ORDER
1. The petitioners, in this petition, are the landlords and the respondent is the tenant. This petition is filed under sub-section (1) of Section 50 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act'), challenging the correctness of the order dated 29th of March, 1996 made in H.R.C. No. 1016 of 1992 by the Court of Additional Judge, Court of Small Causes, Bangalore, rejecting the eviction petition filed by the petitioners-landlords seeking eviction of the respondent-tenant under Section 21(j)(h) and (p) of the Act.
2. The parties to this petition, in the course of this order, will be referred to as 'the landlords' and 'the tenant'.
3. During the pendency of this petition, the first petitioner-Smt. Indira Rao expired on 3rd of April, 1997 and, therefore, a memo was filed stating that she has died leaving behind some of the petitioners as her legal heirs.
4. The facts in brief, which may be relevant for the disposal of this petition, may be stated as hereunder:
(a) The deceased first petitioner-Smt. Indira Rao is the wife of one S. Raghunatha Rao. The second petitioner is the son, and petitioners 3 to 5 are the daughters and petitioners 6 and 7 are the children of one of the deceased daughters of the said Raghunatha Rao. The property bearing Municipal No. L/l (new No. 23), L/l (New No. 24), Kasturba Road, Bangalore, which is the subject matter of dispute in this petition and which will be hereinafter referred to as 'the petition schedule premises', was the self-acquired property of the said Raghunatha Rao. The said Raghunatha Rao expired on 2nd of February, 1975. Prior to his death, he had executed his last will and testament dated 21st of March, 1974, which has been marked as Exhibit P. 1 in the courseof the proceedings before the Trial Court. The petition schedule premises, according to the schedule set out in the petition, is a part and parcel of land together with two storeyed dwelling house and other constructions situated thereon.
(b) According to the landlords, the petition schedule premises is a very old building built during the year 1945 and they required the petition schedule premises reasonably and bona fide for their use and occupation. According to them, since the petition schedule premises being an old building, is in a dilapidated condition and not convenient for their use; they intend to demolish the existing building and in its place, intend to construct a building consisting of ground and first floor; and in the ground floor, the second petitioner intends to reside along with his mother and in the first floor, the other petitioners intend to reside. It is their case that the deceased first petitioner was residing in the outhouse, which has been converted as outhouse out of the existing garage situated adjacent to the petition schedule premises. It is the further case of the landlords that they have acquired right, title and interest in the petition schedule premises by virtue of Will-Exhibit P. 1. According to them, the second petitioner, who was employed at Tata Tea Company earlier at Bombay, has now been transferred to Bangalore and though petitioners 3 and 4 are residing at Baroda and Bombay respectively, they also intend to come and settle down at Bangalore and occupy the first floor along with the 5th petitioner, who is already residing in a rented premises at Bangalore. It is their case that none of them own any other residential building either at Bangalore or elsewhere. It is their further case that the tenant being a public limited company, whose yearly turnover being more than Rs. 138 crores, no hardship will be caused to the tenant if an order of eviction is passed against it. On the other hand, it is their case that if an order of eviction is not passed, they will be put to greater hardship. It is their case that they have got sufficient resources to put up a new construction after demolishing the existing building. It is also their case that petitioners 2 to 5 intended to take care of the deceased first petitioner as she was of advanced age at the time of filing the eviction petition. The landlords also pleaded that since the tenant has acquired suitable alternate premises, the tenant is liable to be evicted under Section 21(l)(p) of the Act.
(c) The tenant resisted the claim of the landlords. It, inter alia disputed the claim of the landlords that they bona fide and reasonably require the petition schedule premises for their use and occupation; and they intend to demolish the existing building and put up a hew construction; and they have sufficient resources to put up a new construction in the place of the original building; and if an order of eviction is not passed, the landlords will be put to greater hardship than the tenant. The tenant also disputed that it has acquired any suitable alternate premises.
(d) In the course of the trial, on behalf of the landlords, the second petitioner was examined as P.W. 1 and the third petitioner was examined as P.W. 3 and one Y.K. Raghavendra Rao and one George John were examined as P.W. 2 and P.W. 4 respectively. Certain documents were got marked on behalf of the landlords as Exhibits P. 1 to P. 19. On behalf of the tenant, one P.O. Mathew, who is the Manager-Liaison in the tenant-Company, was examined as R.W. 1. Certain documents were marked as Exhibits R. 1 to R. 4.
(e) The learned Small Cause Judge, on consideration of the evidence on record, rejected the claim of the landlords and dismissed the eviction petition. As observed by me earlier, being aggrieved by the said order,' this revision petition is presented.
5. Sri Udaya Holla, learned Counsel appearing for the landlords, challenged the finding recorded by the learned Judge on several grounds. Firstly, he submitted that the finding recorded by the learned Judge that the landlords have failed to establish that they require the petition schedule premises reasonably and Holla fide, is totally erroneous in law and the said finding has been given in total disregard of the evidence on record. Elaborating this submission, Sri Holla pointed out that the said finding has been recorded by the learned Judge in total misunderstanding of the provisions contained in Section 21(l)(h) of the Act. It is his submission that the learned Judge has rejected the claim of the landlords under Section 21(l)(h) of the Act solely on the ground that as per Will-Exhibit P. 1, the deceased first petitioner having been given the right to collect the rent of the petition schedule premises i.e., both in respect of the ground and first floor, during her life time, if an order of eviction is passed and the petition schedule premises is allowed to be demolished and new construction is allowed to be put up in its place, it would run counter to the wishes of the testator of the Will; and in the absence of any explanation offered as to how the deceased first petitioner would be able to maintain herself in the event of the demolishing the building and putting up new construction, the claim made by the landlords for eviction of the tenant should be held as neither reasonable nor bona fide. He submitted that the evidence on record clearly shows that the deceased first petitioner and her son (second petitioner) were intending to reside together in the ground floor portion and other landlords are intending to reside in the first floor of the newly constructed building. It is the case of the landlords that the children and grand children of the deceased first petitioner would like to take care of her on account of her advanced age and she had no assistance of any of her relatives as she was residing alone in the outhouse. Sri Holla points out that this aspect of the matter has been completely overlooked by the learned Judge while passing the order under revision. Secondly, he submitted that since, during the pendency of this petition before this Court, the deceased first petitioner has expired and as per the terms of the Will, her son, i.e., the second petitioner, becomes the owner of the ground floor portion of the building and her four daughters i.e., petitioners 3 to 5 and the deceased mother of petitioners 6 and 7, would be theowners of the first floor portion of the building; and, therefore, tne examiningrecorded by the learned Judge to deny the order of eviction sought for by the landlords no longer being available; the case of the landlords is now required to be considered on the basis of the evidence on record; and if it is considered on that basis, he pointed out that the landlords are entitled for an order of eviction against the tenant as the landlords have clearly established that the petition schedule premises is reasonably and bona fide required by them for their use and occupation. He also pointed out that the tenant being a public limited company with a transaction of nearly Rs. 200 crores per year, the tenant will not be put to any hardship if an order of eviction is passed against it. Finally, Sri Holla submitted that even according to the evidence of R.W. 1, the tenant has acquired a premises in Somerset Apartments and, therefore, it must be held that on the very admission made by R.W. 1, the tenant is liable to be evicted under Section 21(1)(p) of the Act as it has acquired suitable alternate premises. It is his further submission that the evidence on record also shows that in the sister concern of the tenant-Company viz., Graphite India Limited, some of the Directors of the tenant-Company and also the said Company, being common, the tenant has acquired suitable alternate premises.
