Bangalore District Court
Advocate vs Shri Udechand on 21 February, 2015
Before the Court of XII Additional Small Causes at Bangalore
(SCCH-8)
Present: Shri P.J.Somashekar B.A., LL.B.
XII Additional Small Causes Judge,
Bangalore.
Dated this the 21st day of February 2015
H.R.C.No.30/2010
Petitioner: Advocate
Shri B.V.Krishna Murthy,
Son of Late B.C.Venkataramanaiah
Shetty, Aged about 54 years,
Residing at "Surya" No.444,
Middle School Road,
Vishweshvarpuram,
Bengaluru. Smt.M.D.Anuradha Urs
Respondent:
Shri Udechand,
Son of Late Megharaj Ji,
Aged about 70 years,
Residing at 1st floor,
Aruna's Ramesh Buildings,
No.133/22, Mamulpet,
Bengaluru. Shri H.J.Sanghvi
JUDGEMENT
This is a petition filed u/s 27(2)(a) and (r) of the Karnataka Rent Act, 1999 filed by the petitioner against the respondent for seeking judgement and decree against the respondent directing him to quit, vacate and handover the vacant physical possession 2 (SCCH-8) HRC 30/2010 of the schedule premises along with present and future rent till the possession of the schedule premises in his favour.
2. The brief facts of the petition are as under:
The petitioner said to be the landlord of the schedule premises in his petition has alleged that the schedule premises is situated on the first floor consisting of two bed rooms, one hall, one kitchen, one bath room, lavatory and measuring approximately 800 Sq.,ft, situated at "Aruna" Ramesh building, No.133/22, Corporation No.21, Mamulpet, Bengaluru. The schedule property was purchased in his name and the residential building was put up on the suit property and same was leased out to the respondent on 5.1.1968. The said lease was initially for a period of 11 months on a monthly rent of Rs.130/- but the lease was extended and the rent was also enhanced from time to time. The present monthly rent of Rs.1,750/-. At the time of commencement of lease, he was the minor as such his father represented as natural guardian., after attaining the majority the lease has been continued. As per the lease agreement the tenancy commenced from 5.1.1968 and the rent was supposed to be paid regularly on 1st of every month as the tenancy is according to the English Calendar month commencing from the 1st day of every month ending with the last date of the same month. Though Late Megharaj Ji has entered into the lease in the
3 (SCCH-8) HRC 30/2010 year 1968, after his death his son respondent has been continued as a tenant and paid rent till March 2007. Since April 2007 has stopped the rent as such he has continuously defaulter in payment of rent till the issuance of the legal notice. He has repeatedly requested the respondent to vacate the schedule premises as the same is required for his wife, who is practicing advocate to open an advocate's chamber. Though, the respondent has initially agreed to vacate the premises, but later on started evading to vacate and handing over the petition schedule property and he has not paid the rent or vacated the schedule premises now because of growth of city, the schedule premises is now commercial hub, as such same is ideally suitable for an advocate's office and is not fit for residential house.
3. The petitioner in his petition has alleged that the respondent is due a sum of Rs.54,050/- as arrears of rent. On issuance of the legal notice, the respondent has replied by taking untenable defence and even he has denied the relationship as landlord and tenant. However, he has enclosed the cheque for a sum of Rs.54,250/- dated 4.10.2009. So, he has accepted the arrears of rent without prejudice his right. The agreement of lease stood determined by efflux of time, but as the respondent continued in occupation of the schedule premises by holding over, as such there is no need to determine the tenancy has 4 (SCCH-8) HRC 30/2010 been terminated by the end of October 2009. After termination of tenancy and issuance of legal notice dated 4.10.2009 calling upon the respondent to quit, vacate and deliver the vacant possession of the schedule premises, the respondent has not complied with the demand made in the notice and he has paid Rs.54,250/- towards arrears of rent. But he has failed to pay further monthly rent as such he has committed default in not paying the rent regularly. The petition schedule premise is required for his wife and same is being a bonafide requirement and the respondent has defaulted in payment of rent. So he is entitled for vacant possession of the schedule property and the requirement is genuine and he does not have any alternative premises for establishing an office for his wife as his wife already put in 10 years of service in a senior's office. So petition schedule premises is required to establish an advocate office. Therefore, there is no alternative, than to approach this court and prays for allow the petition.
4. In response of the notice, the respondent has appeared through his counsel and filed the objection in which he has denied in toto and he has also denied that he was due a sum of Rs.54,250/- as arrears of rent and the petitioner is the absolute owner of the petition schedule premises. But he has admitted that the petitioner has got issued a legal notice and he has 5 (SCCH-8) HRC 30/2010 properly replied to the same by enclosing of Rs.54,250/- dated 4.10.2009 without prejudice towards arrears of rent in full and final settlement. Therefore, the petition u/s 27(2) (a) of the K.R. Act is not maintainable and he has also denied the agreement of lease stood determined by efflux of time but he has continued in occupation of the schedule premises by holding over and he has also denied that the petitioner's wife is practicing advocate and suit schedule property is required to establish the advocates office to his wife. Further he has alleged that this court has no jurisdiction to adjudicate the matter which is in dispute, as the real and lawful tenants in respect of the schedule premises is "Yempee Agencies" represented by its partners Shri Udaychand, Shri Mangilal, Smt.Pista Devi and Mangilal are the absolute tenants in respect of the schedule premises and the rent receipts was issued in the name of "Yempee Agencies". The said 'Yempee Agencies' have also paid huge advance and good will amount, but surprisingly the petitioner has got issued a false notice. But the petitioner has not impleaded the said person as party to the proceedings. So, petition is not maintainable for non-joinder of necessary parties. After the death of B.C.Venkataramanaiah Shetty, there is a serious dispute in the family members and the petitioner has no locus standi on his own capacity as landlord. The petitioner has demanded the 6 (SCCH-8) HRC 30/2010 enhanced rent and advance amount from time to time under the threat of eviction and coercion and he has denied that the schedule premises is required for opening an advocate's chamber to his wife, who is practicing advocate, at no point of time he has ever agreed to vacate the schedule premises. That the schedule premises consist of ground floor, 1 st floor and 2nd floor. In the ground floor there are three schedule shop premises and recently the petitioner has got inducted new tenants after receiving huge advance and goodwill amount. Even in the 1 st floor the petitioner has inducted three tenants. If really there was any bonafide requirement then the petitioner ought to have occupied the said premises. Even other wise the petitioner who owns a palatial big bunglow at No.443, Middle School Road, V.V.Puram, Bengaluru, which consists of ground floor and 1 st floor and the 1st floor premises is lying vacant which is highly suitable and convenient for advocate office. Apart from this the petitioner owns Santhosh Complex and Triveni complex and she can conveniently open her office as it is situated in the heart of the Bengaluru City. The residential premises i.e., suit premises is not at all suitable or convenient for advocate office.
