Bangalore District Court
Sri C. Chandrashekaran vs Sri Mohammed Suhail on 1 March, 2016
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
DATED THIS THE 1st DAY OF MARCH 2016
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B.,
CHIEF JUDGE
H.R.C. No.6/2015
Petitioner: 1. Sri C. Chandrashekaran,
S/o late P.Chengalaraya Gounder,
Aged about 61 years,
Residing at NO.117/A,
Opposite to Vinayaka Temple,
P&T Colony,
Venkateshpuram,
Bangalore -560 045.
(By Sri Sathish Kumar, Advocate)
-Vs-
Respondents: 1. Sri Mohammed Suhail,
S/o K.Mohammad Umar,
Aged about 45 years,
Residing at No.2348,
4th cross, Kushalnagar,
K.G.Halli,
Bangalore -560 045.
And also at :
No.117/A, Z.B Cable Office,
Opposite to Vinayaka Temple,
P & T Colony, Venkateshpuram,
Bangalore -560 045.
(By Sri Naushad Pasha , Advocate )
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2. Mohammed Tahir Riaz,
S/o Riaz Ahmed,
Aged about 21 years,
R/at No.33/1, R.V.Road,
Basavanagudi,
Bengaluru-560 004.
Rep. by his G.P.A. Holder
Riaz Ahmed.
3. Mohammed Yasir Riaz,
S/o Riaz Ahmed,
Aged about 17 years,
R/at NO.33/1, R.V.Road,
Basavanagudi,
Bengaluru-560 004.
Rep. by his mother
Natural Guardian,
Zaiba Nishath Bano
And father Riaz Ahmed.
(By Sri.Sharath S.Gowda , Advocate for
respondent NO.2 and 3 )
ORDERS
The petitioner has filed this petition under section 27(2)(a) and
(r) of Karnataka Rent Act, 1999 seeking an order of eviction against
the respondents and also to direct the respondent to quit , vacate and
deliver the vacant possession of the schedule premises and for such
other reliefs.
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2. Brief facts of the case are as under:-
It is the case of the petitioner that respondent is a tenant under
him in respect of shop premises bearing No.117/A, measuring East to
West 10 feet and North to South 11 feet in the ground floor , opposite
to Vinayaka temple , P& T colony , Venkateshpuram, Bangalore on a
monthly rent of Rs.660/- . The monthly rent has been enhanced from
time to time and at present rate of rent is Rs.800/- and the tenancy
commences from 13th day of English Calendar month ends on 12th
day of next calendar month.
3. It is further case of the petitioner that respondent is a chronic
defaulter in payment of monthly rent, hence, he is not entitled to
continue as a tenant in the schedule premises. The petitioner is a
retired person and he has no any other source of income except the
rental income, hence, he is intending to start his own business to eke
out his livelihood. The petition schedule premises which is in
occupation of the respondent is quite suitable to carry out the
business of the petitioner , hence, he requested the respondent on
number of occasions to quit, vacate and hand over the vacant
possession of the petition schedule premises . Though initially
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respondent agreed to vacate the petition schedule premises but kept
on postponing the same on one or the other reason, hence, petitioner
got issued legal notice dated 26.11.2014 terminating the tenancy of
the respondent and calling upon him to quit, vacate and deliver the
vacant possession of the petition schedule premises to the petitioner.
The respondent evaded to receive the notice sent by the petitioner
through RPAD hence, the postal authorities returned the same with
postal shara " intimation delivered- not claimed " on 28.11.2014 and
11.12.2014 and another RPAD cover returned with R.T.S. on
27.1.2014 . Hence, prays to allow the petition.
4. In pursuance of this eviction petition , this Court has issued
notice against the respondent No.1 and he appeared before the Court
and filed objection statement denying the petition averments. The
respondent further contended that petitioner is a rent collector of the
owner of the schedule premises Smt.Saheda Begum daughter of Sri
Abdul Sattar is the absolute owner of the petition schedule premises
and respondent is a tenant under her by paying Rs.50,000/- as advance
security deposit and by paying regular rent to the Court. The
petitioner was only a rent collector and there was a dispute between
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the landlady and the petitioner as the petitioner did not pay the rent to
the land lady , hence, the respondent was constrained to approach this
Court for the payment of rent in HRC (N) RD 19/2003-04 and the
respondent has paid rent in Court in respect of schedule shop from
2003 till March 2015.
