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CASE NO.: Appeal (civil)  3856-3858 of 1999

PETITIONER: P.S. Pareed Kaka & Ors.                                  

RESPONDENT: Shafee Ahmed Saheb                                       

DATE OF JUDGMENT: 23/03/2004

BENCH: R. C. Lahoti & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

       The matter arises under the Karnataka Rent Control Act, 1961.  The  unsuccessful tenants are the appellants in these appeals.  The respondent/landlord  filed rent control petitions before the Court of Small Causes against the appellants, inter  alia, under the provisions of Section 21 (h) and (j) of the Karnataka Rent Control Act.   The Court of Small Causes dismissed the petitions.  The landlord filed revision  petitions, inter alia, challenging the order of the Court of Small Causes.  On 19.11.1998,  the High Court allowed all the revision petitions by a common judgment and directed  that the tenants shall vacate and deliver the premises under their respective occupation  to the landlord.  Aggrieved by the impugned judgment of the High Court, the tenants  have approached this Court seeking special leave to appeal. We heard Mr. P.B. Menon, learned senior counsel for the appellants and Mr.  Shakil Ahmed Syed, learned counsel for the respondent.  Mr. Menon submitted five  submissions in support of his contention.  They are: 1.      The High Court has no jurisdiction to re-appreciate and evaluate the  evidence on record which has resulted in arriving at the conclusion which  is manifest in the impugned judgment and on this ground the impugned  judgment/order ought to be set aside by this Court. 2.      The High Court has failed to render a correct finding on the comparative  hardship. 3.      The reasoning and finding of the High Court on each and every point  referred to in the impugned judgment is bad in law, perverse and against  the weight of the evidence on record of the case and as such has  resulted in substantial failure and miscarriage of justice to the petitioners. 4.      The High Court was not right in law in holding that the landlord proved his  bonafide requirement of the premises in question. 5.      The finding of the High Court that the building is not in a dilapidated  condition is against the real facts.

Learned counsel for the respondent took us through the pleadings and the order  and judgment passed by the Rent Controller and also by the High Court.  According to  him, the High Court has jurisdiction under Section 50 to interfere with the findings of fact   and that the High Court is justified in interfering with the trial courts finding based on  abundant materials.  He would also submit that other findings rendered by the High  Court in ordering eviction are unassailable and supported by cogent and convincing  reasons. He would pray for the dismissal of the special leave petition.  As already  noticed, the eviction petition was filed under Section 21(h) and (j) which reads thus:- "21. Protection of tenants against eviction.- (1) Notwithstanding anything  to the contrary contained in any other law or contract, no order or decree for  the recovery of possession of any premises shall be made by any Court or  other authority in favour of the landlord against the tenant:

Provided that the Court may on an application made to it, make an  order for the recovery of possession of a premises on one or more of the  following grounds only, namely:-

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(a)     \005.. xxxx xxxx xxxx

(h)     that the premises are reasonably and bona fide required by the landlord  for occupation by himself or any person for whose benefit the premises  are held or where the landlord is a trustee of a public charitable trust,  that the premises are required for occupation for the purposes of the  trust; or  

(i)     xxxx

(j)     that the premises are reasonably and bona fide required by the landlord  for the immediate purpose of demolishing them and such demolition is  to be made for the purpose of erecting a new building in place of the  premises sought to be demolished; or

(k)     xxxxxx"     

We reproduce hereunder Section 50 of the Act (Revision) in order to appreciate  the arguments advanced by counsel appearing on either side in regard to the scope  and ambit of the revisional jurisdiction of the High Court.  "50. Revision.- (1) The High Court may, at any time call for and examine  any order passed or proceeding taken by the Court of Small Causes or the  Court of Civil Judge under this Act or any order passed by the Controller  under Sections 14,15,16or 17 for the purpose of satisfying itself as to the  legality or correctness of such order or proceeding and may pass such order  in reference thereto as it thinks fit.

(2) The District Judge may, at any time call for and examine any order  passed or proceeding taken by the Court of Munsiff referred to in sub-clause  (iii) of clause (d) of Section 3 for the purpose of satisfying himself as to the  legality or correctness of such order or proceeding and may pass such order  in reference thereto as he thinks fit.  The order of the District Judge shall be  final.