5. The respondent in his objection has alleged that the schedule premises is a commercial premises, exceeding 14 Sq.metres and is doing his business under the name and style of 7 (SCCH-8) HRC 30/2010 Paper Dollz. So, this court has no jurisdiction to decide the instant claim petition. as the petitioner has inducted as a tenant by name Bhawarlal Balar after receiving advance sum of Rs.10,00,000/- and a monthly rent of Rs.30,000/-. That itself is clear that there is no bonafide requirement on the part of the petitioner. The first floor is more suitable for advocate office. The petitioner is also having other property, he can make use for establishment of advocate office for his wife, the first floor premises is more suitable and convenient for advocate office. There are no bonafide requirements on the part of the petitioner and prays for reject the claim petition.
6. The petitioner in order to prove the petition averments has examined himself as P.W.1 and got marked the documents as Ex.P1 to P18 and he has not examined any witness on his behalf.
7. The respondent has examined his GPA holder as RW1 and got marked the documents as Ex.R1 & Ex.R2 and he has not examined any witness in his favour.
8. Heard arguments on both side.
9. The points that arise for court consideration are as under:
1. Whether the petitioner proves that he is the land lord and the respondent is the tenant in 8 (SCCH-8) HRC 30/2010 respect of the schedule premises?
2. Whether the petitioner proves that the defendant is defaulter in payment of arrears of rent regularly?
3. Whether the petitioner proves that the petition schedule premise is required for his wife to establish the advocate office?
4. Whether the petitioner is entitled for the relief as prayed?
5. To what decree or order?
10. My answer to the above points are as under:
Point No.1: In the affirmative Point No.2: In the affirmative Point No.3: In the affirmative Point No.4: In the affirmative Point No.5: As per final order for the following:
REASONS
11. Point No.1:
The petitioner has approached this court on the ground that the respondent being the son of the late Megharaj ji who entered the schedule premises on a lease in the year 1968. After his death, the respondent has been continued to be the tenant by paying rent, the respondent has failed to pay the rent regularly. So, he called upon the respondent to vacate and deliver the petition schedule premises to establish the advocate 9 (SCCH-8) HRC 30/2010 office for his wife. Though initially respondent has agreed and later on refused to vacate and deliver the petition schedule premises in favour of the petitioner. Thereby the petitioner has filed the instant claim petition on the ground that the respondent is defaulter in payment of arrears of rent and the petition schedule premises is required for establishing the advocate office for his wife. The respondent has appeared through his counsel and denied the averments of the petition in toto and took up the contention that the petitioner is not the absolute owner and there was no relationship of landlord and tenant in between them.
12. The petitioner in order to prove the petition averments has filed his affidavit as his chief-examination as PW1 in which he has stated that he is the landlord of the residential premises situated on the first floor consisting of two bed room, one hall, one kitchen, one bath room, lavatory and measuring approximately 800 Sq. feet situated at "Aruna Ramesh Building, No.133/22, Corporation No.21, Mamulpet, Bengaluru The petition schedule property was purchased in his name and the residential building was put up on the said property and the same was leased out to the respondent father on 5.1.1968. The lease initially for a period of 11 months on a monthly rent of Rs.130/-, but the lease was extended and the rent was enhanced from time to time. In the year 1968 one late Magharaj ji was entered 10 (SCCH-8) HRC 30/2010 the lease agreement, after his death the respondent being the son of the original tenant to be continued in the petition schedule premises. PW1 in his cross-examination has admitted that the partition was taken place between the family members, the house in which he is residing is fallen to his share as he got two properties in the partition one is house property in which he is residing another property is schedule premises and the respondent is his tenant in the schedule premises. He has not given the schedule premises on a lease to the respondent, his father has given on lease to the respondent at about 30 years back. Initially, monthly rent was of Rs.200/- which was enhanced from time to time and he has admitted that the petition schedule property was given to the father of the respondent on lease and further he has admitted that during the lifetime of his father has given the schedule premises on lease to the respondent's father as they have entered the lease agreement in the year 1968 and he has denied in the year 1968, no lease agreement was taken place in between his father and the respondent's father and he has denied that Ex.P1 is not the lease deed said to have