9911796707
TMI Blog2000 (1) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The undisputed facts are that the leased premises belonged to one Ganapathy, husband of the first petitioner and father of petitioners 2 to 4. He had leased the premises now in occupation of the tenant in about the year 1970 and sometime thereafter additional area was also leased, the rent at the beginning of the tenancy was ₹ 100/- a month and after leasing the other area, it was increased from time to time and on the date of petition, the rent paid was ₹ 400/- a month. In the year 1986, petitioners instituted eviction petition in HRC No. 10701 of 1986 under Section 21(1)(h), (p), (b) and (f) of the Rent Control Act. During the pendency of the said petition, on 14-2-1989 father of the respondent died and thereafter on 14-9-1989, parties entered into a compromise and accordingly, the respondent tenant surrendered an area measuring 23 feet x 23 feet and retained the disputed area which was originally leased in the year 1970 and accordingly, the petition was closed on 14-9-1989. Again in the year 1991, the present eviction petition is filed on the ground under Section 21(1)(h) and (p) of the Act. 4. The petitioner's case in brief is that the second petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyed and as he is not running any business, no area is required for him. Therefore, the need pleaded is neither reasonable nor genuine. At the hearing it is brought to my notice that the third petitioner-G. Shivakumar, the second son of the 1st petitioner is dead and therefore, the requirement pleaded on his behalf does not survive. 6. Further, the respondent pleaded that greater hardship would be worked out to him in case eviction is ordered, on the other hand, no hardship will be worked out to the petitioners as the accommodation available to them is more than sufficient. Thereafter the petitioners examined two witnesses, P.W. 1-G. Shivakumar (now dead) and P.W. 2-Vijaya (the second petitioner) and closed the case by producing the documents Exs. P. 1 to P. 14. Respondent examined himself and three other witnesses R.W. 2 to R.W. 4 and closed the case by producing the documents Exs. R. 1 to R. 61. The learned Trial Judge formulated seven points for consideration. On the first point recorded a finding that the present petition for eviction is not barred under Section 45 of the Rent Control Act. On the second point, recorded a finding that no quit notice was necessary before inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further contended that since the third petitioner-G. Shivakumar is no more, the requirement pleaded on his behalf does not also survive. Lastly he contended that the fourth petitioner is not running any business and in fact the evidence establishes beyond a ray of doubt that the building is leased to one Malayali and he is doing scrap business in the ground floor of the building adjoining the leased premises. If really petitioners wanted additional accommodation, they could have as well used that premises. The petitioners having failed to avail of that opportunity, cannot now make a grievance and seek eviction under Section 21(1)(h) of the Rent Control Act. 10. Before adverting to the merits and demerits of the rival contentions, it would be appropriate to consider and dispose of the two applications filed on behalf of the respondent-tenant. I.A. No. IV is an application under Order VI, Rule 17 of the Code of Civil Procedure read with Rule 35 of the Karnataka Rent Control Rules, 1961. In this application, the respondent-tenant has sought for amending the statement of objections filed in HRC No. 10279 of 1991. The substance of the amendment is that in the year 1987, a portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a tenant in the rear portion since last 10 years. His evidence is recorded on 18-11-1994 which would clearly demonstrate that KSFCs is a tenant under the petitioners if not earlier at least from the year 1984. Secondly, additional evidence under Order XLI, Rule 27 can be permitted if only it is established that even after exercise of due diligence, the party seeking production of additional evidence was unable to secure that evidence during the trial of the case. In the instant case, there is no such evidence. On the other hand, the evidence which I have referred to supra clearly demonstrates that though the respondent knew that KSFC is in occupation of certain area in the ground floor as lessee, has not made any attempts to secure any documents in between the petitioners and the Corporation. In these circumstances, I hardly find any grounds to permit the production of additional evidence. Accordingly, I.A. No. V is also rejected. 12. It is settled law that on an application under Section 21(1)(h), what the Court is required to see is whether the need pleaded on the date of application did really exist. Therefore, in the circumstances, the fact that there was an earlier appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of Regional Provident Fund is examined to show that the second petitioner works in the same garment factory and the employer contributed to her provident fund. Ex. P. 61 is the particulars furnished by the Assistant Provident Fund Commissioner. It would show that one Vijayalakshmi, daughter of Ganapathy, aged 31 years is working in the establishment called M/s. Fine Wear Exports Limited and the date of coverage is from 1-5-1983. However in the cross-examination, he says that he cannot say whether this document would relate to the second petitioner, name of the employee does not tally. She is described as Vijayalakshmi and the father's name no doubt is shown as Ganapathy. But the second petitioner is described in the petition as Vijaya, daughter of late M. Ganapathy. In Exs. P. 12 and P. 13, she is described as Smt. Lakshmivijaya. Whatever the discrepancy in the name, one may say that she is the second petitioner but that itself will not be sufficient to hold as rightly pointed out by the Trial Court that the petitioner is gainfully employed. Even assuming for a moment that she is gainfully employed, the question would be whether she continued in the same profession eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examined on several dates. He states on 13-1-1992 that his brother is running a hotel in the front portion and resides in the back portion of the same premises. However, later when he was examined on 23-11-1993 he states that his brother even on that day was running a refreshment stall. When he was examined on 14-12-1995 he comes forward with a statement that his brother is doing business in scrap. P.W. 1 when he was examined on 14-2-1996 states that his brother is doing business in waste paper. It may be that the 4th petitioner having experienced that hotel business is not remunerative must have changed over to other business. Whatever that may be, the evidence establishes that in a portion in the ground floor, the fourth petitioner is doing certain business. The respondent, on the other hand, tries to show that the petitioners in fact have leased this premises to one Malayali and is doing business in scrap. As it is rightly pointed out by the learned Trial Judge, there is no convincing evidence as to the fact that the premises is leased to one Malayali and he is doing business in scrap in the said premises. However, the evidence admits of no doubt that the first petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le portion in that building for running his engineering work, those two buildings are being in the same road and as the petition for eviction was pending trial. The Trial Court holds that the evidence led by the tenant as to the attempts made to secure alternative premises is not convincing. I do not find any substantial grounds to fault that finding of the Trial Court. 16. In regard to partial eviction, the Court finds that it is neither feasible nor practical. The area in dispute measures 23' x 23'. The respondent undisputably is running engineering works for over 20 years. The petitioner's family has number of persons and some of them living in the first floor and one of the sons is in ground floor. In the circumstances, the Court was right in recording that partial eviction is neither practical nor feasible. 17. The landlord also sought for eviction on the ground under Section 21(1)(p) of the Act. Their case is that the respondent-tenant acquired site in Sy. Nos. 41 and 42 in Lingarajapuram measuring about 60 ft x 40 ft and subsequently thereafter put up a building suitable for running his engineering works, the business which is being carried on in the leased ..... X X X X Extracts X X X X X X X X Extracts X X X X
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