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Siddamma Vs. Agarwal and Co. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1073 of 1983
Judge
Reported inILR1985KAR4071
ActsKarnataka Rent Control Act, 1961 - Sections 21(1)
AppellantSiddamma
RespondentAgarwal and Co.
Appellant AdvocateK.R.D. Karanth, Adv.
Respondent AdvocateUnpresented
DispositionPetition allowed
Excerpt:
.....taxes held, imposition of tax is invalid and is liable to be set aside. - 5. however, the learned district judge after what i consider somewhat meandering reasoning and assessment of the evidence on record came to the conclusions ;(1) that the failure of the landlord-petitioner to get herself examined as a witness tantamounted to not proving the bonafides, as the reason given for her non-examination was totally unsatisfactory ;(2) that the building admittedly not being in a dilapidated condition was not required for the immediate purpose of demolition and therefore the landlord should fail ;(3) that in a case of the kind he had on hand, it was for the land-lord to demonstrate that she had secured possession of the other portions of the buildings before she could seek eviction of..........other tenants of the composite building also and at the time of the passing of the order by the learned district judge, dharwar, were said to be pending in one or the other stages contemplated under the act.3. the landlord is a lady. in the trial court she did not examine herself. she chose to remain outside the witness box. her case was essentially spoken to by her husband and the power of attorney holder. nevertheless, the munsiff accepted the evidence for the landlord-petitioner and allowed the eviction petition specifying the timeschedule for putting the landlord in possession of the premises and also directing the landlord to commence the work of demolition as specified in the order of themunsiff. aggrieved by that order, the tenant preferred the revision before the district.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. This is a landlord's Revision Petition under Section 113 of the C.P.C. It is directed against the order of the IAdditional District Judge, Dharwad, dated 6th October, 1982 made in CRP. No. 222/1979 on his file. The revision before the District Judge under Section 50(2) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act) was presented by the tenant who had suffered an order of eviction by the II Additional Munsiff. Gadag, in HRC. No. 44/1974.

2. The landlord moved for eviction of that tenant who was one among several other tenants in a composite building belonging to the landlord on the ground that the whole of the building was required to be demolished andreconstructed according to the plan he got sanctioned. That ground is available to the landlord under Clause (j) of Sub-section (1) of Section 21 of the Act. The premises in question had been let out to the tenants for non-residential purposes. It will be useful at this stage to state that there is no serious dispute that the landlord had initiated proceedings against the other tenants of the composite building also and at the time of the passing of the order by the Learned District Judge, Dharwar, were said to be pending in one or the other stages contemplated under the Act.

3. The landlord is a lady. In the Trial Court she did not examine herself. She chose to remain outside the witness box. Her case was essentially spoken to by her husband and the power of attorney holder. Nevertheless, the Munsiff accepted the evidence for the landlord-petitioner and allowed the eviction petition specifying the timeschedule for putting the landlord in possession of the premises and also directing the landlord to commence the work of demolition as specified in the order of theMunsiff. Aggrieved by that order, the tenant preferred the revision before the District Judge. The District Judge reversed thefinding of the Munsiff on re-appreciating the evidence and dismissed the eviction petition of the landlord. Therefore, the present revision in this Court.

4. It is but proper to state that the tenant resisted the eviction petition on the ground that the landlord had no real intention of demolishing the building muchless to reconstruct; that the landlord had merely set up that case in order to evict the tenants who had refused to meet the demand of higher rents made by the landlord ; and that the building in question was sturdy and did not requiredemolition. The Learned Munsiff following the decision of this Court came to the conclusion after accepting the bona fides of the landlord ; that it was not a relevant consideration whether the building was in a dilapidated condition and required demolition for purpose of seeking the eviction under Clause (j) of the proviso to Sub-section (1) of Section 21 of the Act.

5. However, the Learned District Judge after what I consider somewhat meandering reasoning and assessment of the evidence on record came to the conclusions ;

(1) that the failure of the landlord-petitioner to get herself examined as a witness tantamounted to not proving the bonafides, as the reason given for her non-examination was totally unsatisfactory ;

(2) that the building admittedly not being in a dilapidated condition was not required for the immediate purpose of demolition and therefore the landlord should fail ;

(3) that in a case of the kind he had on hand, it was for the land-lord to demonstrate that she had secured possession of the other portions of the buildings before she could seek eviction of the tenant who was still in occupation.

6. I am of the view that all the three conclusions reached by the District Judge by somewhat laboured reasoning and without examining the authorities cited before him in their proper perspective must be held to be perverse, as a result of which, there was total misdirection in appreciating the evidence on record.

