Karnataka High Court
Smt. Yashoda Bai vs Smt. Lakshmamma on 21 August, 2003
Equivalent citations: ILR2003KAR3871, 2003 AIR - KANT. H. C. R. 2466, 2003 AIHC 4211, (2003) 2 RENCR 702, (2004) 2 RENCJ 79
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER
Srinivasa Reddy, J
1. In this revision by the tenant the challenge is to the order dated 20th June, 2000 passed by the learned Small Causes Judge, Bangalore In H.R.C. 721/97 by which the learned Judge allowed the petition filed by the respondent-landlord under Section 21 (l)(h) of the Karnataka Rent Control Act, 1961 ('the repealed Act' for short).
2. The landlord filed the petition against the petitioner-tenantstating that the petitioner is a tenant under her on a monthly rent of Rs. 175/- and that she requires the petition premises to accommodate her son Ramkumar who has attained marriageable age. The case of the petitioner is that the accommodation available to her is only a small room and the accommodation available in the petition premises is a hall, room, kitchen, bathroom and a pooja room and she requires this accommodation for accommodating his son who is to be married. The petitioner-tenant denied that the landlord is the owner of the premises and set up a case that she is only a rent collector and in her capacity as rent collector she could not claim the eviction of the petitioner. It was further contended by the tenant that though two portions fell vacant after the filing of the petition the landlord did not choose to occupy the same but rented them out for higher rent. She also claimed that she would be put to greater hardship if eviction is ordered. The Court-below considered relative merits of the contentions urged by both sides, passed an order allowing the eviction petition under clause (h) of Section 21(1) of the Act. Being aggrieved, the petitioner-tenant has come up in this revision.
3. I have heard the learned Counsel on both sides.
4. Mr. V.B.Shivakumar, learned Counsel for the petitioner submitted that only as 'owner' can file an eviction petition and not a 'landlord'. His submission is that the respondent being a mere rent collector she could not have preferred a petition for eviction under Section 21(l)(h) of the repealed Act. According to him, the respondent has not produced any material to show that she is the owner of the petition premises and, therefore, not entitled to maintain the petition for eviction.
5. According to learned Counsel Mr.S.Srinivasa Murthy it is not necessary that one has to be an owner of the property in order to file a petition for eviction. It is submitted by him that the respondent is in fact the owner of the property and the katha of the property stands in her name.
6. The Karnataka Rent Act, 1999 has come into force with effectfrom 31st day December, 2001 ('the Act' for short) and nowhere in the entire Act there is any stipulation that a petition for eviction can be presented only by a owner and not by any other person. In fact, Section 27 of the Act, extracted hereunder, does not make any reference to an owner.
"27. Protection of tenants against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant save as provided in sub-section (2)".
The reference made in the provision is to 'the landlord' and not to 'an owner'. Section 3(e) of the Act defines landlord as;
'Landlord' means a person who for the time being is 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 trustee, guardian, or receiver 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.' The relief sought by the respondent in the present case is under Section 27(2) (r) of the Act and Section 27 speaks in terms of a petition presented by a landlord and landlord is defined in a very broad sense and it includes a person who for the time being is receiving or is entitled to receive the rent which certainly would include the respondent herein. The contention now urged by the learned Counsel for the petitioner that the respondent is not the owner of the petition premises is also without substance as the respondent has produced the katha certificate ExP2 in which her name appears. Also in the cross-examination the petitioner has clearly stated that she has been paying rent to the respondent after the death of Srinivas, the husband of the respondent, and that after Srinivas the respondent and her children are the owners of the property. It is not, therefore, open for the petitioner to now contend in this revision that the respondent is not the owner of the premises in question.
7. Learned Counsel for the petitioner has cited several decisionsin support of his submission. Considering that it is not open for him to make such submission on record in the light of the admissions made by the petitioner in the course of her cross-examination before the Court below, I need not venture into that question at all. Nevertheless, in none of the decisions cited by Mr.Shivakumar it has been held that a petition for eviction can be filed by the owner alone and not by rent collector. In DAS A.R. vs SARGUMAN, 1983 (1) KAR.L.J. 93 relied by Mr.Shivakumar the question in issue was whether a settlee can during the lifetime of settlor present an application for eviction of a tenant. It was in that regard that it was held that a settlee could not maintain a petition under Section 21(l)(h) of the repealed Act. Such question does not arise here at all as the present respondent after the demise of her husband who was the owner of the petition premises has become, along with her children, the owner of the property. The question is no longer Res integra as it has been settled by the authoritative pronouncement of the Apex Court in SRI RAM PASRICHA vs. JAGANNATH, , in the following terms:
"15. There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of the other plaintiffs. Such a plea should have been raised for what it is worth at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and Tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the lease property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."
(emphasis supplied) Thus, the contention advanced by learned Counsel for the petitioner is without basis and it is especially so in the light of the broad definition given in the Act to the term 'landlord' in Section 3(e) of the Act.
8. In so far as the need of the landlord is concerned, it hascome on record that the son of the respondent - landlord got married when the proceedings were pending before the court-below. It is also elicited in the cross-examination of the petitioner that the son and daughter-in-law are residing separately for want of accommodation. The need urged by the respondent in her eviction petition is for the accommodation of her son. The evidence of the respondent that the accommodation presently available with her is only one room has gone unchallenged in cross-examination. Learned Counsel for petitioner Mr.V.B.Shivakumar relied upon the decision in MR. P.B.DESAI vs. C.M.PATEL, wherein the Apex Court interpreted the terms 'requires' to mean that there must be an element of need and not a mere desire. The Apex Court while interpreting the said term also observed when the Court should interfere with a finding of fact recorded by the lower Court, in these terms:
'Where the lower Court interpreted the word 'requires' in Section 13(1)(g) correctly to mean that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation and arrived at a finding that the landlord reasonably and bona fide required the premises for his own use and occupation, the finding was a finding of fact and it was not competent to the High Court to interfere with this finding by reappreciating the evidence. If the lower Court had applied a wrong test on a misconstruction of the word 'requires' the finding recorded by it would have been vitiated by error of law."
The Court-below in the present case has interpreted the need of the landlord correctly and has characterised it as bonafide and reasonable. Notwithstanding that such consideration is not essential in the present situation of law, as I have concurred with the said view, there is no need at all for any reappreciation of evidence as in my considered view the need propounded by the respondent - landlord in the facts and circumstances of the case cannot be classified as a mere desire. The characterisation of the need for purpose of identifying whether it is a mere desire or an absolute need is not required at all in the light of the present Act. That apart, this decision cited by the learned Counsel for the tenant runs contrary to the case set up by the tenant in this revision and in fact aids the case of the landlord as the finding of fact recorded by the Court-below in the present case is in favour of the landlord and the ratio of the decision is that the High Court is not competent to interfere with such finding of fact. The learned Counsel for the petitioner relied on AMARJIT SINGH vs. KHATOON QUAMARAIN, wherein it was held that, if a landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be disentitled to evict her tenant on ground of her need. This decision is of no avail to the petitioner as it was never brought out on record that any premises fell vacant during the pendency of these proceedings and that the respondent-landlord rented out the same for higher rent without occupying it.
10. In the ultimate analysis, I find no merit in this revision andthe revision is, accordingly dismissed. The petitioner is given three months time to quit and deliver vacant possession of the premises to the respondent- landlord.