Full Judgment Text
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CASE NO.:
Appeal (civil) 7292 of 2001
Special Leave Petition (civil) 5911 of 2001
PETITIONER:
Vs.
RESPONDENT:
V.
DATE OF JUDGMENT: 18/10/2001
BENCH:
R.C.Lahotia, P. Venkatarama Reddi
JUDGMENT:
R.C. Lahoti, J.
A decree for recovery of possession passed by the Trial Court
against the respondent has been reversed by High Court in a revision
preferred by her. The aggrieved landlady has filed this petition
seeking special leave to appeal under Article 136 of the Constitution.
Leave granted.
The suit premises are situated in Rajaji Nagar, Bangalore. The
appellant no.1 is admittedly the owner and landlady of the premises
and respondent is holding the same as a tenant on a monthly rent of
Rs.1100/-. Appellant no.2 was joined as plaintiff because she used to
collect rent for and on behalf of appellant no.1. The respondents
eviction was sought for on the ground available under Section 21 (1)
(h) of the Karnataka Rent Control Act, 1961. It is not disputed that
there are eleven members in the family of appellant no.1 and residing
with her presently in a house situated in village Bellalasoor. In the
petition filed on 25.2.1993 the requirement as set out in the petition
was that appellant no. 1s husband was suffering from asthma and
respiratory problems and taking oxygen regularly from the cylinder
and for medical treatment he was frequently required to be taken to
Bangalore from Bettalasoor, a village situated at some distance from
Bangalore. The appellant No.1 was having two sons and grand-
children living at the village with her and the grand- children were
required to be shifted to Bangalore for better education. The
accommodation in occupation of appellant no.1 and her family
members was too small and inconvenient for all the family members
to reside in. It was also submitted that the respondent was running a
beauty parlour and also an ice-cream shop. She was financially sound
and able to secure alternate accommodation. The respondent would
not suffer any hardship if she was required to vacate the suit
premises and in the event of eviction being denied the landlord would
suffer great hardship. Thus comparative hardship of the landlord was
greater than that of the tenant.
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It appears that when the case was being tried appellant no.1s
husband expired. It also appears that appellant no.1 does not have any
issue of her own. Those who are residing with her are not her own
sons and grand children but her real sisters sons whom she treats as
her adopted sons and their children. The petition for eviction was
amended by moving an application on 22.1.1997 whereby it was
submitted that the appellant no.1 herself was not keeping well and she
required better treatment which was available at Bangalore and
therefore she intended to shift from the village house to her own house
situated in the city of Bangalore along with her adopted sons. The
prayer for amendment though contested by the respondent, was
allowed by the Trial Court.
In a detailed judgment dated 4-3-1997, the learned Trial Judge
held that the suit premises were required for the use of the appellant
no.1 and her family members. The appellant no.1 was aged about 55
years, who was not maintaining good health and was referred by the
doctor in village Bettalasoor for treatment to be taken at Bangalore
and in the interest of better treatment of hers she needed to shift her
residence to Bangalore. The younger children in the family of
appellant no.1 were also required by the appellant no.1 to be shifted to
Bangalore so that they could have the benefit of better schooling and
better educational facilities at Bangalore. The Trial Court also found
that the accommodation in Bangalore was better and sufficient for
occupation by the appellant no.1 and her family members who are
presently residing in an accommodation not sufficient for their
occupation in the house at Bettalasoor. The requirement of the
appellant no.1 of the suit premises having been found to be reasonable
and bona fide the Trial Court held that the appellant no.1 was entitled
to decree for eviction of the tenant/respondent. The Trial Court
further held that in case the eviction was ordered the respondent-
tenant would not be put to any hardship and therefore comparative
hardship lay more on the side of the appellant. Having evaluated the
unit of accommodation in the light of the strength of the family
members of the appellant no.1 the Trial Court also held that it was not
possible to pass an order of partial eviction.
Let it be noted here itself that there was some embellishment in
the case of the appellant no.1 inasmuch as what was stated to be ‘two
sons of appellant no.1 were in fact not her own sons but the sons of
her sister. The appellant no.1 not having any children of her own was
treating her sisters two sons as her adopted sons. Nevertheless, it was
almost admitted that they along with their families which includes
their wives and children have always been residing with the appellant
no.1. It was not disputed that the number of persons residing with
appellant no.1 was eleven.
Deciding the revision preferred by respondent-tenant, the High
Court held that appellant no.1s husband, whose sickness and need for
treatment at Bangalore was the principal cause pleaded in the eviction
petition for shifting to Bangalore, having expired, the cause had
ceased to exist during the pendency of the petition. The appellant did
not have any children of her own and because the appellant tried to
project her sisters sons as her own sons there appeared to be mala
fides on her part. Insofar as her own deteriorating health and need for
taking treatment at Bangalore is concerned, the High Court observed
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. Stating these circumstances the learned Single
Judge of the High Court concluded that keeping in view the social
purpose sought to be achieved by the welfare legislation of Rent
Control Law, the Trial Court had committed a patent error in directing
eviction of the tenant. The High Court did not go into the question of
comparative hardship. The High Court allowed the revision and
directed the eviction petition to be dismissed but observed at the fag
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end 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 notwithstanding this petition by
stating correct facts if she is desperately in need of the same.
Having heard the learned counsel for the parties we are of the
opinion that the appeal deserves to be allowed and while setting aside
the order of the High Court, the order of the Trial Court deserves to be
restored.