been taken place in between his father and the respondent's father and he has denied that Ex.P1 was executed for the purpose of surety which was executed in favour of Astimal by the respondent and he has denied that the respondent is doing 11 (SCCH-8) HRC 30/2010 business in the petition schedule premises and they were let out the petition schedule premises to the respondent for running a shop and for the residential purpose. But he has stated that suit schedule property was let out to the respondent father for residential purpose. RW1 being said to be the GPA holder of the respondent, though he has denied the relationship of landlord and the tenant in between the petitioner and the respondent, but in his cross-examination has admitted by virtue of Ex.P1, petition schedule premises was given to him for residential purpose on rent and by virtue of Ex.P1 it is monthly rent and they have made repair of the petition schedule premises, but they have not obtain written consent of the owner. The respondent has filed his objection to the petition filed by the petitioner has taken up the contention that the petitioner is not the landlord and the respondent is not the tenant of the petition schedule premises. But while cross-examination of the learned counsel for the respondent has suggested the PW1 that the suit schedule property was given to the respondent for the purpose of running a shop and the residential purpose. So, for proper appreciation of the suggestion made by the learned counsel for the respondent to the PW1, is necessary for re-production, which reads like thus;
JzÀÄgÀÄzÁgÀ K£ÀÄ ªÁå¥ÁgÀ ªÀiÁrPÉÆArgÀÄvÁÛgÉ J£ÀÄߪÀ §UÉÎ £À£ÀUÉ 12 (SCCH-8) HRC 30/2010 UÉÆwÛ®è. £Á£ÀÄ zÁªÁ D¹Û PÀqÉUÉ ºÉÆÃVgÀĪÀÅ¢®è. JzÀÄgÀÄzÁgÀ ¥ÉÃ¥Àgï ¨ÁåUïUÀ¼À ªÁå¥ÁgÀ ªÀiÁqÀÄvÁÛgÉ JAzÀgÉ D §UÉÎ £À£ÀUÉ UÉÆwÛ®è. zÁªÁ D¹ÛAiÀÄ£ÀÄß JzÀÄgÀÄzÁgÀjUÉ CAUÀr £ÀqɸÀ®Ä ªÀÄvÀÄÛ ªÁ¸ÀzÀ ¸À®ÄªÁV PÉÆnÖzÉݪÀÅ JAzÀgÉ ¸ÀļÀÄî. ªÁ¸ÀPÁÌV PÉÆnÖzÉݪÀÅ.
JzÀÄgÀÄzÁgÀ zÁªÁ D¹ÛAiÀÄ°è JA.¦ Keɤì CrAiÀÄ°è ªÁå¥ÁgÀ ªÀiÁqÀÄwÛzÁÝgÉ JAzÀgÉ D §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¥ÉÃ¥Àgï qÁ®gïì ºÉ¸Àj£À®Æè ¸ÀºÀ ªÁå¥ÁgÀ ªÀiÁqÀÄwÛzÁÝgÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è.
13. The above suggestion of the PW1 by the learned counsel for the respondent, is clear that the petitioner is the landlord of the petition schedule premises, that is the reason why, the learned counsel for the respondent has suggested the PW1 that "you have let out the petition schedule premises for the purpose of running a shop and the residential purpose that itself is clear that the petitioner is the landlord of the petition schedule premises". Though, he took up the contention that the petitioner is not the landlord and the respondent is not the tenant. But the reasons best known to him has not placed any documents to 13 (SCCH-8) HRC 30/2010 show that who has let out the petition schedule premises in his favour as a tenant nor examined any independent witness to show that the petitioner is not the owner and he is the tenant under somebody. If that is so, the matter would have different. Except denial of ownership of the petitioner, nothing is placed on record to show that the petitioner is not the landlord of the petition schedule premises and moreover, RW1 who is none other than the son of the respondent in his cross-examination has admitted by virtue of Ex.P1 petition schedule premises was let out for monthly rent. So for proper appreciation of the admission of the RW1, it is just and necessary for production, reads like thus;
¤.¦1 ¥ÀæPÁgÀ CfðAiÀÄ D¹ÛAiÀÄ£ÀÄß ªÁ¸ÀzÀ ¸À®ÄªÁV ªÀiÁvÀæ ¨ÁrUÉUÉ PÉÆnÖvÀÄÛ CAzÀgÉ ¸Àj. ¤.¦1gÀ ¥ÀæPÁgÀ wAUÀ¼À ¨ÁrUÉ EgÀÄvÀÛzÉ CAzÀgÉ ¸Àj. £ÁªÀÅ PÉÆlÖAvÀºÀ ¥ÀævÀÆåvÀÛgÀzÀ°è CAzÀgÉ ¤.¦ 17gÀ°è ªÁ¶ðPÀ ¨ÁrUÉ CAvÀ ºÉýgÀÄvÉÛÃªÉ CAzÀgÉ ¸Àj. zÁªÁ D¹ÛAiÀÄ£ÀÄß ªÁå¥ÁgÀzÀ GzÉÝñÀPÉÆÌøÀÌgÀ j¥ÉÃj ªÀiÁrPÉÆArgÀÄvÉÛêÉ. ªÀiÁ°ÃPÀgÀ PÀqɬÄAzÀ °TvÀªÁV j¥ÉÃj ªÀiÁr¸ÀĪÀ 14 (SCCH-8) HRC 30/2010 ¸À®ÄªÁV C£ÀĪÀÄwAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆArgÀĪÀÅ¢®è DzÀgÉ ªÀiËTPÀªÁV vÉUÉzÀÄPÉÆArzÉݪÀÅ.
14.The above admission of the RW1 clearly reflects that the respondent has been continued as tenant in the petition schedule premises by virtue of Ex.P1. So, one thing is clear that the respondent is the tenant under the petitioner. The petitioner is the landlord and the respondent is the tenant by virtue of Ex.P1. Ex.P1 is the lease deed which was taken place on 5.1.1968 in between Megharaj Ji and one B.C. Venkataramaiah Shetty who is the natural guardian of the petitioner as he was the minor as on the date of lease deed. That itself is clear that the petitioner is the owner of the petition schedule property, as RW1 is none other than the son of the respondent has admitted that they were continued to be in the petition schedule premises by virtue of Ex.P1. So, the document which was marked as Ex.P1 clearly reflects that the petitioner is the landlord and the respondent is the tenant. Therefore, this court has drawn its attention on Sec. 3(e) of K.R. Act, 1999 reads like thus;
"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 15 (SCCH-8) HRC 30/2010 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.
