ORDER
B.K. Sangalad, J.
1. This revision is directed against the order dated 31.1.1990 passed in HRC No. 28/1989 by the III Additional District Judge, Belgaum, confirming the Judgment and Order passed by the Additional Munsiff, Belgaum in HRC No. 347/1986 dated 16.12.1988. The ranks of the parties shall be followed as in the lower Court while narrating the facts of the case. The petitioner was the respondent and the respondent was the tenant in HRC No. 347/1986.
2. The landlord is the owner of the petition premises bearing CTS No. 576/A1 situated at Math Galli, Belgaum. It was leased out to the tenant on the monthly rent of Rs. 80/-. The landlord was working as Registrar, Karnataka Sangeetha Nruthya Academy (Department of kannada and Culture, Government of Karnataka). He retired from services on 31,1.1982. The certificate dated 4.9.1986 was issued by the Registrar, Karnataka Sangeetha Nruthya Academy, Bangalore to the show that he retired from the post he held. He does not possess any other suitable premises in the local area of Belgaum. He required this premises for his occupation. He has got his relatives and well-wishers at Belgaum. He was also educated at Belgaum. Since he likes Belgaum very much, and since he has got relatives and well-wishers, he decided to settle down at Belgaum. The first floor of the said building is in occupation of the tenant. The first floor is not convenient and comfortable for the landlord and the members of his family to use it as residence. Now the petition premises is required reasonably and bonafide for occupation by himself and for the members of his family.
3. This petition was resisted by the tenant white admitting the relationship of landlord and tenant and monthly rent of Rs. 80/-. But the reasonable and bonafide requirements of the landlord is denied. It is also denied that all his relatives and well-wishers are at Belgaum and that he likes Belgaum very much. It is also stated that the tenant was himself occupying the first floor and the ground floor was given on rent for godown. There were no basic amenities. The landlord requested the tenant to vacate the first floor and move to the ground floor as he wanted to accommodate the members of his family including his sister, as such the tenant obliged. The first floor is spacious and very comfortable. The landlord can stay in the first floor itself.
4. It is also stated that the landlord has settled permanently at Bangalore in a house which stands in his wife's name. All his dose relatives namely, wife, sons, daughters-in-law and grand children are all residing in Bangalore. As such he does not require this premises at all. In the event of eviction, the tenant would be put to great hardship. According to him, he is drawing a meagre pension of Rs. 900/-. Since there is an oblique motive to extract higher rent, the petition has been filed just to coerce him.
5. On behalf of the landlord, himself, his sister and one lawyer are examined as PWs-1, 2 and 3 and got marked as Ex.P.1 to P9. For the tenant, himself was examined as DW-1 and Ex.D1 was marked on his behalf.
6. The Munsiff Court has raised the following points namely,
1. Whether the petitioner proves that there is relationship of landlord and tenant between the petitioner and the respondent?
2. Whether the petitioner further proves that he requires the petition premises reasonably and bonafide for the use and occupation of himself and his family members?
3. Whether any hardship would be caused by passing a decree than by refusing it?
4. Whether no hardship would be caused to both the landlord and tenant in case of partial eviction?
5. Whether the petitioner is entitled for the relief as prayed under Section 21 (c) of the Act?
Except on point Nos. 3 and 4, the rest of the points raised have been held in favour of the landlord. Being aggrieved by the findings, the tenant approached the District Court under Section 50(2) of the Karnataka Rent Control Act. The learned III Additional District Judge has confirmed the order of the lower Court. The learned District Judge raised the following points for his consideration, namely,
1. Whether the landlord-respondent proves that he requires the petition premises for his personal bonafide use and occupation and that he has no suitable alternative accommodation?
2. In whose favour greater hardship will be caused in the event of allowing or disallowing of the petition?
3. Whether the order passed by the lower Court needs any interference?
The findings on point Nos. 1 and 2 are in favour of the landlord. According to the learned District Judge, there was no need to answer on point No. 3. Being aggrieved by these findings, the present revision arises.