6. However, Sri C.B. Srinivasan appearing along with Sri Abdullah for the tenant, strongly countered the submissions of Sri Holla and supported the order under revision. In support of his prayer that the revision petition is liable to be rejected, he made three submissions. Firstly, he submitted that in view of the decision of the Supreme Court in the case of Shobha Surendar v H.V. Rajan , wherein the Supreme Court has held that Section 31 of the Act is valid, the eviction petition filed by the landlords is not maintainable in law as admittedly the rent fixed in respect of the petition schedule premises is more than Rs. 500/-per month. In this connection, relying upon the decision of this Court in the case of West Coast Paper Mills Limited v Mrs. Indira Rao, between the same parties, wherein this Court has dismissed suit O.S. No. 203 of 1977 filed by the landlords seeking recovery of possession of the petition schedule premises from the respondent on the ground that the petition schedule premises being a non-residential premises; and, therefore, Section 31 of the Act having been held as invalid by this Court in the case of H. Padmanabha Rao v State of Karnataka, and the said decision having now been impliedly overruled by the Supreme Court in the case of Shobha Surendar, supra and Section 31 of the Act having now been held valid, the eviction petition as well as the revision petition filed by the landlords invoking the provisions of the Act, are not maintainable in law. He pointed out that since a special jurisdiction is conferred under the Act, this Court, while examining the correctness of the order under revision passed by the learned Judge, will not have jurisdiction to order eviction against the tenant. Secondly, he submitted that even assumingthat the eviction petition as well as the revision petition filed by the landlords are maintainable in law, there is no infirmity in the finding recorded by the learned Judge holding that the landlords have failed to make out a case for eviction of the tenant under Section 21(1)(h) of the Act. He pointed out that the death of the first petitioner during the pendency of this revision petition, does not make any difference as, from the evidence on record, the landlords have failed to make out a case that they require the petition schedule premises reasonably and bona fide for their use and occupation. Finally, he pointed out that the case made out by the landlords that the tenant has acquired a suitable alternate premises, so as to seek eviction of the tenant under Section 21(1)(p) of the Act, is without any basis and the finding recorded by the learned Judge on this question also does not call for interference by this Court.
7. Sri Holla, in response to the submission of Sri Srinivasan that in view of the decision of the Supreme Court in the case of Shobha Suren-dar, supra, the eviction petition as well as the revision petition filed by the landlords are not maintainable, submitted that in this petition, the said question does not arise for consideration. He pointed out that the landlords have sought eviction of the tenant from the premises, which has been described as 'two storeyed dwelling house' in the schedule given to the petition. He pointed out that it is not the case of the tenant at any time in the course of the proceedings before the Trial Court, that the petition schedule premises is not a residential premises and as such, the eviction petition filed by the landlords is not maintainable before the Court. He also submitted that the tenant having failed to plead that the petition schedule premises is a non-residential premises and also having failed to raise any objection with regard to the jurisdiction of the Court, cannot now be permitted to contend that the eviction petition filed by the landlords is not maintainable with reference to the decision of the Supreme Court in the case of Shobha Surendar, supra, wherein the Supreme Court has taken the view that Section 31 of the Act is valid in law. According to Sri Holla, since there was no issue or controversy raised by the tenant with regard to the nature of the petition schedule premises, for the first time, it cannot be permitted to rely upon the decision of the Supreme Court in the case of Shobha Surendar, supra, which has absolutely no bearing to the facts of this case to deny the relief sought for by the landlords. While elaborating this submission, he also pointed out with reference to the evidence of R.W. 1, that even according to R.W. 1, only the ground floor portion of the petition schedule premises is being used for the purpose of office and merely because the portion of the premises is used for the purpose of office by the tenant, it will not make the petition schedule premises a non- residential premises. The premises in question being a dwelling house, according to him, unless necessary permission as required under Section 11 of the Act is obtained, the premises, which is a residential premises, will not become a non-residential premises. Therefore, he submitted that in the absence of such permission and also the evidence on record to show that the petition schedule premises is a non- residential premises, the tenant cannot now be permitted to contend that the eviction petitionfiled by the landlords is not maintainable. He also alternatively submitted that in the event of this Court taking the view that the petition schedule premises is a non-residential premises in view of the earlier decision of this Court, the tenant must be held to be bound by the earlier decision of this Court. It is his further submission that at the instance of the tenant, this Court having held in the proceedings between the same parties in suit O.S. No. 23 of 1977 filed by the landlords for recovery of possession of the petition schedule premises, that Section 31 of the Act is invalid, the tenant must be estopped from taking a contradictory stand in this petition as it is bound by the earlier decision of this Court.
