Karnataka High Court
Shri. Kashinath Sidramappa Jigajinni vs Shri. Shekhar S/O Parshuram Dalavi on 18 August, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18th DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
HRRP NO.100005 OF 2018
BETWEEN
1. SHRI. KASHINATH SIDRAMAPPA JIGAJINNI
AGE:72 YEARS, OCC:BUSINESS,
R/O PLOT NO.122, PARIJAT MARG,
VINAYAK NAGAR, BELAGAVI
2. SMT.SUMITRA KASHINATH JIGAJINNI
AGE:70 YEARS,
OCC:HOUSEHOLD WORK,
R/O PLOT NO.122,
PARIJAT MARG,
VINAYAK NAGAR, BELAGAVI
3. SHRI VINAYAK S/O KASHINATH JIGAJINNI
AGE:39 YEARS, OCC:BUSINESS,
R/O PLOT NO.122, PARIJAT MARG,
VINAYAK NAGAR, BELAGAVI
4. SMT.NANDINI W/O VINAYAK JIGAJINNI
AGE:33 YEARS, OCC:HOUSEHOLD WORK,
R/O PLOT NO.122, PARIJAT MARG,
VINAYAK NAGAR,
BELAGAVI
...PETITIONERS
(By Sri. CHETAN MUNNOLI and Kum. SURABHI KULKARNI,
ADVOCATES)
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AND
SHRI. SHEKHAR S/O PARSHURAM DALAVI
AGE:57 YEARS, OCC:BUSINESS,
R/O 1542/4, MARUTI GALLI,
BELAGAVI 590 002
....RESPONDENT
(By Sri. S0URABH HEGDE, ADVOCATE)
THIS HRRP IS FILED UNDER SEC.115 OF CPC, AGAINST THE
ORDER AND DECREE DTD:04.10.2018 IN H R C R P NO.4/2018
PASSED ON THE FILE OF THE IX-ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BELAGAVI, ALLOWING THE REVISION
PETITION FILED AGAINST THE ORDER AND DECREE
DTD:04.04.2018 IN HRC.NO.18/2014 ON THE FILE OF THE II-
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, BELAGAVI, ALLOWING THE PETITION FILED
U/SEC.31(1)(c) OF THE KARNATAKA RENT ACT, 1999.
THIS HRRP COMING ON FOR ORDERS ON 12.08.2022 AND
THE SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision petition is filed under Section 115 of CPC challenging the order dated 04.10.2018 passed in HRC.R.P.No.4/2018 on the file of IX Additional District and Sessions Judge, Belagavi, questioning allowing the revision petition and setting aside the order passed in HRC No.18/2014 filed under Section 27(2)(a)(r) and 31(1)(c) of the Karnataka Rent Act, 1999.
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2. The factual matrix of the case of the landlords/petitioners before the II Additional Civil Judge and JMFC., Belagavi at Belagavi is that the shop premises measuring East to West 7 feet and North to South 12 feet comprised in C.T.S.No.1542/4 situated at Maruti Galli, Belagavi, has been purchased by the petitioners vide Sale Deed dated 19.08.2013 and the respondent, who being the tenant has not paid the rent and also he is in need of the premises for family business and also invoked Section 31(1)(c) of the Karnataka Rent Act being the senior citizens i.e., petitioner Nos.1 and 2.
3. The Trial Court after considering the material on record allowed the petition vide order dated 04.04.2018 under Section 27(1)(a)(r) and 31(1)(c) of the Karnataka Rent Act. Being aggrieved by the same, the tenant has filed HRC.R.P.No.4/2018 and the same has been allowed reversing the order passed in HRC petition. Hence, the present petition is filed before this Court.
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4. The main contention of the revision petitioners before this Court is that the Revisional Court has failed to consider the Sale Deed was executed on 19.08.2013 and the petition was filed on 17.09.2014 after a lapse of one year from the date of acquisition of the petition schedule premises and committed an error in dismissing the petition under Section 27(2)(r) of the Karnataka Rent Act.
