Karnataka High Court
Habib vs Smt. Jayamma And Ors. on 13 July, 2004
Equivalent citations: ILR2004KAR3408, 2004(5)KARLJ149, 2004 AIR - KANT. H. C. R. 2383, 2004 AIHC 4640, (2004) 5 KANT LJ 149, (2005) 1 RENCJ 138, (2005) 1 RENCR 235, (2005) 1 RENTLR 507
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. This revision by the tenant is directed against the order dated 10.06.2003 passed by the XV Additional Small Causes Judge, Mayo Hall unit, Bangalore in H.R.C. NO. 10420/1996. The Court below allowed the petition filed by the landlord under Section 27(2)(r) of Karnataka Rent Act 1999 (hereinafter referred to as "Rent Act 1999" for short) corresponding to Section 21 (1) (h) of the repealed Karnataka Rent Control Act 1961 (hereinafter referred to as "Old Act" for short) and ordered eviction of the tenant-petitioner herein from the petition premises.
2. The landlords-respondents herein filed eviction petition under Section 21(1) (h) of the "old Act" before the Court below praying for eviction of the tenant-petitioner herein from the petition schedule premises viz., shop No. 1, Cauvery complex, Municipal No. 17/8/2, 11th main road, Gokula I Phase, I Stage, Bangalore-54 measuring 9'.6' x 15' on the ground that one of the landlord i.e., Respondent No. 2 herein, namely, P. Nagaraj needs the premises in question for his bonafide use and personal occupation inasmuch as he wants to engage himself in plumbing contract work and plumbing and sanitary wares retail business. The petition property which forms part of the composite building constructed on the site measuring 70' x 40' is allotted to the landlords in the partition entered into between the family members in the year 1996 which is evidenced by registered partition deed (Ex.P1; the petitioner herein is a tenant under the respondents in respect of the aforesaid property on a monthly rent of Rs. 325/-. It is contented by the landlords that the property was leased even prior to the said partition and the tenancy has been attorned in favour of the present landlords; that the rents are being collected by the 2nd respondent herein on his behalf and also on behalf of other respondents; that the entire composite building consists of shops on the ground floor and in a portion of the first floor facing the road on the eastern side; that there are three shops facing the road on the eastern side, out of which, one shop which measures 9.6' x 15' (marked as A shop in sketch produced by the landlords) is in the occupation of Mrs. Manjula Kumari, the 5th respondent herein who is carrying on retail business in children garments under the name and style of 'Moondrop Fashions'; the Petition Premises in question (marked as 'B' shop in the sketch) is situated on the South eastern corner of the composite building and measures east to west 15' and north-south 9' 6"; the 2nd respondent had obtained registration certificate (license) from BWSSB, for water supply and sanitary contract work and that even prior to obtaining such license, he was engaged in the work of plumbing and sanitary works; the 2nd respondent is operating the said business from his residence which is not suitable for the said purposes; he is unable to store the sanitary and plumbing fittings in his house, for which, much place required; as the petition schedule property is a non- residential premises situated in the ground floor facing on the main road, the same is very much suitable for the 2nd respondent to have the aforesaid contract work and business; that the 2nd respondent has got sufficient resources to start said business; that as the said business is now being operated from the residential house, several customers and others connected with the said business are frequently visiting to the house of the 2nd respondent, which is causing great inconvenience and hardship to the family atmosphere, particularly, women folk; that all other respondents also endorse the need of the 2nd respondent. It is further averred in the eviction petition that the 2nd respondent is the only earning male member in the family; that the 6th respondent herein who is yet to be married also resides with the 2nd respondent; he has to augment his income to celebrate the marriage of the 6th respondent; that the tenant is carrying on business in retail sales and service of wrist watches and clocks and conducting lucky draws; he has sufficient resources and income to secure alternative accommodation in the same locality; and that the alternative accommodations are available for the tenant in the locality so that he can switch over to the alternative accommodation in the same area. On these amongst other grounds, the landlords- respondents herein pleaded for eviction of the tenant- petitioner herein.