8. In the light of the rival submissions made by learned Counsel appearing for the parties, the question which would fall for my consideration in this revision petition, are-
(1) Whether the revision petition filed by the landlords challenging order dated 29th of March, 1996 made in H.R.C. No. 1016 of 1992 by the learned Additional Judge, Court of Small Causes, Bangalore and also the eviction petition filed by the landlord are not maintainable in view of the decision of the Supreme Court in the case of Shobha Surendar, supra, holding that Section 31 of the Act is valid in law?
(2) In the event of the revision petition as well as the eviction petition filed by the landlords being held as maintainable, whether the landlords have established that they require the petition schedule premises reasonably and bona fide for their use and occupation after demolishing the existing building?
(3) Whether the landlords or the tenant will be put to greater hardship if an order of eviction is not granted or granted?
(4) Whether, in the facts and circumstances of the case, it is feasible to order partial eviction against the tenant from the petition schedule premises?
(5) Whether the landlords have established that they require the petition schedule premises for the immediate purpose of demolition and reconstruction as provided under Section 21(1)(j) of theAct?
(6) Whether the landlords have established that the tenant is liable to be evicted on the ground that it has acquired a suitable alternate premises and as such, liable to be evicted under Section 21(1)(p) of the Act?
Re: Question No. (1):
9. Having given my careful consideration to the submissions made by the learned Counsel appearing for the parties, with regard to the objection raised by the learned Counsel for the tenant that this petition as well as the eviction petition are not maintainable in the light of the decision of the Supreme Court in the case of Shoba Surendar, supra, holding that Section 31 of the Act is valid, I am of the view that the said objection is wholly misconceived and is without any substance. The saidsubmission is liable to be rejected on two grounds. Firstly, on the ground that the assumption made by the learned Counsel for the tenant that Section 31 of the Act has application to the facts of the present case is totally erroneous. Section 31 of the Act excludes the application of the provisions of Part-V of the Act only in respect of non-residential premises. The petition schedule premises has been described as 'two storeyed dwelling house No. L/l, New No. 23 and L/1, New No. 24, Kasturba Road, Bangalore, with fixtures and fittings thereon. Therefore, the description of the petition schedule premises clearly shows that the petition schedule premises is a dwelling house i.e., a residential premises. It is not the case of the tenant either in the statement of objections filed by it or in the evidence of R.W. 1, who has been examined on behalf of the respondent, that the petition schedule premises is a non-residential premises and, therefore, the eviction petition filed invoking the provisions of the Act, was not maintainable and on that ground, the eviction petition was liable to be rejected. In paragraph 9 of the petition, it is specifically stated that 'the structure as it stands is not conducive for the habitation of the petitioners having regard to the fact that the building is old and in a dilapidated condition and the structure as it exists is not conducive for being used for more than one family'. Therefore, the clear and unambiguous averment made in the petition including the description of the property given in the schedule makes it clear that the landlords sought eviction of the tenant from a residential premises. If it is the case of the tenant that the schedule premises is a non-residential premises and as such, the Court of Small Causes has no jurisdiction to entertain the petition filed by the landlords by invoking the provisions of the Act, the tenant should have pleaded the same. There is no controversy raised by the tenant either with regard to the nature of the premises or with regard to the jurisdiction of the learned Small Causes Judge to try the eviction petition. There is no issue framed on that question. There is also no cross-examination of the witnesses examined on behalf of the landlords including P.W. 1 and P.W. 3 suggesting to them that the petition schedule premises is a non-residential premises. The nature of the premises as to whether it is residential or non-residential, is purely a question of fact. If the tenant intended to non-suit the landlords on the ground that the provisions of the Act cannot be invoked to evict the tenant, the tenant should have raised such an objection. The evidence of P.W. 1 and P.W. 3 also shows that they wanted the petition schedule premises for their dwelling purpose. Will-Exhibit P. 1 executed by late Raghunatha Rao, shows that he has described the petition schedule premises in Paragraph 5 of his Will as 'the house consists of ground floor and all land surrounding it with servants quarters and first floor'. He has further stated that he bequeathed his house property in favour of his wife and children. He has also referred in the Will that the said house property was given on lease to the tenant. Further, Clause 5(b)(ii) of the Will-Exhibit P. 1 states that 'if any of the daughter/s chooses/choose to occupy her/their portion, then his son, i.e., the second petitioner, should allow his daughter or daughters to construct a garages on the ground adjacent to the ground floor portion'. It is furtherstated that if any of the daughter/s choose/choose to occupy the first floor, they shall do so on payment of reasonable rent to compensate the other daughters who may not occupy. Therefore, the reading of Exhibit P. 1 also makes it clear that the petition schedule premises is a residential premises. Admittedly, the deceased first petitioner was residing in an outhouse situated close to the petition schedule premises. Therefore, the material on record clearly establishes that the petition schedule premises was constructed as a residential premises and it is a residential premises. The same is the case set out by the landlords in the petition. Further, though the tenant in paragraph 3 of the statement of objections has stated that the ground floor of the premises was allotted to it in the year 1959 by the House Rent and Accommodation Controller, it is not its case that the same was allotted as a non-residential premises. It is also not the case of the tenant either in the statement of objections or in the evidence of R.W. 1, that the petition schedule premises was taken on lease either as a non-residential premises or for non-residential purpose. It is not even its case that the object of the lease was non-residential. The only thing that can be stated in favour of the tenant is that the ground floor of the premises, according to R.W. 1, is being used as office by the tenant. Merely because a portion of the petition schedule premises is used as office by the tenant, will not make the schedule premises as a non-residential premises. Further, Section 11 of the Act provides that except as otherwise provided in the Act, no residential building shall be converted into a non-residential building, except with the permission in writing of the Controller. It is not the case of the tenant that at any time, the Controller has permitted conversion of the schedule premises into a non-residential building. There is also no evidence in that regard. If all these factors are taken into consideration, even if the ground floor of the petition schedule premises is being used by the tenant for its office purpose, it does not make the petition schedule premises a non-residential building. Under Section 31 of the Act, it is only in respect of a non-residential building, the monthly rent of which is more than Rs. 500/-, Part V of the Act is not made applicable. Therefore, when the tenant wants to non-suit the landlords on the ground that the premises in respect of which the landlords have sought eviction of the tenant by invoking the provisions of the Act, is a non-residential building, it is for the tenant to plead and establish the same. The mere user of a portion of the building, which is a residential building for commercial or office purposes, will not make the building a non-residential one. The object of the lease is an important test to be applied. It is not uncommon that a portion of the residential building, which is taken on lease for the purpose of residence, is being used by the Lawyers and Doctors