ORDER
H.N. Narayan, J.
1. This landlord's revision is directed against an order of dismissal of eviction petition filed by the petitioner-landlord in HRC No. 4923 of 1980 on the file of the Small Cause Judge, Bangalore.
2. Petitioner herein filed an eviction petition under the provisions of Section 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961 ('the Act' for short) claiming to be the owner of the petition schedule premises having purchased the same under a registered Sale Deed dt. 10.9.1979. According to him respondent-firm is a tenant of the petitioner on a monthly rent of Rs. 110/-. He has communicated the fact of purchase of the premises from his previous owner and that his vendor also sent a notice of attornment to respondent No. 1. It is further stated that the respondent is in arrears of rent and is liable to be evicted for committing default in payment of rent. It is the further case of the petitioner that he purchased the petition schedule premises for the sole purpose of starting the iron business in the petition premises. He has no independent avocation. He has gained experience in iron and steel business; he has got sufficient funds; he has made all arrangements to start the business; therefore requires the petition premises for the said purpose. His requirement is both reasonable and bona fide. According to him greater hardship would be caused to him if an order of eviction is not passed.
3. Respondents have resisted the eviction petition on the following grounds:
That there is no relationship of landlord and tenant between the parties; respondents have entered into an agreement with the vendor of the petitioner and have paid advance of Rs. 2000/-. The 3rd respondent is not a partner of respondent No. 1; that there is no need for the petitioner to occupy the premises. The requirement is not reasonable and bona fide one. The petition is filed due to oblique motive. Greater hardship would be caused to them if an order of eviction is passed. Therefore, pray the Court to dismiss the petition.
4. Both the parties have let in oral and documentary evidence in support of their respective contentions. The Trial Court on consideration of the material, has come to the conclusion that there is relationship of landlord and tenant between the parties, but the petitioner has failed to prove the default committed by the respondents to avail the benefit of Section 21(1)(a) of the Act. The trial Judge has also held that the requirement of the petitioner is not reasonable and bona fide one; therefore rejected the petition.
5. The legality and correctness of this order is impugned in this revision under Section 50 of the Act.
6. Sri S.G. Sunderaswamy, learned Senior Counsel appearing for the petitioner initially justified the finding of the Trial Court regarding relationship of parties. He has not addressed any arguments so far as eviction of respondents under the provisions of Section 21(1)(a) specially in the absence of any statutory notice as required under Section 21(1)(a) of the Act.
7. It is submitted by the learned Senior Counsel that the petitioner has approached the Court with a request to evict the respondents on the ground that he requires the premises for his own personal use and occupation viz., to start iron and steel business in the petition premises which is the only premises convenient and available. His evidence clearly discloses the need to occupy the premises which need is reasonable and bona fide having regard to the circumstances of the case. He submits that the petitioner has got experience to start this business. He has got sufficient funds and people to support him. It is contended that the trial Judge has rejected this evidence of the petitioner as vague and unsatisfactory. He submits that in the absence of any other suitable premises to start the business, his request cannot be rejected as unreasonable or capricious. He further submits that the respondent is a prosperous business firm and can secure an alternative premises by payment of higher rent. Therefore, greater hardship would be caused to him if an order of eviction is not passed.
8. Rebutting these contentions Sri M.R. Naik learned Counsel for the respondents submits that the evidence of the petitioner himself vide Ex.D.16 shows that he owns another residential premises apart from the petition premises, which the petitioner can conveniently make use of the same for starting the business. When the landlord has got alternative premises, seeking order of eviction against the respondents is not bona fide and therefore, the petition is liable to be rejected. Learned Counsel elaborating these contentions submits that the averments in the petition and the evidence on record is insufficient to make out a case for starting the business in the petition premises. Petitioner has no experience in iron and steel business. He has no funds. The amount deposited by him in the bank is insufficient to start the iron and steel business. Even otherwise, greater hardship would be caused to the respondents as they established their name in the business in the locality and they have earned goodwill. He has justified the findings of the Trial Court in rejecting the eviction petition. Learned Counsel however has not addressed any arguments regarding the relationship of the parties, virtually agreeing with the finding of the Trial Court.
9. The petitioner claims his ownership to the property by virtue of a registered Sale Deed dt. 10.9.1979. The admission of RW.1 at page 56 of his evidence clearly shows that he entered into an agreement of sale with the vendor of the petitioner agreeing to purchase the property from them for a certain sum and they have paid an advance of Rs. 2000/-. In spite of this admission, both the parties appear to have spent much of their time in proving the ownership of their vendors to the petition premises, which is only an exercise in futility. The very admission made by RW.1 that the vendors of the petitioner are the owners and that the vendors have sold the property in favour of the petitioner - is sufficient for this Court to confirm the finding of the Trial Court.
