Bangalore District Court
Sri. R.Gopala Krishna vs Sri. M.Udaya Shankar on 19 September, 2016
1 SCCH-1
HRC No.37/2016
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
(SCCH-1)
DATED THIS THE 19th DAY OF SEPTEMBER 2016
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
CHIEF JUDGE.
H.R.C.No.37/2016
PETITIONER : Sri. R.Gopala Krishna,
Aged about 76 years,
S/o. late Ramalingam,
Residing at No.32,
Old Race Course Road,
1st Floor in main building,
Viveknagar Post,
Bangalore - 560 047.
(By Sri. D.Prabhaker, Advocate)
-Vs-
RESPONDENTS : Sri. M.Udaya Shankar,
Aged about 54 years,
S/o. Muthuswamy,
No.32, Old Race Course,
Annex Building,
Ookadapalayam,
Viveknagar Post,
Bangalore - 560 047.
(Sri. K. Sundaram, Advocate)
*******
2 SCCH-1
HRC No.37/2016
ORDER
The petitioner has filed this petition under Section 27(2)
(a) and (r) of the Karnataka Rent Act, 1999 seeking the relief of eviction against the respondent and to direct the respondent to quit, vacate and hand over the vacant possession of petition schedule premises and for such other reliefs as this court deems fit.
2. Brief facts of the case are as under:-
It is the case of the petitioner that, he is the absolute owner of the premises bearing No.32, Old Race Course Road, Viveknagar, Bangalore, now assigned with New No.91, 1st Main Road, Old Race Course Road, Viveknagar, BBMP Ward No.71, comprising of main building in which the petitioner is residing and the Annexed building consisting of 5 houses. The respondent is a tenant under the petitioner in respect of the house No.3 and 4 on a monthly rent of Rs.600/- p.m. excluding water and electricity consumption charges. The petitioner is a chronic defaulter in the matter of payment of rent and has not paid the arrears of rent of Rs.16,075/- including the arrears of rent prior to October 2013 in a sum of Rs.2,275/- as on
3 SCCH-1 HRC No.37/2016 15.12.2015. Inspite of repeated demand, the respondent has failed to clear the arrears of rent. That apart, the respondent is also a regular defaulter in payment electricity charges to BESCOM which has resulted in disconnection of power supply to the entire property and causing inconvenience to the petitioner and also to the other tenants in the building.
3. It is further contended that, the petitioner intends to shift his residence to ground floor from the existing 1st floor as the petitioner is heart patient and is suffering from severe arthritis and unable to climb the stairs. The petitioner has made all arrangements to put up new house in the ground floor by demolishing the schedule premises and to make use for his bonafide use and it is necessity for his living. That apart, petitioner's wife is also suffering from kidney failure and once in three days in a week she has to undergo for dialysis and it is very difficult for her to climb the staircase.
4. It is further contended that, the petitioner has approached the respondent and requested him to quit, vacate and handover the vacant possession of the schedule premises, since the said premises is required for his bonafide use and 4 SCCH-1 HRC No.37/2016 occupation. But inspite of repeated demands, the respondent has utterly failed and neglected to vacate the premises, hence the Petitioner was constrained to issued legal notice to the respondent dated 15.12.2015 by terminating the tenancy and calling upon the respondent to pay the arrears of rent and to quit the premises on or before 31.12.2015. The respondent has received the notice and instead of complying the demand made by the petitioner has caused untenable reply and has failed vacate the premises and pay the rents. Hence the Petitioner was constrained to file the eviction Petition.
5. In pursuance of this claim petition, this Court issued notice against the respondent. Respondent appeared before the Court through his counsel and has filed objection statement denying the petition averments. Respondent has denied that, the petitioner is the absolute owner of the premises. Further contended that, petitioner does not have or enjoy a legally enforceable right to invoke the provision of the Karnataka Rent Act, as such no tenancy is created between the petitioner and the respondent as required and provided under Section 4 of the Karnataka Rent Act which envisages that, "No person shall, after 5 SCCH-1 HRC No.37/2016 the commencement of this act, let or take on rent any premises except by an agreement in writing." In the absence of written agreement in respect of the tenancy created before the commencement of the Act, the landlord and tenant shall enter into an agreement in writing and deposit a copy of the same before the prescribed authority.
