A MUKAMBIKA Vs. A PREMANANDA RAO

JUDGEMENT

(1.) BEFORE considering these revision petitions, it is necessary to note that c.r.p. No. 2570/1983 was dismissed earlier as not maintainable. But subsequently, the Supreme Court held that a second revision lies to this court and consequently such revision petitions were revived. There was omission to revive c.r.p. No. 2570/83 wherein msera bai and others are the petitioners. All these revision petitions are filed by the tenants of the respective premises under their occupation. There was common, evidence and a common order was passed by the trial court as well as the district court. Hence I am dealing all of them together. (in crp. 2337/83 there is an additional ground urged by the tenants. For the sake of convenience only I am referring them as tenants, since there is a dispute about their legal status). First 1 shall proceed to decide the question involved in c r. P. No. 2337/83. The premises in occupation of the tenants here is door No. 9-316 of kasba bazaar village, mukhyaprana temple road, mangalore, and it is part of the building in which the other tenants are residing, i.e., No. 9-317. There is no dispute, that originally one raghavendra naik was the tenant in respect of this residential premises; monthly rent being Rs. 14/-. The landlord purchased this premises along with other premises in question here, and thereafter raghavendra naik had attorned the tenancy to the landlord. According to the landlord, he purchased the entire property for his bona fide use and occupation, and also to put up a dairy farm and poultry farm. It is ihe case of the landlord that in his house there are altogether six members, including college and school going children. The landlord filed an eviction petition against raghavendra naik; but it was dismissed having abated on his death. The date of the dismissal of the eviction petition is not forihcomirig in the records. Thereafter, the present eviction petition was filed on 7-4-1978 against three persons all of whom are ladies (V. Suguna Prabnu, A. Mukambika and A. Sandhya). In the eviction petition the landlord states that he does not admit that the respondents (tenants) are the family members of late raghavendra naik. However, since they are residing in the schedule premises along with late raghavendra naik the eviction petition has been filed against the respondents, without prejudice to the contention of the petitioner. This eviction petition was filed on 7-4-1978. In the meanwhile he filed two other eviction petitions, which are the subject-matter of the connected revision petitions. Those petitions were- filed in the year 1974; obviously along with the earlier eviction petition filed against late raghavendra naik- the landlord slates that he will be retiring from service shortly and has plan to start a dairy and poultry farms for his future livelihood and for these purposes he had purchased the properly in question. In para 'x' of the petition, the landlord asserted that the respondents therein have not paid the rentals from 1-1-1979 onwards and that a sum of Rs. 196/-sent by cheque was received by him without prejudice to his contentions. The 1st respondent in the eviction petition did not file any counter. The other two respondents filed a common counter. They assert that they are tenants because they were living with the earlier tenant and continued to live even after his death. One of the points framed by the trial court pertains lo the maintainability of these eviction petitions under the Provisions of the Karnataka Rent Control Act, 1961 ('the act', for short). The trial coutt held that the petition was not maintainable because the respondents in hrc. No. 124/1978 do not fall within the definition of 'tenant' under sec. 3(r) of the act. Even on other points, the trial court found against the landlord and rejected all the eviction petitions. The landlord approached the learned district judge in revision. Point No. 1 framed by the learned district judge pertains to the relationship of landlord and tenant between the parties. The learned district judge held that, ".... Only because the landlord contends that he does not recognise them as his tenants, the court will not lose jurisdiction. If they are, in fact, not the tenants or in other words if they ars not entitled to the protection under any of the Provisions of the Karnataka Rent Control Act, then only the eviction petition can be dismissed." the present petitioners, (mookambika and sandhya) were found to be the daughters of deceased daughter of late raghavendra naik and they were residing in the schedule premises along with the deceased grand-father. From this, the learned district judge opined that these two grand-daughiers could be treated as members of the family of deceased raghavendra naik. For this purpose, the learned judge referred to the decision reported in shantilal thankordas v chimanlal (1977(1) kar.l.j, 1). But this decision has no relevancy; it pertains to the requirement of the landlord and the persons who could be treated as members of the family. Mr. Ganapathy bhat, learned counsel for some of the petitioners, contended that the definition of tenant under Section 3(r) of the act is exhaustive and it is not possible to induct any other concept or relationship into the said definition. The learned counsel also urged that the jurisdiction of the court under the act has to be determined at the threshold only by reference to the eviction petition and not by referring to the statement in the counter. It is an established principle that the jurisdiction of a court or a tribunal depends upon the assertion of facts made in the plaint or in the petition by the party, who invokes the jurisdiction of the court or the tribunal as the case may be. It is only in exceptional cases the jurisdiction of a court or tribunal depends upon the nature of the issue involved. I do not find any provision under the act which creates the jurisdiction in the court under the act depending upon the issues framed. Under sec. 21 of the act the landlord approaches thecourtseeking certain reliefs. Therefore, the person who invokes the jurisdiction will have to be