7. The learned Counsel Sri Jayavittal Rao Kolar, appearing for the tenant has submitted that improper appreciation of the facts and evidence has resulted in miscarriage of justice. Both the lower Courts have wrongly come to the conclusion that landlord has established his bonafide requirement. According to the learned Counsel, both the Courts have not appreciated the evidence on record in proper perspective. On the other hand, the learned Counsel Sri B.P. Holla, appearing for the landlord has taken pains to submit that the finding of the facts have become conclusive. The scope under Section 115 of CPC is very limited. This Court cannot embark upon re-appreciating the facts as they have become conclusive. Both the learned Advocates have advanced educative and elaborate arguments on the scope of Section 115 of CPC. Number of decisions have been cited. I think that it is not necessary to reproduce all the citations, but the purpose will be served if one or two decisions are cited. The learned Counsel for the tenant has also submitted that the scope under Section 21 (C) is to see that the landlord establishes his bonafide need. If merely he produces a certificate no relief can be granted. In the light of these rival contentions, now it has to be seen whether the findings of the lower Court are correct or not.
8. At the very outset, it is to be seen what is the scope of this Court under Section 115 of CPC. The learned Counsel appearing for the landlord has cited a decision in case of PANDURANG DHONDI CHOUGALE AND ORS. v. MARUTI HARI JADHAV AND ORS., : [1966]1SCR102 . In this decision it is stated by Third Lordships that:
'The High Court cannot while exercising its jurisdiction under Section 115 correct errors of fact however, gross they may be or errors of law. It is further stated that the High Court can only do so when the said errors have relation to the jurisdiction to the Court to try the dispute itself. It is further held that only in cases where the subordinate Court has exercised a jurisdiction not vested in its by law or has to exercise a jurisdiction so vested, or has acted in exercises of jurisdiction illegally or with material irregularity than the revisional jurisdiction of the High Court can be properly invoked.'
He also relied upon another decision in case of THE MANAGING DIRECTOR, HINDUSTAN AERONAUTICS LTD., BALANAGAR, HYDERABAD AND ANR. v. AJIT PRASAD, MANAGER (PURCHASE & SALES), HINDUSTAN AERONAUTICS LTD., BALANAGAR, HYDERABAD, : (1972)ILLJ170SC , reported in wherein it is stated as follows:-
'Index note A 1908 Section 115 interference by High Court -Lower Court held order within its jurisdiction-High Court should not interfere even if the order is right or wrong or in accordance with law. Unless it exercises, its jurisdiction illegally or with material irregularity. The reliance has been placed on the decision reported in : [1966]1SCR102 and : [1970]2SCR368 relied on'.
Likewise number of decisions have been cited. But, it is pertinent to note that the decision in case of RAM DASS v. ISHWAR CHANDER AND Ors., : AIR1988SC1422 . wherein it is held that the question of bonafide requirement is a question of fact and further the scope of Section 115 of CPC is also explained. According to these decisions, it goes to show that the findings of the fact once become conclusive, they cannot be revisited by this Court under Section 115 of CPC. It can only be re-visited provided there is a miscarriage of justice by conjectures and surmises. This is illustrated in the decision in case of VINOD KUMAR ARORA v. SMT. SURJIT KAUR, : [1987]3SCR552 . This decision was cited by the learned Counsel for the tenant. In addition to these decisions, the decision of our own High Court is cited viz., in case of RAOJI JAGACHAND MEHTA by LRs v. RASTHI OF NIPANI, 1983(2) KLJ 258, wherein it is stated that even if the evidence recorded by the Munsiff and the District Judge regarding the interpretation of Section 21 (h) is erroneous, the High Court cannot under Section 115 of CPC interfere with the same. The same proposition is laid down in another decision, viz., in case of RAJAGOPALAIAH SETTY V.R. v. N. RADHAKRISHNA, 1983(2) KLJ 284. On the other hand, the learned Counsel appearing for the tenant placed his implicit reliance on the decision in case of SRINIVAS BALIGA v. GOPALAKRISHNA PAI, : ILR1986KAR943 . He also placed his reliance on one more decision, in case of SHRI SHEENA NAIK v. SHRI LAWRENCE D'SOUZA, 1984(2) KLJ 63.
