Full Judgment Text
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PETITIONER:
SMT. LAXMI & ANANDI & OTHERS.
Vs.
RESPONDENT:
SHRI C. SETHARAMA NAGARKAR & ORS.
DATE OF JUDGMENT18/09/1995
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
AHMAD SAGHIR S. (J)
CITATION:
1995 SCC (6) 576 JT 1995 (7) 400
1995 SCALE (5)481
ACT:
HEADNOTE:
JUDGMENT:
W I T H
CIVIL APPEAL NO. 8471 OF 1995
(Arising out of S.L.P.(C) No.21968 of 1995 (CC 2547/95))
C. Seetharama Nagarkar
Versus
Smt. Lakshmidevi & Anandi & Ors.
J U D G M E N T
BHARUCHA, J:
Delay condoned.
Leave granted.
These are cross appeals against the judgment and order
of the High Court of Karnataka dismissing the revision
petitions filed by the landlord and the tenants who were
parties to an eviction proceeding.
The proceeding was lodged on the ground that the
tenants were in default of payment of rent and were,
therefore, liable to be evicted under the provisions of
Section 21(1) (a) of the Karnataka Rent Control Act; that
the landlord bona fide and reasonably required the rent
premises; and that the tenants had sub-leased the same. The
trial court upheld the landlord’s case on all three grounds
and passed an order of eviction. The learned District Judge
reversed the finding of the trial court on the first two
grounds and upheld it on the ground of sub-letting. The High
Court rejected the landlord’s revision petition on the
ground of bona fide need. It also rejected the tenants’
revision petition and upheld the findings of the trial court
and the District Judge that the original tenant,
Shankarnarayana Shet, the late husband of the 1st respondent
and father of the 2nd and 3rd respondents, had sub-let part
of the suit premises to the 4th respondent. The landlord is
in appeal on the ground of bona fide need and the tenants in
their appeal question the concurrent findings of sub-
letting.
It is convenient to dispose of the landlord’s appeal on
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the ground of bona fide need first. The original plea of the
landlord was that he required the suit premises for his
mother’s residence. The mother expired during the pendency
of the proceedings. The landlord had then taken the plea
that he wanted the suit premises for his own occupation. The
District Judge and the High Court upheld the tenants’
contention that this subsequent plea required investigation
on facts and could not be entertained in a revision
petition. We are in no doubt that the High Court was right
in the view that it took. The facts necessary to make out a
case relating to the need of the landlord himself to occupy
the suit premises are altogether different from those
relating to the need of the landlord’s mother to occupy the
suit premises. The facts to establish that the landlord bona
fide required the suit premises for his own occupation could
not have been ascertained at the stage of the revision
petition.
This brings us to the appeal in regard to the findings
of the High Court, affirming that of the courts below, that
the original tenant Shankarnarayana had sub-let a part of
the suit premises. The premises in their entirety may first
be described. Abutting a public road is the main building;
attached to it is a garage; in the compound, to one side of
the main building and behind it, are a well, toilets and an
outhouse. The first lease to the original tenant upon the
record is dated 16th May, 1968 and it relates to the main
building bearing P.B.775/II (which is now numbered Door
No.495, as the evidence of the landlord, to which reference
shall be made, shows). Another lease was executed on 1st
March, 1972 which was for the "tile roofed storey building
having No.P.B.775/II". On 21st May, 1973 yet another lease
was executed which also was of "a tile roofed storey
building having No.P.B.775/II". It was upon this document of
21st May, 1973 that the eviction petition was filed. The
averment therein in regard to sub-letting read thus:
"That the opponents 1 to 3 has sub-
leased the outhouse bearing Door No.497
to the 4th opponent for rent, without
the consent and approval of the
applicant and also against the terms of
the badige agreement."
In support of his case the landlord gave evidence and
stated in the examination-in-chief that the residential
building was situated by the side of the road; there was a
small building, close to the cowpen, bearing Door No.497 and
the landlord had been using the same as his storehouse and
the original tenant had sub-leased "the said building
bearing Door No.497" to the 4th opponent on a monthly rental
of Rs.15/- without obtaining the landlord’s consent. (There
is no dispute that Door No.497 is the outhouse.) In cross-
examination, the landlord stated: thus:
"It is true that there are 4 buildings
included with 3 residential quarters and
a garage with a cow-pen and latrine on
the suit properties. The present Door
No.495 was bearing Door No.775 of II
ward previously in which respondents 1
to 3 are residing.........This Door
No.775 continued till 1973........Only
Door No.775 was leased to late
Shankarnarayana Shet. The premises in
which R.4 was residing and another
building in which there was a garage and
the 3rd building were never leased in
favour of Shankarnarayana Shet. But late
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Shankarnarayana Shet was requested to
take care of them, their possession were
never given to him".
In relation to this evidence the District Judge
ovserved:
"No doubt, at one stage in cross-
examination it has come to the evidence
of P.W.1 that the premises in which 4th
respondent was residing and the motor
garage and the 3rd building were never
leased in favour of Shankarnarayana
Shet. It was, therefore, argued on
behalf of the revision petitioners that
P.W.1 himself admits that the building
in the occupation of 4th respondent was
not leased to Shankarnarayana Shet. In
my view the answer of P.W.1 has not been
recorded properly. It must be a
mistake." (Emphasis supplied.)
The High Court, in this connection, said this:
"It may be quite possible that persuaded
by various reasons, some witnesses may
spell out something which is not true
but that by itself may not be a ground
for brushing aside the other part of the
deposition or other relevant and
acceptable evidence."
We fail to appreciate the view taken by the learned
District Judge and by the High Court. This was the evidence
of the landlord himself in support of the plea in his
application for eviction of the tenants that the tenants had
"sub-leased the outhouse bearing Door No.497 to the 4th
opponent". In his evidence the landlord said that Door
No.495 had prior to 1973 borne Door No.775 of II ward and
that only Door No.775 of IInd ward was leased to the
original tenant. He said that the premises in which the 4th
respondent was residing were never leased to the original
tenant. There was no re-examination of the landlord in this
regard. The onus of proving the sub-tenancy as alleged was
on the landlord. The landlord’s evidence does not establish
such sub-tenancy. In fact, it rules out any possibility of
it. The statements in the landlord’s evidence cannot be
explained away by observing that the landlord’s answer had
not been recorded properly or "must be a mistake" or spelt
out something that was not true.
It must also be noted that there has been no finding as
to when the sub-tenancy in favour of the 4th respondent was
created, and this was very necessary in the facts of this
case. Also very relevant is the fact that, though the
eviction petition averred that the sub-tenancy had been
created by "opponents 1 to 3" the landlord’s evidence in
examination-in-chief and the findings were that it had been
created by the original tenant, Shankarnarayana.
We find the conclusion of the High Court upon the issue
of sub-letting unreasonable, having regard to the record,
and must set it aside.
In the result, the appeal of the landlord (arising out
of S.L.P.(C) No 21968 of 1995 (CC No.2547/95)) is dismissed.
The appeal No.8470/95 of the tenants, (arising out of
S.L.P.(C) 7933 of 1995) is allowed and the order of eviction
passed against them is set aside. There shall be no order as
to costs.
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