Nalini Silks and Others vs S.R. Vyasa Murthy

R. Gururajan, J.—This petition is filed by the tenant Nalini Silks challenging the order dated 31.8.1992 passed in HRC No. 1995/92. Sri S.R. Vyasamurthy, landlord filed a petition u/s 21(1)(a)(f) and (h). Landlord has stated that he is the owner of a composite Commercial building located in Malleshwaram Bangalore. The premises consists of three different tenements in first and second floor and the Petitioner- tenant is occupying the first floor premises on a monthly rental of Rs. 475/- per month. Sri D. Ravindranath was running the business in the name and style of Nalini Silks as a proprietary concern and was issuing cheques in favour of the landlord towards monthly rental in his capacity as proprietor of Nalini Silks. He was also running several educational institutions in Bangalore such as Sunder Educational Society, SES Play House, SESE English School etc. He was frequently approaching the Petitioner to seek his permission to sublet the schedule premises. But as the schedule premises was required by the Petitioner for the bonafide use and occupation of his wife and daughter, the Petitioner had refused to give permission to Respondent to sublet the premises. Landlord has further stated that the Respondent did not pay the rents regularly. Subsequently he came to know that the said premises has been sub-let in favour of one Smt. Ranimanorama, Respondent-3 before the trial Court by the Petitioner.

Landlord further stated that his wife with the assistance of his daughter is running a tailoring shop at No. 132, Margosa Road, Malleswaram. It has become a nuisance in the residential house because of lack of privacy due to frequent visit of the customers. He wants to shift the tailoring business to the petition schedule premises. He also wants to start business in handicraft in addition to tailoring business. With this allegation Petitioner has sought for eviction u/s 21(1)(a)(f) and (h) of the Act.

The said petition was opposed by the Petitioner-tenant and he has filed a detailed counter. He has denied everyone of the allegations. He has denied the sub-lease. He has denied the non-payment of rents. He has also stated that the landlord has a small family comprising himself, his wife and daughter. He is well to do and he is getting rents from commercial complex. The tenant wanted the petition to be dismissed.

Parties examined witnesses in respect of their respective cases. The Petitioner examined three witnesses in addition to producing 10 documents. Respondents examined two witnesses and produced eleven documents. The learned Judge after hearing the parties, framed six points for his consideration in para 4 of the impugned order. He has answered points No. 1 and 2 partly in affirmative and partly in negative, points 3 and 4 in affirmitive and point No. 5 in the negative. In the result, he allowed the petition u/s 21(1)(h) of the Act and dismissed u/s 21(1)(a) and (f) is concerned. Respondent- landlord has not challenged the said finding. It is only the tenant-Petitioner who has approached this Court in so far as 21(1)(h) is concerned.

Petitioner has filed IA III with regard to subsequent events by way of an application in IA.III dated 10.11.2000. In the application it is stated that the Respondent''s daughter by name Kavitha for whose benefit the petition was filed got married to Sri K.A. Nanjunda on 17.8.1994. She is now residing with her husband and the members of his family at No. 479, Burgalmut Road, VV Puram, Bangalore-4. Her name is registered in the voter''s list at serial number 602, Ward No. 47. Smt. Gowramma has admitted the residence of Smt. Kavitha with them in the General Census conducted by Commercial organisation for the year 1997-98. An objection is filed to the said application. In the said objection it is stated that just because the name of Kavitha is shown in the voter''s list it cannot be said that she is residing at the said address as permanent resident. It is further stated that the Respondent''s wife and daughter are continuing their tailoring and handicrafts business at the residential premises at the cost of residential privacy. It is also stated that the marriage of the daughter has in no way affected the need of the premises. Despite the marriage of the daughter bonafide requirement of the shop is very much there.

I have heard the Counsel and reserved the case for judgment. I got this matter listed on 22.3.2001 for further hearing. On 22.3.2001 another affidavit is filed by the Respondent stating that M/s. Hegde and Dave have been in continuous occupation of the second floor.

