GANTUSA H BADDI Vs. MEERABAI G PAI

JUDGEMENT

(1.) This appeal is directed against the revisional Order of a learned single Judge of Karnataka High Court, dismissing the Revision Petition and affirming the order of eviction passed by the District Judge in his Revisional Jurisdiction under the provisions of Karnataka Rent Control Act. The legal representatives of the deceased tenant are the appellants. The landlord filed an application for eviction under Section 21(1)(a), (h) and (p) of the Act, alleging that the tenant has not paid or tendered the arrears of the rent legally recoverable from him and that the premises are reasonably and bona fide required by the landlord for occupation of himself as well as on the further assertion that the tenant has acquired vacant possession of an alternative suitable building. The Munsif at Yellapur, on consideration of the entire materials before him held against the landlord on all counts, and dismissed the application for eviction by his order dated 4-10-1991. The said order was assailed in revision under Section 50 of the Act. The Revisional Court came to the conclusion that the Munsif had not properly appreciated the evidence on record. Though he did not set aside the findings of the Munsiff, on the question of arrears of rent and the bona fide requirement, which are the two grounds under Section 21(1)(a) and (h) of the Act, but he did set aside the finding on the third question namely whether tenant has acquired a suitable alternative premise, as required under Section 21(1)(p) of the Act and came to hold that the eviction sought for on the grounds available under Section 21(1)(p) of the Act has to be allowed. Against the said revisional order of the District Judge in exercise of powers under Section 50 of the Act, the tenants moved the High Court. The landlord also filed a revision petition against the findings of the revisional Court on the question of arrears of rent and bona fide requirements. The original tenant died during the pendency of the said revision petition and his legal heirs were substituted and brought on record. The High Court disposed of the revision on two grounds. Following the Judgment of this Court in the case of Venkatesh Thimmaiah Gurjalkar v. S. S. Hawaldar, JT 1997 (8) SC 528, the High Court came to the conclusion that the premises in question being non-residential and under the Act the tenancy in respect of non-residential premise being not heritable and admittedly the tenant having died, the revisional application is liable to be dismissed. On the question whether the provisions of Section 21(1)(p) of the Act is attracted or not, the High Court came to the conclusion that in view of the evidence of the son of the original tenant that it was the partnership firm, which was running the business in the schedule premises and the said firm has acquired an alternative premise, it must be held that the grounds for eviction under Section 21(1)(p) has been made out. With these findings, the revision filed by the tenant as well as the one filed by the landlord stood dismissed. On grant of special leave by this Court, this appeal was placed before a Bench of two learned Judges, wherein a contention was advanced that the decision of this Court in Venkatesh Thimmaiah's case on which the High Court has relied upon, is contrary to the decision of this Court in the case of Vishnu Narayan Gadskari (Dead) by L.Rs. v. Paralal Baladev Uza, (1995) 4 Suppl. SCC 428, and in both the cases, the question for consideration was whether under the Karnataka Rent Control Act, the tenancy in respect of a non-residential premises can be held to be heritable or not. In view of the two conflicting decisions, referred to above, the Bench, thought it fit to refer the matter to a larger Bench and that is how the matter has been placed before us.

(2.) The learned counsel for the appellant contends that the latter decision of this Court in Venkatesh Thimmaiah's case, must be held to have been not correctly decided, as it does not take notice of the earlier decision in Vishnu Narayan's case, (1995) 4 Suppl. SCC 428, which was a decision interpreting the very same provision of the Karnataka Rent Control Act and which also relied upon the Constitution Bench decision of this Court in Gian Devi Anand's case (supra) , wherein the pari materia provision of Delhi Rent Control Act, 1958 was under consideration. The learned counsel further urged that acquisition of a premises by the partnership firm of which the tenant was merely a partner to the extent of 15%, cannot be held to be an acquisition of alternative premises by the tenant in view of the definition of "tenant" in Section 3(r) of the Act and the High Court, therefore committed serious error of law.

(3.) The learned counsel appearing for the respondent however contended that the impugned judgment of the High Court is unassailable, since it has followed the latter decision of this Court on the question of heritability of a non-residential premises and it has rightly interpreted the provisions of Section 21(1)(p) of the Act. According to the learned counsel for the respondent, the so-called partnership firm being of the father and the sons and the said firm having acquired the premises where business is being carried on and even in the schedule premises the firm in fact was carrying on the business, though the father was the tenant, the conclusion becomes irresistible that an alternative premises is now available and therefore, eviction could be ordered under Section 21(1)(p) of the Act.