5. The Revisional Court has seriously erred in rejecting the petition under Section 31(1)(c) of the Karnataka Rent Act that Exs.P12 and 13 disclose petitioner Nos.1 and 2 are the senior citizens and erred in considering the Explanation 2 to Section 31(1)(c) of the Karnataka Rent Act and failed to take note of the fact that no adjudication was taken place under Section 31(1)(c) of the Karnataka Rent Act and it was only a compromise decree. The Revisional Court has seriously erred in not considering the relevant admissions of RW.1 in the cross-examination and the evidence of PW.1 and erroneously dismissed the petition by setting aside the order of the Trial Court even setting 5 aside the order passed under Section 27(a) of the Karnataka Rent Act. Hence, it requires an interference of this Court.
6. The learned counsel appearing for the Revision Petitioners reiterated the grounds urged in the petition in his oral submission regarding filing of petition after one year and also failed to take note of the fact that the earlier decree was a compromise decree. The Revisional Court also committed an error that no need to prove hardship in view of New Act and the question of hardship does not arise. Hence, it requires an interference of this Court.
7. The learned counsel appearing for the Revision Petitioners in support of his arguments, he relied upon the judgment of this Court passed in HRRP No.736/2002 dated 11.02.2003 and brought to the notice of this Court the paragraph Nos.18 and 19 with regard to Section 27(2)(r) as well as Section 31(1)(c) of the Karnataka Rent Act. The learned counsel also brought to the notice of this Court the order passed in HRRP No.283/2000 dated 25.07.2023, 6 wherein, this Court considered Section 27(2)(r) of the Karnataka Rent Act.
8. The learned Counsel also relied upon the order passed by this Court in the case of Smt. Efrigin Joseph Fanty since deceased by her L.R. v. Sadananda Shankar Pednekar reported in ILR 2006 KAR 3379, and brought to the notice of this Court Section 27(2)(r) of the Karnataka Rent Act, no need of proving of hardship and hardship is not a ground.
9. On the other hand, learned counsel appearing for the respondent would vehemently contend that the Revisional Court has given the finding with regard to non- proving of Section 27(a) and also elaborately discussed that already exhausted the remedy under Section 31(1)(c), the question of once again seeking the relief under Section 31(1)(c) does not arise. The learned counsel also would submit that the Revisional Court in detail passed an order and each ground are considered individually and the notice 7 was issued before expiry of one year after purchase of the premises.
10. The learned counsel in support of his arguments, he relied upon the judgment of this Court passed in HRRP No.16/2020 dated 08.12.2021.
11. The learned counsel also relied upon the judgment of the Apex Court in the case of T. Sivasubramaniam and others v. Kasinath Pujari and others reported in (1999) 7 SCC 275, wherein, the Apex Court held that mere desire is not enough, the requirement of law is that the landlord must set out his need for the premises in his petition and establish that such a need is bona fide. Hence, prayed this Court to dismiss the HRRP.
12. The learned counsel also relied upon the judgment of this Court in the case of M. Chinna Dorai v. B.S. Ramakrishna and another reported in 2003(6) Kar. L.J. 525, regarding Section 27(2)(a) and when rent payable is disputed, burden of proving same is on landlord and the counsel referring to these judgments would submit that the 8 landlord has not proved the arrears of rent. Hence, it does not require any interference of this Court.
13. Having heard the learned counsel appearing for the respective parties and on perusal of the principles laid down in the judgments referred supra and also on perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Revisional Court has committed an error in reversing the finding of the Trial Court in dismissing the petition filed by the landlord under Section 27(2)(a), 27(2)(r) and 31(1)(c) of the Karnataka Rent Act?
(ii) What order? Point No.(i):
14. Having heard the respective counsel and the principles laid down in the judgments referred supra, no dispute with regard to the fact that if the landlord invoke Section 27(2)(a), he has to prove the arrears of rent and Section 27(2)(a) is very clear that in order to invoke Section 27(2)(a) for an eviction if the tenant has neither paid nor 9 tendered the whole of the arrears of the rent and other charges legally recoverable from him within two months from the date on which a notice of demand for payment of has been served on him by the landlord, then, he is entitled for an order of eviction.