15. The above provision is clear that the 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 behalf or for the benefit of any other person to be entitled to receive the rent if the premises were let out to a tenant is called as landlord.
16. In the instant case the Ex.P6 to Ex.P12 clearly reflects that the B.V.Krishna murthy who is none other than the petitioner has received the rent. That itself is clear that the petitioner is the landlord comes under the definition of S.3(e) of Karnataka Rent Act, 1999. It is an admitted fact that the respondent nowhere stated that he is not the tenant in the schedule premises, but it is the contention that the petitioner is not the landlord. But the admission of RW1 who is none other than the son of the respondent clearly reflects that the respondent is the tenant under the petitioner and the petitioner who is the landlord. So, this court has drawn its attention on S.3(n) reads like thus;
"tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes; 16 (SCCH-8) HRC 30/2010
17. The above provision is clear that any person by whom or on whose account or on behalf of rent of any premises is or but for a special contract would be payable is called as tenant.
18. In the instant case, the respondent has not disputed about his tenancy over the petition schedule premises. Ex.P1 is clear that one Megharaj Ji who is none other than the father of the respondent has entered the lease deed with the petitioner who was the minor as on the date of lease deed. So, his father being the natural guardian has represented the petitioner and Ex.P1 clearly reflects that the petition schedule property has been let out to the Megharaj Ji on a monthly rent. Therefore, the petitioner has established through oral and documentary evidence that he is the landlord and the respondent is the tenant as on the date of filing of the instant petition. Hence, I am of the opinion that the point No.1 is answered as affirmative.
19. Point Nos. 2 to 4: These points are inter-relating to each other, hence in order to avoid the repetition of facts and materials on record, these points are discussed together. The petitioner in his petition has alleged that the respondent being the tenant has not paid the rent regularly and the petition premises is required for the purpose of to establish the advocate office to his wife. The respondent has filed his objections, in 17 (SCCH-8) HRC 30/2010 which he took up the contention that the petitioner wife is not practicing as an advocate and the petition schedule property is not required for establishing the advocate office and there are other premises are also available to the petitioner he can establish the advocate office in the said premises which belongs to the petitioner. Now the question arises whether the respondent has produced any document to show that other suitable premises are also available to the petitioner to establish the advocate office and whether the respondent can direct the petitioner to establish the office in a particular premise as directed by the respondent. Therefore, this court has drawn its attention on the decision reported in ILR 2005 KAR 155 in between M.Javerilal Vs. N.Achalraj Jain, which reads like thus;
(B) KARNATAKA RENT ACT, 1999---
SECTION 27(2)®---Availability of alternate
premises---It is no doubt true that particular shop might have come in possession of the petitioner but that by itself cannot be said that the said premises is available and can be termed as an alternate suitable premises time and again it has been stated it is not open to the tenant to dictate the landlord how he should carry on business or where he should carry on and where and how he should reside, that falls in the requirement of the landlord. 18 (SCCH-8) HRC 30/2010
20. In the above said decision common landlord has filed two HRC petitions seeking for eviction of the tenants from the schedule premises and the HRC Nos. 217/1997 was came to be allowed and the HRC petition 218/97 was came to be dismissed. Thereby the tenant in HRC 217/97 has filed the HRRP 98/2000 and the landlord of the HRC petitions 218/97 has filed the HRRP 140/2000 before the Hon'ble High Court of Karnataka. In the said decision, his lordship held that it is not open to the tenant to dictate the landlord how he should carry on business or where he should carry on and where and how he should reside. That falls in the requirement of the landlord.
21. In the instant case the respondent has taken up the contention that the petition schedule premises is not suitable place for establishing the advocate office and the petitioner can open the office at Santhosh complex, it is very nearer to Court Complex. But by virtue of the above said decision the respondent being the tenant cannot dictate the petitioner who is the landlord to open the office to his wife at Santhosh Complex and other places as alleged in the objection. Therefore, the above said decision is directly applicable to the case on hand. 19 (SCCH-8) HRC 30/2010
22. It is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
23. In the case on hand, the petitioner is the landlord he wanted to evict the tenant from the suit premises for establishing the advocate office to his wife as it is a suitable place. So, this court has no option except to grant an order of eviction. The petitioner has filed the affidavit in support of the instant petition in which he has stated that his wife has been practicing as an advocate for the past 10 years. In the year 2007 March has decided to become an independent advocate and intended to open an advocate chamber. So, on deliberation and consultation, it was decided that she would open her office in the petition schedule property which had lost its identity as a residential premises as it is situated in the commercial hub of Bangalore. The petition schedule property is close to the Civil Court and also the Magistrate Court. It is also ideally located in between their residence and the Courts, so it is convenient to his wife to practice civil, criminal and tax matters since she would take up practice on criminal also. Thus, it was felt appropriate that the office should not very close to the residence. Having regard to the income generated from the petition schedule property and the requirement of his wife, more so, as his wife is 20 (SCCH-8) HRC 30/2010 now beginning to start her independent practice as an advocate. Therefore, the petition schedule property is appropriate, adequate for the requirement of his wife. So, the petition schedule property is required for establishing the advocate office to his wife. So, this court drawn its attention on S. 27(2) ( r ), Explanation-I reads like thus;
(i) where the landlord in its 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;
24.The above explanation is very much clear where the landlord in its application supported by an affidavit that the premises is required by him for occupation for himself or any member of his family dependant on him the court shall presume that the premises are so required.