5. Respondent has denied the fact that he is a chronic defaulter
in payment of rent because he has paid all the rent till March 2015 in
the Bank as on today. The bonafide requirement of the petitioner is
denied by the respondent. It is submitted that if the petition is allowed
respondent will be put to greater hardship and irreparable loss and
injury. Hence, prays to dismiss the petition .
6. Respondents No.2 and 3 have filed objection contending that
the petitioner has not approached this Court with clean hands , hence,
he is not entitled for any relief sought in the application. It is
contended that one Shahida Jan, who is respondent NO.2 and 3
father's sister had filed suit in O.S. No.1817/2000 for declaration in
respect of suit schedule property as against her husband one
Chandrashekaran , petitioner herein and petitioner also filed a similar
suit in O.S.No.7738/2000. The both the suits decreed partly in favour
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of Shahida Jan declaring that she is owner to an extent of 50% of suit
schedule property and she bequeathed the same in favour of
respondents herein by way of registered will dated 01.01.2008 . It is
further contended that the judgment and decree in O.S. NO.1817/2000
C./w O.S.No.7738/2000 is not yet demarcated, under these
circumstances, the petitioner cannot claim absolute rights over the
petition schedule property. Hence, prays to dismiss the petition.
7. The petitioner in order to prove his case, he examined
himself as PW1 and he got marked the documents Ex.P.1 to 16 . On
the other hand, the respondent No.1 has been examined as RW1 and
respondent No.2 and 3 have examined one G.P.A. holder as RW-2
and they have got marked the documents Ex.R.1 to 36.
8. After closure of the evidence, petitioner counsel and
respondent counsel have filed written arguments.
9. After having perused the arguments , the following
points arise for my consideration:-
1) Whether the petition is not maintainable as contended by
respondent NO.2 and 3?
2) Whether the petitioner has made out grounds to invoke
sec.27(2)(a) of Karnataka Rent Act 1999 ?
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3) Whether the petitioner has made out grounds to invoke
sec.27(2)(r) of Karnataka Rent Act 1999?
4) What order?
10. My answers to the above points are as under:-
1) Point No.1 .. In the Negative
2) Point NO.2 .. In negative
3) Point No.3 .. In affirmative
4) Point No.4 .. As per final order
for the following:-
REASONS
11. Point No.1 : The petitioner has filed originally
this petition against the first respondent invoking section 27(2)(a)
and (r) of Karnataka Rent Act ,1999 seeking an order of eviction.
The impleading applicants who are the respondent NO.2 and 3
have filed an application under Order I Rule 10(2) read with
section 151 of C.P.C. praying this Court to implead them as party
to the proceedings and this Court vide Order dated 23.6.2015
allowed the application and respondent NO.2 and 3 came on
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record. The respondents NO.2 and 3 have contended this petition
is not maintainable as the Civil Court has declared the petitioner as
owner to an extent of 50% of schedule property and one Shaheda
Begum as owner in respect of 50% of schedule property. The
respondent NO.2 and 3 have claimed the right in respect of 50% of
schedule property based on the Will which is marked as Ex.R.33
and death certificate of Smt. Shaheda Begum and also claiming the
right in terms of the judgment passed in O.S.No.1817/2000 C/w.
No.7738/2000. It is important to note that the petitioner also relied
upon the Certified copy judgment which is marked at Ex.P.5 and
Ex.R.3 are one and the same. There is no dispute with regard to
the fact that , in the Civil Court it is decided in terms of Ex.P.5
judgment that the deceased Shaheda Begum who is the plaintiff in
O.S.No.1817/2000 declaring that she is the absolute owner to the
extent of 50% of schedule property and in O.S.No.7738/2000
Chandrashekaran who is the petitioner herein is the absolute owner
to an extent of 50% of the schedule property.
12. The Counsel appearing for the respondent No.2 has
contended that relying upon the judgment reported in (2004) 3
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SCC 178 ( India Umbrella Manufacturing Co. and others Vs.