15. It has to be noted that the landlord has issued the legal notice, which is marked as Ex.P5, wherein, he claims that he had purchased the property vide Sale Deed dated 19.08.2013. In paragraph No.5, he has stated that the tenant is very irregular in respect of payment of rent and he has failed to pay the rent since for the past one year and he has not tendered the rent either to the landlord nor to the previous owner and reply was given to the said notice in terms of Ex.P4, wherein, it is claimed that the rent already been sent from September 2013 to March 2014 by way of Money Order to the previous owner and the same is refused by the previous owner and the tenant has already sent rentals to the landlord till April 2014, through Money Order and there is no any arrears of rent. Hence, it is clear that in 10 terms of Ex.P5, the landlord set out the ground for invoking Section 27(2)(a) in paragraph No.5 and the claim of the tenant that he has paid the rent. This Court has to take note of the answer elicited from the mouth of RW.1, he does not dispute the purchasing of the property by the landlord. He categorically admits that at the time of purchasing the property, the landlord has given the public notice by way of paper publication and he has given the reply in terms of Ex.P3. The Public Notification is marked as Ex.P7. An immediate reply dated 20.08.2013 was given by the tenant is marked as Ex.P3. But in the said reply, he claims that he is in possession from the year 1958 and he is regularly making the payment but in another reply to the legal notice in terms of Ex.P4, he claims that he made the payment to the previous owner and the fact that before purchasing the property, publication was given in terms of Ex.P7 is not disputed and admitted by the tenant and also he categorically admits that the landlord had purchased the property immediately after the paper publication. But, he has not paid the rent but he claims that he sent the rent to the 11 previous owner till March 2014. What prevented him having the knowledge of purchasing of the property by the landlord, no explanation in this regard is given by him for having sent the rent to the previous owner. Hence, it is clear that he committed default in payment of rent knowing fully well that the landlord had purchased the property. The landlord has also got marked the Sale Deed dated 19.08.2013 as Ex.P10.
The reply was given immediately on 20.08.2013 in view of the paper publication and he claims that when the rent was refused, he sent the same to the landlord. No doubt, PW.1 in the cross-examination admits that he has received the rent by way of Money Order and the tenant himself got elicited in the cross-examination that the landlord has stated that the tenant was irregular in paying the rent. Though he admits that he has not produced the specific document, as to for which months the rental was due but the Revisional Court failed to take note of the fact that in paragraph No.5 of the notice specifically mentioned the non payment of rent and instead of giving more credence to the documentary evidence given importance to the oral evidence of PW.1. The fact that 12 the tenant was having the knowledge of purchasing the property, which has been admitted in his cross-examination, he did not pay the rent from September 2013 to till issuance of legal notice in terms of Ex.P5 and the said fact has not been considered by the Trial Court. Instead of taken note of the cross-examination of PW.1 and not discussed the answer elicited from the mouth of RW.1. In the cross-examination of RW.1, admitted the purchasing of the property by the landlord and even admitted the paper publication given prior to purchasing of the property. Hence, the Revisional Court has committed an error in setting aside the order passed under Section 27(2)(a) of the Karnataka Rent Act. It is also important to note that though the tenant claims that he has sent the Money Order, the same has not been placed before the Trial Court to show that on what date, the rent was paid. Hence, it requires an interference of this Court by setting aside the order of the Revisional Court in respect of Section 27(2)(a) of the Karnataka Rent Act.