25.In the instant case, the petitioner being the landlord has filed the affidavit in support of the petition stating that the petition schedule premises is required for his wife who is the dependant of the petitioner. So, this court drawn its attention on the decision reported in ILR 2004 KAR 3408 in between 21 (SCCH-8) HRC 30/2010 Habib Vs. Smt. Jayamma and others, which reads like thus;
(B) KARNATAKA RENT ACT, 1999 -
SECTION 27(2)(r) -STATUTORY PRESUMPTION IN FACOUR OF THE LANDLORD UNDER---HELD--
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 dependant on him, the Court shall presume that the premises are so required.
26. In the above said decision the landlords have filed the eviction petition sought for eviction of the tenant from the petition schedule property and the trial court after considering the rival contentions has dismissed the eviction petition. The landlord has filed the appeal before the Hon'ble High Court in the said appeal the tenant has filed the application for seeking permission to adduce additional evidence. So, the order has been set aside and remanded the matter to the trial for fresh disposal in accordance with law, after remand, the trial court after hearing the arguments allowed the eviction petition and directed the tenant to vacate and handover the possession of the petition property in favour of landlord. So, the tenant has filed the appeal before the Hon'ble High Court of Karnataka and 22 (SCCH-8) HRC 30/2010 the said appeal was came to be dismissed confirming the order of eviction passed by the Trial court and held that 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 dependant on him the court shall presume that the premises are so required.
27. In the instant case the petitioner has filed the affidavit in support of the petition stating that the premises are required for his own occupation to establish the advocate office for his wife. It is an admitted fact though the learned counsel for the respondent has cross-examined the PW1 in length nothing is elicited nor placed any materials to rebut the presumption in view of S. 27 (2) (r) Explanation I; Therefore, the above said decision is directly applicable to the case on hand.
28. The respondent in his written statement has denied the ownership of the petitioner over the petition schedule premises, but the reasons best known to him has not placed any materials to show who is the owner of the schedule premises, but the RW1 has admitted Ex.P1, which was executed by the father of the respondent in which it is clear that one Megharaj Ji who is the father of the respondent has entered the lease agreement with the petitioner father because the petitioner was the minor in the year 1968. So, one thing is clear that the RW1 has admitted 23 (SCCH-8) HRC 30/2010 that they were entered the petition schedule premises by virtue of Ex.P1. Therefore, it is clear that after the death of original tenant, the respondent being the son of the original tenant has been continued as a tenant in the petition schedule premises by virtue of Ex.P1. Therefore, this court drawn its attention on S. 5 of Karnataka Rent Act 1999, reads like thus;
S.5: Inheritability of tenancy: (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely:
(a) spouse;
(b)son or daughter or where there are both son and daughter both of them;
© parents;
(d) daughter-in-law, being the widow of his pre-deceased son:
29. The above provision is clear in the event of death of a tenant the right of tenancy shall devolve for a period of 5 years from the date of his death on the expiry of that period the right of such successor to continue in possession of premises shall became extinguished.
30. In the instant case the petitioner in his evidence he has clearly stated that one Megharaj Ji entered in to the lease in the year 1968, after his death his son i.e., respondent has been continued to be the tenant and paid the rent till March 2007,
24 (SCCH-8) HRC 30/2010 since April 2007 he has stopped in paying the rents, as such he has continuously defaulter in payment of rents till issuance of the legal notice. That itself is clear that prior to 2007 the original tenant was expired, after his death the respondent being the son has continued to be the tenant in the petition schedule premises. So, by virtue of the above provision, the respondent is entitled to be continued as a tenant after the death of his father for a period of 5 years only. If the year 2007 is taken into consideration the 5 years has been expired in the year 2012, since either the petitioner nor the respondent have not placed any materials on record to show when the original tenant was died, that is the reason why this court has considered from the year 2007. So, by virtue of above provision the right of the respondent is extinguished to continue as a tenant in the petition schedule premises. Therefore, this court drawn its attention on the decision reported in ILR 2004 KAR 2309 in between Smt.K.S.Nagamma Vs. Mrs.M.P.Manekshah, which reads like thus;
(A) KARNATAKA RENT ACT, 1999 (ACT 34 OF 2001)--SECTION 5(1)(2)--INHERITABILITY OF TENANCY---HELD--The right of tenancy devolves on the spouse, son or daughter or both of them, parents and daughter-in-law being the widow of the pre-deceased son and not on any other person. The contract of tenancy coming to a close on the death of the 25 (SCCH-8) HRC 30/2010 tenant, in the absence of any other person who could rightfully inherit the tenancy under Section 5, the landlord would be entitled to an order of eviction without reference to or without the need to establish any other ground under which the landlord may have sought eviction, Section 5 provides a new substantiate remedy to a landlord in case of death of a tenant. Section 5 prescribes the right of inheritance only to a specified class of persons and limits this inheritance to various periods depending upon certain factors which have been prescribed in the provision.
31. In the above said decision the landlord has filed the HRC petition for seeking the eviction of the tenant from the petition schedule property on the ground that the petitioner is the absolute owner of the schedule premises which was given to the husband of the respondent-tenant on a monthly rent. After the death of the husband the respondent i.e., the tenant continued in possession as a tenant. So, after full pledged trial the petition was came to be dismissed, aggrieved by the said order, the landlord has filed the appeal before the Hon'ble High Court of Karnataka, the said appeal was came to be allowed and the legal representative -tenant who is in possession of the petition premises directed to deliver the vacant possession of the 26 (SCCH-8) HRC 30/2010 premises in favour of the landlord within three months and held the right of tenancy devolves on the spouse, sons or daughters or both of them, parents and daughter-in-law being the widow of pre-deceased son and not on any other person. The contract of tenancy coming to close on the death of the tenant. So, the landlord would be entitled to an order of eviction without reference to, or without the need to establish any other ground under which the landlord may have the sought for eviction. S.5 provides a new substantiate remedy to a landlord in case of a death of a tenant.