the 'landlord' as defined under the act. The relief is sought against the 'tenant'- the term 'tenant' also is defined under the act. In other words, the court can entertain a petition under sec. 21 (1) of the act only when it is a petition by the landlord against the tenant. In the petition if the landlord says that the relief is sought not against the tenant, but some-one-else, without prejudice to his retention that the respondents are not tenants, the said petition will not be maintainable. In the petition, it is necessary to assert that the respondents or any one of the respondents is a tenant to invoke the jurisdiction under sec. 21 (1) of the act. In the course of the arguments, Mr. Ganapathy bhat also referred to a small cause suit filed by the landlord against these petitioners claiming mesne profits jn respect of the premises in question. The suit was filed (s.c. No. 45/81) not against the petitioners as tenants, but obviously as trespassers. Even in his deposition P.W. 1 the landlord does not say that these petitioners are his tenants. In the examination-in-chief, he has stated that these petitioners were occupying the premises after the death of raghavendra naik. In the cross-examination he stated that the present petitioners were the children of the daughter of late ragha- vendra naik. Mr. U.l. narayana rao, learned counsel for the respondents, however, referred to the definition of 'tenant' under sec. 3(r) of the act; but the said definition nowhere includes the grand-daughters of the 'tenant'. The definition of 'tenant' is worded as - "means and includes"; - in other words, it defines the term 'tenant' quite exhaustively. The first part of the definition describes the person and thereafter it says that the concept includes other enumerated persons subject to certain conditions. It is an accepted Rule of interpretation of statutes that when a definition 'means and includes' it is exhaustive of the meaning. It is only when the definition is an inclusive definition, it cannot be held to be exhaustive and the court may interpret the meaning of the term defined by reference to its general meaning, object of the act and the setting in which the word is used. Similarly, when the term is defined as to 'mean' something, normally it is an exhaustive definition. If an authority is needed, one may refer to the principles of statutory interpretation by Justice g.p. singh, 4th edition page 110-111. In fact the word 'include' is included in the definition to enlarge the scope of the meaning of the term so that the some-thing which would not have otherwise fallen within its meaning also could be attracted within the sweep of the meaning. The statutory definition of the term 'tenant' cannot be enlarged. This is also clear from the following three decisions of the Supreme Court, viz., (!) Smt. Gian devi anand v jeevan kumar and others (AIR 1985 SC 796); (ii) bhavarlal lebhchand shah v kaniyalal nathalal intawala (AIR 1986 SC 600) and (iii) jaspal singh v the additional district judge, bulandshahr and others (AIR 1984 SC 1880). In the last case referred here, a nephew of a deceased tenant contended that he was the tenant on the death of his uncle because he was residing with the deceased till the end. The matter was under the U.P. urban buildings (regulation of letting, rant and eviction) act. The Supreme Court held that it was not possible to accept such a contention. The act imposed certain restrictions on the right of a tenant to transfer or sublet the tenancy rights and if so, the claim of the act does not warrant a transfer of the tenancy right to be effective after the life time of the tenant. It is in these circumstances, the will could not convey the rights of the deceased tenant, for the premises in question there, to the nephew. In bhavarlal labhchand shah's case also it was held that a tenant cannot bequeath his right to occupy the property as a tenant under the will in favour of a person, who is not a member of the family. These beneficial legislation confine their benefits only to certain persons and subject to certain conditions. It is in this context the statutory definition of tenant will have to be understood and applied. Its scope cannot be enlarged by the courts because such an intention is not expressly disclosed or by necessary implication warranted by the law in question. Section 3(r)of the act thought it fit to confine the concept of tenant only to a particular category of persons and a grand-daughter living with the deceased tenant does not fall within the said category. The landlord obviously understood the law acurately when he filed the eviction petition; but what made him to file the eviction petition under the act cannot be understood at all. The learned counsel for the respondents, however, contended that the landlord has not categorically stated that the respondents (tenants) are not his tenants. The learned counsel referred to para-10 of the eviction petition wherein the landlord has asserted that respondents have not paid the rent after the death of raghavendra naik, the previous tenant. Further, the petition itself was filed under the act. In these circumstances, the learned counsel urged that the court should normally hold that the landlord recognised these respondents as tenants. This seems to me a far fetched contention. The landlord in unequivocal terms has asserted in the petition that these petitioners were not his tenants by stating that they were not the family members of the late tenant. The assertion is that because they were residing in the schedule premises along with the deceased tenant the petition was filed against them. Even here he says the filing of the petition was without prejudice to his contention. Even after filing of the counter by the petitioners herein, the landlord did not venture to clarify the position by any amendment of the petition. The trial court has dismissed the petition on this ground alone and BEFORE the district court also he did not make any application for amendment. The conduct of the landlord in filing the suit for mesne profits conclusively establishes his understanding of the relationship between himself and the