Bhagabandei Agarwalla (dead) by LR's Savitri Agarwalla and
others) brought to my notice the relevant para that " unless co-
owner gives consent no order of eviction can be passed". The
Counsel also relied upon the judgment reported in (2002) 6 SCC
16. In this judgment also the Apex Court held that the co-owner
alone can maintain the suit for eviction of tenant without joining
the other co-owners if such other co-owners do not object and the
same is held in para 16 of the judgment. The Counsel also relied
upon unreported judgment M/s.Nopany Investments(P) Ltd., Vs.
Santokh Singh (Huf) and brought to my notice a suit filed by a co-
owner , is maintainable in law, it is not necessary for the co-owner
to show before initiating the eviction proceeding before the Rent
Controller that he had taken option or consent of the other co-
owners . However, in the event, a co-owner objects thereto, the
same may be a relevant fact. In the instant case, nothing has been
brought on record to show that the co-owners of the respondent had
objected to eviction proceedings initiated by the respondent herein.
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13. On the other hand, counsel appearing for the petitioner in
his argument he contended that the respondent NO.2 and 3 have
filed P. & SC NO.2/2014 which is marked as Ex.P.16 and the same
came to be dismissed as not maintainable vide order dated 22nd
February 2014 . Further contended that there is no dispute with
regard to the fact that the respondent NO.1 was inducted by the
petitioner herein and the respondent No.1 has admitted the very
execution of Ex.P.15. Under the Karnataka Rent Act ,1999 the
word 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 a 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" and hence,
petition is maintainable.
14. In keeping the contentions urged by both the respondents
No.2 and 3 Counsel and petitioner counsel, this Court has to
examine whether the petition is maintainable . Before discussing
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the evidence on record, I would like to make a mention of the
meaning of the word "Landlord" means:
As per section 3 (e) the word 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 a 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"
In view of the definition, it is clear that person who for the
time being is receiving or entitled to receive the rent of any
premises whether on his own account or on account of or on
account of or on behalf of or for the benefit of any other person or
as a 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 that means he need not necessarily be
the petitioner under the Karnataka Rent Act ,1999 , he should be a
title holder.
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15. On perusal of the material on record admittedly, there is
no dispute with regard to the fact that the respondent NO.1 is a
tenant inducted by the petitioner herein and though earlier he
disputes that he was not tenant under the petitioner and in the
cross-examination he categorically admits the very execution of
Ex.P.15 and the said agreement is between the petitioner and the
respondent No.1 . It appears the signature of both the petitioner and
the respondent NO.1 and in the cross-examination also, the RW-
1categorically admits that in the year 2000 he has paid the advance
of Rs.10,000/- and he was inducted as tenant on a monthly rent of
Rs.660/- and rent was increased and he paid additional advance of
Rs.5,000/- in 2002 , in total he has paid the advance of Rs.15,000/.
He categorically admits that Ex.P.15 came into existence, when he
paid the advance of Rs.10,000/- . Further, he categorically admits
that he has not entered into agreement with Shaheda Begum under
whom , the respondentNo.2 and 3 are claiming rights and he
categorically admits he entered into an agreement with
Chandrashekar who is none other than the petitioner. Further more,
he paid rent in favour of Chandrashekar for the month of October
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and November 2003. These admissions takes away the case of the
respondent No.2 and 3 and categorically respondent No.1 is a
tenant and he admits that he was inducted by the petitioner herein
and he also paid the rent and advance and document Ex.P.15 came
into existence and he has not entered any agreement with Sahida
Begum, under whom respondent NO.2 and 3 are claiming right.
NO doubt, there is a decree in favour of the petitioner as well as
Shaheda Begum to the extent of 50% and the said decree has not
been reached its finality and possession has not been taken by the
respondent NO.2 and 3 . Admittedly, the possession was handed
over by the petitioner herein and he himself inducted the
respondent NO.1. When such being the evidence available before
the Court, the principles laid down in the judgments referred supra
that when the co-owner objects for eviction cannot be applicable to
the case on hand and in the case on hand, it has to be noted that the
very respondent NO.1 was inducted by the petitioner and there is
rental agreement between the petitioner and the respondent and I
have already observed that the right which has been conferred in
favour of Saheda Begum under the Civil Suit has not been reached
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its finality, hence, I am of the opinion that the petition is
maintainable in view of the definition of the landlord as defined in
the Karnataka Rent Act ,1999 . Hence, I answer point No.1 in the
negative.