32. In the instant case admittedly the original tenant is no more and he was expired long back. The respondent, who is none other than the son of the original tenant so, his right has been extinguished after expiry of 5 years. Therefore, the petitioner being the landlord is entitled for order of eviction without reference to or without need to establish any other ground under which the landlord may have sought eviction. Thus, the above said decision is directly applicable to the case on hand.
33. This court drawn its attention on the decision reported in ILR 2003 KAR 4732 in between Shahwar Basheer and others Vs. Veena Mohan and others, which reads like thus;
27 (SCCH-8) HRC 30/2010
(A) KARNATAKA RENT ACT, 1999
(KARNATAKA ACT 34 OF 2001)--SECTIONS 3
(n), 5 and 27 ---INHERITABILITY OF TENANCY--- Can the premises owners recover possession from the successors without recourse to Section 27 of the Rent Act, 1999, HELD;
---Section 5 of the Karnataka Act 34 of 2001 is a comprehensive provision enacted with the specific purpose of limiting the inheritability of tenancy to a certain fixed period. Hence, the legal heirs of the original tenant are liable (can be) to be evicted upon completion of 5 years from the date of death of such original tenant.
34. In the above said decision his lordship held that S.5 of the Karnataka Rent Act, 1999 is a comprehensive provision enacted with the specific purpose of limiting the inheritability of the tenancy to a certain fixed period. So, the legal heirs of original tenant are liable to be evicted upon completion of 5 years from the date of such original tenant.
35. In the instant case the respondent has not disputed about the death of one Megharaj Ji, who is none other than the original tenant and the father of the respondent prior to 2007. So, after expiry of original tenant i.e., the respondent has no right to continue as a tenant in the petition schedule premises. 28 (SCCH-8) HRC 30/2010 Therefore, the above said decision is directly applicable to the case on hand.
36. The learned counsel for the respondent while canvassing his argument has submitted that the owner of the petition schedule property has let out the petition schedule premises in favour of the respondent for the purpose of running the shop and for residential purpose and the respondent is ready to vacate 400 sq.ft. by retaining 400 sq.ft. for his purpose and the court can pass partial eviction against the respondent. But Ex.P1, nowhere appears that the suit schedule premises has been let out to the petitioner for the purpose of running the shop and for residential purpose, but it is clear that the petition schedule premises was let out for the purpose of dwelling. So, one thing is clear that the suit schedule premises was not let out to the late Megharaji Ji for the purpose as submitted by the learned counsel for the respondent. The learned counsel for the respondent while canvassing his arguments has submitted that if the eviction petition filed by the petitioner is allowed, the respondent will be put to irreparable and injustice. But whereas the RW1 in his cross-examination has categorically admitted, since 8 years they were not residing in the petition schedule premises as they were residing at Basavanagudi, earlier they were residing in all 12 members in the suit schedule property 29 (SCCH-8) HRC 30/2010 and he has also admitted since 46 years they were in possession of the petition schedule premises as a tenant. That itself is clear that the respondent is not residing in the petition schedule premises along with his family members as he has already shifted his family to the Basavanagudi. So, for the proper appreciation of the admission of RW1 it is necessary for reproduction;
PÀ¼ÉzÀ 46 ªÀµÀð¢AzÀ Cfð
¸ÀéwÛ£À°è EgÀÄvÉÛÃªÉ CzÀgÉ ¸Àj.
PÀ¼ÉzÀ 8 ªÀµÀðzÀ »AzÉ £ÁªÀÅ
§¸ÀªÀ£ÀUÀÄrUÉ ºÉÆÃUÀĪÀ
¥ÀǪÀðzÀ°è zÁªÁ ¸ÀéwÛ£À°è UÁ½
¨É¼ÀPÀÄ ªÀÄvÀÄÛ ¤Ãj£À ¸ËPÀAiÀÄð
EvÀÄÛ CAzÀgÉ ¸ÀjAiÀÄ®è ¸Àé®à
PÀµÀÖ EvÀÄÛ PɼÀUÀqɬÄAzÀ
¤ÃgÀ£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ
ºÉÆÃUÀÄwÛ¢é. Cfð D¹ÛAiÀÄ°è
£ÁªÀÅ MlÄÖ 10 d£À ªÁ¸ÀªÁVzÉݪÀÅ.
Cfð¸ÀéwÛ£À D¹Û EgÀĪÀAvÀºÀ
KjAiÀiÁ PÀªÀĶðAiÀįï KjAiÀiÁ
EgÀÄvÀÛzÉ CAzÀgÉ ¸Àj.
37. The above admission of the RW1 it is clear that the respondent is not residing in the suit schedule property since 8 30 (SCCH-8) HRC 30/2010 years, as he is residing along with his family at Basavanagudi. The respondent knowing fully well that the petitioner has let out the petition schedule premises by virtue of Ex.P1 for residential purpose but he has violated the conditions as shown in the Ex.P1. So, if the eviction order is passed against the respondent he will not be put to any irreparable loss and injustice and more over there is no scope for assessing the comparative hardship that the landlord and the tenant under the Karnataka Rent Act, does not arise. Therefore, this court drawn its attention on the decision reported in ILR 2003 KAR 1102 in between A.S.Gupta and another Vs. V.Ramachandra Naidu, which reads like thus;
Eviction petition under section 27(2)(a)(b)(o)(r) and Section 31(1)(c)---SECTION 27(2)(a) was not pressed. The petition was allowed under section 27(2)(b)® (o) and 31(1) (c) of the Act. HRRP filed under section 46(1) of the Act.