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16. The petition is filed under Section 27(2)(r) of the Karnataka Rent Act. Having considered Section 27(2)(r), it is very clear that if the premises let are required by the landlord for occupation for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation then the Court can grant an order for eviction. PW.1 in consonance with the legal notice in paragraph Nos.4 to 6 pleaded with regard to purchasing of the property and the premises is required and a legal notice was issued and the same was acknowledged and reply was given and called upon the tenant to handover the possession and petitioner Nos.1 and 2 being the senior citizens they require the same for their benefit. In support of this, they also got marked Exs.P1 to 8. No doubt, in the cross-examination of PW.1, it is elicited that they have a shop in Maruti Galli, which is taken on rent. It is also elicited that there is another shop in Maruti Galli, which was owned by them and in that shop PW.1's son runs a Stationary Store and his brother also run 14 the said Store. In the college road, there is another shop, but it belongs to his younger brother. The fact that the landlord has purchased the property on 19.08.2013 and the petition was filed in the month of September 2014 i.e., after the elapse of one year and the very approach of the Trial Court that the notice was given in the month of March 2014 itself, which shows that the notice was given within one year and the finding of the Trial Court is erroneous since Section 27(2)(r) is very clear that no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition. The very proviso is very clear that an application cannot be filed within one year but in the case on hand application is filed after one year and Sale Deed was executed on 19.08.2013 and the petition was filed in the month of September 2014 and merely because issuance of notice prior to one year is not a ground to set aside the order. Hence, committed an error that the Trial Court has erred and misconceived the provisions of 27(2)(r) of the Karnataka Rent Act. The proviso is very clear that no 15 application for the recovery of possession of such premises shall lie under this clause, unless a period of one year has elapsed, that means no application and not barring of giving any notice within one year. The Trial Court has committed an error. It is also important to note that the principles laid down in the judgments is very clear that hardship need not be proved and in the New Act no need of proving of hardship and the Trial Court has committed an error in coming to the conclusion that the hardship is on the tenant. Hence, setting aside the order passed under Section 27(2)(r) by the Revisional Court also an error considering the merits of the case as well as the proviso under Section 27(2)(r). Merely landlord is having other premises is not a ground and the Court has to take note of the requirement and admittedly the landlord is also a businessman and having the shop in a rented premises as well as his son is running the business in other premises owned by the landlord and other shop belongs to his brother. Hence, the requirement of landlord cannot be discarded.
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17. The landlord has filed a petition under Section 31(1)(c) of the Karntaka Rent Act and the same was allowed by the Trial Court and the Revisional Court has reversed the same on the ground that already got the relief under Section 31(1)(c) of the Karntaka Rent Act. The main contention of the learned counsel appearing for the landlord before this Court is that the petition filed under Section 31((1)(c) was not adjudicated and it was only a compromise decree. When the same was not adjudicated, the petition cannot be dismissed as held by the Revisional Court.
18. This Court would like to see the judgment passed in terms of Ex.P8. No doubt, the petition was filed under Section 27(1)(a)(r) and Section 31(1)(c) of the Karnataka Rent Act. On perusal of Ex.P8, an application was filed under Order 23 Rule 3 of CPC, in terms of the compromise admitting the ownership of the landlord. The respondent- tenant also admitted the requirement of the landlord for their bona fide use and occupation and handed over the actual possession and the same is in terms of the compromise and 17 having three grounds are urged in the said petition and terms of the compromise, particularly, point No.2 only accepted the bona fide requirement of the landlord for use and occupation of the same and no Section 31(1)(c) is invoked in terms of the compromise. The Revisional Court fails to take note of Ex.P8 into consideration and in spite of petition was filed under Section 27(1)(a)(r) and 31(1)(c) and in terms of compromise only bona fide requirement has been stated in the compromise. Hence, the very finding of the Revisional Court once again cannot seek for the relief of eviction under Section 31(1)(c) is erroneous and no order has been passed under Section 31(1)(c) in terms of Ex.P8 and only the same is considered regarding bona fide requirement. Hence, the very approach of the Revisional Court is erroneous and hence, it requires to be set aside. Hence, I answer point No.(i) as 'affirmative'. Point No.(ii):
19. In view of the discussions made above, I pass the following:
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ORDER
(i) The Revision petition is allowed.
(ii) The impugned order dated 04.10.2018 passed in HRC.R.P.No.4/2018 on the file of IX Additional District and Sessions Judge, Belagavi, is hereby set aside.
Consequently, the order dated 04.04.2018 passed in HRC No.18/2014 on the file of II Additional Civil Judge and JMFC., Belagavi at Belagavi, is hereby restored and given two months time to the tenant to quit and vacate the premises from the date of this order.
(iii) The Registry is directed to send the
records to the concerned Court,
forthwith.
Sd/-
JUDGE
cp*