3. On the other hand, the tenant opposed the eviction petition by denying the material contentions of the landlords. It is contended that different tenants are occupying different tenements of the composite building; that one tenant who is carrying on the business under the name and style of 'Globe Instruments' is in occupation of three shops, M/S. Shariff Enterprises has occupied one shop in the composite building about seven months back and if really the 2nd respondent is in need of premises in question, he would not have inducted the different tenants of the composite property to occupy the shops; that as the landlords do not have bonafide need, they have let out different shops to the different tenants and that the 2nd respondent herein is not BWSSB., Sanitary contractor. He further contended that the two shops viz., one shop in the first floor and another shop situated at the inner portion of the building are vacant; both the shops are ideal and well suited for the landlords and that greater hardship will be caused to him in case if the eviction order is passed against him.
4. After considering the rival contentions, the Trial Court, by its order dated 07.01.2000 dismissed the eviction petition. The said order of dismissal was assailed by the landlords by filing revision in HRRP. No. 199 of 2000 before this Court . In the said HRRP., the tenant filed application under Order-41, Rule-27 of C.P.C., seeking permission to adduce additional evidence in order to establish that the 5th respondent herein who was in occupation of one of the shop in the ground floor and another shop in the first floor of that building vacated then during the pendency of the proceedings and that therefore, those vacated premises are readily available for the 2nd respondent herein for the purpose of his business. The landlords filed their objections to the said application on 30.09.2002 inter alia contending that there was a partition amongst the members of the family (i.e., landlords herein) and the disputed schedule shop premises is fallen to the share of the 2nd respondent herein i.e., P. Nagaraj. After hearing the rival contentions of the parties, this Court set aside the order of eviction petition and remanded the matter to the Trial Court for fresh disposal in accordance with law.
5. After remand, the pleadings were suitably amended by the parties. In support of the case of the landlords, they examined the 2nd respondent herein as P.W.1 and 5th respondent herein as P.W.2 and got marked 52 exhibits. On behalf of the tenant, two witnesses were examined including himself and 16 exhibits were got marked. The Trial Court, after appreciating the oral and documentary evidence let in by the parties and after hearing allowed the eviction petition and directed the tenant-petitioner herein to vacate and hand over the possession of the petition property to respondent No. 2 herein.
6. Sri Mustaq Ahmad, learned Counsel appearing for the tenant-petitioner herein firstly contended that the landlords acquired the property by virtue of the partition dated 26.02.1996 and the eviction petition is filed on 11.09.1996 i.e., within one year from the date of partition and thus, the same is hit by the proviso to Section-27(2) (r) of the new Act; that the respondent No. 2 herein has acquired the petition schedule premises exclusively, during the pendency of these eviction proceedings as per the alleged memorandum of partition (Ex.P.12) dated 20.04.2000 and that therefore, he cannot continue this eviction proceeding; that the memorandum of partition (Palupatti) (Ex.P12) dated 20.4.2000 between the landlords is a got up document, only for the purpose of this eviction proceeding and to suit convenience of 2nd respondent herein; that there is no bifurcation of katha in pursuance to the said memorandum of partition; that the Court below in the absence of any positive material on record has gravely erred in confirming the exclusive title on the 2nd respondent herein; Secondly that the respondents-landlords have leased another vacant shop in favour of Classic Electronics during the pendency of the present litigation; the landlords have not made use of the tenements which had fallen vacant and therefore, the petition schedule premises is not required for their bona fide use and personal occupation; that the appreciation of evidence by the Court below is not proper and correct; Thirdly he contended that the 2nd respondent is convicted by the Magistrates' Court for the offence U.S. 138 of Negotiable Instruments Act and he is now serving sentence in prison; and that the contract license issued by BWSSB is not renewed by it subsequently. Consequently, he prayed for setting aside the order passed by the Court below.
7. Per contra, Sri. R.B. Sadashivappa, learned Counsel appearing for the landlords-respondents, argued in support of the order of the Court below.
