Bangalore District Court
Sri.H.M.Hanumantha Raj vs Sri.Raju Bandari on 30 March, 2015
BEFORE I ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE.
(SCCH-11)
DATED THIS 30TH DAY OF MARCH, 2015
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,,LL.B (SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
H.R.C.274/2009
PETITIONER: Sri.H.M.Hanumantha Raj,
S/o. Munihanumappa,
Aged about 72 years,
Residing at No.142,
26th Cross, 6th Block,
Jayanagar,
Bangalore - 560 011.
(By pleader - Southern Law Associates)
- V/S -
RESPONDENT: Sri.Raju Bandari,
Aged about 55 years,
Premises No.153/B,
Shop No.5, 1st Cross,
5th Main Road, Chamarajpet,
Bangalore - 560 018.
(By pleader - Rameshchandra)
JUDGMENT
Petitioner has filed this petition against the respondent seeking relief of eviction.
SCCH - 11 2 HRC No.274/2009
2) It is averred in the petition that, respondent is the tenant
under the petitioner in respect of commercial shop premises No.5, situated at property bearing No.153/B, 1st cross, 5th main road, Chamarajpet, Bangalore - 560 018, measuring east to west 10 feet and north to south 10 feet which is more fully described and referred to as schedule premises, on a monthly rent of Rs.2,000/-. The tenancy commences on the 1st day of English Calendar month and ends on the last day of the same month. The respondent is using the schedule premises for commercial purpose and carrying Gents Saloon under the name and style of Diana Gents Beauty Parlour. Petitioner is a senior citizen and his son by name Jagadish is an unemployee who completed his B.E. graduation and intended to establish a Mobile Phone Sales and Service Centre and the schedule premises is in the occupation of the respondent. The petitioner has no other premises except the premise which has been let out to the respondent. The petitioner has made many requests to the respondent to vacate the schedule premises, but the respondent failed to comply the reasonable demand of the petitioner. When the respondent refused to comply the oral demand, petitioner issued legal notice on 6.5.2009 to the respondent and demanded him to quit and deliver the vacant possession of the schedule premises within 30 days from the date of receipt of notice. The respondent received notice on 6.5.2009 and has SCCH - 11 3 HRC No.274/2009 sent an untenable reply notice dated 18.5.2009 to the petitioner. The respondent has given reply to notice and admitted the relationship of land lord and tenant, but he refused to vacate the schedule premises. Hence petitioner is constrained to file this petition.
3) On service of summons, respondent appeared through his counsel and filed objections and denied the contents of petition. It is admitted that, the respondent is a tenant under the petitioner in respect of a commercial shop premises No.5, situated at property bearing No.153/B, 1st cross, 5th maintainable road, Chamrajapet, Bangalore measuring East to West 10 feet and North to South 10 feet on a monthly rent of Rs.2,000/- and carrying on business under the name and style Diana Gents Beauty Parlour now at called Diana Hair Dressing Saloon. It is also admitted that, petitioner is a senior citizen and his son is unemployee, but he is not aware that the petitioner's son is completed B.E. graduation. In fact, the similar averments were made in HRC 273 of 2009 and petitioner got it vacated from the tenant Gajanana and he has already let out the said portion on higher rent. If there was a need, the petitioner would have occupied the shop portion vacated by Gajanana. The claim of the landlord is not only dishonest, but also it is with oblique motive and designed only for the purpose of evicting the respondent to SCCH - 11 4 HRC No.274/2009 get higher rent. It is admitted that, notice was issued to the respondent by petitioner for which suitable reply was sent by respondent. There is no cause of action to file the petition and the one pleaded is to make- believe and invented just for the purpose of filing the present petition and petitioner has not made out any grounds under the provision of Karnataka Rent Act seeking eviction and the grounds made are fanciful and malafide. Therefore it is prayed for dismissal of petition with exemplary costs.
4) The SPA holder of petitioner has got examined as PW.1 and got marked documents at Ex.P1 to 7 and closed his evidence. Respondent himself examined as RW.1 and got marked documents at Ex.R.1 to R.3 and closed the evidence.
5) Heard the arguments of the learned counsels for petitioner and respondent and perused the evidence on records.