Question for consideration is whether it is a fit case to order Eviction under section 27(2)(b) ( r) (o) and under Section 31(1)(c) of the KARNATAKA RENT ACT 1999?
HELD: The crux of the matter is that the Land Lord had pleaded that the petition scheduled premises was required for the occupation of the members of the family. Whether the tenant has a large family or not, is not the criteria for the purpose of consideration of the 31 (SCCH-8) HRC 30/2010 requirement of the landlord under the provision of Section 27(2)( r) of the Act.
38. In the above said decision, his lordship held that the crux of the matter of the landlord has pleaded that the petition schedule premises is required for the occupation of the members of the family. 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 provision of S. 27 (2)(r) of the K.R. Act 1999.
39. In the instant case the RW1 in his cross-examination has admitted since 8 years they were residing at Basavanagudi and they were residing in all ten members in the petition schedule premises since 46 years, so by virtue of above said decision question of assessing the comparative hardship has submitted by the learned counsel for the respondent does not arise. Therefore, the decision as stated above is directly applicable to the case on hand.
40. It is an admitted fact that the petitioner prior to filing of the instant petition has got issued a notice to the respondent to calling upon him to pay arrears of rent and to vacate and handing over the petition schedule premises in favour of the petitioner on 19.9.2009 and the said notice was served on the 32 (SCCH-8) HRC 30/2010 respondent and the respondent has replied to the said notice. The petitioner has filed the instant petition on 1.2.2010. So, the petitioner has complied S. 27(2)(a) of K.R. Act. Ex.P19 is the Karnataka Advocates Welfare Fund Trustee Committee certificate of membership clearly reflects that the petitioner wife has been enrolled as an advocate in the year 1999 and her enrolment No.KAR/3331/99. That itself goes to show that the petitioner wife is the practising advocate. That is the reason why the petitioner being the husband has requested the respondent to vacate and deliver the petition schedule property in his favour for establishing the advocate office for his wife. The respondent in his objection itself has admitted that after receipt of notice he has sent the cheque for a sum Rs.54,250/- that itself is clear that the respondent is not paying the rent regularly as he is the defaulter in payment of rent. Even in the order sheet it is very much clear that whenever the petitioner has demanding the rent then only he is paying the rent. That itself is clear that the respondent is not paying the rent regularly.
41. The learned counsel for the respondent in his arguments has submitted that the petitioner wife has not entered the witness box nor stating that she is practicing advocate. But the document produced by the petitioner clearly reflects that the petitioner wife is practicing advocate. That is the reason why the 33 (SCCH-8) HRC 30/2010 petitioner has filed the instant petition for seeking eviction of the respondent from the petition schedule premises to establish the advocate chamber for his wife. So the petition schedule premises is required to the petitioner to establish the advocate chamber to his wife. Though the learned counsel for the respondent has requested the court to retain the 400 sq. ft. with the respondent and the respondent is ready to vacate 400 sq. ft. to the petitioner. The respondent counsel has cross-examined on this aspect but the petitioner has denied the same. Even by virtue of S.5 of the Karnataka Rent Act, the respondent is not entitled to continue as a tenant in the petition schedule premises and moreover the respondent has violated the condition as appeared in the Ex.P1. So, question of partial eviction as requested by the respondent counsel does not arise. The petitioner has proved his case through oral and documentary evidence that the respondent being the tenant is defaulter in payment of the rent regularly and the petition schedule premises is required for establishing the advocate chamber to his wife.
42. The learned counsel for the respondent has drawn the court attention on the decision reported in AIR 1999 SC 2507. On careful perusal of the above said decision, in the said decision, the eviction petition was came to be filed under Section 14 of the Delhi Rent Control Act, but in the instant case the 34 (SCCH-8) HRC 30/2010 petitioner has filed the instant petition U/s 27(a) and (r) of Karnataka Rent Act, 1999. Therefore, I do respect to the decision relied by the learned counsel for the respondent, but the facts and circumstances of the present case and the decision relied by the learned counsel for the respondent are different.
43. The learned counsel for the respondent has drawn the court attention on the decision reported in AIR 1981 SC 1113. On careful perusal of the above said decision, in the said decision the petition was filed for eviction under Section11 of the Bihar Buildings (lease, rent and eviction) Control Act. But in the instant case the petitioner has filed the instant petition U/s 27(a) and (r) of Karnataka Rent Act, 1999. Therefore, I do respect to the decision relied by the learned counsel for the respondent, but the facts and circumstances of the present case and the decision relied by the learned counsel for the respondent are different.
44. The learned counsel for the respondent has drawn the court attention on the decision reported 2002 (6) SCC 678. On careful perusal of the above said decision in the said decision the eviction petition was came to be filed under Section 6 (2),(1) (1a), 2(3) 12 and 13 of Bombay Rents Hotel and Lodging House Rates Control Act 1947. But in the instant case the petitioner has filed the instant petition U/s 27(a) and (r) of Karnataka Rent Act, 1999. Therefore I do respect to the decision relied by the learned 35 (SCCH-8) HRC 30/2010 counsel for the respondent, but the facts and circumstances of the present case and the decision relied by the learned counsel for the respondent are different.
45. The learned counsel for the respondent has drawn the court attention on the decision reported in 2008 SC 539. On careful perusal of the above said decision, but the facts and circumstances of the present case and the above said decision are different. The petitioner has proved his case through oral and documentary evidence. Hence, I am of the opinion that the point Nos.2 to 4 answered as affirmative.