16. Point No.2: It is the case of the petitioner that the
respondent is a tenant in respect of shop premises bearing
No.117/A, which is more fully described in the schedule on a
monthly rent of Rs.660/- and presently respondent is paying
Rs.800/p.m. and the respondent is chronic defaulter in payment of
monthly rent and hence the respondent is not entitled to continue
as tenant under the petitioner in respect of the petition schedule
property. The petitioner also in support of this contention has got
marked the document office copy of legal notice and two postal
receipts and returned RPAD covers at Ex.P.3 and 4. In the cross-
examination , PW1 says that the respondent has paid rent till
November 2003 and also he admits that his wife left his house on
account of differences and he came to know through the tenant that
his wife was also demanding the rent and respondent has filed the
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petition before the rent Controller to pay the rent and notice has
been issued to him and also to his wife and an order has been
passed to deposit the rent and accordingly, the respondent NO.1
has been depositing the rent from December 2003 till date. In view
of this admission elicited from the mouth of PW-1 , the question of
arrears of rent does not arise and also Ex.R.1 to 30 discloses the
rents are deposited rents are deposited before the Rent Controller
till September 2015. On perusal of Ex.R.19 discloses the rent has
been deposited for the month of December 2013 and January 2014
in the month of February 2014. I have already pointed out that
petition is filed in the month of January 2015 , hence, it is clear that
rents have been deposited without committing any default . Petition
is very bald regarding invoking section 27(2)(a) and there is no
specific allegation for non-payment of rent for a particular period
and only allegation in general and notice is issued against the
respondent also not served and returned with an endorsement 'not
claimed'. First of all , notice has not been served and I have already
pointed out that respondent has been depositing rent without
committing any default before the Rent Controller and allegation is
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in general and not specific regarding non-payment of rent. Hence,
petitioner has not made out any grounds to invoke section 27(2)(a)
of Karnataka Rent Act ,1999. Hence, I answer point NO.2 in
negative.
17. Point No.3: It is the contention of the petitioner in the
petition that he is a retired person and he has no other source of
income except rental income and in order to augment more income
he is intending to start his own business to eke out his livelihood
and the petition schedule premises is quite suitable to carry out the
intending business and inspite of request , the respondent did not
vacate the premises , though respondent initially agreed to vacate
the petition schedule premises , kept on postponing the same on
one or the other pretext, hence, petitioner got issued legal notice
dated 26.11.2014 and the respondent evaded to receive the notice.
18. In support of his contention, the petitioner also got
marked the documents certified copy of judgment and decree in
O.S.No.1817/2000 C/w.No.7738/2000, death certificate of his wife
as Ex.P.6 and khatha certificate , tax paid receipts as Ex.P.7 to 9.
Water and electricity bills , telephone till as per Ex.P.10 to 12. In
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his affidavit evidence petitioner has reiterated the same that he has
been retired in 2013 and he is in need of petition schedule premises
to do business of his own. Further , a suggestion was made that
respondent was ready to vacate three years ago since he was
looking for alternative shop and he only went and told the owner
not to let out the shop to him as he has filed many cases against
him and these suggestions were denied. This suggestion clearly
goes to show that a demand was made to vacate the premises and
also he categorically says that he has no avocation and he is in need
of petition schedule premises and he is doing the kova business
from last three years and he is intending to continue the same . It is
suggested that the place in which he is doing the business is
sufficient to continue the business and he is not in need of the
petition schedule premises , hence, it is clear that suggestions itself
shows that petitioner is doing the business and there is no dispute
with regard to the fact that he is doing business. It is also important
to note that in the cross-examination of RW-1 , who is the tenant ,
he categorically admits that there is a Rental Agreement between
him and the petitioner and though in the cross-examination , denied
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regarding the said rental agreement , when the document was
confronted , he categorically admits ExP.15. RW-1 further admits
that in the year 2000 he paid advance of Rs.10,000/- and was
inducted as tenant on a monthly rent of Rs.660/- and further admits
rent was enhanced to Rs.800/-p.m. in 2003. Further admits that he
paid additional advance of Rs.5,000/- in 2002. He admits that he
has paid an advance of Rs.15,000/- in total. Further admits that
Ex.P.15 came into existence when he has paid the advance of
Rs.10,000/-. Hence, the respondent cannot dispute the jural
relationship between the petitioner and the respondent . He also
admits that Shaheda Begum and Chandrashekar are husband and
wife and he entered into an agreement with Chandrashekar on
payment of Rs.10,000/- and he has not entered into an agreement
with Shaheda Begum. These admissions takes away the defence of
the respondent . It is also important to note that RW-1 categorically
admits , petitioner has given notice requesting him to quit and
vacate the premises several times . Further he admits that he has
not given reply to notice. Further , admits that petitioner is a
retired School teacher , the very fact of retirement from the service
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has not been disputed. Further admits that he does not know
whether petitioner is having any avocation or not after the
retirement. Further admits that if he get other alternative premises,
he has no impediment to vacate the petition schedule premises .