6) The following points that arise for my consideration are:
1) Whether the petitioner proves that he let out the premises to the respondent and he requires the suit premises for his bonafide use and occupation and he issued legal notice to the respondent on 6.5.2009 and in spite of service of legal notice, the respondent has not vacated the suit premises?
SCCH - 11 5 HRC No.274/2009
2) Whether the petitioner is entitled for the relief as sought in the petition?
3) To what Order or Decree?
7) My findings on the above points are as under:
Point No.1 : In the Negative;
Point No.2 : In the Negative;
Point No.3 : As per final order, for the following:
REASONS
8) POINT No.1 AND 2:- As per evidence of PW-1, the respondent is a tenant under him in respect of commercial shop premises No.5 situated in the property No.153/B, 1st cross, 5th Main Road, Chamarajpet, Bangalore measuring east-west 10 feet and north- south 10feet on monthly rent of Rs.2000/- per month. He has also stated that, tenancy was monthly tenancy commencing on 1st day of each month and ends on the last day of each calendar month and respondent is using suit schedule premises for commercial purpose and carrying gents Saloon under the name and style of Diana Gents Beauty Parlour. As per evidence of PW-1, his father is a senior citizen and he being son of petitioner has completed B.E Graduation and intended to establish a mobile phone sales and service centre and suit schedule premises in the occupation of respondent and other tenants are suitable for running his business. He has also stated SCCH - 11 6 HRC No.274/2009 that, his father requested to the respondent orally to vacate the suit schedule premises and respondent has failed to comply reasonable demand of the petitioner and his father issued legal notice to the respondent on 6.5.2009 which is served upon him and he has given untenable reply to the legal notice on 18.5.2009.
9) PW-1 has produced certified copy of Special Power of Attorney executed by his father which is marked as ExP-1. He has also produced office copy of legal notice which is marked as ExP-2. He has also produced postal receipt and postal acknowledgment and reply notice given by the respondent which are marked as ExP-3 to 5. PW- 1 has produced encumbrance certificate and certified copy of sale deed which are marked as ExP-6 and 7.
10) On perusal of contents of Written Statement filed by the respondent, he has admitted the landlord and tenant relationship in para no2 of his Written Statement and said fact is not in dispute. He has also admitted that he is carrying on business under the name and style of Diana Gents Beauty Parlour. The respondent has admitted in his Written Statement at para No4 that, petitioner is a senior citizen. He has also admitted that, petitioner has issued legal notice to him and he has given SCCH - 11 7 HRC No.274/2009 reply to the legal notice and said admission is clearly evident from contents of Written Statement at para No5.
11) Learned counsel for petitioner has contended in his arguments that, petitioner is owner of suit schedule premises who has let out to the respondent on monthly rent of Rs.2,000/- and tenancy is monthly tenancy commencing on the first day of each month and ends on the last day of each month. He has also submitted that, petitioner is aged more than 75 years and he is a senior citizen and he has got legal right to evict the tenant from suit schedule premises. He has also contended that, suit schedule premises is required to the petitioner to run mobile sales and service center to his son who is B.E.Graduate and unemployed. He has also urged that, petitioner requested to the respondent to vacate and hand over the possession of suit schedule premises and the respondent has not complied the oral request of the petitioner and petitioner issued legal notice to the respondent through his advocate on 5.6.2009 and inspite of service of legal notice, the respondent has not vacated the suit schedule premises to the petitioner and he has given untenable reply to the legal notice.
12) Learned counsel for respondent has contended in his arguments that, petition is not maintainable either in law or on facts and liable to be SCCH - 11 8 HRC No.274/2009 dismissed. He has also contended that, the contents of the petition may be looked into and petition has been filed under Section 27(2) (r) and section 31(1)(c) of Karnataka Rent Act on 9.9.2009 and legal notice issued on 6.5.2009. It is also contended by learned counsel for respondent in his arguments that, in the legal notice, it is shown that, shop No5 measures 10x10 on monthly rent of Rs.2000/- and in para no3 of petition, it is shown that, it is used for commercial purpose which is not in dispute. He has also urged that, if there is termination of tenancy, HRC proceedings cannot be filed. He has also argued that, requirement of suit schedule premises is shown for running Mobile Sales and Service Center for the son of the petitioner and there is no requirement of two premises and only one premises is shown in the legal notice. He has also submitted that, petitioner has demanded monthly enhanced rent of Rs.3,500/-. It is also submission of learned counsel for respondent that, no rejoinder is filed to the reply notice and it is also not denied about contents of higher demand of rent alleged in the reply notice.