8. The landlord filed eviction petition under Section 21(1)(h) of Old Act praying for eviction of the tenant on the ground of their bona fide requirement. During the pendency of the proceedings before the Court below, the Old Act was repealed and in its place Karnataka Rent Act, 1999 is enacted by which sweeping changes are made in the rent legislation of Karnataka State. Section 27(2)(r) of the "New Act" which corresponds to Section 21(1)(h) of the "old Act" reads thus:
" 27 (2) (r) :- that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation:
Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition.
Explanation-I - For the purpose of this Clause and Sections 28 to 31;
(i) Where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required."
9. The first submission made, by the learned Counsel for the tenant cannot be sustained inasmuch as these respondents in general and respondent No. 2 in particular have not acquired the property in question for the first time, by virtue of partition deed Ex.P.1 dated 26.2.1996. Admittedly, the property in question is ancestral property of these respondents and as such, the respondents had got right, title and interest over the property in question, as they were the joint owners of the property even prior to said partition. Having regard to the basic character of joint Hindu family Property, each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that, whereas initially all the coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of the properties allotted to them respectively.
10. I do not find any reason to suspect the subsequent partition between the respondents herein, which is evidenced by palupatti (Ex.P-12). There is nothing uncommon to get the properties divided between the family members, if they choose to do so, even during pendency of eviction petition. PW-1 and PW-2 have deposed on oath confirming the said partition. Nothing contra is elicited in their cross-examination so as to discard the said palupatti (Ex.P12). Thus, the contention of the tenant that the respondents in general and 2nd respondent in particular acquired the property for the first time by virtue of partition deeds and palupatti at Ex.P.1 and P.12 cannot be accepted inasmuch as the partition of the Hindu undivided property within the family members cannot be equated to transfer of the property to an individual coparcener. In this connection, a reference may be made to the judgment of the Apex Court in the case of V.N. SARIN v. AJIT KUMAR POPLAI AND ANR., Therefore, it cannot be held that, allotment of one parcel of the property to an individual co-parcener as a result of partition is an acquisition of the property by transfer by the co-parcener.
11. The proviso to Section-27(2) (r) of the "New Act" mandates that no application for eviction should lie for recovery of possession of demised premises unless a period of one year has elapsed from the date of acquisition of the property. Thus, the landlord has to wait for one year after his acquisition of the property for filing the eviction petition. As observed supra, the respondent No. 2 has not acquired the property for the first time by virtue of the deeds Ex.P-1 & Ex.P-12. Thus, the proviso to Section 27 (2) (r) is no Bar for the respondent No. 2 herein to continue the eviction petition.
12. It is not in dispute that the property in question is the ancestral property of the respondents herein. It is also not in dispute that all the respondents herein are the landlords and joint owners of the petition schedule property as on the date of filing of eviction petition. It is well-settled law that one of the landlords can maintain eviction petition. In this case, all the landlords-respondents have jointly filed eviction petition. It is also not in dispute that the rents for certain periods are sent by tenant to the Respondent No. 2 namely Nagaraj. Thus, it cannot be said that Sri Nagaraju is not the landlord of the premises in question. The word "landlord" as defined in Section-3 of the "new Act" means "a person who for the time being is a receiving or is entitled to receive, the rent of any premises, whether on his own account or On account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receive for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant". Thus, the material on record clearly discloses that the 2nd respondent herein is one of the landlord at the time of filing of eviction petition, and pursuant to Ex.P-12, he is allotted the property in question exclusively.
13. In view of the above, there is no bar for respondent No. 2 herein for filing eviction petition against the tenant.
14. Now coming to the second contention of the tenant, the explanation-(i) to Section 27(2) (r) raises statutory presumption in favour of the landlords' need. If the landlord files an application supported by an affidavit to the effect that the premises are required for his own occupation or any other members of his family dependent on him, the Court shall presume that the premises are so required. The words "bonafide" and "reasonably" that formed part of Section-21(1)(h) of 1961 Act are done away with. The omission of these words in Section-27(2) (r) of the new Act explicitly brings out the intention on the part of legislature to save the Courts from the bother of going into the exercise of analyzing the need.