9. It has been canvassed by the learned Counsel for the tenant that the bonafide requirement is not properly, established. In the petition, it is stated that he requires the premises for his occupation as he has got relatives and friends in Belagum. He has affinity for Belgaum because he was a student there. He also belongs to a place by name Paschapur in Hukkeri Taluk. The evidence is also led on these aspects. Both the Courts have come to the conclusion that the bonafide requirement is established by the landlord. This has been strongly opposed by the learned Counsel for the tenant stating that in the old ripe age of, then 63 and now 70 years, it is difficult to believe if one says that he wants to stay alone in Belgaum. He relied upon a decision in case of NARASIMHAIAH P. v. SUBBA RAO P.V, 1977(1) KLJ 419. On the face of it, the contention of the Counsel may appear to be correct. But it is very difficult to explain the human psychology. It is very difficult to assign reasons as to why he chooses to be away from the other members of his family. Of course in the decision cited by the learned Counsel, His Lordship has clearly enunciated about the needs and comforts of the persons in the evenings of the life. But these observations have been made while disposing of the case under Section 50(1) of the KRC Act. The sole contention of the learned Counsel for the landlord is that now the facts cannot be reopened. They have become conclusive. I have given thought over this submission. The Munsiff has also appreciated in respect of the bonafide requirement. The learned District Judge has confirmed. When it is so, whether it is open for this Court to again re-appreciate the facts. If one thinks coolly, one may find it necessary, but the Hon'ble Supreme Court warns that it is not necessary to embark upon the venture to appreciate the facts for the third time and moreover the bonafide requirement is a question of fact has been amply made clear in the decision in case of RAM DASS v. ISHWAR CHANDER AND ORS. Now there are two choices before this Court whether to accept the dictums laid down in 1977 KLJ or to accept the dictums laid down by the Supreme Court, I cannot but accept the observations made by the Supreme Court. If the re-appreciation of the facts is continued for the third time, then there would be no end for the litigation. The words used in the earlier decision are also strong enough to warn not to embark upon the re-appreciation of the facts and evidence, once they become conclusive. Their Lordships time and again have observed that however erroneous the findings may be or even the errors of law have been committed, the High Court should refrain from re-appreciating the facts under Section 115 C.P.C. In this case, of course, as it is stated it is very difficult to study the psychology of the old man. The learned District Judge also has given the finding stating that when a person who does not belong to Belgaum District wants to stay in Belgaum there is nothing wrong if a person belonging to Belgaum district and owning a house chooses to stay in Belgaum. In the normal circumstances, I am also of the opinion that a person in the evening of his life opts for the association of the other members of family, but somehow in view of the decisions, I put restraint on myself to disturb the findings of the facts by the lower Courts. The landlord, of course, is an old man but it is difficult to find fault with him when he says that he has affinity for Belgaum. Normally a person will have the affinity for his native place, native taluk, native district and such other places especially where one is educated. He has got his sons and grand-children in Bangalore whereas he has got the daughters-in-laws parents in Belgaum. He has got great affinity for Belgaum as he was educated there. May be, he may have cherishing aspirations to live in his own house in the evenings of his life. But again the question whether he would prefer to forego the comforts now he enjoys in Bangalore. Again it is left to one's choice. The things that are spoken cannot be said to be unreasonable. Moreover is elicited in the cross-examination that he has made the property in Bangalore to fetch fabulous price in future. This admission cannot be conveniently used to state that he does not require the premises in Belgaum.
10. The learned Counsel for the tenant submitted that in the petition it is only mentioned as a tenant ingeniously. The landlord has omitted to mention the name of his sister as a tenant. He submits that this is also an oblique motive to coerce the tenant to vacate the premises. The lower Court also has not given a clear finding stating that his sister is a tenant. The revisional Court also has not considered this aspect in great length. Assuming that this is so the situation, does not alter. It is in the evidence that in the upstairs his sister and her son are sharing. Moreover the premises is measuring 40ft x 15ft. In the upstairs, two families are already living there. His sister is a widow getting a pension of Rs. 700/- per month. She is eking her livelihood by selling noodles and papads. It is also in the evidence of PW-2 that her son is not on the cordial terms with her. When two families are already residing in the upstairs, it is too much to expect the landlord to go and start staying with his sister. On the assumption that the landlord is already staying with his sister, the learned Counsel canvassed that the requirement of the landlord would be only for the additional accommodation and in case of additional accommodation again the landlord has to establish that the premises in which he is in occupation is not suitable, and it is not sufficient for his living. In my opinion it is difficult to accept this submission. There is no such material in the evidence that he has already occupied the part of the premises. All these years he has been fighting slowly and steadily gaining inch by inch, and he wants to show that it is his genuine need to get his own premises. Hence in my opinion, unless there is some evidence that the landlord had already started residing in a part of the premises, it is difficult to accept that his need is for additional accommodation.