either as Lawyer's Office or Doctor's Clinic. Similarly, merely because a room or a portion of the premises is used by a Dhobi, a Barber, a Tailor or a Cobler, who has taken the residential building for the purpose of residence, as a Laundry, Hair Cutting Saloon, a Tailoring Shop or a Cobler's working place, will not make the residential building a non-residential one. What is important for the Court is to consider the nature of the building and the object of the lease and not for whatpurpose, a portion of the premises is, as a matter of fact, put to use by the tenant. These are the matters on which there should be pleading and evidence to be placed before the Court in support of the claim of the tenant if the tenant wants to oust the jurisdiction of the Court by contending that the premises is a non-residential building. What is important for the Court to consider is the nature of the building and the object of the lease; and not for what purpose, a portion of the premises is put to use by the tenant. Further, even according to R.W. 1, the first floor of the building is admittedly being used as a Guest House of the tenant. In this connection, it is useful to refer to the observations made by the Supreme Court in the case of Busching Schmitz Private Limited v P.T. Menghani and Another . In the said case, the Supreme Court has observed that whatever is suitable or adaptable for residential uses, even by making some changes, can-be designated as a residential premises. At paragraphs 17 and 18, the Supreme Court has observed thus:
'17. Guided by this project oriented approach, we reject the rival extreme positions urged before us by Shri Nariman and Shri Jain, Residential premises are not only those which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell. If a beautiful bungalow were let out to a businessman to run a showroom or to a meditation group or music society for meditational or musical uses, it remains nonetheless a residential accommodation. Otherwise, premises may one day be residential, another day commercial and, on yet a later day, religious. Use or purpose of the letting is no conclusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazars cannot make them residential premises. That is a case of reductio ad absurdum.
18. Engineering skills and architectural designing have advanced far enough to make multi-purpose edifices and, by minor adaptations, make a building serve a residential, commercial or other use. The art of building is no longer rigid and the character of a house is not an 'either or'. It can be both, as needs demand. It is so common to see a rich home turned into a business house, a dormitory into a factory. Many small scale industries are run in former living quarters. To petrify engineering concepts is to betray the law's purpose. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'. And once it is 'residential' in the liberal sense, Section 14-A stands attracted. Dictionary meaning, common sense understanding and architectural engineering concur in the correctness of this construction'.
Further, the Supreme Court, while considering the question whether, if, out of two rooms, one room is used as a Tailoring shop occupied by the Tailor, such a premises is a residential premises, has, in the case ofPrem Chand v District Judge, Dehradun and Another , held that it is a residential premises. It is useful to refer to paragraphs 5 and 6 of the said judgment, which read as hereunder:
'5. It is submitted by the appellant that the building under tenancy is not a residential building and, therefore, the condition precedent to the application of Explanation (iv) is absent in this case. According to Counsel since the tenant is admittedly running a tailoring shop in one of the two rooms under his occupation the house ceases to be a residential building.
6. We are unable to accept this submission. The appellant has only two small rooms in which he resides with his wife, two young sons and one daughter and although he may have a tailoring shop in one of his rooms it is not unlikely that very room is utilised as bedroom for one or two members of his family at night. The fact that he runs a tailoring shop in one of the rooms is not sufficient to convert what otherwise to all intents and purposes is a residential building into a non-residential building. The tests for application of Explanation (iv) are as follows:
(1) The building should be a residential building; and
(2) the landlord must be in occupation of a part of the building for residential purposes, the other part being in the occupation of the tenant.
If the above two tests are fulfilled in a case it will furnish under the law a conclusive proof that the building is, bona fide required by the landlord. There is no need for the landlord to establish any other requirement. Explanation (iv) provides a conclusive and irrebuttable presumption of bona fide requirement once the conditions mentioned therein are established. The two tests are fulfilled in this case on the findings of fact as noted above, We are of opinion that the District Judge was right in his finding that Explanation (iv) of Section 21(1) was applicable which view was also later upheld by the High Court...'.
The principle laid down by the Supreme Court in the decisions referred to above, in my view, would fully apply to the facts of the present case. Therefore, I have no hesitation in coming to the conclusion on the basis of the material on record in this case that the petition schedule premises is a residential building and as such, the provisions of Section 31 of the Act cannot be pressed into service to non-suit the landlords.
10. However, it is necessary to refer to the contention of Sri Srinivasan based on the decision of this Court between the same parties, which is reported in West Coast Paper Mills case, supra, wherein the suit filed by the landlords for possession of the petition schedule premises though decreed by the Trial Court, came to be dismissed by thisCourt on the ground that Section 31 of the Act was applicable to the premises in question. It is the contention of Sri Srinivasan that since, in the earlier proceedings, the landlords had proceeded on the basis that the petition schedule premises is a non-residential premises and therefore, having filed a suit for recovery of possession of the petition schedule premises on the ground that Section 31 of the Act excludes the application of Part V of the Act, the landlords cannot contend that the schedule premises is a residential premises. I am unable to accede to this submission of Sri Srinivasan. As pointed out by me earlier, the evidence on record in the present case clearly establishes that the landlords had pleaded that the petition schedule premises is a residential premises. In the absence of any objection raised by the tenant either on the ground that the landlords are bound by the case pleaded by them in the earlier proceedings and therefore it is not permissible for them to take a different stand or on the ground that the petition schedule premises is a non-residential building and therefore the landlords are not entitled to file the petition invoking the provisions of the Act, the tenant cannot now be permitted to contend for the first time in this revision petition relying upon the earlier finding in the decision between the same parties, referred to above, that the petition schedule premises is a non-residential premises. In the absence of the pleadings of the earlier proceedings placed before the Court as a piece of evidence and the landlords are given an opportunity to explain the circumstances, if any, put against them, the tenant cannot be permitted to contend that the premises in question is a non-residential building. Insofar as this proceeding is concerned, the Court is required to consider on the basis of the evidence, whether the petition schedule premises is a residential premises on the date of the filing of the petition or not. This is purely a question of fact to be established. Therefore, in my view, the finding recorded in the ', earlier proceedings will neither operate as res judicata insofar as the nature of the premises is concerned, nor can it be said that the landlords are blowing hot and cold to the detriment of the tenant. In the light of the said conclusion reached by me on facts, I am of the view that the decision of the Bombay High Court in the case of Smt. Krishnabai and Others v Baburao and Others and of the Allahabad High Court in the case of Udrej Singh and Another v Ram Bahal Singh and Others , relied upon by Sri Srinivasan, are of no assistance to him.