15. Thus, what remains is the question whether the landlord-respondents requirement of the premises is real and genuine. In the instant case, the landlords have filed an application supported by the affidavit of Respondent No. 2 that the petition schedule premises is required for him for running his plumbing and sanitary business. In view of said explanation (i) to Section 27 (2) (r) of the new Act, the Court shall have to presume that the landlord (Respondent No. 2) needs the premises for his own use and occupation. Added to it, it is the specific case of the landlords that the petition schedule property alone is suitable for carrying on the business of plumbing and sanitary wares and therefore, the property which fell vacant (shop 'A') during the pendency of the proceedings was subsequently leased to M/s. Classic Electronics as the same was not suitable for the business of the 2nd respondent. It is disclosed from the material on record that the said 'A' shop is allotted to the share of P.W.2 (respondent No. 5 herein) in the memorandum of partition vide Ex.P12 and consequently the respondent No. 2 herein cannot occupy the same. Even otherwise the tenant cannot question the landlords' right to opt for suitable premises of their choice which depends upon the suitability of the nature of their business or occupation. In the instant case, 'A' shop, according to the landlords, is not suitable for landlords' business i.e., plumbing and sanitary as the same is situated at the middle of the building and whereas, the 'B' shop which is the petition schedule premises is suitable for the landlord-respondent No. 2 as the same is situated at the south eastern corner of the building facing towards road on eastern side. The learned Counsel for the landlord submitted that the landlord can keep the sanitary material etc., in the setback area of 5 ft. abutting the shop in question and the same will not affect anybody inasmuch as the schedule premises is situated at the southern end of the building. The sanitary and plumbing materials such as the big pipes etc., if are kept in front of the shop, the same may cause inconvenience to the owners of other adjoining shops. As the schedule property is situated on one side of building and as there is a setback area after the shop, the 2nd respondent can definitely keep his sanitary and plumbing material in the said setback area. Learned Counsel for the landlord took me through the rough sketch Ex.P.2 for explaining as to how the schedule premises is comfortable and suitable than the other shops which are adjoining the schedule premises. On thoroughly perusing the sketch Ex.P.2, I find that the contention of the landlord is well founded and justified that the petition schedule premises i.e., shop 'B' is suitable for the respondent No. 2 herein to do his business. Moreover, the tenant cannot dictate the landlord to occupy the specific premises that falls vacant, if it is not suitable for the landlord. Thus the second contention of the tenant fails.
16. Merely because the respondent No. 2 is convicted for the offence punishable under Section 138 of N.I. Act and that he is undergoing imprisonment itself cannot debar him from doing plumbing, sanitary or any other allied business after serving the sentence. It is not in dispute that the Respondent No. 2 is sentenced to undergo imprisonment for one year and that he has already undergone six months imprisonment. Further, merely because the license is not renewed for the present, it does not mean that the license will not be renewed at all times to come. More over, even if the contractors' license is not granted or renewed by the BWSS henceforth, there is no impediment for the respondent No. 2 to start his own business in sanitary hardware and other allied business independently. 17. Thus, in view of the above discussion, I find no merit in any of the submissions made by the learned Counsel for the tenant. On reappreciation of the entire material on record, I do not find any reason to interfere with the conclusion arrived at by the Court below. The material on record amply proves that the 2nd respondent herein is in need of the petition premises in question for his use and occupation. Thus, I do not find any merit in this revision petition and the same is liable to be dismissed. However, considering the fact that the tenant may need certain time to vacate the premises by making alternative arrangements, in my view, the interest of justice will be met if the tenant is granted time to vacate the premises till the end of July 2005 subject to certain conditions. Hence the following:
ORDER The House Rent Revision Petition is dismissed confirming the order of eviction passed by the Court below dated 10.6.2003.
The petitioner herein-tenant is granted time till end of July 2005 to vacate the premises subject to the following;
(a) The petitioner shall voluntarily vacate and hand over the vacant premises in question to the landlord-respondent No. 2 herein on or before the said date, without seeking further extension of time.
(b) The petitioner shall pay rents regularly to respondents-landlords.
(c) The petitioner shall not induct the third party in possession of the premises.
s The tenant-petitioner herein shall file an undertaking to the said effect within four (04) weeks from today before this Court.