The Pleadings in the case on hand would reveal that the landlord wants the present premises to accommodate his wife for running a tailoring shop with the assistance of her daughter. The landlord finds it difficult to continue the business as on today. He also wants to add handicrafts business. The case of the tenant is that the status of the Petitioner''s family does not require the running of the tailoring business. In the light of these pleadings learned trial judge framed point No. 2 with regard to requirement of the premises reasonable and bonafide. While considering this point the trial Judge notices the evidence of PW-1. It is stated by PW-1 that the premises is required for the tailoring business run by his wife with the assistance of his daughter. In cross-examination it is stated that his daughter did not have any diploma in tailoring nor did she have any training; she is doing handicrafts and painting work. He has stated that it is incorrect to suggest that his wife is an income tax assessee for the year 1991-92 but she is an assessee since 1989-90. He has filed Ex.P.7 - income tax returns in support of his case. He has also admitted that his wife is having an account in the Bank of Maharashtra and that she is not maintaining any receipt book for having received the amount from the customer. PW-2 has stated that she requires the petition schedule premises for running a tailoring business. RW-1 has stated that the Petitioner does not require the schedule premises for tailoring class and embroidery work for his daughter and wife; once he went with saree fall for stitching and table cloth for embroidering and he was told that they were not doing such work in the house. RW-2-the proprietrix of Nalini silks has also stated that Petitioner''s wife and daughter are not doing any tailoring business.

With this evidence available on record the learned Judge in the impugned order has come to a conclusion that a case is made out u/s 21(1)(h) of the Act. After hearing the learned Counsel on either side, and after going through the impugned order, I pass the following order:

Admittedly, the petition schedule premises is a non-residential one. In para 7 of the petition it is stated that the present premises is required as the Petitioner''s wife wants to expand the business and also propose to deal in handicrafts in addition to the tailoring business. No details are forthcoming with regard to how much space is necessary for starting business it is not stated as to, how many tailoring machines are there in the business and number of workers employed. No income details from the business is forthcoming. Admittedly Petitioner''s family is well placed and it is not the case of adding additional income but it is only a case for accommodating the wife for doing her tailoring business. In evidence the Petitioner''s wife has stated that she has no documents to show that she is running the tailoring business in her residence. The evidence also reveals that she is an income tax assessee but she has not produced even a single receipt for having done the business. The learned Judge has failed to appreciate the factum of want of material to come to a definite conclusion with regard to business. In these circumstances I have no hesitation in holding that no case is made out for eviction under the Act. Though there may be bonafides on the part of the Petitioner the same cannot be said to be reasonable requirement as understood in law. It is well settled now that the subsequent development in a case can also be taken into consideration by this Court to shorten the litigation. Parties have also been heard on this. Petitioner has stated that the daughter who is married is well settled and she is staying in her in-laws house, in support of the same, voter''s list is filed before this Court. An affidavit has also been filed in this regard. In the counter affidavit filed by the Respondent, it is admitted that name of the daughter is shown in the voter''s list, it is also stated that by itself does not prove the factum of permanent residence of the daughter. It is stated that the daughter even after marriage is actively involved herself in the business of tailoring and handicrafts along with her mother. Even on those days when she is living in the house of her husband, she comes to the Respondent''s house at about 10 A.M. and returns by 6 P.M. The daughter also has filed an affidavit in which she has stated that she is residing with her parents and she continues to involve herself in the tailoring and handicrafts business run by herself in association with her mother. Her marriage has not at all affected the business as such.

After hearing the learned Counsel I am of the view that in the light of the voter''s list it cannot be said that she is staying with her parents even after marriage. Voter''s list prima facie establishes her residence with her in laws. As per the affidavit she is staying at Vishweshwarapuram and the petition premises is in Malleshwaram. Though it is stated that she comes every day morning and stays till evening it creates a doubt with regard to her coming every day and carrying on the business as sought to be made out in the affidavit. It is not clear from the material on record as to whether the Respondent''s wife can continue the business even in the absence of her daughter. It may be that the mother and the daughter are doing this tailoring and handicrafts business as a pass time and not as a business. The mother in her evidence states that she has no receipts for having done this business. She has also not shown any income from this business in the returns filed notwithstanding the factum of being an assessee. In the light of this material I am of the view that a case for eviction on the ground of reasonable requirement is not made out.