11. Secondly, the contention with regard to the maintainability of the petition is liable to be rejected on the ground that the tenant is not entitled to take advantage of the decision of the Supreme Court in the case of Shobha Surendar, supra. No doubt, the Court is required to take into consideration the subsequent decision of the Supreme Court, which is applicable on the date of deciding the rights of the parties by a Court. But, that principle cannot be made applicable insofar as the facts of the present case is concerned. In my view, insofar as the rights of the parties to this proceedings are concerned, even if the premises in question isheld to be non-residential, in view of the finding recorded by this Court in the earlier proceedings, the parties are bound by the earlier decision of this Court where this Court, at the instance of the tenant, has taken the view that Section 31 of the Act was not valid and the rights of the parties are governed by the provisions of the Act. The tenant, who suffered a decree for possession ordered by the Court in O.S. No. 23 of 1977, got it nullified by this Court by contending that the provisions of Section 31 of the Act was invalid, and therefore the provisions of the Act alone are applicable insofar as the rights of the landlords to seek eviction of the tenant from the petition schedule premises is concerned, cannot now be permitted to rely upon the decision of the Supreme Court in Shoba Surendar's case, supra. As observed by me earlier, insofar as the landlords and tenant in this proceedings are concerned, the decision of this Court rendered inter parties between the parties, is binding on them. The said decision insofar as the parties to this proceedings is concerned, it has become final and conclusive with regard to the question so decided and the same would constitute as an absolute bar for reconsideration of the same question in a subsequent litigation. The principle of res judicata is a principle of estoppel by judgment. If the parties have taken up a particular position before the Court at one stage of the litigation, it is not open to them to approbate and reprobate and to resile from that position. This principle has been accepted by the Calcutta and Allahabad High Courts. The Allahabad High Court, while referring to the decision of the Calcutta High Court, has, at paragraphs 5, 6, 7 and 8 observed thus:
'5. ..... This principle has been laid down in a number of cases,and was discussed in the ruling of the Calcutta High Court reported in 39 Cal. L.J. 40, in which Sir Asutosh Mookerjee at page 52, made the following observations:
(6) 'It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent. This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided that the second suit grows out of the judgment in the first'.
(7) The principle has been applied in this Court even in cases where the question involved was one of jurisdiction. See the case in AIR 1930 All. 15. where a Bench consisting of Sulaiman, J. (as he then was) and Pullan, J., ruled that the party upon whose objection an appeal was returned by the Commissioner for presentation to the proper Court was estopped from raising the question of jurisdiction later asr by his objection before the Commissioner, he had accepted the jurisdiction of the High Court as the proper forum of appeal. In the case before me it can be said that by the statement referred to above the parties agreed that it would be the Special Judge, and not the District Judge, who would extend the time after the disposal of the appeal by the latter and that itwas in consequence of this statement that no attempt was made in the Court of the District Judge to obtain a direction from him with regard to the extension of time. It may be urged on behalf of the opposite parties that the doctrine mentioned aboye cannot be allowed to override the law of procedure. There is high authority for the proposition that this fundamental principle cannot be disturbed merely by the rules of the Court or by the law of procedure. In (1936)1 KB 202 at page 214, Slesser, L.J., made the following observations:
(8) 'The power of the Court to set aside a judgment properly obtained, albeit by default, is one conferred upon it by rules of Court. I do not read that power as having disturbed the fundamental principle on which the Court has always acted, that a person cannot approbate and reprobate. The same broad principle, that a man shall not be allowed to blow hot and cold - to affirm at one time and deny at another - making a claim on those whom he has deluded to their disadvantage, and founding that claim on the very matters of the delusion'.'
Further, the Division Bench of this Court in the case of Suresh Babu v Smt. S. Susheela Thimmegowda, to which I am a party, has taken the similar view. At paragraphs 16.1, 16.2 and 16.3 of the order, this Court has observed as follows:
'16.1. It is well-settled that a Civil Court has always the jurisdiction to decide whether it has jurisdiction to try a suit before it or not and its decision on the question of jurisdiction will operate as res judicata in regard to the same question raised in any subsequent proceedings (See: Upendra Nath v Lalt and Avtar Singh v Jagjit Singh). Therefore, when the civil suit filed by the landlord against his tenant for possession is dismissed by the Civil Court by holding that it had no jurisdiction in view of the decision in Padmanabha Rao, and the landlord has to file an eviction petition under the KRC Act, such decision becomes final and conclusive as between the parties, in regard to the question so decided, and as between them will constitute an absolute bar to a reconsideration of the same question in any subsequent litigation. The principle of res judicata is the principle of estoppel by judgment.
16.2. If an eviction petition under the KRC Act is subsequently filed by such landlord, the earlier decision in the civil suit will estop the tenant from raising any objection that the Court under the KRC Act has no jurisdiction, relying on the decision in Shobha Surendar, supra. The earlier decision between the parties holding that the suit was not maintainable (based on Padmanabha Rao's case, supra, that Section 31 of the Act is void or invalid) will bind the parties to the proceedings and they cannot be permitted toapprobate and reprobate and contend relying upon the decision ol the Supreme Court in Shobha Surendar's case, supra, that Section 31 of the Act is valid and therefore the proceedings initiated under tbe Act must be held as one without jurisdiction. This is because the decision of the Civil Court holding that it had no jurisdiction, was correct and in accordance with law when it was rendered. As per the law declared then, the Court under KRC Act had jurisdiction to entertain the eviction petition. There has been no change in the statute, subsequent to such decision of the Civil Court in the suit. There is only a change in the interpretation of the statute by Courts. Therefore, the principle of res judicata will continue to apply in such cases, with reference to any objection of want of jurisdiction of the Court under the KRC Act.