6. It is also contended that, the respondent has been paying rents regularly by way of cash but the petitioner always refused to issue a valid receipt or to acknowledge the same by any other manner. The claim of arrears of rent is without any basis and obviously made with sole intention of making out a ground to seek eviction of the respondent and if he had committed default in payment of rent even prior to October 2013, the petitioner ought to have issued a demand notice calling upon the respondent to pay the rent, but petitioner did not initiate any action. Respondent has not admitted that he is also a defaulter in payment of electricity charges and disconnection of power supply to the entire property and caused inconvenience to the petitioner and other tenants. 6 SCCH-1 HRC No.37/2016
7. It is further contended that, the residence of the petitioner and the respondent are separate and admittedly different from each other. The petitioner does not require the premises for his own bonafide use and occupation and the grounds urged in the petition is neither bonafide nor substantial. He contends that, petitioner never demanded the respondent to quit and deliver the vacant possession of the schedule premises for his bonafide occupation till the issuance of the notice dated 15.12.2015 which was suitably replied denying the non-payment of rents and arrears and the bonafide requirement of the petitioner and inspite of reply, the petitioner has filed the petition on untenable and frivolous grounds. Hence, prayed to reject the petition.
8. In order to prove petitioner's case, petitioner himself has examined as PW.1 and got marked documents at Ex.P.1 to
9. On the other hand respondent has not adduced any evidence before the court despite opportunity was given on 2 times to the respondent to lead evidence.
9. After the closure of the evidence from the side of petitioner, I have heard the arguments of the petitioner counsel. 7 SCCH-1 HRC No.37/2016
10. Both the respondent and his Counsel did not turnup to address arguments in spite of affording sufficient opportunity and hence taken as no respondent arguments from the side of the respondent.
11. After having heard the arguments urged by the petitioner Counsel and the material available on record, the points that arise for my consideration are as under:-
1) Whether the petitioner has made out ground to invoke Section 27(2) (a) of Karnataka Rent Act 1999?
2) Whether the petitioner has made out ground to invoke Section 27 (2) (r) of Karnataka Rent Act 1999?
3) What order?
12. My findings on the above said points is as under:-
1) Point No.1 : In the Affirmative
2) Point No.2 : In the Affirmative
3) Point No.3 : As per final order
for the following:-
REASONS
13. Point No.1: It is the case of the Petitioner that, the respondent is a chronic defaulter in payment of monthly rent of 8 SCCH-1 HRC No.37/2016 Rs.600/- p.m. and also electricity charges to the concerned authorities and he is due in arrears of rent of Rs.16,075/- as on 15.12.2015.
14. The Petitioner in order to prove his contention has examined himself as PW.1 and has filed an affidavit reiterating the averments made in the Petition and also relied upon the documents such as Legal notice dated 15.12.2015 which is marked as Ex.P2, Postal receipt and Postal acknowledgment, Tax paid receipt which are marked as Ex.P3 and 5. He has also produced Ex.P6 Electricity bill, Ex.P7 Demand notice issued by BESCOM, Ex.P8 Receipt for having made the payment and Ex.P9 Second demand notice.
15. In the cross examination of PW.1 it is elicited that, the respondent's parents were inducted as tenants in the year 1961 and the respondent was born in the year 1962 in the said house. The respondent married and went away from this house and again he came back to this house in 1992. There is no any rental agreement between him and this respondent. He says, in one Block he is residing and in another Block respondent is staying and petitioner is residing in the first floor. The ground 9 SCCH-1 HRC No.37/2016 floor is let out to a tenant. The respondent is in occupation of room no.3 and 4 that is in ground floor. The measurement is 8X10 feet each. He has not produced any document to show that he is a heart patient. He says he is having documents and he will produce. It is suggested that, the ground floor which was let out to a tenant is having only two rooms and they are 4 persons in his house and same is not suitable for him and the same was denied. He admits that, the averments made in the petition that he intend to demolish the building is not correct but he intend to repair the same. The rents were paid till December 2013 without committing any default and thereafter the rents are not paid. They were paying the rents by way of cash. From the beginning no rent receipts are issued. It is suggested that, the respondent has paid the rent upto date and not committed any default and the same was denied. He admits that, he has not issued any notice when he did not pay the rent. It is suggested that, the respondent has paid the rent and hence he has not issued the notice and the same was denied. It is suggested that, water and electricity bills are paid till date and the same was denied.
