PORWAL AND SONS Vs. AMANULLA KHAN MAHAMADKHAN

JUDGEMENT

(1.) This revision under S.50 of the Karnataka Rent Control Act, 1961 is directed against the judgment of the First Addl Dist Judge, Belgaum, reversing in appeal the judgment of the First Addl Munsiff of that Dist and allowing the petition of the landlord Amanullakhan and giving four months' time to the petitioner H.T.Porwal & Sons to deliver possession of the premises CTS.812/1 in Mensigalli, Belgaum. The landlord-respondent filed a petition under S.21 (1) proviso(h) contending that he required the premises for running a hardware business. Besides the plea contending his reasonable and bonafide requirement, the tenant raised two other specific pleas that the tenancy was not monthly and that the notice to quit was invalid. During subsequent stages however those two pleas were given up and hence we are no longer concerned with them. The learned Munsiff after considering the evidence and comparative hardship held that the landlord was not able to prove his bonafide requirement for the premises. Similarly, the comparative hardship was in favour of the tenant. Accordingly, he dismissed the petition. The landlord filed an appeal before the Dist Judge and there he succeeded. Now, the petitioner-tenant has come up in the present revision.

(2.) While exercising powers of revision under S.50, the High Court no doubt does not convert itself into a second Court of first appeal, but nonetheless the powers of the High Court are not as much circumscribed as its powers are under S. 115 of the CPC. In order to assess the legality or the 'correctness of the decision, if need be, an appraisal of evidence can be made. The learned Munsiff having seen the witnesses before him was clearly of the opinion that reasonable and bonafide requirement of the landlord was not made out. The learned Dist Judge, it appears, reversed that finding. His conclusion is purely based on make beliefs and surmises. In this contingency, perhaps, the High Court will be within its jurisdiction to interfere with the finding of the District Judge.

(3.) In order to prove the bonafide and reasonable requirement, it is no doubt correct that the demand of the landlord is not to be capricious, unfair or absurd. In the instant case, the landlord required the premises for hardware business. It was incumbent upon him to show that had sufficient finance for the business. Besides experience and opportunity were also required to start the business. Just because the landlord comes forward and says that he wishes to commence a particular business without having any means or experience, it may not be possible to give credence to his statement. In the instant case, the landlord gave his own statement and produced Abdul (PW.2) his maternal uncle. PW.2 very much stated that the landlord who has left his college education some 8 years ago is without any job from 3 or 4 years. He drives an Auto-riksha. PW.2 at one stage even stated that the landlord is a poor man, but thereafter he remembered that he wanted to do hardware business and that is why he blurted out that the landlord possessed Rs.30,000 in cash. The landlord himself is an young man of 28 years and he is making his both ends meet by driving an auto-rikshaw. It is correct that as an abstract proposition it may not be necessary to find out as to how much finance was needed for hardware business. But the capacity of the landlord was required to be seen. The tenant Jeevan(DW.1) gave his own statement and he very much stated that the landlord has no experience in hardware business. The landlord himself stated that he has taken training from one Hussainkhan who is employed in Hariwadkar Hardwares. Neither Hussainkhan nor any person from Hariwadkar was examined. Even in the petition which he filed in Court and the notice he gave, this fact was not mentioned that he required the premises for hardware business. Above all, on the date of argument, the learned Counsel for the petitioner-tenant submitted that the landlord has already sold the premises. Thereafter, a short adjournment was given telling the learned Counsel for the respondent-landlord to controvert the statement of the learned Counsel for the petitioner-tenant. The case was posted on 13-9-76 for the necessary memo or affidavit in support of the respective contentions in regard to the sale of the property. On 13-9-76. the learned Counsel for the petitioner did appear and submitted a memo accompanied by a telegram from some Counsel indicating that the landlord has already sold the premises. The memo shows that the sale has been in favour of Marwadi Samaj in Belgaum. The respondent-landlord as well as the learned Counsel both remained absent on 13-9-76 and as such, the memo has got to be accepted, with whatever value that could be attached to it. If the landlord has really sold the premises, that by itself indicates how much interest he has retained in hardware business,