present petitioners as not one of landlord and tenants. However, Mr. Narayana rao urged that the landlord has now filed an application seeking permission to amend the petition and the landlord should be permitted to do so. The learned counsel contended that no prejudice will be caused to the petitioners herein, if the petition is now amended. He wants to include the statement that the petitioner is the 'landlord' and the respondents are the 'tenants' under the act. On this, the petitioners herein contend that in case such an amendment is permitted, they would have to file their counter by adding that they are not the tenants of the landlord. In other words, if these respective amendments are permitted, the nature of the cases of the parties will get altered by the landlord accepting the present petitioners as his tenants. This will change the entire nature of the pleadings. An amendment to a plaint or a petition can be permitted to be made, when the substance of the case is not altered. Here, the amendment application if allowed, the entire character and nature of the case will be changed. This is not the scope of the amendment. Further, there is no foundation for this case even in the evidence of P.W. 1. If the amendment is allowed, the matter will have to be remanded; the evidence on record as on today would disclose that the landlord has been persisting that the present petitioners were not his tenants. In the circumstances, i reject petition filed by the landlord. For the same reason the prayer made by the petitioners herein also, for amendment of their counter, is rejected. Consequently c.r.p. No. 2337 of 1983 will have to be allowed and the order of eviction made by the learned district judge is liable to be set aside. The learned district judge has directed eviction after accepting the case of the landlord that he requires the schedule premises for his bona fide use and occupation and the requirement was bona fide and reasonable. The petifoner purchased the schedule premises in contemplation of his retirement from service so that he can settle down by starting some business like dairy farm, poultry farm etc. This is supported by his evidence as P.W. 1. One of the contentions urged by the learned counsel for the tenants (crps. 2556 and 2570/83 is that when the landlord purchased the property, he knew that he could not settle down himself in the said property, because it was already tenanted. This contention assumes that a person cannot seek eviction of an existing tenant in a property which the landlord purchases with the idea of occupying the same, it is also contended that a scheming landlord may resort to this kind of device whereby one may sell the property to another when the latter, i.e., the purchaser, only could make out a case for eviction and thus deprive the tenants' statutory protection. Nowhere the act bars the sale and purchase of a tenanted premises. The very concept of 'property' requires its sale and purchase. A restriction against such a right has to be clearly spelled out bylaw and such a restriction will have to stand the test of reasonableness in the background of the Indian constitution. The law does not prevent a person from purchasing a property, if he finds it suitable for his own use and occupation even though the property is tenanted. The purchaser may take the burden of establishing his case in a court of law and bring it under Section 21 (1)(h) of the act. The Provisions of sec. 21(1) (h) cannot ba interpreted in such a manner as to be a restriction on the transferability of a tenanted property. The object of the purchase by the landlord here is not to oust the tenants somehow. The object is to make a provision for his residence and to carry out his future livelihood. On his retirement. Therefore, as a proposition of law, the contention of the learned counsel for the respondents-tenants can' not be accepted. On the merits of the requirement of the landlord, as already noted, it is supported by the evidence of P.W. 1. The learned district judge found it as an acceptable evidence. The circumstance also warrants the acceptance of the case made out by the landlord. The schedule premises has two buildings and some vacant space so that he can reside in one of the premises and carry on his farming activity in another part and there is some space in the compound which can be utilised for the farming activity, i.e., for running a dairy farm and a poultry farm. The trial court has rejected this case of the landlord while considering point no, 5 framed by it. The trial court assumes that the landlord could have occupied a small house in the same area earlier occupied by one kamath instead of allowing the said building to be collapsed. But this observation ignores the age of the said collapsed building. Even assuming that the landlord wanted the said building occupied by kamath for the purpose of godown or assuming that the said premises was a godown already, it cannot alter the requirement of the landlord. It will be too much to attribute lack of bona fides to the landlord just because he did not occupy the said small portion immediately on the building becoming available to the landlord for occupation. The trial court has not appreciated the requirement of the landlord in its entirety. In para-29 of its Order, the trial court suspects the bona fides of the landlord and once again i fail to understand the reasoning of the trial court in this regard. The entire approach of the trial court was misdirected in this case while considering the case under sec. 21(1) (h) of the act and therefore the learned district judge was perfectly justified in reversing the order of the trial court. Consequently c.r.p. nos. 2556 and 2570 of 1983 are liable to be dismissed. In the result, for the reasons stated above, c.r.p. No. 2337 of 1983 is allowed. C.r.p. nos. 2556 and 2570 of 1983 are dismissed. The tenants therein are granted time till 31st December 1990 to vacate and deliver vacant possession of the respective portions of the premises under their occupation to the landlord, provided they pay the rent regularly and promptly. There will be no order as to costs in all these petitions.