11. The learned Counsel Sri Jayavittal Rao Kolar appearing for the tenant, placing his reliance on the decision in case of VINOD KUMAR ARORA v. SMT. SURJIT KAUR, submitted that pleadings are not proper, because in the petition it is mentioned only as a tenant and the name of his sister is not mentioned. In view of this, he submitted that there is a variance in pleadings and proof. Of course, the name of the sister is not mentioned. It is only mentioned as a tenant and subsequently it has been proved that this tenant is none other than his own sister. Of Course, the Munsiff has not accepted her as a tenant. But in my opinion, the evidence of PW-1 and PW-2 is sufficient to establish the relationship. The only lacuna is that receipt is not issued, in this particular case it is to be observed that the tenant is none other than his own sister. His sister is bound to inspire the confidence in her own brother as far as payments of rent are concerned. Merely there is an omission of name of the tenant in the petition cannot be said to be fatal and it cannot be stated that the pleading is one and proof is another. The reliance was also placed on the decision in case of SRINIVASA BALIGA v. GOPALAKRISHNA PAI wherein His Lordship has observed that the High Court can interfere under Section 115 of CPC wherein there was neither pleading nor proof. The observation is that:
'On the evidence on record, the need apart from being not pleaded was never proved.'
But in this case it is not so. What has been pleaded has been proved. Hence this decision will not come to the rescue of the tenant. Since I have formed the opinion that it is not proper for me to interfere with the findings of the fact under Section 115 CPC, the findings of the lower Courts regarding the bonafide requirement for personal use and occupation stands undisturbed.
12. The learned Counsel for the tenant made efforts to make a final dent in the case of the landlord by stating that the certificate which has been obtained is not proper, and further submitted that under Section 21C still there is a burden on the landlord to show that the evidence that is required under Section 21(1)(h) is also required under Section 21 (C) also. Once it is held that the bonafide requirement is established it goes without saying that it is established for the purpose of Section 21C also. The learned Counsel for tenant relied upon the decision in case of C. SOMASEKHAR v. K.R. CHOKKALINGA RAJU, : ILR1989KAR851 . This is the decision in case of additional accommodation. It is held that when additional accommodation is required it must not only be bonafide but also be reasonable to establish insufficiency and inadequacy of accommodation available. But in this case it is not the question of additional accommodation. Hence in my opinion this decision also does not come to the rescue of tenant.
13. The next question that is to be seen is the question of hardship. If the petition is exclusively under Section 21(1)(h) of the KRC Act, it is mandatory for the Court to look into the matter of the hardship but when Section 21 (C) is also invoked, it is not incumbent on the Court to give any finding on the hardship. This point is also made clear in case of SHIVARAM ANAND SHIROOR v. MRS RADHABAI SHANTHARAM, ILR 1985 Kar 41-47. Hence no specific finding is required to assess to whom the hardship would be caused.
14. The next point that is to be considered is partial eviction. The premises is measuring 40ft x 15ft. Looking to the accommodation available, I do not think there is any possibility of partial eviction. In this case either there should be total eviction or no eviction. There won't be any equitable remedy by resorting to partial eviction. Hence I am constrained to hold that partial eviction is not possible at all.
15. The learned Counsel appearing for the tenants alternatively submitted that reasonable time be given to the tenant to handover the vacant possession of the schedule property to the landlord. According to him, the reasonable time is four years. The learned Counsel appearing for the landlord opposed his submission stating that already 10 years have been spent in this litigation, as the proceedings started in the year 1986. Now we are already in the middle of the 1996. In view of this, the reasonable time is only four to six months. Looking to the facts and circumstances of the case and looking to the placement of the each family, I think ends of the justice would be adequately met with if one year time is given to the tenant to handover the vacant possession to the landlord. The tenant is also directed to pay the monthly rent regularly. Even single default would enable the landlord to initiate execution proceedings. In the light of these observations made by me, the following order passed:
In the result, the petition stands dismissed. The petitioner-tenant is given one year time from this day to handover the vacant possession of the petition premises to the landlord. The petitioner is also directed to pay the monthly rent regularly. Even a single default would enable the landlord to initiate execution proceedings.