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Fakirasa Vs. Shekharayya - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 4141 of 1982
Judge
Reported inILR1985KAR2909
ActsKarnataka Rent Control Act, 1961 - Sections 21(1)
AppellantFakirasa
RespondentShekharayya
Appellant AdvocateA. Keshava Bhat, Adv. for K. Shivashankar Bhat, Adv.
Respondent AdvocateW.K. Joshi, Adv.
Excerpt:
.....applications in two cover system - petitioner applicant did not submit technical bid - non-compliance of basic requirement of submitting two bids in two cover system by petitioner held, rejection of tender proper. - if that was what was laid down by this court in regard to the minimum requirement of pleading to establish and make out a case for eviction on the groundavailable to the landlord under clause (h) of sub-section (l) of section 21 of the act, i fail to understand how the learned district judge came to the conclusion that the petitioners had not set-out such details and such requirements as to make out that ground in their pleadings. ..10. in support of this pleading, evidence was adduced to establish that mahadevasa was trained in the repair of radio and electrical goods..........the tenanted premises from which they had sought the eviction of the tenant and whether the learned judge was correct in blindly reading that the petitioners landlords had not pleaded specifically that the tenant had built a building of his own for non-residential use and therefore liable for eviction under clause (p) of sub-section (l) of section 21 of the karnataka rent control act, 1961, (hereinafter referred to as the act).2. the facts may be briefly stated as follows :the landlords are five brothers who carry on some kind of a trade in a rented premises for their livelihood. they own the petition premises. the shop is situated on bazaar street of gadag. that premises was leased to the tenant shekharayya who carries on business of storing and selling electrical and allied.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. The questions that fall to be answered in this Revision Petition is whether the Learned District Judge committed an error of law in applying the ratio of the decision of this Court in the case of Gopichand Balwantharao and Another vs. Pundalik Govindappu and Others in coming to the conclusion that on the available evidence in the case landlords had not made out a case of then need for their own use andoccupation, the tenanted premises from which they had sought the eviction of the tenant and whether the Learned Judge was correct in blindly reading that the petitioners landlords had not pleaded specifically that the tenant had built a building of his own for non-residential use and therefore liable for eviction under Clause (p) of sub-section (l) of Section 21 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act).

2. The facts may be briefly stated as follows :

The landlords are five brothers who carry on some kind of a trade in a rented premises for their livelihood. They own the petition premises. The shop is situated on Bazaar Street of Gadag. That premises was leased to the tenant Shekharayya who carries on business of storing and selling electrical and allied appliances. The petitioners wanted to1.1977 (1)KLJ38expand their business and specifically start an electrical and watch repair shop in the premises occupied by the tenant, as one of them, the 5th petitioner had acquired proficiency in that field by training. They also made it clear in the petition that the tenant had, on the same road about 200 ft. away from the petition premises, built a suitable shoppremises where he had shifted his business of electrical appliances and had kept the petition premises vacant without carrying on any specific business therein. By way of caution, they had issued a notice of eviction though they have alleged that they were not required to do so in regard to thestatutory tenancies.

3. The tenant resisted the eviction petition on the grounds that the petition premises was not genuinely required by the landlords; that the landlords were carrying on their business in a rented premises and their intention of doing their business activities therein was not bona fide. The petition was motivated to demand enhanced rent and the tenant would be put to greater hardship if he is evicted from the petition premises.

4. The grounds made out by the petitioners are available to them under Clauses (h) and (p) of sub section (1) of Section 21 of the Act.

5. The Learned Munsiff formulated the necessary points for consideration and it would be useful to set out the points formulated by him. They are :

(1) Whether the petitioners prove that the opponent alone is a tenant of the suit shop ?

(2) Whether the petitioners require the suit shop reasonably and bona fide for their personal use ?

(3) Whether the petitioners prove that the opponent has built a new building and the said building is suitable for the opponent for carrying on his business ?

(4) Whether the opponent would be put to greater hardship, in case, the order of eviction is passed ?

6. It is needless to state that the evidence was led on those points by both the parties. That the tenant was in pos-session of his own building constructed by him on the same road was never seriously challenged. On the other hand, it was admitted. But what the tenant spoke in his oral evidence was to the effect that his own building was too small to carry on his business which comprised in the stocking and selling of electrical appliances including refrigerators and galvanised pipes etc. However, the learned Munsiff chose to accept the evidence of the landlords and directed eviction, finding in favour of the landlords on all the points formulated by him.

7. On moving under sub-section (2) of Section 50 of the Act, the Learned Additional District Judge, Dharwar, as indicated earlier, reversed the findings and upheld the contentions advanced for the tenant and dismissed the Petition. He did so on the ground that mere desire to start a business or expand the business would not in itself be sufficient cause to establish the need, the genuine need or bona fide requirement of the landlords; and that the land lords not having pleaded that the tenant had built another premises which was suitable for his business could not avail themselves of that ground available to them under Clause (p) of sub-section (1) of Section 21 of the Act.

8. Shri A. Keshava Bhat, Learned Counsel appearing for the petitioners, in this Court, supported the judgment of the Learned Principal Munsiff, Gadag, as he ought to.