10 SCCH-1 HRC No.37/2016
16. On the other hand inspite of opportunities were given on 2 occasions when the case was posted for respondent evidence, both the respondent counsel and the respondent have not turned, hence taken as no respondent evidence. Also, inspite of opportunity was given to address the arguments, both the petitioner counsel and the respondent counsel did not turn up. Now this Court has to appreciate the evidence of PW.1 with regard to the payment of rent is concerned. It is the contention of the petitioner that, the respondent is a defaulter in payment of rent and legal notice was given to the respondent. In order to prove the said fact, the petitioner has relied upon the Ex.P2 Legal Notice. On perusal of Ex.P2 it is clear that, an allegation is made against the respondent that, he is a chronic defaulter in payment of rent and he is due in arrears of rent @ Rs.600/- p.m. The petitioner in the legal notice has claimed that, from 2013 October the rent has not been paid, but in the cross examination he admits that, the rent has been paid till December 2013 without committing any default and thereafter the rents are not paid. In the notice he has specifically terminated the tenancy and called upon the respondent to pay 11 SCCH-1 HRC No.37/2016 the arrears of rent within 60 days from the date of notice. The notice has been sent through Registered post and Ex.P3 evidences the said fact and the said notice also acknowledged by the respondent interms of Ex.P4. The respondent has not given any reply, but in the objection statement he has contended that, he has paid the rent upto date. No doubt in the cross examination it is elicited that, the PW.1 had not issued any receipt for having received the rent and it appears that, by taking advantage of non-issuance of notice the respondent has taken the defence that, the rents are been paid upto date. If really he had paid upto date rent, the respondent would have given the reply to the notice when the petitioner had given the notice. As per Ex.P2 the notice was sent on 15.12.2015 and the same was served on the respondent as per Ex.P3 and 4, hence it is clear that, the notice has been issued to pay the arrears of rent within 60 days as contemplated under section 27(2)(a) of Karnataka Rent Act. The respondent inspite of service of notice has not paid the rent to the petitioner, also not tendered the rent before the Court and also not adduced any evidence rebutting the evidence of the petitioner. Hence the petitioner 12 SCCH-1 HRC No.37/2016 has complied with the statutory demand as envisaged under Section 27(2)(a) of Karnataka Rent Act and made out the ground to allow the Petition U/s. 27(2)(a) of the Karnataka Rent Act, 1999. Accordingly, I answer point No.1 in the Affirmative.
17. Point No.2: It is the case of the Petitioner that, he intends to shift his residence to ground floor from the existing 1st floor as he is heart patient and suffering from severe arthritis and unable to climb the stairs. He has made all arrangements to put up new house in the ground floor by demolishing the schedule premises and to make use for his bonafide use. Further his wife is also suffering from kidney failure and once in three days in a week she has to undergo dialysis and it is very difficult for her to climb the staircase and inspite of demand made to the respondent, he failed to quit and vacate the premises and he has also issued legal notice to the respondent in this regard. The respondent in the objection statement has contended that, the requirement made in Para 6 of the petition regarding requirement is concerned are false. The residence of the petitioner and the respondent are separate and admittedly different from each other. Also the petitioner wants to shift his 13 SCCH-1 HRC No.37/2016 residence from first floor to ground floor has nothing to do with the respondent or his residence, as such no ground is made to seek eviction of the respondent under section 27(2)(a)and (r) of Karnataka Rent Act. The petitioner does not require the premises for his own bonafide use and occupation.
18. The petitioner has relied upon the legal notice for having requested the respondent to quit and vacate the premises and the same is evident from Ex.P2. I have already pointed out that, no reply has been given to the said notice inspite of notice has been served on the respondent as per Ex.P3 and postal acknowledgement Ex.4. It is also the case of the petitioner that, the respondent has not paid electricity bill regularly which has resulted in disconnection of power supply to the entire property and caused inconvenience to the petitioner and other tenants. Petitioner has relied upon the Ex.P6 to 9 to substantiate the same. In the cross examination of PW.1 the respondent has concentrated only with regard to the payment of rent. It is elicited that, he has not produced any documents to show that, he is an heart patient and he says he is having document and he will produce the same. He also says 14 SCCH-1 HRC No.37/2016 that, the ground floor which was let out to a tenant is having only two rooms and they are 4 persons in his house and the same is not suitable for him and he intend to repair the same. Except suggesting that, the Petitioner is not in need of the premises, nothing is elicited from the mouth of PW.1. It is elicited that, the respondent's parents were engaged in the year 1961 and after the death of parents he has continued, though he went out for some time. There is no any rebuttal evidence as against the evidence of requirement of the petitioner and the respondent also not led the evidence. Only defence was taken in the objection statement that, the contention of the petitioner that he want to shift his residence to the ground floor has nothing to do with the respondent or his residence.
