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Manjunatha Ramachandra Kamath Vs. H.N. Kamath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 3313 of 1984
Judge
Reported inILR1985KAR2333
ActsKarnataka Rent Control Act, 1961 - Sections 21(1) and 21(4)
AppellantManjunatha Ramachandra Kamath
RespondentH.N. Kamath
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateB.V. Acharya, Adv.
Excerpt:
.....whether in a case falling under clause (h) of sub-section (1) of section 21 of the karnataka rent control act, 1961 partial eviction would satisfy the bona fide requirements of the landlord who has sought the eviction on the ground of bona fide requirement for his own use and occupation. the court has to exercise its mind in regard to the need for passing decree of eviction, only after applying the test, indicated in the first paragraph. it has to make the decision either to pass or refuse on the grounds of comparative hardship only if it has come to the conclusion that neither party will suffer any hardship if a partial eviction is ordered. therefore, in the scheme of things envisaged though the partial eviction test occurs after the first paragraph, the judicial mind must be..........the tenant took up the matter in revision under sub-section (2) of section 50 of the karnataka rent control act before the district judge, d.k. mangalore. the district judge agreeing with the findings recorded and reasoning adopted by the munsiff sustained the order against which the present revision petition is preferred.it is seen from the orders of the courts below that neither of the courts went into the question whether partial eviction could satisfy the bona fide requirements of the landlord.mr. padubidri raghavendra rao, learned counsel for the tenant-petitioner in this regard has drawn my attention to the decision of the supreme court in the case of rahman jeo wangnoo - v. - ram chand & others : [1978]2scr380 in which while construing section ll(h) and proviso to explanation.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. This revision is directed against the order of the Learned District Judge, D.K. Mangalore made in C.R.P. No. 6/1983 under the provisions of the Karnataka Rent Control Act, 1961. The Petitioner in this Court is the tenant of the Petition premises. Petition under Section 21(l)(h) of the K.R.C. Act, 1961 was filed by the respondent in the Court of the Munsiff at Mangalore seeking possession of the Petition premises for hisbona fide use and occupation to start afresh his business in the sale of certified seeds,fertilizers and pesticides. The tenant resisted the Petition unsuccessfully before the Munsiff. The Munsiff came to the conclusion that the bona fide requirement of the landlord was established and therefore passed a decree for eviction. The tenant took up the matter in revision under sub-section (2) of Section 50 of the Karnataka Rent Control Act before the District Judge, D.K. Mangalore. The District Judge agreeing with the findings recorded and reasoning adopted by the Munsiff sustained the order against which the present Revision Petition is preferred.

It is seen from the orders of the Courts below that neither of the Courts went into the question whether partial eviction could satisfy the bona fide requirements of the landlord.

Mr. Padubidri Raghavendra Rao, Learned Counsel for the tenant-Petitioner in this regard has drawn my attention to the decision of the Supreme Court in the case of Rahman Jeo Wangnoo - v. - Ram Chand & Others : [1978]2SCR380 in which while construing Section ll(h) and proviso to explanation thereto in the J & K Houses and Shops Rent Control Act which is in pari materia with the last clause of sub-sec tion (4) of Section 21 of the Karnataka Rent Control Act, 1961, wherein it has been held that the language of the proviso contained a mandate that the Court should consider whether eviction of tenant from part of premises is to be ordered so as to substantially satisfy the reasonable requirement of the landlord even in the absence of specific pleadings as the Court has to act in compliance with the mandate. Neither tenant/petitioner nor the respondent/landlord dispute that there was no pleading nor any material placed before the Courts below in regard to the question of partial eviction. In the light of the enunciation of the law by the Supreme Court in the aforementioned case, notwithstanding that there is no pleading, the Court has to examine whether in a case falling under clause (h) of sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961, partial eviction would satisfy thebona fide requirements of the landlord who has sought the eviction on the ground of bona fide requirement for his own use and occupation. It is clear from the language of sub-section (4) of Section 21 of the Act which is as follows :

'(4) No decree for eviction shall be passed on the ground specified in clause (h) of the proviso to sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.

If the Court is satisfied that no hardship would be caused either to the tenant or to the landlord bypassing the decree in respect of a part of the premises, the Court, shall pass the decree in respect of such part only.'

It is obvious from the above sub-section that the Court has to exercise its mind in regard to the need for passing decree of eviction, only after applying the test, indicated in the first paragraph. It has to make the decision either to pass or refuse on the grounds of comparative hardship only if it has come to the conclusion that neither party will suffer any hardship if a partial eviction is ordered. Therefore, in the scheme of things envisaged though the partial eviction lest occurs after the first paragraph the judicial mind must be directed nevertheless first to the second paragraph.

2. I have already noticed that neither of the Courts below went into this question. In fact no material has been brought to my notice in the records which indicate that either party contemplated partial eviction at any time. Having regard to all these circumstances of the case, proper thing, at least for the District Judge was to direct his mind to this aspect of sub-section 4 of Section 21 of the Act. He not having done that has failed to exercise jurisdiction, in him and the impugned order therefore calls forinterference.

3. For the reasons I have given above, the Learned District. Judge's order is set aside without disturbing the findings recorded by him on other questions and the matter is remitted to him with a direction to consider possibility of partial; eviction which will not cause hardship to either of the parties, i.e. the tenant as well as the landlord after obtaining such evidence which the parties may tender before him or the Trial Court if so necessary.


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