Karnataka High Court
A.S. Gupta And Anr. vs V. Ramachandra Naidu on 11 February, 2003
Equivalent citations: 2003(2)KARLJ641, 2003 AIR KANT HCR 1559, 2003 A I H C 2567, 2003 AIR - KANT. H. C. R. 1559, (2003) 7 ALLINDCAS 386 (KAR), 2003 AIHC 2567, (2003) 2 KANT LJ 641, (2003) 2 RENCR 432
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. This revision petition under Section 46(1) of the Karnataka Rent Act, 1999 is directed against the order dated 30-9-2002 passed by the Court of the XV Additional Small Causes Judge, Mayohall Unit, Bangalore, SCCH 19 in HRC No. 10638 of 1992.
2. The landlord had filed an eviction petition under Section 21(1)(a), (h) and (o) of the Karnataka Rent Control Act, 1961 as against the respondents therein. The respondent 1 was a Private Limited Company and the respondent 2 was the Managing Director. The premises is a residential premises comprising of ground floor portion, first floor portion with a garage at Park Road, Tasker Town, Bangalore, which is a residential extension of Bangalore City.
3. The landlord alleged that the rate of rent is Rs. 1,400/- per month and the tenant was in arrears of rent. That the premises was required for his use and occupation, particularly, for the members of his family as his sons, one of whom was married and the other son was also of marriageable age and as such wanted to settle their families separately. The petitioner pleaded that he was himself living with his brother, brother's sons as a joint family. The petitioner also pleaded that the premises though was leased out exclusively for residential purpose, the respondent-tenant had set up a medical clinic there and had also sublet the garage portion for some commercial activity. Such acts of the tenant was in violation of the original terms of lease. That the tenant was required to be evicted for not only the violations but, also for the requirement o the landlord himself.
4. The petition was contested. The respondent took up the stand that the petitioner was not the landlord but was only a rent collector. That the respondent was not defaulter in the payment of rent. That the premises though originally taken on lease by the company, the company had been wound up and thereafter, Mr. Gupta in his personal capacity continued to be the tenant. From the year 1985 onwards the rents were being paid by Mr. Gupta. That the petitioner also did not require the premises for his bona fide use and occupation. That he has not committed any violation as alleged in the petition particularly, with regard to the terms of the lease. The respondent denied the allegations of subletting or conversion of the user of the premises.
5. Evidence had been let in on behalf of the parties. In the meanwhile, the Karnataka Rent Control Act came to be repealed and is replaced by the Karnataka Rent Act, 1999.
6. The petitioner made an application seeking for amendment and for prosecution of the petition under the corresponding provisions of the Karnataka Rent Act. The petitioner in particular sought for eviction of the tenant under the provisions of Sections 27(2)(a), (b), (o) and (r) and 31(1)(c) of the Karnataka Rent Act, 1999. After this application for amendment, tenant also filed his objections for the same.
7. The petitioner had filed a memo to the effect that he is not pressing the ground of Section 27(2)(a) of the Act seeking liberty to recover the rent separately. Therefore, there was no need for the Trial Court to consider the ground of Section 27(2)(a) of the Act.
8. The petitioner examined 4 witnesses including himself and got marked as many as 29 documents, Exs. P. 1 to P. 29. The second respondent-Mr. Gupta in occupation of the premises examined himself as R.W. 1 and marked as many as 10 documents, Exs. R. 1 to R. 10. In view of the evidence led and the submissions of the parties, the Court below had formulated the following points for its consideration:
1. Whether the petitioner proves that there is jural relationship between himself and the respondents as landlord and tenants in respect of the petition schedule premises?
2. Whether the petitioner proves that the 2nd respondent has sublet the garage portion of the schedule premises to a waste paper dealer without the permission of the petitioner and thereby the respondent is liable to be evicted under Section 27(2)(b) of the Karnataka Rent Act, 1999?
3. Whether the petitioner proves that the petition schedule premises is required for his family members for their personal use and occupation and hence he is entitled to get eviction order under Section 27(2)(r) of the Karnataka Rent Act, 1999?
4. Whether the petitioner proves that he is entitled to get eviction order under Section 31(1)(c) of the Karnataka Rent Act, 1999?