16.3. In view of the above, the landlords whose earlier civil suits had been dismissed by judgment of the Civil Court (as contrasted from withdrawl of the suits by the landlord) will be entitled to proceed with the eviction proceedings, even after the decision in Shobha Surendar's case, supra'.
The decision of the Division Bench of this Court fully applies to the facts of the present case. The error, if any, committed by the Court should not harm the interest of one of the parties to the proceedings. As observed by me earlier, it is the tenants who non-suited the landlords on the ground that Section 31 of the Act is not valid and, therefore, the decree passed by the Trial Court for recovery of possession of the petition schedule premises is required to be set aside. The earlier judgment of this Court relied upon by the learned Counsel for the tenant shows that the tenancy of the tenant was terminated and thereafter, the suit was filed for recovery of possession of the petition schedule premises. Therefore, the learned Counsel for the tenant cannot derive any assistance from the judgment of the Supreme Court in the case of Shobha Surendar's case, supra and contend that the proceedings initiated by the landlords are without jurisdiction. The preliminary objection raised is accordingly answered.
Re: Question No. (2):
12. On the question whether the petition schedule premises is reasonably and bona fide required by the landlords for their use and occupation after demolishing the existing building, I am of the view that the finding recorded by the learned Judge negating the claim of the landlords on this ground, is unsustainable. The learned Judge having rightly negated the contention of the tenant that the eviction petition was filed by the landlords for collateral purposes, as the landlords having failed to extract higher rent from the tenant, was totally unjustified in negating the claim of the landlords that they require the petition schedule premises reasonably and bona fide for use and occupation after demolishing the existing building. The only reason assigned by the learned Judge to negate their claim on this ground is that the deceased first petitioner i.e., the mother of petitioners 2 to 5, was entitled to receive the income from the petition schedule premises during her life time and if an orderof eviction is passed against the tenant and the building is allowed to be demolished for the purpose of constructing another residential building to be used by the landlords, it would deprive her right to receive the income/rent from the petition schedule premises and there is no explanation given as to how she would maintain herself. The entire approach made by the learned Judge on this aspect of the matter, is totally erroneous. It is the case of the landlords that the deceased first petitioner was of advanced age and after putting up the new construction, she would be shifting from the outhouse where she is presently residing and would be residing along with her son, i.e., the second petitioner in the ground floor of the newly constructed building and petitioners 3 and 4 would be residing in the first floor of the newly constructed building, When it is pleaded and the evidence on record clearly shows that she would be residing with her son and on that ground, when she also seeks eviction of the tenant, I am unable to understand the logic behind the finding recorded by the learned Judge that if an order of eviction is passed, she would be deprived of her right to receive the rent and, therefore, the claim made by the landlords for eviction of the tenant is neither reasonable nor bona fide. The learned Judge appears to have lost sight of the realities of life that generally every child would like to look after his/her parents and more particularly, when they are of advanced age. This is the very case pleaded and established by the landlords. There is no contra evidence to disprove the said case pleaded by the landlords. Under these circumstances, I am of the view that the conclusion reached by the learned Judge that the landlords have failed to make out a case that the petition schedule premises is reasonably and bona fide required by them, is unsustainable and liable to be set aside. Further, admittedly, during the pendency of the proceedings before this Court, the first petitioner has expired. As per the terms and conditions of Will-Exhibit P. 1, the second petitioner-her son is entitled for the ground floor portion of the building along with the surrounding land as he has no issues, and all the four daughters of late Sri Raghunatha Rao are entitled for the first floor portion of the petition schedule premises. Petitioners 3 to 5 are the daughters of the said Raghunatha Rro and petitioners 6 and 7 are the children of one Smt. Padma, who is the deceased daughter of the said Reghunatha Rao. Therefore, even the reason assigned by the learned Judge to negate the claim of the landlords that they require the petition schedule premises reasonably and bona fide is also no longer is existence. Under these circumstances, it is necessary to examine as to whether the landlords, who are before this Court, are entitled to seek eviction of the tenant under Section 21(1)(h) of the Act. It is the case of the landlords that the petition schedule premises is very old and it was built during the year 1945 and they intend to demolish the existing building and put up a new residential building in its place consisting of ground and first floor; and the ground floor would be occupied by the second petitioner, who gets absolute title to it, and the first floor would be occupied by petitioners 3 and 4 and their family members. AH of them have stated that it is their case that they were residing at the time of filing the petition, at different places asshown in the cause title to the petition and they intend to come and settle down in Bangalore and they have no other premises of their own either in Bangalore or in other places. It is also their case that they have sufficient financial capacity to put up a new residential building in the place of the old building. In support of the case of the landlords, the second petitioner, who has been examined as P.W. 1, and the third petitioner, who has been examined as P.W. 3, have spoken to the fact that the petition schedule premises is reasonably and bona fide required by the landlords for the purpose of their use and occupation. The evidence of P.W. 1 shows that since the building in question is an old building and is not conducive for the occupation of the landlords, they intend to demolish the existing structure and put up a new construction and for the said purpose, they have already obtained a licence, which has been produced as Exhibit P. 3. Permission obtained by them to demolish the existing building from the Corporation has also been produced as Exhibit P. 4. They also got the cost of construction estimated by an Architect and the same has been produced as Exhibit P. 5. His evidence discloses that he had a liquid fund of Rs. 66 lakhs in the form of shares. The said claim is supported by means of documents Exhibits P. 6, P. 7 and P. 8. His evidence further discloses that at the time of filing of the petition, he was at Bombay, working at Tata Tea Group Company and subsequently, he has been transferred to Bangalore and is presently working at Bangalore and occupying the quarters of his employer. The evidence also shows that he would be retiring shortly. Exhibits P. 9 and P. 10 produced by P.W. .1. shows that he has been transferred to Bangalore. His evidence shows that after the construction of the new building, he and his sisters intend to occupy the ground and first