10. For want of statutory notice which is undisputed, petitioner is not entitled to prosecute the petition under Section 21(1)(a) of the Act. Therefore, the learned Senior Counsel Sri S.G. Sunderaswamy has not rightly addressed any argument. Hence, question of considering the petition under Section 21 (1)(a) of the Act does not arise.
11. The learned Senior Counsel for the petitioner draws the attention of the Court to the averments made in paras 6 and 7 of the petitions and the evidence of PW.1 in order to show that there is proper pleading and evidence in proof of the requirement. Petitioner has stated at para 6 that he purchased the petition premises to start iron and steel business and has made all arrangements for the same. According to him, the premises in occupation of the 1st respondent is only the premises available for the proposed business of the petitioner. According to him, he is working in iron business concern. He has all facilities to start the said business. He cannot earn his livelihood if he is not able to start his business of his own. According to him, respondents have shop premises in their custody and they would be put to great hardship if eviction is not granted.
12. In my opinion the averments made at para 6 and 7 cannot be stated to be vague and the observation in this regard by the learned trial Judge is not correct. The evidence on record discloses that the petitioner's father is running leather factory in the outskirts of Bangalore City. He has got his office at Lal Masjid Street in Shivajinagar area. The property situated at Lal Masjid Street is a house property which belongs to the grand mother of the petitioner; That property was gifted in favour of the petitioner under Ex.D16 which is the original of Ex.P5. It is not disputed that a portion of the property in Ex.D16 is now being used for non-residential purpose by the father of the petitioner, wherein he is running his leather business office. This property was gifted to the petitioner under a registered Gift Deed in the year 1977 long prior to the filing of this eviction petition. But there is no denial of the fact that even at that time petitioner's father was in occupation of the same for his business purpose. Petitioner purchased the petition premises subsequent to this Gift Deed Ex.D16 in September, 1979. The evidence on record also discloses that the property gifted under Ex.D16 is not readily available to the petitioner. The evidence on record also shows that the father of the petitioner is running leather business in partnership with the other members of the family though it is not clearly stated that whether the other brothers of the petitioner are also partners in the said business. The cross examination is not directed against this aspect.
13. In this background, the Court has to consider whether the requirement of the petitioner is reasonable and bona fide one and whether there is an element of need in the requirement.
14. It is settled law that the landlord has no unfettered right to evict the tenant in occupation of the premises belonging to landlord without proof of the relevant provisions of the Rent Act. The Supreme Court in M.M. QUASIM v. MANOHAR LAL SHARMA AND ORS., : [1981]3SCR367 at para 18 has stated as follows:
'The time-honored notion that the right of re-entry is unfettered and that the owner landlord is the sole Judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison detre of the Rent Act.'
The landlord who owns an alternative premises to start his business has no unfettered right to seek an order of eviction of another tenant in which case an element of need is absent. Such a requirement can only be termed as a mere wish or desire.
15. However, this reasonable requirement postulates an element of need as opposed to a mere desire or wish. This distinction between the desire and need has to be kept in mind, but not to make even the genuine need as nothing but a desire. It is observed by the Supreme Court in MRS. BEGA BEGUM AND ORS. v. ABDUL AHMAD KHAN (dead) BY LRs., AND ORS., AIR 1979 SC 273 thus:
'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 as to make it impossible or extremely difficult for the landlord to get a decree for eviction.'
16. The Karnataka Rent Control Act, 1961 enables the landlord to recover the property on proof of any one of the grounds enumerated in Part V. The Karnataka Rent Control Act is a beneficial Legislation and it protects the tenants from the otherwise greedy landlords. Section 21(1)(h) is an enabling provision wherein the landlord can seek an order, of eviction on the ground that the premises are reasonably and bona fide required by the landlord for occupation by himself or any period 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. Therefore, it is incumbent upon the landlord to place sufficient evidence before the Court in proof of fact that the requirement is not only reasonable but also bona fide.
