Smt. Mamtha Shenoy vs Smt. Siddalingamma and Another

R. Gururajan, J.—This petition is filed against the order dated 4.3.1997 passed in HRC No. 420 of 1993. Landlord-Respondent filed a petition u/s 21(1)(h) seeking for possession from the Petitioner-tenant of the premises bearing No. 389/A, 19th Main, I Block, Rajajinagar, Bangalore on various grounds. Landlord has sought for eviction on the ground that the husband of the first Petitioner by name Sri B.S. Setty Rudrappa is suffering from Asthma and respiratory problems and that she is having two sons who are at Bettalsoor and they are having children and the grand children of the Petitioner are not getting good education in the village. She wants this premises for her bonafide use and occupation. It is stated that the accommodation available in the existing premises is not sufficient to meet the requirements. Petitioner also states that she has become old and she wanted to come to Bangalore.

The matter was contested and during the pendency of the petition the husband of the Petitioner died. The trial Court allowed the petition filed by the landlord and six months time was granted to the tenant to hand over vacant possession. This order is challenged before me by the tenant.

I have heard the learned Counsel for the parties on both sides. Sri Kamath, learned Counsel for the Respondent-tenant contended that this petition u/s 21(1)(h) of the Karnataka Rent Control Act has to be thrown out on the basis of false plea before the Court. She has no sons and therefore the Court could not have ordered eviction on a false plea. Per contra, learned Counsel on the other side supported the order of the learned trial Judge.

I have gone through the impugned order. It is clear to me from the pleadings that the Petitioner sought for possession of the premises on the ground of medical suffering of her husband; additional accommodation for her two sons and grand children; and her ill-health. During the pendency of the petition the husband of the Petitioner died therefore the ground of medical suffering of her husband came to an end. There remained only two grounds namely: additional accommodation for her two sons and her ill-health. These grounds found favour with the trial Court. The trial Court after considering the evidence ordered eviction.

From the impugned order it is clear to me that it is a specific case of the landlady that she has two sons and the grand children born to those two sons are studying in the school and they have to be accommodated in Bangalore and therefore she wanted the premises in question for her occupation. She did not enter the witness box. Her Power of Attorney entered the witness box and it has come in evidence of this witness that the first Petitioner has no children of her own. The landlady amended the petition and in the amended petition she brought the factum of the adopted sons stating that she has brought up Sri Nagaraja and Sri Mahadevaswamy who are her sister''s sons as her own sons and they are residing with her. It is an admitted fact that no documents were produced evidencing adoption. The case putforth before the Court is of the son and not the adopted son. The trial Court in the impugned order has noticed that since the landlady has no issued and these two persons can be treated as sons. In my view this finding is untenable. A litigant who comes to the Court has to come with clean hands. No litigant can come to the Court with false plea and seek possession. The conduct of the Petitioner to say the least cannot be appreciated. Nothing prevented the Petitioner from placing the correct facts before the Court. The need of the sister''s sons stand on different footing than the need of son/adopted son of a landlord. Petitioner having not come to the Court with clean hands cannot have the benefit of an order of eviction. The Court has to consider the conduct of the parties and grant relief. Section 21(1)(h) of the Act provides for bonafide use and occupation. The very bonafides have been shaken in the light of the pleadings and evidence. In the circumstances, learned Counsel for the Petitioner is right in his submission that such litigants are not to be encouraged on the other hand they have to be deprecated to maintain purity of justice. No doubt the Petitioner has placed some material with regard to her ill-health but her health is not such a serious one warranting her shifting to Bangalore. In the circumstances, the trial Court in my opinion has committed a patent error in encouraging such type of litigants in the matter of social welfare legislation. Since I have ruled that no case is made out u/s 21(1)(h) on the basis of pleadings, the question of comparative hardship does not arise in the case on hand.

Learned Counsel for the Respondent relies on a judgment of this Court in the case of Syed Sibgutulla v. Abdul Azeez Khan 1982 (2) KLC 112 wherein it was held that the expression ''himself'' used in Section 21(1)(h) of the Act is wide enough to include the bona-fide requirement of the major sons of the landlord. Since in the case on hand it is proved that the landlady has no issues this judgment is not applicable to the facts of the case.

The second judgment relied on by the learned Counsel is the case of Sudnanda Bai S.R. v. S.S. Sindya 1983 (1) Kar LJ 412 wherein it was held that the adoption is to be proved. Admittedly, in the case on hand the same is not proved. Therefore, this judgment is not applicable.

The other judgments relied on by the learned Counsel for the Respondent-landlady also has no application to the facts of this case. The landlady having not laid proper foundation is trying to build a castle in vacuum. The law does not permit such buildings. In these circumstances, the petition stands allowed and the impugned order is set aside.

Before concluding, taking into consideration the material facts I deem it proper to observe that the Petitioner be permitted to file a second petition if she so chooses not withstanding this petition by stating correct facts if she is desperately in need of the same.