floor of the building. He has also set out in his evidence the members of his family and that of his sister's family. His evidence shows that none of the landlords own any building either in Bangalore City or elsewhere. P.W. 3 has corroborated the evidence of P.W. 1. From the evidence of P.Ws. i and 3, I am fully satisfied that the claim made by the landlords that they require the petition schedule premises reasonably and bona fide and for the purpose of demolishing the existing structure and put up a new construction. As observed by me earlier, the evidence on record shows that they have sufficient financial capacity to put up a new construction. The evidence on record shows that petitioners 2 to 4 are reaching the age of retirement from service. Under these circumstances, if the landlords, who are basically from Bangalore and who are residing at different parts of the country, want to come down to Bangalore and demolish the existing old building, which was constructed in the year 1945, and put up a new construction with all modern amenities and reside in one building, which consists of ground and first floor, it is not possible to take the view that such a desire or the need expressed by the landlords is either unreasonable, capricious or lacks in bona fides. The landlords are brother and sisters and their evidence shows that they are spread out for the purpose of their avocation and livelihood at different places, and now they would like to spend their retired life residing in one building. This desire is natural and I do not find anything wrong insuch a desire. Such a desire or intention cannot be dubbed as unreasonable or lacks in bona fides. It is common knowledge that people who go out of the home town for the purpose of their avocation or livelihood, would like to come and settle down in their home town either at the fag end of their career when they are in service, if permissible, or immediately after retirement, so that they can spend their later part of the life in the company of their close relatives, friends and well wishers. These are facts of life which the Court is required to keep it in mind while appreciating the claim made by the landlords seeking eviction of a tenant from the premises let out by them. This aspect of the matter has been completely overlooked by the learned Judge while considering the evidence on record. It is necessary to point out that nothing has been elicited in the cross-examination either to discredit the evidence of P.W. 1 or to disprove the claim made by the landlords that they require the petition schedule premises reasonably and bona fide for their use and occupation after demolishing the existing building. Further, the evidence of R.W. 1 also is not of any assistance to the tenant to reject the claim of the landlords. Therefore, I am fully satisfied on the basis of the evidence on record that the claim made by the landlords is both bona fide and reasonable. It is also necessary to point out that the tenant, in this case, is a Company, whose turnover, even according to the evidence of P.W. 1, is more than Rs. 138 crores per year. Exhibit P. 13 clearly supports this. Further, R.W. 1 in his evidence, also admits that the turnover during the year 1993, was more than Rs. 138 crores. He has further admitted that during the year 1995, the yearly turnover of the tenant may be Rs. 200 crores. Therefore, it is clear that the tenant, in the case, is financially very sound and is in a position to secure an alternate accommodation without any difficulty. Under these circumstances, if the landlords, who have no premises of their own either in Bangalore or elsewhere, seek eviction of the tenant, which is a Company and which, even according to it, is using the ground floor of the premises as a Liaison Office and the first floor as its Guest House to be used by its officers on a few occasions in an year, can it be said that such a demand is unreasonable or lacks in bona fides? In a matter like this, in the absence of any material placed before the Court to show that the desire of the landlord is actuated by extraneous considerations, the Court must proceed on the basis that the landlords are the best Judge of their residential requirement and they have a complete freedom in the matter. It is not for the Court to dictate to the landlord as to how and in what manner, they should live or where they should live and the standard of his living. In this connection, it is useful to refer to the decisions of the Supreme Court in the cases of Smt. Prativa Devi u T.V. Krishnan , Mrs. Meenal Eknath Kshirsagar v Traders and Agencies and Another and Mst. Bega Begum and Others v Abdul Ahad Khan (deceased) by L.Rs and Others .
(a) In the case of Smt. Prativa Devi, supra, at paragraph 2 of the decision, the Supreme Court has observed thus:
'2. The proven facts are that the appellant who is a widow, since the demise of her husband late Shiv Nath Mukherjee, has been staying as a guest with Shri N.C. Chatterjee who was a family friend of her late husband, at B-4/20, Safdarjang Enclave, New Delhi. There is nothing to show that she has any kind of right whatever to stay in the house of Shri Chatterjee. On the other hand, she is there merely by sufferance. The reason given by the High Court that the appellant is an old lady aged about 70 years and has no one to look after her and therefore she should continue to live with Shri Chatterjee, was hardly a ground sufficient for interference. The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The High Court is rather solicitous about the age of the appellant and thinks that because of her age she needs to be looked after. Now, that is a lookout of the appellant and not of the High Court. We fail to appreciate the High Court giving such a gratuitous advice which was uncalled for. There is no law which deprives the landlord of the beneficial enjoyment of his property. We accordingly reverse the finding reached by the High Court and restore that of the Rent Controller that the appellant had established her bona fide requirement of the demised premises for her personal use and occupation, which finding was based on a proper appreciation of the evidence in the light of the surrounding circumstances'.
(emphasis supplied)
(b) In Meenal Eknath Kshirsagar's case, supra, at paragraph 20, the Supreme Court has observed thus:
'20. .......As pointed out by this Court, it is for the landlord todecide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises. Though Eknath continues to be the tenant of the 'Olympus' flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq.ft. only, it is difficult to appreciate how the appellate bench and the High Court could record a finding that the 'Olympus' flat is readily available to the appellant's husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family'.
(emphasis supplied)
(c) In the case of Mst. Bega Begum, supra, at paragraphs 13, 14 and 15, the Supreme Court has observed as follows:
'13. Moreover, Section 11(l)(h) of the Act uses the words 'reasonable requirement' which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other states in the country. This Court has considered the import of the word 'requirement' and pointed out that it merely connotes that there should be an element of need.
14. In the case of Phiroze Bamanji Desai v Chandrakant N. Patel , Justice Bhagwati speaking for the Court observed as follows: (at page 1063 of AIR)
'The District Judge did not misdirect himself in regard to the true meaning of the word 'requires' in Section 13(l)(g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to 'require' premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own use and occupation'.