13) He has also highlighted in his arguments that, there is one more premises adjacent to the suit schedule premises and entire requirement pleaded in the petition as per section 31(1)(c) of Karnataka Rent Act and not under section 27(2)(r) of said Act. He has also SCCH - 11 9 HRC No.274/2009 submitted that, legislature has made the provision of section 27 of Karnataka Rent Act for benefits of tenants and not for the benefit of landlords and provisions starts with heading as Protection of tenants and regulation of eviction and words used in the said provisions may be looked into. He has also urged that, the legislation has given an option to the landlord one residential and one non residential premise till his life time as per explanation given to the said provision. He has also contended that, similar petition was filed against Sri.Gajanana bearing H.R.C.No.273/2009 and respondent has produced certified copy of petition and judgment and decree passed in H.R.C.No.273/2009 and this petition is nothing, but duplicate copy of said petition. He has also submitted that, the petitioner has already invoked the provisions of section 31(1)(c) of Karnataka Rent Act in H.R.C.No.273/2009 and relief has been granted and he cannot use the said relief for second time during his life time.
14) He has also argued that, notice does not disclose that, petitioner requires two premises and presumption in section 27(2) (r) of Karnataka Rent Act is rebuttable presumption which is explained in the explanation to the said provision. As per his submission, the petition should be supported by an affidavit and in this petition, the verifying affidavit of petitioner has been filed which is not affidavit as SCCH - 11 10 HRC No.274/2009 contemplated under Section 31 of Karnataka Rent Act. He has also submitted that, the petitioner has not produced any documents to show that his son is unemployed and he has no business. He has also submitted that, petitioner has not stepped into witness box and his son has been examined by the petitioner and he is not competent to give evidence before this court. He has also submitted that, verification of the pleadings is not sufficient as the petitioner has to file separate affidavit along with petition. He has also contended that, ExP-6 and 7 are marked subject to proof and burden to prove the contents of said documents is upon the petitioner who has not discharged said burden and petition is not sustainable. He has also relied upon the decision of Hon'ble Supreme Court reported in Somanatha Baddi V/s Chanabasappa and others (2008) 10 SCC 685; S.Kesari Hanuman Goud V/s Anjum Jehan and others 2013 AIR SCW 3561; T.N.Shankar Rao and bros. V/s S.A.Wazid 1971 My.LJ29;
Sheena Naik V/s Lawrence D'Souza AIR 1984 KARNATAKA 202 and K.Appanna V/s S.Rajasekhar 1997(3) KLJ 366 in support of arguments.
15) Learned counsel for petitioner has contended in his reply arguments that, contents of para No5 of petition may be looked into and petitioner has clearly stated in his petition that, suit schedule premises is required for starting Mobile Sales and Service Center for his son and it is SCCH - 11 11 HRC No.274/2009 required for bonafide use of the petitioner as son of the petitioner is unemployed and he is B.E.Graduate and facts and circumstances of decision relied by the learned counsel for respondent are totally different than facts of this case and said decisions are not applicable to the facts of this case. He has also submitted that, there is no whisper about ExR1 in the cross examination of PW-1 and said document cannot be relied upon.
16) On perusal of oral and documentary evidence, it is undisputed that, petitioner is owner of suit schedule premises and the respondent is tenant of petitioner and there exists landlord and tenant relationship in between petitioner and respondent. Even there is no dispute about monthly rent and monthly tenancy as per English calendar month. Even the respondent has not disputed that, petitioner issued legal notice on 5.6.2009 and he has given reply to the legal notice. Only ground of attack by learned counsel for respondent is on legal and procedural aspect. As per his contention, petitioner has not filed any affidavit as contemplated in explanation II of section 27 of Karnataka Rent Act. On careful perusal of section 27 of said Act, the said provision starts with word- protection of tenants against eviction. In the said provision, it is worded as Notwithstanding anything to the contrary contained in any other law or SCCH - 11 12 HRC No.274/2009 contract, no order or decree for recovery of possession of any premises shall be made by the court, District Judge or High Court in favour of landlord against a tenant save as provided in sub-section 2. It is clear from said provision that tenant can be evicted from tenanted premises only for the grounds mentioned in section 27(2) of said Act. In the explanation I of section 27, it is made clear that, for the purpose of said clause and sections 28 to 31, the landlord should file an affidavit in support of application stating that, premises are required for him for occupation for himself or for any member of his family dependent on him, then court shall draw presumption. In this case, petitioner has filed verifying affidavit and it is not supported affidavit as prescribed under Explanation I of section 27 of said Act and essential requirement for eviction under Section 31 of said Act is not complied. Even verifying affidavit is not an affidavit as held by Hon'ble Supreme Court in the decision reported in Somanatha Baddi V/s Chanabasappa and others (2008) 10 SCC 685. In the light of principles laid down in the said decision, this petition fails to satisfy the statutory requirements.