These admissions takes away the defence of the respondent .
Hence, it is clear that petitioner has made out ground to invoke
section 27(2)(r) of Karnataka Rent Act ,1999 and I answer issue
NO.3 in the affirmative.
19. Regarding granting of time is concerned this enactment
was brought into force with an intention to dispose off the case as
early as possible and also the very proviso of section 42 (7)
mandates the Court that every application made to the Court shall
be heard as expeditiously as possible and endeavour shall be made
to conclude the hearing and to dispose off the application within
six months of it being filed. In view of this mandate given to the
Court to dispose of the matter within 6 months , it is clear that the
relief is to be given within the stipulated time. Considering the said
proviso , the Court has to grant the just and reasonable time to
vacate the premises and when the time is fixed for 6 months for
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disposal of the application and the word is used that Court shall be
heard as expeditiously as possible and endeavour shall be made to
conclude and dispose off the application within 6 months and
granting of 3 months would be reasonable , since this case is filed
on 12.1.2015 and already 14 months is lapsed and the matter is not
disposed off within six months as stipulated under section 42(7) of
the Act.
20. Point No.4: In view of the discussions made above, I
proceed to pass the following:-
ORDER
The petition filed by the petitioner under Section 27(2)(r) of Karnataka Rent Act, 1999 is hereby allowed.
The respondent No.1 is hereby directed to quit, vacate and deliver vacant possession of the petition schedule premises to the petitioner within three (3) months time from the date of this order.
The petition filed by the petitioner under Section 27(2)(a) of Karnataka Rent Act, 1999 is hereby rejected.
Under the facts and circumstances of the case, there is no order as to costs.
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Draw decree accordingly.
(Dictated to the Stenographer , transcribed by her, corrected & then pronounced by me in Open Court on this the 1st day of March 2016) (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
SCHEDULE All the piece and parcel of the shop premises bearing No.117/A, ground floor portion, measuring East to West 10 feet and North to South 11 feet, Opposite to Vinayaka Temple, P & T Colony, Venkateshpuram, Bangalore -560 045, bounded on the :
East by : remaining portion of the property belongs to the petitioner West by : Sedrak's house; North by : Remaining portion of the property belongs to the Petitioner South by : Road (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.SCCH-1 22 HRC 6/2015
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PETITIONER :
PW-1 : C.Chandrashekaran LIST OF WITNESSES EXAMINED FOR THE RESPONDENT : RW-1 : Mohammed Suhail RW-2 : Riaz Ahmed LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P-1 : Office copy of legal notice Ex.P-2 : Postal receipts (2) Ex.P-3 &4 Returned RPAD covers Ex.P-5 Certified copy of judgment and decree in O.S.No.1817/2000 c/w 7738/2000 Ex.P-6 Death certificate of petitioner's wife Ex.P.7 Khatha extract Ex.P.8 P receipt Ex.P.9 Tax paid receipts (3) Ex.P.10 Water bill Ex.P.11 Electricity bills (4) Ex.P.12 Telephone bill Ex.P.13 & 14 Receipts (2) Ex.P.15 Copy of lease agreement Ex.P.16 Certified copy of P& SC No.26/2014 LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT: Ex.R-1 to 30 Rent deposit vouchersx (30) Ex.R.31 Certified copy of judgment in O.S.No.1817/2000 C/w.7738/2000 SCCH-1 23 HRC 6/2015 Ex.R-32 Certified copy of decree in O.S.No.1817/2000 Ex.R.33 Certified copy of Will Ex.R.34 Death certificate Ex.R.35 & 36 Xerox copy of electricity bill (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.