19. (a) I would like to rely upon the judgment reported in ILR 2004 KAR 3408 (Habi vs. Smt. Jayamma and others). In this judgment it is held that, "it is for the landlord to decide which premises is suitable for his bonafide use and occupation - The tenant cannot dictate the landlord to occupy the specific premises that falls vacant."
15 SCCH-1 HRC No.37/2016 In view of the judgment referred supra in the case on hand it is the choice of the landlord and tenant cannot dictate the terms.
(b) I would also like to rely upon the judgment reported in 2012(6) Kar.L.J. 696. In this judgment the Hon'ble High Court of Karnataka held that, "the schedule premises is situated in first floor and bit for the landlord to be used as godown and confirmed the eviction order."
20. For having taken the principles laid down in the judgment referred supra it is held that the petitioner has to prove his requirement and not the bonafide requirement. In the case on hand, in the cross examination the respondent has not denied the requirement of the petitioner. Admittedly the schedule premises is measuring 8x10 feet each and the same is forthcoming in the evidence of PW.1. I have already pointed out that, the respondent has not led any evidence to rebut the evidence of PW.1. Under such circumstances this Court has to presume that the requirement of the Petitioner is genuine and 16 SCCH-1 HRC No.37/2016 the Petitioner is in need of the petition schedule premises for his bonafide use and occupation. Hence, I am of the opinion that the petitioner has made out the ground to invoke the Petition U/s. 27(2)(r) of the Karnataka Rent Act, 1999. Accordingly, I answer point No. 2 in the Affirmative.
21. 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 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. In the case on hand, granting of 4 months would be 17 SCCH-1 HRC No.37/2016 reasonable, since this case is filed on 20.04.2016 and almost 4 months are lapsed and the matter is disposed off within six months as stipulated under section 42(7) of the Act.
22. Point No. 3:- In the result, I proceed to pass the following:-
ORDER The petition filed by the petitioner under Section 27(2) (a) of the Karnataka Rent Act, 1999 is hereby allowed.
The respondent is directed to pay arrears of rent of Rs.16,075/- as claimed in the petition to the petitioner and also pay the rent upto date from 15.12.2015 to till he vacates the schedule premises within one month from the date of this order, failing which, the respondent shall vacate and handover vacant possession of the schedule premises to the petitioner immediately, after the lapse of one month.
Petition filed by the petitioner under Section 27(2)(r) of the Karnataka Rent Act, 1999 is allowed, consequently, the respondent is directed to vacate and handover vacant possession of the schedule premises to the petitioner within four (4) months from the date of this order.
18 SCCH-1 HRC No.37/2016 Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court dated this the 19th day of September 2016) (H.P.SANDESH) Chief Judge SCHEDULE All that part and parcel property bearing Old No.32, Old Race Course Road, Viveknagar, Bangalore now assigned with New number 91, 1st Main Road, Old Race Course Road, Viveknagar, BBMP Ward No.71, PID No.71-3-91, house No.3 and 4 with electricity and water connection and bounded on the both houses measuring of 170 sq. ft.
East by : Room No.2,
West by : Property belonging to Sri. Raja Muthu,
North by : Remaining portion of petitioner
property,
South by : Open phase in the compound
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE PETITIONERS :
PW-1 : Gopalakrishna 19 SCCH-1 HRC No.37/2016 LIST OF WITNESSES EXAMINED FOR THE RESPONDENT:
-Nil-
LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONERS:
Ex.P-1 : Katha certificate Ex.P-2 : Office copy of Legal notice Ex.P-3 : Postal receipt Ex.P-4 : Postal acknowledgement Ex.P-5 : Tax paid receipt (Online) Ex.P-6 : Electricity bill Ex.P-7 : Demand notice issued by BESCOM Ex.P-8 : Receipt for having made the payment Ex.P-9 : Second demand notice
LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT: -Nil-
(H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
*S.D.* **********