5. Whether the petitioner proves that he is entitled to get eviction order as Section 27(2)(o) of the Karnataka Rent Act, 1999?
6. What order?
9. The Trial Court found that there was relationship of landlord and tenant between the petitioner and the respondent. That the landlord was able to prove that the tenant had sublet the garage portion of the premises to a waste paper dealer without the permission of the petitioner and has rendered himself liable for eviction under Section 27(2)(b) of the Act. That the requirement pleaded by the petitioner that the premises was required for use of the members of his family has been made good by the petitioner and as such, the tenant was liable for eviction under Section 27(2)(r) of the Act. That the petitioner being an elder citizen aged about 66 years at the time of filing of the original petition and was about 76 years at the time of leading evidence was entitled to claim the benefit of the provisions of Section 31(1)(c) of the Act which is a special provision for the benefit of landlords who are elderly citizens or physically handicapped persons for whose requirement the premises is sought for and accordingly, allowed the petition under Sections 27(2)(b), (r) and (o) and 31(1)(c) of the Act and directed the tenant to vacate and hand over vacant possession of the premises within 60 days from the date of the order.
10. It is aggrieved by this order, the tenant is in revision.
11. The first petitioner in this revision petition is the tenant Mr. Gupta and the second petitioner is the company which had originally taken the premises on lease.
12. I have heard Smt. Nalini Venkatesh, learned Counsel appearing for the petitioner. The learned Counsel submits that the Trial Court has committed an error in allowing the petition. The Trial Court failed to notice that the landlord had not proved the ground of subletting. The person who was in occupation of the garage portion was a person through whom the petitioner-tenant himself was carrying on certain activity and the person, one by name Devaraj is a worker or an employee of the tenant and therefore, it does not amount to subletting. The learned Counsel also submits that the landlord had failed to prove the garage portion was in fact, let out for any rent and as such, subletting had not been proved and the Trial Court could not have allowed the petition on this ground.
13. With regard to the allowing of the petition under the provisions of Section 27(2)(o) of the Act, the learned Counsel submits that the tenant had given up his stand that the petitioner in the eviction petition was not the landlord and had not seriously disputed that fact though had set up the plea that the eviction petitioner in HRC No. 10638 of 1992 was merely a rent collector and not the landlord.
14. Section 27(2)(o) is a provision which is introduced for the first time in the Karnataka Rent Act and for which there was no corresponding provision in the earlier Act. It reads as under.-
"(o) that the tenant in his reply having denied the ownership of landlord, has failed to prove it or that such denial was not made in a bona fide manner".
Perhaps the provision has been brought on the statute book to curtail frivolous defence being set up by the tenant though, they come into possession of the premises as a tenant. The burden of proof that the person who claims eviction of the tenant is not the owner of the premises and not the landlord is cast on the tenant who sets up the defence that the eviction petitioner is not the owner. If a tenant who initially sets up this defence fails to make good this assertion, then he renders himself liable for eviction for setting up the defence itself. The provision appears to be one intended to discourage setting up of frivolous defence by a tenant. The learned Counsel submits that the revision petitioner-tenant had merely pleaded that the person who had sought for eviction is a mere rent collector. The learned Counsel submits that the dispute regarding the relationship of landlord and tenant was not seriously pressed by the tenant and in fact the tenant himself had admitted that the eviction petitioner was the landlord and that he was paying the rents to him. The admission is proof for pleading of the landlord and if at all it goes against the tenant who had set up a plea that the relationship was not one really as landlord and tenant but one as a rent collector. Having regard to the provisions of Section 27(2)(o) there was no escape for the tenant who had taken up the plea that the petitioner in HRC No. 10638 of 1992 was not the landlord, from suffering an order of eviction when he could not substantiate his plea. I do not find any error or illegality in the Trial Court allowing the petition on this ground.
15. Insofar as the provisions of Section 27(2)(r) is concerned, the section is worded in the following manner.-
"(r) that the premises let are required, whether in the same form or after reconstruction or rebuilding, 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".