(3) The costs of and incidental to all proceedings before the High Court or  the District Judge shall be in the discretion of the High Court or the District  Judge, as the case may be."

As seen earlier, the Rent Controller passed a common order rejecting all the  petitions filed by the landlord.  The rejection was challenged by filing revisions under  Section 50 of the Rent Control Act.  According to the landlord, the accommodation  available in the Nala road premises was insufficient, that the Nala road property is not  situated in a good locality; that it was situated in an unhygienic area and facing a drain  emitting bad stench; that his family were feeling frequently sick due to the unhygienic  atmosphere on the foul smell emanated therefrom.  Therefore, he wanted the schedule  premises for his own use and occupation for residential purposes.  The landlord also  contended that the premises in question was more than 100 years old and is not fit for  human habitation and certain portions of the property had also collapsed and, therefore,  the entire premises was required for the immediate purpose of demolition and for  reconstruction of a residential house to suit his needs for the purpose of his residence.         

The tenants resisted the petitions.  They contended that the premises at Nala  road belonged to landlord and had adequate comfortable accommodation to meet the  landlord’s requirement as his family consisted of only himself and his wife; that it was  situated in a good locality; that the area was not unhygienic having regard to the fact  that the drain facing the said property was not as open sewer drain, but a strong water  drain with a covered sewer drain below it and that it did not emit any bad odour and  that, therefore, the need put-forth by the landlord is not bona fide and reasonable.  They  also contended that no hardship will be caused to the landlord if orders of eviction were  not passed as he was comfortably residing at Nala road property.  All the tenants

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contended that they will be put to hardship if they are evicted from the property.

The trial Court held that the landlord did not require the petition schedule  premises for demolition and reconstruction or for his own use.  Consequently, it did not  consider the question of comparative hardship and partial eviction.  The Rent Controller  held that the landlord did not prove that the property was in a dilapidated condition.  The  Court also held that the premises No. 26 at Nala road where the landlord was residing  was more spacious than the new building which he intended to construct at No. 71 \026  Labbay Masjid street of which the petition schedule premises were all portions and as  the landlord did not have any children and his family consisted of only himself and his  wife, premises at Nala road which consisted of 2 bed-rooms, one hall, one office room  etc. was sufficient to meet his requirements.  In regard to the unhygienic atmosphere at  Nala road the trial Court found that the premises in question was earlier in the  occupation of a tenant that the landlord had purchased the said property and filed an  eviction petition against the tenant at Nala road on the ground that he require it for his  own use and thereafter occupied the premises, and the landlord having known fully well  the existence of a Nala soak drain and having obtained possession of his property for  his own use cannot now contend that the said premises is not situated in a good locality  or that it is unhygienic.  The trial Court, in our view, has completely misdirected itself i n  considering what is bonafide and what is reasonable.  The findings on other issues also  are not satisfactory.   

The main ground on which the landlord wanted the petition schedule premises is  because he wanted to shift from Nala road premises which was situated in unhygienic  locality and facing a drain.  He also contended that he wanted to demolish the more  than 100 year old building of which the petition schedule premises were all portions and  then put up a residential house for his own use and occupy the same for his residence.   The trial Court has miserably failed to consider whether the need as putforth is bona  fide, reasonable or not.  The High Court on a reappreciation of the evidence came to  the conclusion that the need is bona fide and the building require demolition and  reconstruction.  The evidence tendered consistently shows that all the witnesses have  clearly admitted that the Nala road property where the landlord is residing faces a drain  and that the area is unhygienic and he does not want to stay near a drain.  The tenants  have admitted the same in their evidence.  It cannot be said that the decision of the  landlord to leave the premises and to shift to a premises away from the drain is  unreasonable or unjust.  The evidence let in will clearly show that there is sufficient  cause for the landlord to shift his residence to a new premises and reside there.  In fact,  the reasonableness can also be decided from the offer made by the landlord that if all  the tenants vacate the petition schedule premises by consent the landlord is willing to  even demolish and construct shops and residential portions for the tenants in the Nala  road property and give them on rent.  Of course, the said offer has not been accepted  by all the tenants.  It is contended on behalf of the learned counsel for the tenants that  the landlord had obtained vacant possession of the Nala road property by evicting the              previous tenants and move into the Nala road property.  It is only after living in the Nala  road property the landlord came to know the disadvantages, namely, the bad smell from  the open drain and the unhygienic surroundings the mere fact that he had filed an  eviction petition against the earlier tenant of the Nala road property is not a ground to  hold that the landlord should continue to live in the said property undergoing hardship  and inconvenience.

