Karnataka High Court
Mr M Ethiraj vs Smt Farida Khanum on 9 June, 2008
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIQH counr OF KARNATAKA AT %
EATED THIS THE 9"' my 95 5"'IUN['-I""g2vAf3'(:3'_8: 7iI % _ T V V
BEFORE :
me HON'BLE Mr2.JusTIcE MoHA:~ik5HAMT.m.§$c§pn;An fi' %
H.R.i2.P' No.554z200s *
M. Ethiraj ' _ .
S/0 late Muttuswaxny' --
Aged about 7'2 yearsV, 1* »
No.20, Muniswamgg . "
Tasker Town _ .
Bangalore-560 Q515,_ ' &_ ..Petitio1mr
(83; Sri S.:f:'.AfTKhui:%e_3h§;3:'§A¢:§;3»ff V
Am: V ._ , %
Smt. Farida .
W/6 Huasain Khan "
V Aged ahéput years' ' V
'i'€9.2C3',L._ii'e&;'=P0ri:Aion of """
xGxfo'u.r;d Fioor _
'MunisW:=;In3§Roas:{ V
Bar:g;aifir&- 5 1 ; ~ j 1 . . . Respondent
'(By sr{'sé,A';-:-1. Ac1v._3 ' 'V V, A' *n.'4I_'3r1is I-IRRP is filed under Sectian 46 {ll of the Karnataka Rent Actagainst the order dated 20.9.2006 passed in HRC.No.607/2004 _ r_;vr:'I_ this" file of the XLX Adcil. Small Causes Judge, Bangalore ._ "disn;1issing the petitican as not maintainable. This Petition coming on for hearing this day, the Court made the foilowing :
*3 .<.;v__z.2._i':>._.§_1_2 Petitioner is the landlord of the premises in which the respondent is the tezuant. Thff'. u eviction petition under Section 27 (2';(i')' of K;§.tti¥it<a~.Reiit Act, 1999, for eviction of the A' premisatss. The Court belcw t}.:ie._(:vi<;tfi0;t;VV"~;:§"e"ti"tic$:I1 on" V thti grmmd that the Rent: Act is get tippficablet -to 'm1c;11'§ premises as the eviction petition is of completion of the oenstruction ' _c>£__thc u the premises is situated,"
2. 'p;'eIi1i:§e§;§'i§ii'qt:t"eation is in the ground floor of the bi1i1di13tg,XVhi{;I1 floats that is ground, first and V' Fctitiaper about 70 years. Aocxzarding to him, he "attack and he was advised nest and further ad'.s)*i.-3&1 not stairs ctc., Wife of the petitioner is statsd 'tip be a dviéibfitic patient. having arthritis and experiences pain "c=ljn1biz1g the sta.1rs' . For the: present, the petitionczr is in the first floor of the buiiding and according to him, a is very inconvenient for the couple to: climb the stairs vary \r"
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often. Since there no ether reasonably suitahie alietlfihiative aemmmodahon available ten the petitioner, he _ getition on the ground that he needs the premieee: V. fide use and oocupatihn.
The petitinn was opposeki by the'v.responaiiei:t'~vte1;at:it * inter aiia r::ac>11tending that the in tqueetiontfiis a new pzemises and that the is; 15 years; of its conshuctfion. As Aa::foI'e::x1Ae;:1i.t:i.(3:1:e.t:c1v-, Below dismissed the eviction $31-.:_hg)'a€ ;;:ii.ai1tta.iV1i££hie"'bn}y on the ground that the Rent .hotjv.aj§pliee;bte to such premises as the eviction 15 years of the construction of the building qtlesiionf 2 of the Karnataka Rent Act, 1999, An-ads; um«t;% "
' :2 -~ Application afthe Act --
" ' (3) Nothing contained in this Act shall apply, A (i) : To any premises con$i:rI:.<:te(1 czenstructed or substantially renovated, either before or after the commencement of this Act for at W -4- period of fifteen years from the date of oompietgagg»-%¢[_:jT%. of such oonstructimz or substantial IeI1¢:>vat.io.:1~.«'.'.' . ' , A' Thus, it is clear that, for 15 years after V. Ccanstxuction of the premises or Karnataka Rent Act is not applicable. " . . The Court below on the .$ent'e't1c€::T_ 'cszontamvj ' 113' g an admission of the hfis 15 years have not alapscci after ctym-s§t_;1'11<:1:im1_ therefore, the eviction " * period is not majntaaflablg'; ' * 'i 4
4. "hlas hid emphasis on the fixst sentence: of c1';<"3£:s_s%V-£:){z#§1:::1.i.;4fza1:Ai§:;11 of PW-1 -- petitioner herein. It is ":20 stated in the first sentence of his that the building was constructed in the yezii 1. Only on that stray sentence, the Court ' below ifié. held against the petitioner. Other attanding ._ " and other material on mcezd, more partiocularly, admission of tenant, are not at all given cine weightagc by ' the-. Court belorw.
