the proviso to sub section(1) of Section 21 of the Act. Hence, the Trial Court passed an order for eviction against Narasappa though it did not accede to the other grounds on which the landlord had sought for eviction of Narasappa from the petition premises.

5. Narasappa, being aggrieved by the order of eviction made against him respecting the petition premises, filed a revision Petition under Section 50(2) of the Act before theDistrict Court at Mangalore, which Court, on consideration of the material on record, affirmed the findings of fact recorded by the Trial Court and dismissed the Revision Petition.Aggrieved by the order so made in the revision, the petitioners here (sons of Narasappa who had come on record in the District Court in the place of Narasappa because of the latter's demise by then), have presented this revision petition.

6. Shri P. Vishwanatha Shetty, Learned Counsel for the petitioners, realising that the eviction order made by the Trial Court and affirmed by the District Court (Revisional Court) based upon concurrent findings of fact recorded by them on consideration of the relevant materials, cannot be interfered with in exercise of this Court's jurisdiction under Section 115 of the Code, sought to assail that eviction order made by the Trial Court and upheld by the Revisional Court, urging that no eviction order could have been made under clause (p) of the proviso to sub-section (1) of Section 21 of the Act, if the premises acquired by the tenant was not used or intended to be used for the purpose for which the petition premises was being used. It was his contention that the petition premises was being used by Narasappa forcarrying on the liquor business and not for the hotel business and as such, the premises newly acquired by him for the hotel business did not give a right to the landlord to avail of the ground in clause (p) of the proviso to sub-section (1) of Section 21 of the Act. In the case on hand, the findings of fact recorded by the Trial Court and upheld by the revisional Court being that Narasappa was carrying on in the petition premises, the hotel business and after acquiring the suitable two storeyed building for carrying on such business, shifted such business to that two storeyed building (which findings are in fact based on the admissions of Narasappa's son - D.W.1.) the argument now constructed by the Learned Counsel for the petitioners on the premise that the business carried on by Narasappa in thepetition premises was 'liquor business' and not 'hotel business' can be of little value. However, having regard to the innovative argument of the Learned Counsel, 1 propose to examine its tenability as well.

7. Section 21(1) proviso (p) read:

'21. Protection of tenants against eviction -

(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 made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely......

(p that the tenant whether before or after the coming into operation of this Part has built, or acquired vacant possession of, or been allotted, a suitable building.'

8. From a reading of the above provision, it becomes obvious that a situation covered by the proviso therein, if arises, it would be open to the landlord to seek recovery of possession of his building in the occupation of a tenant. The situation envisaged therein is a tenant's liability for eviction from a tenanted building, if he acquired a suitable building either before or after the coming into operation of Part-V of the Act relating to control of eviction of tenants andobligation of land lords. When a claim for eviction is made by a land lord against a tenant under clause (p) above, what is required to be established by the landlord is that the tenant inoccupation of his (land lord's) building, has, before or after the coming into operation ofPart-V of the Act, acquired a building which is suitable for the purpose for which the tenanted building was being used. Thus, from the express language employed in the proviso above, it is manifest that the proviso is intended not to allow the benefit of a tenanted building to a tenant, who had acquired a suitable building, as otherwise it would encourage such tenants to unjustly enrichthemselves at the cost of the landlord, abusing the protection afforded under the Act, to certain tenants in need of such protection. Hence, I am of the opinion that it is not open to a person, who is occupying a building as a tenant thereof, to avoid his liability for eviction from such building under clause (p) of the proviso to sub-section (1) of Section 21 of the Act, even if he establishes that the building acquired by him before or after the coming into operation of Part-V of the Act, though could have been put to the use to which the tenanted building was being used, was, in fact, not put to such use or was not intended to be put to such use. Thus, my answer to the question raised at the outset, is in the negative.

9. For the foregoing reasons, this revision petition is dismissed, without being admitted.


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