Mr M Ethiraj v.

Smt Farida Khanum

09 Jun 2008 | Karnataka High Court

CASE NO.
H.R.R.P. No. 554/2006

JUDGES

Mr. Justice Mohan Shantanagoudar

ADVOCATES

For Appellant/Petitioner/Plaintiff:S.Z.A. Khureshi

(This HRRP is filed under section 46(1) of the karnataka rent act against
the order dated 20.9.2006 passed in HRC.No.607/2004 on the file of the XIX
Addl, Small causes judge, Bangalore dismissing the petition as not
maintainable.)

Petitioner is the landlord of the premises in question, of which the respondent

is the tenant. The petitioner filed eviction petition under section 27 (2) (r) of
the karnataka rent act, 1999, for eviction of the respondent from the
schedule premises. The court below dismissed the eviction petition the ground
that the Rent Act is not applicable to such premises as the eviction petition is
filed within 15 years of completion of the construction of the building in which
the premises is situated.

2. The premises in question is in the ground floor of the building, which has
totally three floors that is ground first and second. Petitioner is aged about 70
years. According to him, he has suffered heart attack and he was advised rest
and further advised not to climb stairs, etc., Wife of the petitioner is stated to
be a diabetic patient, having arthritis and experiences pain while climbing the
stairs. For the present the petitioner is residing in the first floor of the building
and according to him, it is very inconvenient for the couple to climb the stairs
very often. Since there is no other reasonably suitable alternative
accommodation available to the petitioner, he filed the eviction petition on the
ground that he needs the premises for his bona fide use and occupation.

The petition was opposed by the respondent - tenant by interalia contending

that the premises in question is a new premises and that the eviction is field
within 15 years of its construction. As aforementioned, the Court below
dismissed the eviction petition as not maintainable only on the ground that the
Rent Act is not applicable to such premises as the eviction petition is field
within 15 years of the construction of the building in question.
3. Section 2 (3) (f) of the Karnataka Rent Act, 1999, reads thus:

Section 2 Application of the Act -

xxxxxx xxxxxxxxx xxxxxx

(3) Nothing contained in this Act shall apply,

(f) To any premises constructed or substantially renovated, either before or

after the commencement of this Act for a period of fifteen years from the date
of completion of such construction or substantial renovation .

Thus it is clear that, for 15 years after the completion of construction of the
premises or substantive renovation, the Karnataka Rent Act is not applicable.

The Court below on the stray sentence containing an admission of the

petitioner, has held that 15 years have not elapsed after construction of the
building and therefore, the eviction petition filed within the said period is not
maintainable.

4. The court below has laid emphasis on the first sentence of cross-
examination of PW-1 - petitioner herein. It is no doubt true that he has stated
in the first sentence of his cross-examination that the building was constructed
in the year 1991 or 1992. Only on that stray sentence, the Court below has
held against the petitioner. Other attending circumstances and other material
on record, more particularly, the admission of tenant, are not at all given due
weightage by the Court below.

5. Admittedly, the Lease Agreement Ex.P-11 was entered into between the
parties on 20th of April 1989. Thus, it is clear that the tenant has occupied the
premises in and around 20th of April 1989. The eviction petition has been filed
on 23.11.2004. If really the building was not completed as on 20th of April
1989, the tenant would not have agreed to occupy the premises and would
not have occupied the premises then. In this context, it is relevant to note the
admissions of the tenant in his cross-examination. The tenant has
categorically admitted that, after negotiation, the Lease Agreement was
entered into as per Ex.P-11, and that he has paid advance amount; that when
he occupied the petition premises, the landlord had already residing in the first
floor portion that is above the petition premises; that landlord did not
undertake any construction of the building after the tenant occupied the
petition premises. These admissions would amply go to show that the tenant
has occupied the ground floor portion and at that point of time, the landlord
was occupying the first floor portion of the building. Which means, the landlord
had already occupied the first floor of the building when the tenant had
entered into an agreement. It implies that the building was already completed
at least upto I floor when the lease agreement was entered into. Subsequent
to the induction of the tenant in the premises, it seems that, some sort of
construction took place above the first floor i.e., the second floor of the
building, for which the tenant is not concerned. It is also admitted by the
tenant that he is not put to any sort of trouble by the construction undertaken
by the landlord in the year 1992-93. Merely because further construction is
made on the second floor by the landlord in 1992-93, it cannot be said that the
premises in question was constructed in the year 1992-93. Admittedly, the
tenant is residing in the ground floor of the building. Thus at any stretch of
imagination, it cannot be said that the eviction petition is filed within 15 years
of the construction of the premises in question. As aforementioned, the Lease
Agreement was dated 20th of April 1989 and whereas, the petition is filed on
23.11.2004. This itself goes to show that the eviction petition is filed much
after 15 years of the construction of the premises.

6. The court below while giving much weightage to the stray admission of the
landlord, has given go-by to the series of admissions made by the tenant. The
court below should have decided the matter based on the preponderance of
probabilities. The case of the landlord could not have been dismissed without
application of mind. The admission of the landlord in the first sentence of the
cross-examination will have to be considered, weighed and viewed along with
entire material on record.

7. There cannot be any dispute that an admission is the best evidence against
the party making it and though not conclusive, shifts the onus to the maker on
the principle that what a party admit must to be true or may be reasonably
presumed to be true so that until the presumption is rebutted, the fact
admitted must be taken to be true. An admission must be examined as a
whole and not in parts. It is settled law that an admission of any party has to
be read in its entirety and no statement out of context can constitute
admission on any fact. The Court may reject the admission if it is a satisfied
form other surrounding circumstances that it is untrue. The admission must be
used either as a whole or not at all. It is also equally settled that the stray
sentence elicited in the cross-examination could hardly be construed as
admission. The Apex Court in the case of Chikkam Koteswara Rao vs-
Chikkam Subbarao (Air 1971 Sc 1542), speaking through Justice K.S. Hegde,
has observed in this behalf thus:

This admission must be read along with the evidence given by him in his chief
examination .

Thus, the evidence has to be read in its entirety in a harmonious manner.

In this matter, if the evidence of the landlord is read in its entirety in

harmonious manner, it becomes evident that the so called admission is not an
admission at all with regard to the year of completion of the construction of the
premises in question. The said stray sentence in the first line of cross-
examination would relate to completion of construction of the entire building
and not the premises in question.
8. If the entire material brought in by the landlord and the tenant is read as a
whole, it can be safely said that the landlord must have stated in his cross-
examination about the completion of the building in the year 1992-93, which
refers to the second floor of the building and not the premises in question. As
could be seen from theprovisions of section 2(3)(f), the word used is
premises and not the building . Even in the cross examination the tenant has
merely said that building is constructed in the year 1992-93. He has not used
the word premises . The premises (ground floor portion) was already
constructed in the year 1989 itself i.e., prior to the execution of agreement of
lease. It does not refer to the entire building. In this view of the matter the
order of the Court below cannot be sustained and the same is liable to be
quashed. Hence, the following order is made:

The order dated 20th September 2006, passed by the XIX Addl. Small
Causes Judge, Bangalore, in HRC,No.607/2004, is quashed. Since the Trial
Court has not given any finding on other points, the matter needs to be
remanded. Hence the matter is remitted to the Court below for disposal of the
matter afresh on other points. The court below shall dispose of the matter as
early as possible, but not later than the outer limit of four months from the date
of receipt of this order.

Petition is allowed accordingly.H.R.R.P. No.554 of 2006For the Petitioner:

S.Z.A. Khureshi, Advocate. For the Respondent: Sri S.A.H. Razvi, Advocate.