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5. Admittedly, the Lease Agreement Ex.P-1 1 wa$.g:fit§_§1=»:d into between the partiea on 20*" ofApri1 1989. Thu=$:Q..i1 _ that tint: tenant has occupied the premises in of April 1989. The eviction 23.1 1.2004. Ifmally the building was 1:1§3t_tt:€;mp1etéti'VV . of April 1989, the tenant woufi nfitfisavc otajzupy the premises and would not ~-gzgremifitiésttvthen. In this context, it is reiervant V_1:io.tx.=: of the tenant in his c.mss----ex;;~1m' '''s:1'; éttio1t, :: «:t:V=,tia1ii:.f'has categomza' Hy admitted ,fl:tat.._ Lease Agreement was entered we as Vptfr':VE:§;P5"i1tA,:"a:§d that he has paid advance amount; thaVt%._3§%1;¢;-Q' the petition pxemises, the _. .3ana13c;.:v.i1_ a1ré.§at13?:;f§:HsHi{}iing in the first floor portion that is premises; that the landlord did not cti'2i;a'.trucfion of the building after the tenant V pétition pmmisms. These admissions would amply W 1t0___shdW¢ that the tenant has occupied the ground floor }jc':rti(5n"::an£1 at that point of time, the lanélord was occupying Vt ':'_4'i:i1¢:~*t:first floor porfion of the building. Which means, the 'ltandloxti had already occupied the first fiuor of the building V5 -5- when the tenant had enisered iate an agreement. It implies that the building was afimady cxtzmpietcd at least upto I the lease agreement was entered into. Subst=§q%1e1'1:f'. iI1d1lCfl{}I1 of the tenant in the prem_i_ses,_ 'it LS{v)I3'3E:" VV sex': of cnnstruction tack place abofif:
second floor of the bm1ding,"T'fc.--;_w1fich': thc 'Mir; néusl' onncerncd. It is also {W13 is not put to any sari; of "trouble AC'Qnf$i.';LiCvfiQI.i'1;;1deI'tak€n by the landlord in the year vlA.99:2f'93.--. _ "Because further construction is by the landlord in 1992-93---,it the premises in question was c011stn1cte:du" 111$' " Admittedly, the tenant is msidifig t}Jexg1":?aV1:;;v;;§'a_§1_'«::£k:or of the building. Thus, at any sfittsh cysfixzxssigkinafion, it cannot be said that the eviction is7'fii¢&T.,' 15 yams of the Construction of the V _ prexfiises qtissfion. As aforementioned, the Lease Agreement .4 \V§ r2xs.sr1.at:e£ii" §G*'~h of Apri}. 1989 and Whereas, the pstifion is flltd This itself goes to Show that the eviction 'spsiéition is filed much after 15 years of the construction sf the " premises.
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6. The Court below whik giving much wcightstgati stray admission of the landlord, has given go--b_yf__ti§' K V' admissions made by the tenant.
decided the matter based [.021 probabiiities. The cage of the Iaggazoxa Vhcepldt. sbcenttt dismissed without appucmjon "the admission of the landlord in the first scntc11 c§3;_bi' will have to he considetv§:c1}:A-- with entire material on R 'V fl Theft-é":§:;;n:V1c;t.V§be xiisgatttc that an admission is the best evidétnjztt making it and though not conclusive, thé; otaiutstfto the maker on the principle that V. zadm;ttS""i;i1iist tat) be true or may be reasonably so that until the presumptian is rehutted, thé' must be taken to be trim. An admission ' must be as a whole and not in parts. It is settktd law admission of any party has to be read in its entirety arid no statement out of context can constitute adnmission on u any fact. The Court may reject the admission if it is satisfied from other surrounding cimumstances that it is 111111115. The M -9- landlerd must have stated in his cross»-examinatioxx abc;?_t3t_:'the completing of the buiiding in the year 1992-93, _ the second floor of the building and not tha question. As could be seen fmm thé-:__ pztavisfiioinshgf .A (3)(1), the Word used is "pmmisegg" a;:.:1_ not the-T , Even in the crass examination thf;i€';_fi£}i1t 115.3 that "building" is cc:-nstmcted He not used the word "premisesf. The portion) was already construe't¢ii"j;V§J i.e., prior to the executionfl 'It not refer to the entire bufld" ing. 'matter, the order of the Court below canxztfiitb-:..V and the same is name to be .. Vquashcsfi. 'V Hence, athe ifgfiqwing order is made :
u [ w 'dated 20th September 2006, passed by the XIX AddL'gg;§nv§?:"_mg_s飧;vJudge, Bangalore, in HRc..No.507/ 2004, is V VV quashéd. the Trial Court has not fiver: any finding on '<3VVt}1a*.rVTLpoi1i'ts;, the matter needs ts) be remanded. Hence the
-is'; remitted to the Court below for disposal of the matter on other points. The Cezmri: below shall dispose of the M
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matter as early as pessible, but not lam}: than the 011_tc_x ' V. four months fiozn the date of receipt of this order. . ' ' ' Petiticm is allowed amordingty.
'bk,' bsn