THIMMAPPA Vs. KOUSALYA

JUDGEMENT

(1.) This Re-vision Petition is by a tenant who has suffered an order of eviction of the Munsiff, Mandya in the proceedings initiated under the Karnataka Rent Control Act (herein-after referred to as 'the Act'). The respondent-landlord presented the eviction Petition on two grounds available to her under the Act. One was that the premises in question was bone fide required for use of her son to start his business. It was pleaded that the building was 50 years old and it has only a country tile roof. It was further pleaded that the landlord's son was at loggerheads with his father who was a fairly wealthy person and the two could not get on together in joint family business and therefore, they intend to start a business for their son away from the family business carried on by her husband and the second son. The Petitioner-tenant denied that the building was old, that it required immediate demolition and that it was required for bona fide use of the landlord. He, in fact, disputed her title to the property alleging that the real owner was the husband of the respondent and the whole transaction of sale was benami in order to get vacant possession of the building because the husband of the respondent had numerous shops and buildings in that town.

(2.) Learned Munsiff formulated two points for consideration. They were : (1) Whether there is relationship of landlord and tenant ? (2) Whether the land-lord has made out a case under Section 21(l)(h) and (j) of the Act, that is, for her own use and occupation and for immediate demolition respectively. After determining those points, the learned Munsiff also considered the comparative hardship of the tenant and the landlord. What has been unfolded in the evidence pro-duced by the landlord is that her first son had left the family and joined as driver for sometime having quarreled with his father. But later on had left the job of driver and wants to start his own business and he is now married and living with his wife and child. It is for that purpose that the premises was purchased and they intend to re-model the premises to suit the business proposed for the 1st son. The evidence in defence by the tenant was in support of the benami nature of the transaction and that the husband of the respondent was already in business and the family was joint and there was no need for a separate business for her first son and the family owns sufficient buildings to carry on. Learned Munsiff, after elaborately discussing the evidence came to the conclusion that there is relationship of landlord and tenant and the schedule premises was required by the landlord for bona fide use and occupation of her first son to start a separate business. On that basis, he has held in favour of the landlord and directed eviction after considering the comparative hardship particularly with regard to the 1st son's condition of not being able to live compatibly with his father and brother. Learned District Judge affirmed those findings Hence this Civil Revision Petition.

(3.) Before me three grounds were urged by Sri M. Shivappa Learned Counsel for the Petitioner tenant. He contended that there is jurisdictional error committed by the Munsiff and the District Judge alike in not raising a point specifically for consideration as to whether there was a bona fide intention on the part of the landlord to demolish the building for the purpose of reconstruction. He placed strong reliance on the decision of this Court in the case of Abdul Subhan v. Sathyanarayana Setty, ILR1984 KAR 110 , 1984 (2 )KarLJ72 . In the said decision, it has been pointed out that when the two grounds, as in the instant case, that is one under clause (h) and another under clause (j) of Section 21 of the Act are simultaneously urged by the landlord, then bona fide requirement for immediate demolition as well as for use and occupation must be together considered, failure of which would result in not exercising jurisdiction properly. Undoubtedly it may be so. But, whether such consideration should be simultaneous depends upon the pleadings and the manner in which the resistance has been put forward by the tenant. I have carefully gone through the pleadings. There is expression of clear intention to demolish the building after purchase made out by the landlord. The tenant has baldly denied that statement asserted in the Petition. He has no where averred that the landlord has no intention to demolish the building and construct one more building in its place suitable for business. When there is no specific plea, then no issue or point can be raised for consideration. By vague pleading it must be taken that the tenant has not seriously contested the intention of the landlord. If a specific point on that account was not raised for consideration, this Court only has to see whether the same has been considered while passing the order. I have seen that they have taken that aspect also into consideration. Non-formation of a specific point in that behalf, does not, in my opinion, constitute error of jurisdiction. In any event, 1 must notice that in para-34 of the Judgment of the Division Bench, the Bench has taken care to add that they were interfering only because the approach of the Trial Court on the facts and circumstances of that case was not correct. I do not think it lays down any law more than what has already been stated. Therefore, it is not of much assistance to the tenant.