Thus, this Court has held that in such cases the main test should be whether it was necessary for the landlords to need the premises for their use or occupation.
15. In the case of B. Balaiah u Lachaiah, a Division Bench of the High Court observed as follows:-
'As long as such requirement is bona fide, the petitioner can certainly claim for a direction for eviction of the tenant' '.
If the evidence on record is analysed, appreciated and considered with the touchstone of the principle laid down by the Supreme Court in the cases referred to above, I have no hesitation to come to the conclusion that the landlords have proved that they require the petition schedule premises reasonably and bona fide for their use and occupation by demolishing the existing structure and putting up a new building in its place. Accordingly, Question No. (2) is answered.
Re: Question No. (3):
13. The next question is whether the landlords or the tenant will be put to greater hardship if an order of eviction is granted or not granted? On this question, there cannot be even an iota of doubt that if an order of eviction is not granted, the landlords will be put to greater hardship than the tenant. Even according to the evidence of R.W. 1, who has been examined on behalf of the tenant, the yearly turnover of the tenant is Rs. 200 crores during the year 1995-96. In this connection, it is useful to refer to the evidence of R.W. 1, wherein he has stated as follows:
'The turnover for the year 1995-96 may be 200 crores'.
Further, Exhibit P. 13 produced by the landlords also supports the case of the landlords that the yearly turnover during the year 1993-94 was Rs. 140,70,60,000/-. Even according to the tenant, the ground floor portion of the building is only used as an office and the first floor is being used as Guest House. The evidence of R.W. 1 also shows that it is only twice, thrice or four times in a year, the officers of the Company use the first floor for the purpose of their stay. His evidence further shows that the tenant has acquired an apartment in a building known as 'Somerset Apartments'. Therefore, the evidence on record clearly shows that the tenant is a Company having turnover of more than Rs. 200 crores per year and financially very sound. Therefore, it should not be difficult for it to find out any alternative premises in Bangalore City. It is common knowledge that at present, number of vacant premises are available in Bangalore City to be used both as residential and non-residential. Further, the tenant is in a position to pay higher rent and higher advance, if need be. The evidence of R.W. 1 also shows that they have not made any effort even after the institution of the proceedings to find out any alternate premises. Therefore, I have no hesitation to come to the conclusion that if an order of eviction is passed, the tenant will not be put to any hardship or inconvenience and on the other hand, the landlords will be put to greater hardship.
Re: Question No. (4):
14. Now, the next question is whether it is feasible to order partial eviction against the tenant. In my view, in the facts and circumstances of the case, it is not feasible to order partial eviction. The partial eviction is a limb of comparative hardship. To relieve the tenant of the hardship on account of an order of eviction being passed against him, the Court would examine the question of granting partial eviction. In the instant case, as observed by me earlier, the tenant is financially sound and is in a position to find out suitable alternate accommodation. Therefore, on this ground alone, it must be held that this is not a fit case for ordering partial eviction. Further, it is the case of the landlords that they want to demolish the existing structure and put up a new residential building consisting of ground and first floor for the purpose of their residence. Therefore, having regard to the facts and circumstances of the case, I am of the view that it is not feasible to order partial eviction.
Re: Question No. (5):
15. While considering Question No. (2), I have held that the petition schedule premises is reasonably and bona fide required by the landlord for the purpose of putting up a new construction in the place of the existing old building. Therefore, though, in the eviction petition, the landlords have sought for eviction of the tenant under Section 21(1)(j) of the Act, since the claim made by them for eviction of the tenant is on the ground that the petition schedule premises is required by them reasonably and bona fide under Section 21(1)(h) of the Act, I am of the view that the claim made under Section 21(1)(j) of the Act is of no consequence. In this connection, it is useful to refer to the Division Bench decision of this Court in the case of A.M. Obedulla v S.M. Shaft , wherein this Court has observed that whenever a landlord comes out with a case for eviction of a tenant making out that the premises in question are reasonably and bona fide required by him for occupation by himself, only clause (h) of the said proviso would come into play, to the exclusion of other clauses. Therefore, when the landlords, in this case, have made out a case of their requirement for personal occupation of the premises in question after demolishing the existing structure and reconstructing it, only clause (h) of the proviso given to Section 21(1) of the Act would be applicable and the prayer made for eviction of the tenant under Section 21(1)(j) of the Act is of no consequence.
Re: Question No. (6):
16. Now, the question is whether the landlords have failed to establish that the tenant has acquired alternate suitable premises. On this question, the learned Judge, on consideration of the evidence on record, has found that the landlords have failed to make out a case that the tenant has acquired a suitable alternate accommodation. On examination of the evidence on record, I do not find any error in the said finding recorded by the learned Judge. Therefore, the claim made by the landlords for eviction of the tenant under Section 21(1)(p) of the Act is liable to be rejected. Accordingly, it is rejected.
17. In the light of the discussion made above, this revision petition is required to be allowed and accordingly it is allowed and order dated 29th of March, 1996 is hereby set aside and in its place, an order of eviction is passed against the respondent-tenant under Section 21(1)(h) of the Act. The claim made by the landlords for eviction of the tenant under Section 21(1)(p) of the Act is hereby rejected.
18. Now, the question is, what is the reasonable time to be granted to the tenant to vacate the petition schedule premises in view of the order of eviction passed against it? In this context, it is necessary to point out that the protection intended to be given under the Act is not for the type of the tenant, which is before this Court. The object of the Act is to protect such of those tenants who are not in a position to pay higher rent or higher advance and who would be put to hardship on account ofindiscriminate eviction by the landlords. But, I am constrained to observe that in the instant case, the tenant, which is financially very sound, has not been able to respond to the dire need made out by the landlords in respect of the petition schedule premises and has been resisting its eviction on one ground or the other ever since the year 1977. Though I am of the view that the tenant is able to find out a suitable alternate accommodation immediately, however, the tenant is given two months' time from today to vacate the petition schedule premises.
19. However, no order is made as to costs.