Sunanda Bai, S.R. vs S.S. Sindya

The premises in question is a residential house situated on the 8th Cross Road, Wilson Gardon, Bangalore, comprising in it the garage portion of the out-house, and belongs to Sunanda Bal, petitioner herein. Admittedly Sindya, the respondent, is in occupation of the same as a monthly tenant.

Sunanda Bai filed an application for recovery of the premises in question under Cl. (h) of sub-sec. (1) of S. 21 of the Karnataka Rent Control Act, 1961 (the Act) in the Court of the 10th Addl. Small Causes Judge, Bangalore City. It came up for consideration in HRC No. 2549 of 1980 on his file, and, he, by his order dated 3-4-1981 has dismissed her claim. That order is under challenge in this revision preferred under sub-sec. (1) of S. 50 of the Act.

The learned counsel for the petitioner argued that the Court below, not properly construing the scope of Cl. (h) of S. 21 (1) of the Act and wrongly approaching the issues involved, had erred in rejecting her claim.

The learned counsel for the respondent, while supporting the impugned order, submitted that the finding of the Court below that Sunanda Bal did not reasonably and bona fide require the premises for her own use and occupation being a finding based on facts, was not liable to be interfered with, in this revision.

Under Cl. (h) of sub-sec. (1) of S. 21 the landlord is entitled to recover possession of his premises leased to a tenant if the same is reasonably and bona fide required by him for occupation by himself or by any person for whose benefit the same reasoned. His claim, therefore, should be both reasonable as well as bona fide. While showing his bona fides the landlord has to place material on record to convince the Court that his claim for recovery of possession for personal use and occupation is genuine. He has to establish that he, from his point of view, genuinely needs the house for his own use and occupation. Thereafter the question as to whether his claim is reasonable in the circumstances of the case arises. As observed by Govinda Bhat, J., (as he then was) in N.C. Vegappa v. Puttaswamy, (1968) 1 Mys. LJ 453, while examining whether the claim was reasonable what the Court has to consider was not whether the landlord's desire for possession was reasonable, but whether it was reasonable to make an order for possession. As further observed therein "that the desire might be a reasonable one is from the landlord's point of view, but it would be reasonable for the Court to gratify it". The decision of the learned single Judge (in Vegappa''s1 case) has been approvingly referred to by a Division Bench of this Court in T.N. Shankara Rao & Bros, v. S.A. Wajid, (1971) 2 Mys. LJ 29.

Let us now examine as to whether Sunanda Bai bona fide and reasonably requires the premises in question for her occupation.

In support of her case, besides examining herself (PW 1), Sunanda Bai has examined her sister (PW 2) and her son (PW 3). On his side respondent Sindya has examined himself and closed the case.

In examining this question we have to bear in mind a few relevant facts which are not in dispute.

Sunanda Bai is a widow and was aged about 69 years, when she filed the application in the Court below (in Jany. 1979). Her husband Sundar Rao, who was in the service of Ashok Leylands as manager at Madras, died there in 1971. From him she has a son and a daughter. Both are now married. The son is also working in Ashok Leylands at Madras. Sunanda Bai's daughter stays with her husband in this City. Since Sunanda Bai's husband had to reside out of this City in connection with his professional work, the premises in question came to be leased. Sindya took the same on lease somewhere in 1966 and has been residing therein. Sunanda Bai has a large circle of relations. Nalina (PW 2) is her younger sister. Nalina stays in her own house along with another sister of theirs. Nalina is a teacher by profession and is a spinster. At the time of Sundar Rao's death their son, it is said, was studying in Germany, and daughter, at Bangalore staying with Nalina. After the death of Sundar Rao at Madras, being alone, Sunanda Bai returned to Bangalore and has, since then been staying with Nalina in Nalina's house. Apart from the premises in question Sunanda Bai does not own any other premises in this City.

Her case in the Court below was that she has been staying for a long time with her sister (Nalina) in her (sister's) house and that her relationship with her sister is not as warm as it used to be and therefore she desires to occupy hex own premises, and hence, the same may be recovered and given to her.

So, in the circumstances, she thought and the Court below also thought that, in order to succeed, she has to prove by positive evidence iter averment that the feelings between her and her sister has cooled off and that her sister did not want her (Sunanda Bai) to stay with her. Both the ladies in their examinations in chief and say that the feelings between them were not cordial. In crose-examination, on being closely questioned, both of them said that they were on good terms. Nalina went to the extent of saying that she very much loves her sister and that she looks after her house when she and her another sister are away on work. Relying on this evidence, the Court below came to the conclusion that Sunanda Bai, having failed to show that her relationship with Nalina was not cordiai, was not entitled to succeed under Cl. (h) of S. 21 (1) of the Act. In its view, it was unthinkable that this old woman would stay all by herself separately. The following observations of the learned Judge may be noted:

"The evidence on record does not establish that the relationship between PW 1 and PW 2 is strained........Further, the petitioner is aged about 69 years. Under such circumstances, I am clearly of the opinion that the petitioner does not require the petition premises for her own use and occupation. This conclusion could be reached by referring to the evidence of the petitioner to the effect that she wants to reside alone separately in the petition premises. She has also stated that she wants to die in her own house. Of course it is the human habit to have sentimental attachment to one's own property. But the sentiment, however strong, could not be a ground to hold that the petition premises is required by the petitioner for her own use and occupation".