9. Mr. W.K. Joshi, on the other hand, appearing for the tenant-respondent before this Court, has contended that the Learned District judge was right in applying the ratio of the decision of this Court in the case of D'Souza, A. -v.-Rama Rao, D. The Learned Single Judge of this Court held in the said case that where a landlord requirednon-residential accommodation in the occupation of the tenant for 2. 1978(1) KLJ 235 the purpose of starting a business, the landlord must mention in his petition the details of his requirements. It is for that reason, that he has to adduce evidence on those points. It is only then that the Court would be in a position to appreciate and decide objectively whether his requirement is bona fide and reasonable. If that was what was laid down by this Court in regard to the minimum requirement of pleading to establish and make out a case for eviction on the groundavailable to the landlord under clause (h) of sub-section (l) of Section 21 of the Act, I fail to understand how the Learned District Judge came to the conclusion that the petitioners had not set-out such details and such requirements as to make out that ground in their pleadings. It would be useful to extract the portions of the pleadings of the tenants.

'The applicants require this shop building for running their own business as they arc unemployed and also to enlarge their business by shifting over to Gadag Main Bazzar. The applicants are not in possession of any shop building particularly applicant No. 3 Mahadevasa is trained in Radio, Transistor and Watch repairing course. Applicant No. 5 Mahadevasa can carry on the Radio and Transistor business along with Watch repairing work and can augment the business with Electric and allied dealings. Moreover the opponent has built his own shop building wherein he has shifted his business. He has since then simply kept this shop in his possession without carrying on any business. The applicants have no intention to increase any rent nor to let it out to anybody else. The opponent is mala fide retaining possession of this shop without doing any business therein....'

10. In support of this pleading, evidence was adduced to establish that Mahadevasa was trained in the repair of radio and electrical goods as well as watches. It also came in evidence that he had commenced his business of radio repairs etc. in a rented premises since the filing of the petition. It also came in evidence that all the landlords who are brothers wanted to do business in the shop premises which they owned but had leased to the tenant. It is impossible for me to understand how the portions extracted above, do not constitute sufficient pleading as to the purpose and requirement of the business of the petitioners, more so, that of the 5th petitioner-Mahadevasa. But theLearned District Judge either failed to read what was in the petition or misread what he read. The pleading more than satisfies the decision on which the Learned District Judge relied. In this Country for long, for various reasons, the pleadings have been construed liberally, in many cases, the lack of material particulars and details. Evidently this was due to the large scale of illiteracy and ignorance prevailing in this Country on which an alien judicial system was imposed. Over the years decision after decision has emphasised this fact and has commended liberal approach. The Court must only satisfy itself whether the pleading contains enough material to raise proper issues and mould the relief to which the parties would be entitled to. Technical flaws, if any, are to be ignored. This decision holds good even to this day. Sometimes the errors in pleadings would be that of the lawyer or it could be that of the litigant who is ignorant and fails to give clear instruct-ions to his lawyer. If there is minimum material detail and that would be enough for the Court to mould the relief justly on the evidence available in the case would more than satisfy the requirements of adequate pleading. I, therefore have no hesitation to hold that the Learned District Judge clearly erred in holding that there was no pleading of the genuine requirement of the landlords particularly the 5th named landlord- Mahadevasa.

11. The next question should not detain me long. From the portions of the petition extracted above, it is clear that the landlords had alleged specifically that a new building had been built in the main bazaar by the tenant and that he had moved into that premises keeping vacant, the petition premises. It is beyond my imagination how the Learned Additional District Judge could hold as follows:

'It is significant to note that the landlords have not at all stated in their eviction petition that the tenant has built a 'suitable' premises. But, they led evidence that the Tenant's building is suitable.'

12. I have stated earlier that the tenant only pleaded insufficiency of space in the new building to carry on his trade in which there was sale of galvanised pipes and electrical appliances. That would not be sufficient defence on ground of non-suitability. It is true as held by this Court in the case of R. Anantha Rao -v.- Indumathi Alias Lakshmi, Bai an exhaustive definition of the term 'suitable' is impossible without reference to the peculiar context and circumstance in which 'suitability' vis-a-vis the building acquired or allotted to the tenant has to be considered judicially by the Court. A non-residential building so built, acquired or allotted, cannot be held to be suitable for residential purposes. Such tests need not be explained elaborately. They become obvious by mere stating. But there may be situations where test of suitability has to be applied with vigour and in great detail with reference to what is in evidence and sometimes even with reference to what is not put in evidence. No hard and fast formula simple as it may appear can be laid down by judicial pronouncements. Bach case has to be examined on its individual merit and the evidence available in the case, in applying the test of 'suitability' the only defence left to the tenant, if the ground is made out under clause (p) of sub-section (1) of Section 21 of the Act. It is not of any assistance to add to this line of reasoning or to add examples. Each case must be decided on its merits should be the formula and no more.

13. The Learned District Judge has completely misdirected himself to what was obvious in the pleadings and what was evident in the evidence. There is a clear illegality in the order of the Learned District Judge in setting aside the judgment of the Learned Munsiff. Order of the Munsiff is restored. The decree of eviction will accordingly be ordered. In the circumstances of the case, the landlord shall be put in possession of the premises before the end of 30th September, 1985. Mr. Keshava Bhat has no objection for the extension of that time. Therefore, the extension of time is given by consent of parties. No costs.


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