This brings us to the need for the petition schedule premises.  It is in evidence  that the premises is very old and the building therein is dilapidated and portions of the  building have also collapsed.  It is also in evidence that the rear outhouse building has  already collapsed. In these circumstances, it cannot be said that the said need is not  bona fide or unreasonable.  It is not for the tenants to suggest that there is no need to  demolish the existing building and construct the new building.  The landlord, in our view,  is entitled to make use of his property for any reasonable purpose.  If the landlord  chooses to use it for residential purpose, the tenants cannot say that he should not do  so to using for commercial purposes.  We, therefore, hold that the landlord has made  out the need clearly.

Learned counsel for the tenants submitted that the family of the landlord consists  of only the landlord and his wife and he has no children and, therefore, he does not

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require the petition schedule premises.  This contention cannot at all be countenanced.   If the landlord wants to live by constructing a house in the petition schedule premises  the mere fact that he does not have any children does not mean that he and his wife  should not shift to the petition schedule premises.  It is also not in dispute that the  landlord has got ample financial resources to demolish the building in question  reconstruct and occupy the same.  The tenants have also admitted that the building is  very old and one of them admits that it is more than 100 years old.   

Law is well settled on this aspect.  Even if the building is in a good condition, if it  is not suitable for the requirement of the landlord, he can always demolish even a good  building and put up a new building to suit his requirements.  It is not necessary for the  landlord to prove that the condition of the building is such that it require immediate  demolition particularly when the premises is required by the landlord.  Therefore, it has  to be held that the finding of the trial Court cannot be sustained and the High Court on  reappreciation of the evidence, rightly so, held that the landlord has established that his  need for all the four petition schedule premises is bona fide and reasonable.

In R.V.E. Venkatachala Gounder vs. Venkatesha Gupta and Others [AIR  2002 SC 1733] one of us (R.C.Lahoti, J.) speaking for the Bench while dealing with the  similar provision under the Tamil Nadu Building (Lease and Rent Control) Act has  observed as under:- "The building in question was located in busy business locality.  It was 30  years old constructed of stones, bricks and mortar.  The roof was partially of  cement sheets and partially of tiles.  The building occupied only a portion of  the landlords total land.  It was not dilapidated and damaged.  The landlord  to augment his income wanted to demolish and reconstruct new building on  his entire land.  The proposed new building was to be a double storeyed  modern building of cement concrete providing much more total  accommodation than what is available.  In such circumstances the offer of  the tenant that they are prepared to pay the rent at the current rate, the one  which the landlord expects on reconstruction could not be a ground to  refuse eviction decree to the landlord." Again in para 11, this Court while approving the judgment of the Madras High  Court (AR. Lakshmanan, J. as he then was) in A.N. Srinivasa Thevar vs.  Sundarambal @ Prema W/o Chandrakumar 1995 (2) Mad LW 14 has observed as  under: "In A.N. Srinivasa Thevar v. Sundarambal alias Prema W/o  Chandrakumar 1995 (2) Mad LW 14; even before the decision by  Constitution Bench in Vijay Singh’s case was available, it was held in the  light of the decision in P. Orr & Sons that the availability of the following  factors was sufficient to make out a case of bona fide requirement under  S.14(1)(b):"(a) Capacity of the landlord to demolish and to reconstruct is  undisputed and also proved satisfactorily; (b) The size of the existing  building occupies only one third of the site, leaving two third behind vacant  and unutilised; (c) Demand for additional space : The demised premises is  situated in a busy locality.  Therefore, there is a great demand for additional  space in the locality which could be met by demolishing the existing small  building and putting up a larger building providing for future development  vertically also, by building pucca terraced building; (d) The economic  advantage : A modern construction of a larger building shall certainly yield  better revenue and also appreciate in value, when compared to the  asbestos sheet roofed old building: In that case, it was observed that the  existing building was an old, out-model asbestos sheet building proposed to  be replaced with better and modern building which would provide for better  quality accommodation to the needs of the present days as the preservation  of such building in a busy locality of a town shall not only be an eyesore but  also against the souring public demand for additional space.  Viewed from  the angle of general interest of the public which, according to the decision in  P. Orr. & sons is one of the considerations, it was observed that a big site  should yield to a larger modern building with an increased and enlarged  accommodation having better facilities to solve the ever increasing demand  for more space.  Stalling growth and development for the sake of one tenant  who is in occupation of an old model building constructed with mud and  mortar and asbestos sheets occupying only one third of the site was held to  be not conducive to public interest.  We approve the statement of law and

