John Mahade vs Smt. Mary alias Shanta

K. Sreedhar Rao, J.—Revision filed against the order of the III Additional Civil Judge (Junior Division), Hubli, passed in HRC No. 181 of 1995 and of the I Additional District Judge, Dharwad, in RR No. 140 of 1999. The petitioner is the tenant. The landlord/respondent made an application for eviction of the tenant u/s 21(l)(p) and (j) of the Karnataka Rent Control Act, It was the contention of the landlord that subsequent to the lease, the petitioner/tenant has acquired a suitable residential premises of his own in Adhyapaknagar, Hubli, and also contends that the petition premises is old. He requires to demolish the same and reconstruct.

Before Trial Court, the sanctioned plan is also produced. On considering the oral and documentary evidence, the Trial Court allowed the eviction on the ground of Section 21(l)(p) and (j) of the Karnataka Rent Control Act. In revision filed by the tenant/petitioner, the findings of the Trial Court were confirmed granting eviction u/s 21(l)(p) and (j) of the Act and dismissed the revision. Being aggrieved, the present revision is filed.

After going through the averments in the main petition, I find that although in the relief column in para 12, there is no averment to seek eviction u/s 21(l)(p) but however in para 5, there are clear averments to make out grounds for eviction u/s 21(l)(p) of the Act. The parties were fully aware of the contested facts and issues when the evidence is adduced. The petitioner is not taken by surprise in any manner in respect of eviction u/s 21(l)(p) during trial. Merely because it is not mentioned in the final relief column about the ground for eviction u/s 21(l)(p), the order cannot be assailed as a granting relief without pleading. In para 5 of the main petition clear and categorical averments are made. Therefore, the eviction u/s 21(l)(p) is justified.

The Counsel for the petitioner contended that the respondent in his evidence has admitted that he is prepared to relet the premises after reconstruction. The tenant can invoke the right of re-entry only when eviction is granted on the ground Section 21(l)(j). However when the eviction is granted on the other grounds like for personal occupation or on the ground u/s 21(l)(p) of the Act, the provisions of Section 27 would be totally inapplicable. In that view I do not find any error in the order of the Trial Court in not granting re-entry. Even otherwise, it appears from the records that no request was made before the Trial Court or before the first Revision Court. It is only on the option of the tenant, such of right of re-entry would be granted u/s 27 of the Act.

On the question of grant of eviction u/s 21(l)(p) of the Act, there has been a concurrent finding of facts by the Trial Court and the first Revision Court and I do not find any good ground to interfere with the view taken by the Courts below. Accordingly, the revision is dismissed. The tenant is granted six months'' time to vacate enabling to shift the machinery.

The Counsel for the petitioner contended that the respondent in his evidence had admitted that he was prepared to relet the premises after reconstruction. However, if any such admission is made at the volition of the parties, relating may take place but not as a statutory light u/s 27 of the Karnataka Rent Control Act.