17. Here is an young person who claims to be unemployed, intends to start an iron and steel business in the petition premises. The suitability of the petition premises for the said purpose is not in dispute as respondents are carrying on the same business in the petition premises. In a case where the landlord seeks an order of eviction for his personal use and occupation to start his own business, he is required to plead and prove his need to start the business, his experience in the business, his financial capacity to start the business and the other attendant circumstances. The facts placed on record are acceptable to the Court and that such a request cannot be rejected either as unreasonable or malafide. But there is a case where the petitioner owns two non-residential premises-one gifted to him by his grand mother and another purchased by him for valuable consideration. Admittedly, the father of the petitioner is a businessman who is dealing in leather goods. He has converted a portion of the premises which was gifted to the petitioner in 1977 to run his office, ft is vehemently contended by the petitioner's counsel that that premises is situate in a residential locality though it is nearer to the commercial area, that is not suitable for starting iron and steel business, Perusal of the Gift Deed Ex.D16 clearly shows that it is a residential Property though a part of it is converted to run an office. But the area itself is not viable for commercial purpose. It is argued by the, respondents Counsel that this property is situate in Shivajinagar which is a commercial area. But this submission is not correct as Shivajinagar area is not exclusively a commercial area as part of it is commercial and most of it is residential. The respondents have failed to show the property covered under Ex.D16 is suitable for the petitioner's business more so in view of the petitioner's denial. The approach of the trial Judge and the appreciation of evidence in this regard appears to be incorrect. Inferences are drawn by the learned trial Judge without scrutinising the evidence.
18. The scrutiny of the evidence of the petitioner clearly shows that the grand father of the petitioner is also running iron and steel business in Bangalore and the petitioner gained experience in attending to the shop of his grand father. The say of the petitioner cannot be rejected in the absence of any other material. What is contended by the respondents is that there is no.document in support of his experience. It is an admitted fact that the petitioner has not undergone any training in a recognised institution. No such training is imparted in any institution as one can learn these things by attending some work in the shop of that nature. The financial support to the petitioner cannot be ignored. Admittedly petitioner's father is a business man. Petitioner has deposited Rs. 30,000/- in a bank prima facie showing that he has got some money in his hand. It is not difficult for the petitioner to raise funds to start the business. The petitioner is staying with his father who is a business man and who can offer his support to his son. The trial Judge has rejected this claim on the ground that his pleadings and evidence is vague and unsatisfactory. Re-appreciation of evidence or record clearly convinces me that this finding of fact by the learned trial Judge, in my opinion, is incorrect. There is no serious contention before this Court that the petition is filed due to oblique purpose. The evidence on record clearly shows that the respondent No. 2's father had taken the premises on lease about 50 years back. The rent is enhanced from time to time and considering the present rate of rent at Bangalore, the monthly rent is very paltry sum. In the absence of any material that the petitioner has got other vacant premises to start his own business, his requirement cannot be stated to be as unreasonable. It is observed by the Trial Court that the family of the petitioner is running a number of business and owns a number of properties in Bangalore and therefore, his requirement lacks merit - cannot be accepted. From the facts placed on record it cannot be stated that the element of need is absent and eviction cannot be granted. A careful re-assessment of evidence on record clearly shows that the finding arrived at by the learned Trial Judge is incorrect and difficult to confirm.
19. That leads us to the question of comparative hardships. In a case of personal occupation, the need of the petitioner always goes with the hardship of the parties. Petitioner wants to start his own business in his premises which according to the Court is bona fide one and reasonable under the circumstances. Respondents are a prospering business firm whose turnover runs to Rs. 40 to 50 lakhs per month. It is true that the respondents are running this business for the last 50 years. They must have earned goodwill. That is no ground to reject eviction in a case where the need of the petitioner is established. Respondents are not a firm of no means. They can get alternative premises' in a convenient place on payment of title higher rent. The contention before the Court is that they are getting contracts from all iron factories and stores iron material in godown and sell them. They can carry on this business at any convenient place, near about. It is not their case that no alternative premises are available. This Court can take judicial notice of the fact that a number of shop premises have come up in all business centres of such areas in Bangalore. Payment of higher rent or shifting one's business cannot be termed as hardship at all. In every case of eviction, one has necessarily to undergo such hardship. Therefore, in my opinion, greater hardship would be caused to the petitioner if an order of eviction is refused. For the reasons stated supra, the conclusion arrived at by the trial Judge is not justifiable.
20. In the result, this revision Is allowed. The order of dismissal of the petition under Section 21(1)((h) is set aside. The eviction petition filed by the petitioner under Section 21(1)(h) is allowed. Respondents are directed to vacate and deliver vacant possession of the petition schedule premises within a year from the date of this order. The respondents are directed to file a memo of undertaking within four weeks from the date of this order.