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the approach adopted by Madras High Court in both the above said  decisions."    

The observations made by the single Judge of the Madras High Court (AR.  Lakshmanan,J. as he then was) in A.N. Srinivasa Thevar (supra) can also be  beneficially looked into in the present context : "In the present case, the landlady/respondent has specifically stated in her  petition that the building consists of brick built structure covered by  Asbestos sheet.  Further, the premises does not yield good return, and in  the present condition it has not been properly utilised.  Hence, she intends  to demolish the existing structure and construct a new building with better  utility and for good return.  As stated already, the building is situate at  Kamaraj Salai, which is admittedly a busy locality.  It is borne out from the  evidence of both the landlady/respondent and the tenant/petitioner that  there is a large vacant space behind the existing building.  A cumulative  reading of all the above facts would make it clear that in a busy locality in  Pondicherry town, the demised premises which is more than 30 years old,  with asbestos roof, occupying one third of the site leaving two third of the  site vacant, behind the building."

In Harrington House School vs. S.M. Ispahani and another [AIR 2002 SC  2268] one of us (R.C. Lahoti, J.) speaking for the Bench after analysing the entire facts  and circumstances and the law on the subject rendered a finding to the following effect: "In the present case it has been found that the building is an old  construction requiring demolition and reconstruction.  Out of the total area of  the property only a part is built up and substantial portion is lying open and  vacant.  There is pressure of population on the developing city and several  multi-storey complexes have come up in the vicinity of the property.  There  is nothing to cast a shadow of doubt in the bona fides of the landlords  pleading an immediate need for demolition followed by reconstruction.  No  fault can be found with the finding of fact arrived at by the High Court. The  decision by the Appellate Court was rendered on 25th February, 1994 when  three-Judge Bench decision of this Court in P.Orr & Sons (supra) was  holding the field and in view of the construction placed by this Court in P.Orr  & Sons the Appellate Court was persuaded to deny eviction in spite of the  findings of facts being for the landlord.  The High Court has rightly set aside  the judgment of the Appellate Authority and ordered eviction following the  law laid down by the Constitution Bench in Vijay Singh & Ors. case. It is true  that the landlords have not pleaded and relied on the age and condition of  the building as one of the components of their bona fides but that is  immaterial.  The age and condition of the building has been determined and  is available for assessing the bona fides of the landlords’ need."

In Vijay Singh and Others vs. Vijayalakshmi Ammal (1996) 6 SCC 475, this  Court has observed in para 10 as follows:- "On reading Section 14(1)(b) along with Section 16 it can be said that for  eviction of a tenant on the ground of demolition of the building for erecting a  new building, the building need not be dilapidated or dangerous for human  habitation.  If that was the requirement there is no occasion to put a  condition to demolish within a specified time, and to erect a new building on  the same site.  Sub-section (1) of Section 16 contemplates that permission  has been granted by the Rent Controller under Section 14(1)(b) for  demolition of the building, but if such demolition is not carried out in terms of  the order and undertaking, then the Rent Controller can order the landlord to  put the tenant in possession of the building on the original terms and  conditions.  If the building is dangerous and dilapidated requiring immediate  demolition for safety, then there is no question of the Rent Controller  directing the landlord to put the tenant in possession of such building on the  original terms and conditions, on account of the failure of the landlord to  commence the demolition within the period prescribed.  Similarly, there was  no occasion to link the demolition of such building with erection of new  building and then to give the landlord freedom from the restrictive provisions  of the Act for a period of five years from the date on which the construction  of such new building is completed and notified to the local authorities  concerned.  In this background, it has to be held that neither of the extreme

