Interpretation of landlord's right to occupy property and consideration of comparative hardship in eviction cases.

M. P. CHANDRAKANTARAJ, J.

( 1 ) THIS is a tenant's revision petition under Section 115 of the Code of Civil procedure questioning the correctness of the order made by the learned District judge, Dakshina Kannada, Mangalore, in HRC. No. 136/1976 on his file.

( 2 ) IT is needless to emphasize that the Munsiff had failed to hold in favour of the landlords on the sole ground that greater hardship would be caused to the tenant as the landlords had alternative accommodation available to them. Landlords preferred the revision petition before the District Judge and there it was held in favour of the landlords.

( 3 ) BRIEF facts which may be stated for a just disposal of the case are as follows :- in the Court of the first instance the owner of the petition premises with one of his sons filed the petition for eviction. First petitioner was the mother-owner. The 2nd petitioner was one of her sons. Her plea in essence was that the house in the occupation of the tenant was required for the use of her son-second petitioner who had a family of his own and that she wanted them to live separately. While the proceedings were pending in the Court, she settled that property in the name of the 2nd petitioner. Further development in the family was before the order came to be passed. There was a regular partition in the family. No other property was allotted to the 2nd petitioner at the family partition. The other children of the 1st petitioner were also given certain properties. What came in evidence was that one of the properties so given to one of the sons of first petitioner fell vacant as the tenant vacated the same The landlord contnded that the premises was non-residential and therefore not suitable for occupation. In any event that it did not fall to the share of the 2nd petitioner. At the instance of the tenant, commissioner was appointed who was called upon to give a report. That report disclosed that the building was constructed for purpose of residential accommodation. But the Commissioner's report did not indicate whether the previous tenant was carrying on any trade, business or occupation in the house, that is, for non-residential purposes. That was an unfortunate circumstance. If that information was availalable it would have made the task of the munsiff easier to decide on the question of comparative hardship. However, on the above facts the Munsiff came to the conclusion that greater hardship would be caused to the tenant as the second petitioner had failed to occupy the premises which had fallen vacant and which belonged to the family.

( 4 ) I do not think that approach was correct. The premises let out was not available for the occupat:on of the landlord generally except in accordance with the provisions made in Section 8 of the act, i. e. , a special procedure is prescribed. The vacancy must be reported, landlord must indicate whether he needed it for his own occupation and application invited from all: then the claims of everyone are decided and adjudicated by the Rent Controller having jurisdiction and only where landlord has made out a case for his own occupation he may succeed in getting that house released in his favour. But there is no guarantee that it may be done. On the admitted f: cts here second petitioner was not the landlord of that premises which fell vacant. Therefore, he could not either report the vacancy or claim it for his own occupation having reported so. In that position the Munsiff clearly erred in law in not taking notice of the other provisions of the Act to hold in favour of the tenant.

( 5 ) THE learned District Judge on the other hand has correctly made the approach and on the established facts that the second petitioner was not the owner of the property which fell vacant and came to thi conclusion that once having established the bona fide requirement the house owned by the 2nd petitioner under the deed of settlement, should be released by evicting the tenant.

( 6 ) SRI Narayan Rao, has drawn my atte

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