D''souza A. vs Rama Rao D. by Lrs.

These two Revision Petitions are instituted by the tenants and are directed against the common judgment dated 22-8-1974, passed by the First Additional District Judge, Bangalore, in HRCA Nos. 120 and 121 of 1974 on his file, allowing the appeals and reversing the order dated 22-11-1973 passed by the Fourth Additional First Munsiff, Bangalore, in HRC Nos. 316 and 314 of 1968 on his file.

The landlord instituted action for eviction of the tenants under Clauses (a), (d), (f), (h) and (j) of the proviso to Section 21(1) of the Karnataka Rent Control Act, 1961. He averred that he required the three suit shops, including the one occupied by another tenant, by name, Nanjaiah, which was the subject matter of HRC No. 313 of 1968 on the file of the Fourth Additional First Munsiff, Bangalore, bona fide and reasonably for his personal occupation. He alleged that they had not paid the rental even on demand; they were a cause of nuisance and further that he required the suit premises far starting a business in sports goods, foot wear and Departmental stores: his son was trained as an apprentice in Shobha Company, Malleswaram; he wanted to occupy the three shops after reconstruction and remodelling them. He also alleged subletting. He instituted three petitions before the learned Munsiff and the learned Munsiff, appreciating the evidence adduced before him, held against the landlord under all the Clauses in the two cases now in question and dismissed the petitions for eviction of the tenants. Aggrieved by the said order, the landlord went up in appeal before the District Judge, and the learned District Judge allowed the appeals of the landlord and ordered eviction of the two tenants. Aggrieved by the said order, the tenants have filed the present Revision Petitions.

These two Revision Petitions are heard together as they arise out of the common order and give rise to common questions of facts and law.

The learned Advocate appearing for the Revision Petitioners strenuously argued that the learned District Judge was in error in holding that the requirement of the landlord was bonafide and reasonable. He further submitted that the learned District Judge ought to have held that greater hardship would be caused to the tenants in case they were evicted. The arguments were confined to the ground made under Clause (h) of the proviso to Sec. 21(1) of the Rent Control Act, as the petitions were allowed only under that clause.

The learned Advocate appearing for the L.Rs. of the landlord-respondent argued supporting the findings of the learned District Judge. I was taken through the evidence on record and the orders of the Courts below.

I would first advert to the point whether the requirement of the landlord can be considered to be bona fide and reasonable. In the petition in para 3, the landlord has made out a positive case about his requirement. It reads:

"That further, the schedule shop and its neighbouring two shops are required for the bona fide use and occupation of the petitioner himself. the petitioner''s third son, D.R. Raghunath, aged about 26 years, is unemployed and is how taking training as an apprentice in Shobha Company, Malleswaram. The petitioner proposes to open a shop in the schedule premises taking the help of his son and deal in sports goods, foot wear and Departmental stores. Hence, he requires all the, three shops for his own use and occupation."

In the evidence, the version was changed. The landlord (PW. 1) in the course of his evidence has stated:

"I require the shops for my son doing business in them. He has undergone training as a Salesman in Shobha Department Stores, Carona Foot wears at Bangalore and at Davanagere. He is doing business in dresses and ready made garments."

The landlord in his cross-examination has stated that he was once doing business in sports goods, and that he has stopped that business about 20 years ago. His son PW. 2, speaking on the aspect of requirement has stated:

"I am doing (ready made garments) business in my house. I have no shop for the said business. I have taken training for doing the said business. I had my training in Carona Shoe Company and Shobha Departmental Stores."

In the cross-examination, it is elicited:

"Now I am alone doing business in our family. My business stock still in my house is worth about 4,000/- Rs. I have no other dakhala to show that I am doing business. I have no record to show that I am having stock worth 4,000/- Rs. I do not have purchase bills and account books.......I want to invest Rs. 6,000 to 7,000 in my business......... I want to do business in ready made clothes. I require ail the petition schedule shops for my business. Each of the suit shop measures 12'' X 10''.. ......I want to stock about 4,000 Rs. worth of ready made cloth in my shop."

Thus, it becomes obvious that in the petition, though a specific case was made out that he required the suit shops for starting sports goods, foot wear and Departmental Stores, the version was entirely changed and during evidence, PW. 2, who wants the shops for doing business, has confined his claim only for doing the business in ready made garments, which is not averred in the petition at all. It may be pointed out that evidence has to be adduced on the basis of pleadings and any amount of evidence that is adduced de hors the pleadings, cannot be looked into. The Courts below have entirely missed this point.

Even assuming for a moment that PW. 2 wants to do business in ready made garment, it is not the mere wish or desire on the part of the landlord, that would enable him to evict the tenant. The law is settled on that point. In the case of Muttulal v. Radhelal, AIR. 1974 SC. 1596, at para 12, the Supreme Court has ruled:

"It is now well settled by several decisions or this Court including the decision in Sarvate T. B''s case and Kamla Soni''s case, that mere assertion on the part of the landlord that he requires the nonresidential accommodation 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 determine 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 staring or continuing his own business."

It it for that the landlord is required to 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. It is not proper for the Court to start with any initial presumption or assumption in favour of the landlord.

Adverting to the facts of the present case, it may at once be observed that the evidence on record does not establish, as a matter of fact, that PW. 2 is doing any business in ready made garments . The evidence that is on record shows that he has not maintained any accounts; he does not have any licence and that he has some clothes-old and new-in the two cupboards in his house. That apart, in his evidence before the learned Munsiff, PW. 2 deposed that he wants to invest Rs. 4,000/- in his business. It is obvious that goods worth Rs. 4,000/- can be put in a cupboard even in a corner of the shop and if that is so, it is obvious that his need for three shops would be highly unreasonable, being capricious and unfair. It is for that reason, that the learned Munsiff has held that the requirement of the landlord, even if it is considered to be bona fide from his point of view, is not reasonable. The learned District Judge has entirely missed this point. He has jumped to the conclusion, without discussing the evidence, that the requirement of the landlord is reasonable. Hence, I am not persuaded to agree with the reasoning of the learned District Judge. I set aside his finding and restore the finding of the learned Munsiff that the requirement of the landlord is not reasonable. If that be so, he is not entitled to evict the two tenants in question.

It may be mentioned in this context that the landlord is already in possession of a shop which was the subject matter of HRC. No. 313 of 1968. If at all he has a genuine desire to start business in ready made garments, he has accommodation and looking to the proposed investment that he wants to make at Rs. 4,000/-, it becomes manifest that the shop which was the subject matter of HRC No. 313 of 1968 and which is already in his possession, would be more than sufficient for his purpose. Hence, I hold that the requirement of the landlord is not reasonable. That being so, the question of comparative hardship does not arise for consideration.

In the result, I allow the Revision Petitions and set aside the impugned order of the learned District Judge and direct that the petitions of the landlord for eviction of the tenants shall be dismissed.

On the peculiar facts of these cases, I make no order as to costs.