46.Point No.5:
In view of my answer to the point Nos.1 to 4, I proceed to pass the following:
ORDER The petition u/s 27(2)(a)( r ) of the Karnataka Rent Act 1989, filed by the petitioner is allowed.
The respondent is hereby directed to quit, vacate and deliver the possession of the suit schedule premises in favour of the petitioner within two months from the date of this order, in failure of which, the petitioner is at liberty to take legal steps against the respondent.
36 (SCCH-8) HRC 30/2010 The respondent shall pay rent to the petitioner till the delivery of physical possession of the suit schedule premises in favour of the petitioner.
Draw decree accordingly.
Dictated to the stenographer, transcript thereof, corrected by me and then pronounced in the open court this the 21 st day of February 2015.
(P.J.Somashekar), XII Addl. Small Causes Judge, Bangalore.
SCHEDULE A residential premises situated on the first floor with an accommodation of two rooms, one hall, one kitchen, one bath room, lavatory and measuring about 800 Sq.ft. of area situated at "Aruna's Ramesh Building" No.133/22, Corporation No.21, Mamulpet, Bengaluru and bounded on the;
East by: Gowdamma; Amruth Kesari
West by: Puttama Tayanna, Shanta Murhty;
Vijay Tayama
North by: Belli Basavanna Temple Street
South by: Belli Basavanna Temple Street
(P.J.Somashekar)
XII Addl.Small Causes Judge,
37 (SCCH-8) HRC 30/2010
Bangalore.
ANNEXURE
List of the witnesses examined on behalf of petitioner:
P.W.1. Shri B.V.Krishnamurthy 1.12.2010 List of the documents exhibited on behalf of respondent:
Ex.P1: Original lease deed
Ex.P2: UCP receipt
Ex.P3: RPAD receipt
Ex.P4: UCP receipt
Ex.P5: RPAD receipt
Ex.P6 to Rent paid receipts
Ex.P12
Ex.P13 & Postal acknowledgements
Ex.P14
Ex.P15 Certified copy of the statement of account
Ex.P16 Office copy of the legal notice
Ex.P17 Reply to the legal notice
Ex.P18 Office copy of the rejoinder to the legal notice
Ex.P19 Original certificate of membership to the
Advocate's Welfare Fund
List of the witnesses examined on behalf of respondent:
RW1 Rajesh Kumar 5.9.2014 List of the documents exhibited on behalf of respondent:
Ex.R1 Rent receipt
Ex.R2 Photographs
(P.J.Somashekar,)
XII Addl.Small Causes Judge,
Bangalore.
38 (SCCH-8) HRC 30/2010
21.2.2015
Judgment pronounced in open court (vide separate judgment) with the following operative portion:
The petition u/s 27(2)(a)( r ) of the Karnataka Rent Act 1989, filed by the petitioner is allowed.
The respondent is hereby directed to quit, vacate and deliver the possession of the suit schedule premises in favour of the petitioner within two months from the date of this order, in failure of which, the petitioner is at liberty to take legal steps against the respondent.
The respondent shall pay rent to the petitioner till the delivery of physical possession of the suit schedule premises in favour of the petitioner.
Draw decree accordingly.
XII Addl. Judge-Member, MACT, Bangalore.
39 (SCCH-8) HRC 30/2010 IN THE COURT OF SMALL CAUSES COURT AT BANGALORE H.R.C.No.30/2010 Petitioner: Advocate Shri B.V.Krishna Murthy, Son of Late B.C.Venkataramanaiah Shetty, Aged about 54 years, Residing at "Surya" No.444, Middle School Road, Vishweshvarpuram, Bengaluru. Smt.M.D.Anuradha Urs Respondent:
Shri Udechand, Son of Late Megharaj Ji, Aged about 70 years, Residing at 1st floor, Aruna's Ramesh Buildings, No.133/22, Mamulpet, Bengaluru. Shri H.J.Sanghvi Claim: Suit filed on prays for directing defendant to This suit coming on for final disposal before Sri P.J.Somashekar, XII Addl. Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER The petition u/s 27(2)(a)( r ) of the Karnataka Rent Act 1989, filed by the petitioner is allowed.
40 (SCCH-8) HRC 30/2010 The respondent is hereby directed to quit, vacate and deliver the possession of the suit schedule premises in favour of the petitioner within two months from the date of this order, in failure of which, the petitioner is at liberty to take legal steps against the respondent.
The respondent shall pay rent to the petitioner till the delivery of physical possession of the suit schedule premises in favour of the petitioner.
And it is further ordered and decreed that, defendant do pay to the plaintiff, a sum of Rupees towards costs.
Given under my hand and the seal of the Court this day of February 2015.
DY. REGISTRAR, Court of Small Causes, Bangalore.
MEMORANDUM OF COST INCURRED IN THIS SUIT
By the
Plaintiff Defendant
Court fee on plaint
Court fee on power
Court fee on exhibits
Service of process + Postal charges
Commissioner's fees
Pleaders fee
Total of Rs.
Amount payable by the defendant to the plaintiff is Rs.
(P.J.Somashekar), XII Addl. Small Causes Judge, 41 (SCCH-8) HRC 30/2010 Bangalore.
SCHEDULE A residential premises situated on the first floor with an accommodation of two rooms, one hall, one kitchen, one bath room, lavatory and measuring about 800 Sq.ft. of area situated at "Aruna's Ramesh Building" No.133/22, Corporation No.21, Mamulpet, Bengaluru and bounded on the;
East by: Gowdamma; Amruth Kesari
West by: Puttama Tayanna, Shanta Murhty;
Vijay Tayama
North by: Belli Basavanna Temple Street
South by: Belli Basavanna Temple Street
Decree Drafted Scrutinised by DY.REGISTRAR,
Court of Small Causes,
Decree Clerk Sheristedar Bangalore.