The contention of vacation of the second floor premises by M/s. Hegde and Dave is not acceptable in the light of the affidavit filed by the landlord on 22.3.2001.

In fact this Court in the case of Narasimaiah v. Subba Rao (1977 (1) Kar LJ 419) has considered the proof required in a matter arising u/s 21(1)(h) of the Act in the following words:

From the context in which the word ''requirement'' has been used in Clause (h) of Section 21(1) the intent of the legislature appears to be clear that mere wish, desire, convenience or fancy of the landlord is not enough for him to obtain a decree for eviction. There must be a need to occupy the premises and the need must be established by acceptable evidence. The need, however, need not be of any absolute or indispensable character; but must be bonafide and reasonable. What is reasonable to one, may not be reasonable to another. Each case, therefore has to be considered on its own facts and having regard to all the circumstances of the case, while remembering always that the avowed purpose of enacting the Rent Control Act was primarily to protect the tenants from unjust or arbitrary eviction. Even if the Court holds that the need of the landlord is reasonable and bonafide, it would refuse to make a decree for eviction, if such decree causes greater hardship to the tenant.

This Court again in the case of Sri Sheena Naik v. Sri Lawrence D''Souza (1984(3) Kar LJ 63) has considered the bonafide requirement u/s 21(1)(h) in the following words;

It is not every wish or desire of the landlord that can be described as a reasonable and bonafide requirement. The word ''requirement'' has been judicially interpreted in cases more than one and the term ''require'' implies something more than a mere wish or impulse or desire on the part of the landlord. It denotes something more than desire. Although the element of need is present in both the cases the real distinction between ''desire'' and ''require'' lies in the insistence of that need. There is an element of ''must have'' in the case of ''require'' which is not present in the case of mere ''desire'' and which the learned District Judge has entirely ignored though the learned Munsiff has come to the correct conclusion that such an element is not present in the desire of the landlord to have a bath room in the tenement in which the tenant is residing.

In the light of these judgments, I am of the view that at the most in the case on hand it is only a ''desire'' and not ''requirement'' of the landlord as understood in law. Hence the petition filed by the landlord has to go on the peculiar facts and circumstances of this case.

Even in the pleadings as I see that the landlord has not stated as to how much space is required and how many machines he had etc. This Court in the case of Basha Baig v. Choodanath, reported in ILR 1988 1632, has ruled that an evidence without pleading is valueless and has to be eschewed.

Even with regard to comparative hardship the learned Judge has committed a serious error. According to him the wife of the landlord wants to start a business with the help of her daughter, details of which are not forthcoming either in the pleadings or in evidence. The daughter is also now married and settled with her husband happily. The tenant who has established a business is asked to vacate the premises on the ground of the requirement of the landlord. Admittedly this is a non-residential premises situated in Malleshwaram. The tailoring and handicrafts business assuming to be true comparatively speaking can be started in other places, whereas, an established silk business cannot be started in a new place in which case the earned goodwill, reputation, etc., would be fatal to his business. In the circumstances, greater hardship is caused to the tenant. In fact in the case of Narasimaiah v. Subba Rao (1977(1) Kar LJ 419) this Court noticed the comparative hardship and ruled that even if the Court holds that need of the landlord is reasonable and bonafide, it would refuse to make a decree for eviction, if such decree causes greater hardship to the tenant. In the case on hand I have come to the conclusion that greater hardship would be caused to the tenant. Therefore on this ground also this petition has to be rejected.

In so far as partial eviction is concerned Counsel stated that taking into consideration the dimension of the premises it is not possible to have only a portion of the premises for the purpose of conducting business of the landlady. However, the Counsel for the tenant has filed a memo in this Court that his client is agreeable to handover fifty percent of the schedule premises to the landlord to maintain cordial relationship. The said memo is placed on record and the landlady is at liberty to obtain fifty percent if she so chooses in view of this memo filed in this Court.

In the result petition is allowed, order of the trial Court is set aside and the petition filed by the landlady is dismissed. Parties to bear their respective costs.