16. Submission of the learned Counsel for the revision petitioner in this regard is that the landlord has been living in his own house comprising of 14 rooms as admitted by himself and that was more than sufficient accommodation for the members of the family and as such, there is no occasion for the Court to direct eviction of the tenant from the petition schedule premises. It is also submitted that mere wish of some member of the family to have an additional room or an additional bathroom in itself cannot constitute a ground for eviction particularly, when the tenant himself had a large family comprising of 14 to 15 members and if they are disturbed for the mere whims and fancy of the landlord and members of his family, the tenant will suffer great hardship.
17. The evidence on record does indicate that the persons for whose requirement the petitioner had sought for additional accommodation and for evicting the tenant was members of the family. It is the case of the petitioner that his family has also grown up. It should be obviously so as the tenant has been in occupation of the petition schedule premises for 30 years. Over the period of 30 years any family will grow in size and number. The crux of the matter is that the landlord had pleaded that the petition schedule premises was required for the occupation of the members of his family. The evidence support this case of the landlord. Whether the tenant has a large family or not is not the criteria for the purpose of consideration of the requirement of the landlord under the provisions of Section 27(2)(r) of the Act. It is not in dispute that other than the premises in which the landlord is in occupation at present the petition schedule premises is the only premises available for such additional occupation. Though it is sought to be submitted by the learned Counsel appearing for the petitioner-tenant that the landlord owns other premises, it is borne out on record that such premises are non-residential premises and are far away. That the landlord indicates that the petition schedule premises which is near to his present residence is suitable for occupation and when once that case is made home, the matter ends there. There is no choice for the Court except to direct eviction of the tenant.
18. Unfortunately, under the present Act, there is no scope for assessing the comparative hardship that the landlord and the tenant may suffer if eviction is denied or if eviction is ordered. The evidence on record did support the case of the petitioner for requirement within the scope of Section 27(2)(r) of the Act. The Trial Court has rightly passed an order under this clause also.
19. Insofar as the provisions of Section 31(1)(c) is concerned, it is not in dispute that the petitioner is a senior citizen qualifying for this special benefit. However, what is submitted by the learned Counsel for the revision petitioner is that the requirement pleaded is not for the senior person but for some children of the family who may not qualify under this section. The section as worded indicates that a right is given to a person for immediate possession of premises who is a person aged 65 years or more and the premises let out is required for use by the person or his family or for any member of the family "who is ordinarily living with such person. The right is given to the senior person and so long as the requirement is that of himself and any member of the family, provisions of Section 31(1)(c) operates. In this view of the matter on the admitted position, the prospect of an eviction order under Section 31(1)(c) is inevitable.
20. In the circumstances, I do not find any error or illegality in the order passed by the Court below and the order of eviction which the Trial Court has passed is inevitable. There is no scope for interference in the exercise of revisional jurisdiction in an order of this nature.
21. However, learned Counsel appearing for the petitioner seeks that the Court may grant some reasonable time to the tenant to vacate and hand over possession of the premises and according to the learned Counsel, three years period will be a reasonable time for such purpose.
22. Sri H.P. Manjunath, learned Counsel who has entered Caveat on behalf of the respondent-landlord opposes this request and submits that requirement having been proved and that the effort of the landlord being for the past 11 years the tenant was obviously aware of the same and granting of such long time is very unreasonable. In the circumstances, the learned Counsel submits that a maximum period of six months is reasonable and not any more.
23. Having regard to the object and intention of the provisions of Section 31(1)(c) of the Act, Court cannot entertain any request for a longer period for the tenant to vacate the premises. If such a request is acceded it will virtually frustrate the very provision. However, I am of the view some reasonable time may be given to the tenant so that he can make an alternative arrangement. I am of the view that a period of 10 months is more than reasonable.
24. In the circumstances, the tenant is given 10 months time from this date to hand over the premises to the landlord subject to the condition that he pays the stipulated rent regularly without fail. Undertaking for payment of such rent henceforth and further undertaking that he will not in any way sub-let or hand over possession to any third person and will hand over vacant possession to the landlord after the period of 10 months from today. House rent revision petition dismissed except to the provision of time. Undertaking in the form of an affidavit to be filed by the petitioner-tenant within two weeks before the Registry and furnish a copy of the same to the learned Counsel for the respondent-landlord.