Rent Control Legislation generally leans in favour of tenant; it
is only the provision for seeking eviction of the tenant on the ground
of bona fide requirement of landlord for his own occupation or use of
the tenanted accommodation which treats the landlord with some
sympathy. In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta
(1999) 6 SCC 222 this Court has held that a bona fide requirement
must be an outcome of a sincere, honest desire in contra-distinction
with a mere pretext for evicting the tenant on the part of the landlord
claiming to occupy the premises for himself or for any member of the
family which would entitle the landlord to seek ejectment of the
tenant. The question to be asked by a judge of facts, by placing
himself in the place of the landlord, is, whether in the given facts
proved by material on record the need to occupy the premises can be
said to be natural, real, sincere, honest? If the answer be in the
positive the need is bona fide. The concept of bona fide need or
genuine requirement needs a practical approach instructed by the
realities of life. An approach either too liberal or too conservative or
pedantic must be guarded against. If the landlord wishes to live with
comfort in a house of his own, the law does not command or compel
him to squeeze himself and dwell into lesser premises so as to protect
the tenants continued occupation in tenancy premises. In Deena
Nath vs. Pooran Lal - (2001) 5 SCC 705 this Court has held that
bona fide requirement has to be distinguished from a mere whim or
fanciful desire. The bona fide requirement is in praesenti and must be
manifested in actual need so as to convince the court that it is not a
mere fanciful or whimsical desire.
The learned counsel for the appellant submitted that the need of
the appellant no.1 who is now a widowed landlady was also in issue
from the very beginning though in the then circumstances it was the
need of her husband which was the center of emphasis.
Unfortunately, the husband expired during the pendency of the
petition. This changed circumstance shifted the emphasis contained in
the reason for shifting from village habitat to the landladys premises
in the city of Bangalore; earlier it was on the consideration for health
of the landladys husband which now is on the consideration for
health of the landlady herself. Medical prescription given by the
doctor at Bettalasoor was produced in evidence referring the landlady
for treatment at Bangalore as the facilities for orthopaedic treatment
which the landlady needed to undergo were available in the city of
Bangalore and not in the village of present residence of the landlady.
It is common knowledge that orthopaedic ailments render frequent
travelling of the patient uncomfortable and difficult and therefore the
desire of the landlady to shift to Bangalore for her own treatment is a
felt-need in praesenti and there is nothing unnatural, un-real or
insincere about it. In addition, the school going children residing with
the landlady as members of her family need to be shifted to the city of
Bangalore and stay thereat in the interest of schooling in educational
institutions with better ambience, facilities and standards. It is true
that in the petition for eviction, as originally filed, the health condition
of the landlady herself and the factum of children residing with her
not being her own grand-children were not pleaded, nevertheless
evidence was allowed to be let in without objection and was recorded
by the Trial Court. An application for amendment under Order 6 Rule
17 of the CPC was moved and the deficiency in the pleadings stood
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removed by the amendment permitted by the Trial Court in exercise
of its discretionary jurisdiction to do so. The order permitting the
amendment was not put in issue promptly. Even the High Court in its
impugned order has not found fault with the order of the Trial Court
permitting the amendment nor has it expressed an opinion that leave
granted by the Trial Court for amendment in the eviction petition
suffered from any error of jurisdiction or discretion. On the doctrine
of relation back, which generally governs amendment of pleadings
unless for reasons the Court excludes the applicability of the doctrine
in a given case, the petition for eviction as amended would be deemed
to have been filed originally as such and the evidence shall have to be
appreciated in the light of the averments made in the amended
petition. The High Court though set aside the order of the Trial Court
but it is writ large from the framing of the order of the High Court,
especially the portions which we have extracted from the order of the
High Court and reproduced in earlier part of this judgment, that the
learned single Judge of the High Court also was not seriously
doubting the genuineness of the landladys requirement on the
material available on record but was not feeling happy with the
contents of the eviction petition as originally filed and an over-zealous
attempt on the part of the landlady in projecting her sisters sons and
grand-children as her own. The High Court did not doubt that the
landlady was not in a sound state of health and that a large-size family
was with her nor was it disputed by the tenant that the number of
members in the family of the landlady residing with her was eleven.
In such facts and circumstances, in our opinion, the High Court ought
to have adopted a realistic and objective approach rather than feeling
sceptical about the landladys mannerism. Had the High Court not
been convinced of the landladys requirement it would not have given
her the liberty of filing a fresh petition solely by stating correct
facts. In our opinion, driving the widowed landlady to the need of
filing a fresh eviction petition and to the rigmarole of litigation would
be subversive of the ends of justice. The need of the landlady is, as
borne out from the amended pleadings and material brought on
record, bona fide and not arbitrary, whimsical or fanciful. In a civil
case, once an amendment has been unreservedly permitted to the
incorporated in the pleadings, the correctness of the facts introduced
by amendment cannot be doubted solely on the ground that they were
not stated in the original petition. So also genuineness of the
landladys statement, supported by medical prescription, that she
needed to have treatment at Bangalore cannot be doubted by the Court
forming an opinion that the ill-health of landlady was not so serious as
to warrant her shifting to a city from a village and then substituting its
opinion for the seriousness felt by the landlady. The requirement
pleaded and proved was neither a pretext nor a ruse adopted by the
landlady for evicting the tenant. In such circumstances, in our
opinion, the order of the Trial Court deserves to be restored. On the
question of comparative hardship as also on the issue of partial
eviction, having ourselves evaluated the well-reasoned findings
recorded by the Trial Court we are inclined to uphold the same more
so when they have not been reversed by the High Court.
For the foregoing reasons, the appeal is allowed. The judgment
of the High Court is set aside and that of the Trial Court restored.
However, the respondent-tenant is allowed four months time to
vacate the suit premises subject to her filing before the Trial Court the
usual undertaking on her affidavit that she would deliver vacant and
peaceful possession to the landlady on or before the expiry of four
months and in between she would clear the arrears of rent, if any, and
continue to pay rent falling due month by month and shall not induct
any one else in the premises. Costs as incurred.
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