In coming to the above conclusion the Court below has also placed reliance on a decision of this Court in Narasimhaiah v. Subba Rao, (1977) 1 Kar. LJ 419. In that case the landlord was about 76 years old, was living with his son-in-law and daughter in the house of his son-in-law. He had applied for possession of his own premises situated nearby his son-in-law's house. In support of his claim he had stated that he was feeling embarassed to live with his son-in-law and wanted to reside in his own house and therefore possession may be recovered and given to him. While negativing his contention this Court has observed that his son in-law was also his brother-in-law; that there were material to show that he was more attached to his daughter, that he, having lived with his daughter and son-in-law during all these years, it was unthinkable that he would live alone in his house; that the Court cannot blindly accept bis bare statement that it would be inconvenient or embarassing to stay with his son-in law; that he should have produced some more evidence to prove his averments; and that, as it is, his plea appears to be no more than a desire without there being any justifying circumstance. On facts in that case this Court also found that the claim of the landlord was not bona fide and further observed that it appeared to be a mere desire without there being any justifying circumstance.

But, it is important to note that in examining the claims of this nature, one has to be very careful in drawing comparisons between separate sets of facts Each case will have its own special background and if perceived from an imaginative sympathy one can feel the difference. As observed in Narasimhiah's case, (1977) 1 Kar. LJ 419 itself (at para 5) "what is reasonable to one may not be reasonable to another. Each case has, therefore, to be considered on its own facts and having regard to alt the circumstances of the case while remembering always that the avowed purpose of enacting the Rent Control Act was primarily to protect the tenants from unjust or arbitrary eviction". In Narasimhiah's case, (1977) 1 Kar. LJ 419 the landlord used to stay with his daughter, perhaps the only daughter, residing in the town. He had none else. Though the house belonged to the son-in-law, it was, in a way, the house of his daughter also. In the instant case, Sunanda Bai, though has her daughter living in the City with her husband, is staying as a guest with her sister. A grown up sister cannot be said to be as close as one's own daughter. Her further case is that often times her son and daughter in law visit Bangalore to be with her and stay in her (Sunanda Bai's) sister's house, where she is presently living. In Narasimhiah's case, (1977) 1 Kar. LJ 419, this Court could infer, in light of the facts of that case, that at that age Narasimhiah alone would not stay separately in his own premises. Though Sunanda Bai states in her evidence that she wants to stay alone in her house separately, we can infer that, if she so desires, she may ask her daughter and son-in-law to stay with her. However, that possibility cannot be ruled out. In this field of law, touching every aspect, there are a number of decisions. Facts peculiar to a particular case have to be carefully perceived. If not, a litigant may commit a mistake in trying to put his own case, though genuine, into the strait-jacket of a set of facts of another decided case with the fond hope of taking advantage of the ratio enunciated therein not knowing that that ratio or principle governs other genuine cases also, though facts may differ. In the process padding or twisting of facts may be adopted. This calls for a careful scrutiny but not an outright rejection. This lady, Sunanda Bai, could as well have said that if it was not at all possible for her to make arrangements to stay alone in her house, she would persuade and get her daughter together with her husband to stay with her. Perhaps she must have thought, having in view some decided case, that such a statement would be construed differently dubbing her claim as not bona fide but made only to accommodate her daughter.

Another important aspect of the case that we have to bear in mind is that the owner of this residential premises is staying presently, not in a premises in which she has any possessory interest, but, merely as a guest. May be, she has been staying there for more than a decade, but all the while as a guest of her sister. The core of her claim, as already stated, is that the feelings between them (the sisters) is not as warm as it used to be and therefore she would not like to remain with her sister as her guest, but would like to live in her own house having her own establishment. As observed above, the evidence adduced by her in this connection is not satisfactory. In their cross examination both she and her sister said that they were on affectionate terms. But, we need not make much of this fact. According to me this only shows their guileless nature. Even if both of them had stood by their examination in chief it would have been argued that, being sisters, they have joined together and were trying to make out a case in support of the claim. It is rather difficult to establish by positive evidence the subtle state of feelings one has towards one's kith and kin like a brother, sister, or a nephew. Our people, especially ladies, have fortunately a lot of self-esteem. Sometimes, for no obvious reason, they feel that they should not depend even on their children, let alone other relations, for their shelter or livelihood. Sunanda Bai also entertaining such a feeling cannot be ruled out if the facts are closely examined. However, that cannot be a matter for proof. Such feelings may be lurking in spite of great love and affection a person may have towards another. In the circumstances, when she states that she wants to occupy and live in her own house can we tell her that "you are now living as a guest of your sister in her house; you appear to be happy there; and please continue to live there". Examining her case from this angle I feel that there is nothing on record to dub her claim either as lacking in bona fides or ''reasonableness. I am, therefore, of the view that she is entitled to succeed.

Now, to consider the question of comparative hardship, the respondent is a family man. He has five children, all school and college going. He appears to be a business executive, being in employment in a private firm namely Gokuldas Exports. At the time when he gave evidence his monthly salary was about Rs. 1,400, and now it may be somewhat more. In cross examination he has admitted that financially he is "fairly well-off". He further admits that he has large number of friends in Bangalore and that new houses are coming up. If some time is granted to him, it will not be difficult for him to secure some alternate accommodation. Taking an over all view of matter greater hardship would be caused to Sunanda Bai if her claim is rejected rather than to the respondent if it is allowed.

Accordingly, and for the reasons mentioned above, this petition is allowed; the impugned order of the Court below is set aside; and the application filed by the landlady under Cl. (h) of sub sec. (1) of S. 21 of the Act in the Court below is allowed. The tenant is granted time till the end of May, 1983, to vacate and handover vacant possession of the premises in favour of the landlady subject to the condition that he will pay in a month's time arrears of rent, if any, and will continue to pay he monthly rent as and when the same falls due. If there is any failure on his part in this connection, the petitioner will be at liberty to execute the order and recover possession of the premises in question. No costs.