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position taken by the respondent or the appellants can be accepted.   Permission under Section 14(1)(b) cannot be granted by the Rent Controller  on mere asking of the landlord, that he proposes to immediately demolish  the building in question to erect a new building.  At the same time it is  difficult to accept the stand of the appellants that the building must be  dilapidated and dangerous, unfit for human habitation.  For granting  permission under Section 14(1)(b) the Rent Controller is expected to  consider all relevant materials for recording a finding whether the  requirement of the landlord for demolition of the building and erection of a  new building on the same site is bona fide or not.  For recording a finding  that requirement for demolition was bona fide, the Rent Controller has to  take into account: (1) bona fide intention of the landlord far from the sole  object only to get rid of the tenants; (2) the age and condition of the building;  (3) the financial position of the landlord to demolish and erect a new building  according to the statutory requirements of the Act.  These are some of the  illustrative factors which have to be taken into consideration before an order  is passed under Section 14(1)(b).  No court can fix any limit in respect of the  age and condition of the building.  That factor has to be taken into  consideration along with other factors and then a conclusion one way or the  other has to be arrived at by the Rent Controller."        

The next question that arises for consideration is comparative hardship.   Learned counsel for the landlord has contended that the Nala road premises is  unsuitable because it is unhygienic and, therefore, he wants to shift to the petitions  schedule premises.  It is not the case of the tenants that the landlord has any other  premises of his own.  The landlord, in our view, will be put to hardship if he is not able  to shift to the petition schedule premises.  The tenants also will not be put to any  hardship at all as elaborately discussed by the High Court in para 20, 20.1, 20.2 and  20.3 with reference to each tenancy.  The evidence would clearly go to show that none  of the tenants will be put to hardship if they are evicted from the respective premises in  their occupation.  Learned counsel for the tenants argue that the High Court can  interfere only if there is any mis-carriage of justice due to mistake of law and that the  finding of the lower Court as to bona fide requirements etc. cannot be interefered with  by the High Court by reappreciating evidence which is impermissible in law.  In support  of his contention, he relied on the decision of this Court in Phiroze Bamanji Desai vs.  Chandrakant M. Patel & Ors. [1974] 3 SCR 267].  The above decision will be of any  assistance to the tenants.  The judgment is not only distinguishable on facts but also on  law.  On the other hand, this Court in Kempaiah vs. Lingaiah and Others (2001) 8  SCC 718 held that the revisional powers of the High Court, under the Karnataka Rent  Control Act, are wider than the powers conferred upon it under Section 115 of the Code  of Civil Procedure and the High Court is not precluded to appreciate the evidence for  arriving at the conclusion regarding the bona fide requirement etc.  We have already  extracted Section 50 of the Rent Control Act.  The said Section is widely couched.  The  High Court while exercising jurisdiction under Section 50 may at any time call for and  examine any order passed or proceedings taken by the Court of Small Causes or the  Court of Civil Judge or any order passed by the Controller under Section 14, 15, 16 or  17 for the purpose of satisfying itself as to the legality or correctness of such order or  proceeding and may pass such order in reference thereto as it things fit.  Under Section  115 C.P.C. the High Court has got power to revise the order passed by the Courts  subordinate to it.  It cannot be disputed that the Rent Controller is a subordinate Court  and is liable to the revisional jurisdiction of the High Court. Hence, the High Court has  powers to entertain a revision and reappreciate the evidence and dispose of the same.   The High Court has jurisdiction to go into the legality or correctness of the decision  which, in our view, includes the power to reappreciate evidence and that the High Court  can interfere with the findings of fact also.  This apart, the jurisdiction of the High Cour t  under Section 50 is to examine the legality and correctness of the order of the trial  Court.  The examination as to the correctness involves appreciation of evidence and  that the High Court can interfere if the finding of the Rent Controller is entirely  improbable.

For the aforesaid reasons, the tenants are not entitled to succeed in these  appeals and the appeals stand dismissed.  However, the tenants will have three  month’s time to vacate the premises in their respective occupation and subject to the  filing of an usual undertaking within two weeks from this date failing which the landlord

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is at liberty to levy execution and proceed further in accordance with law.  No costs.