7. Now to the first of the conclusions. It is true that the landlord did not get herself examined as she could not come to the Court as she was too fat. Undoubtedly, whether out of embarrassment that she refused to get into the witness 'box or that she was too fat to move about is not clear from the evidence. But the question is not whether the petitioner is a witness in support of his own case ; but whether the petitioner proves his or her case. There is no compulsion in law that in all the cases the petitioner should examine himself or herself in order to obtain the relief. There are plethora of cases in which party failing to examine himself have been held to be fatal. There are also cases where the relief has been granted to the party without the partyexamining himself. In other words, all that can be safely said is that on the facts and circumstances of each case, the nature of the relief prayed, the cause which is pleaded before the Court, the issues raised, one has to judge what importance must be attached to the oral testimony of the plaintiff or thepetitioner who has pleaded the cause before the Court. There can be no hard and fast rule. There is no compulsion in law which requires that in every case the petitioner or the plaintiff should examine himself or herself. Undoubtedly, the Learned District Judge relied upon the decision of the Orissa High Court where in proceedings under the relevant Rent Control Act applicable in Orissa, that High Court had held that failure of the landlady to examine herself in support of her case for her own bona fide use and occupation was fatal to her claim. Much depends upon what was pleaded in that case and what evidence was adduced. Normally, as understood, the petitioner who makes a claim which relates to or touches upon his or her requirement must herself or himself subject to the cross-examination of the opposite party who refutes that claim. The failure to enter the witness box in order to avoid stopping herself or himself from being subjected to cross-examination could be held against the petitioner or the plaintiff as the case may be. In the instant case, the petitioner-landlord is a housewife. She is possessed of properties in the Town of Gadag and Davanagere. Nothing has been elicited in thecross-examination of the husband whether those properties are benami properties belonging to him or properties of the wife being her 'Streedhana'. Nobody disputed that she is the owner of the Petition schedule premises. The elaborate reasoning of the District Judge has been that unless she herself entered into the witness box and proved that she had means to re-construct the building, her case could not be believed. I think that was too laboured a reasoning to hold against the petitioner. The petitioner's husband spoke about his own income, the properties owned by him by way of agricultural lands and the fact that he was managing the affairs of his wife. In such cases, the evidence of the power of attorney holder regent is as good as the evidence of the plaintiff or the petitioner who is the principal. If principal for some reason cannot enter the witness box and authorised the power of attorney holder to speak for him, we cannot apply the rule, that principal not being examined should not be given the relief by the Court. The Learned District Judge has nothing against the evidence of the husband. He has not been able to find any flaw. His grievance is that the fat landlord did not come to the Court, I do not think that should be the approach of the Courts of law. If the husband's testimony stood the test of cross-examination, there is no reason why that testimony should be rejected.

8. I also see from the order of the District Judge that she is not possessed of means, she owns no property at all. That is purely speculative reasoning, as nothing in the cross-examination of the husband of the landlord indicated that the tenant-respondent doubted the ability of the petitioner to provide means and spend money for demolition and reconstruction. Therefore, I have no hesitation to hold that the District Judge totally misdirected himself in coming to the first conclusion.

9. The second of the conclusions that the building should be in a physical condition which required demolition and reconstruction is a pre-requisite for grant of relief under clause (j) of the proviso to Sub-section (1) of Section 21 of the Act is equally unsustainable. The Learned District Judge was wholly guided by what he claims to have been laid down by the ruling in the case of Metalware and Company -v.- Bansilal Sharma and others, : [1979]3SCR1107 . In that case what fell for consideration by the Supreme Court was the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 as amended by Act XXIII of 1973. Sub-section (l)(b) of Section 14 of that Act corresponds to clause (j) of Sub-section (1) of Section 21 of the Karnataka Act. In interpreting the provisions of the Tamil Nadu (Lease and Rent Control) Act, the Supreme Court has clearly held that condition of the building for immediate purpose of demolition was far from being an irrelevant consideration is a very relevant consideration. But when in the decision of the Supreme Court in Panchamal Narayana Shenoy's case was relied upon, the Learned Judges explained the reason why Panchamal Narayana Shenoy's case had no application to the provisions of the Tamil Nadu Act. It clearly held in para 9 of the decision as reported in the All India Reporter at page 1564 that in the Karnataka Act a specific provision was made in regard to demolition of the building which was in a bad stale of affairs under Clause (k) of the proviso to Sub-section (1) of Section 21 of the Act which was totally missing in the Tamil Nadu Act and therefore the Supreme Court in Panchamal Narayana Shenoy's case, : [1970]3SCR734 had correctly ruled that in a case falling under clause (j) of the proviso to Sub-section (i) of Section 21 of the Act, the landlord was not required to prove the condition of the building. If that has been correctly explained by the Supreme Court itself, a mechanical application of the ratio in Metalware and Company's case vis-a-vis the decision in : [1979]3SCR1107 by the Learned District Judge was perhaps without examining in detail the decision of the Supreme Court having regard to the fact, the direct decision of the Supreme Court under Karnataka Act is a more binding precedent. I should hold that the District Judge erred in relying upon the decision of the Supreme Court in Metalware and Company's case. Therefore, that conclusion is also to be interfered with as being not in accordance with law.

10.Lastly, the third conclusion that all tenants must be evicted simultaneously is not the law declared by this Court, in the instant case on hand, it is a composite building; proceedings were all instituted in a common jurisdictional Court namely, the Munsiff, Gadag. If they came to be disposed of separately and on the date the District Judge pronounced the order, the revisions were pending did not, in my opinion, affect the right of the landlord to urge the same groundfor eviction in respect of the tenant-respondent who was one of the tenants in the composite building, if the District Judge really wanted to do justice then he ought to have clubbed all the connected cases and disposed of the matter.

11.It is now stated by Mr. K. R. D. Karanth, Learned Counsel for the petitioner that those petitions went against the tenants and now the landlord has obtained possession of those premises which were in the occupation of the other tenants except one another tenant and the respondent-tenant. This is part of the inherent weakness of our judicial system. The order of the District Judge is therefore liable to be set aside. Unfortunately this Court has been handicapped as the respondent though served has beenunrepresented and absent. In that circumstance this order is made ex-parte.

12. For the reasons I have given above, the petition deserves to be allowed as there are too many illegalities in the order of the District Judge. In the result, the order of the District Judge is set aside and that of the Munsiff is restored. The time schedule indicated by the Munsiff will be operative with effect from to-day in regard to the period of time though not the month and year.

13. Order accordingly.


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