Smt. Laxmi
& Anandi & Ors Vs. Shri C. Setharama Nagarkar & Ors [1995] INSC 507
(18 September 1995)
Kuldip
Singh (J) Kuldip Singh (J) Ahmad Saghir S. (J) Bharucha, J:
CITATION:
1995 SCC (6) 576 JT 1995 (7) 400 1995 SCALE (5)481
ACT:
HEAD NOTE:
WITH
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.
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 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 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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