17) Another aspect raised in the arguments is regarding requirement. In this case, the landlord owning a building containing various tenements and adjacent shops in the ground floor are vacant SCCH - 11 13 HRC No.274/2009 which is clear from photographs and he has also obtained eviction order against another tenant by name in H.R.C.No.273/2009 which has been vacated and said premises can be used by the petitioner for running mobile shop of his son. PW1 has admitted in his cross examination that, in the month of December 2011, Gajanan vacated the shop. He has also admitted that, on 17.10.2012, his father taken advance of Rs.1,00,000/- from Rajrathna Rao and let out shop No1 to him. This goes to show that, even though Gajanan vacated the premises and said premises is available to the petitioner for running shop of mobile for his son, he has filed this petition. Because as per section 31(2) of Karnataka Rent Act, the landlord who has let out more than one premises, it shall be open for him to make an application under that sub section in respect of any one residential and one non residential premises each chosen to him. He has already availed benefit of section 31 in H.R.C.No.273/2009 and now he cannot avail said benefit for second time in respect of one residential and one non residential premise. The similar principles laid down in the decision reported in K.Appanna V/s S.Rajasekhar 1997(3) KLJ 366 wherein it is held as under:
" (C) KARNATAKA RENT CONTROL ACT, 1961, Section 21(1)(h) - Eviction - Reasonable and bone fide requirements of landlord - Landlord owning more than one building - Another building becoming vacant after filing eviction petition, was let out to a new tenant, even SCCH - 11 14 HRC No.274/2009 though building was suitable for his requirement -
bonafide requirement, not proved - Landlord not entitled to decree of eviction".
One more contention raised by the learned counsel for respondent regarding power of attorney holder giving evidence on behalf of petitioner. The PW-1 being Power of Attorney Holder of petitioner cannot give evidence on behalf of petitioner for the acts done by him and he can give evidence for his acts only as per proposition of law laid down by Hon'ble Supreme Court in the decision reported in S.Kesari Hanuman Goud V/s Anjum Jehan and others 2013 AIR SCW 3561 wherein it is held as under:
"The power of attorney holder cannot depose in place of the principal. Provisions of Order 3, Rules 1 and 3, C.P.C empower the holder of the power of attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The terms "acts", would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has preferred any "acts" in pursuance of the of attorney, he may depose for the principal; in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined".
SCCH - 11 15 HRC No.274/2009 Hence Power of Attorney Holder of petitioner cannot give evidence on behalf of petitioner for acts of principal and on this ground also, the petition is not sustainable. Even the petitioner has not filed affidavit as contemplated under Karnataka Rent Act and on this count also, the petition is not sustainable. Even the petitioner has failed to prove bonafide and reasonable requirement. So I hold that, the petition is not maintainable and liable to be dismissed. So, I answer point No.1 and 2 in negative.
18) POINT No.3: In view of answer to points No.1 & 2, I proceed to pass the following:
ORDER The suit of petitioner is hereby dismissed as devoid of merits.
No order as to cost.
SCHEDULE All that piece and parcel of the commercial shop premises No.5, property bearing No.153/B, situated at 1st Cross 5th Main Road, Chamarajpet, Bangalore - 560 018, measuring east to west 10 feet and north to south 10 feet and bounded on:
East by : Road,
West by : Private Property
North by : Private Property
SCCH - 11 16 HRC No.274/2009
South by : Shop No.4.
Draw decree accordingly.
(Typed to my dictation on online by the Stenographer, corrected by me, then pronounced in Open court on this the 30th day of March, 2015.) (GANAPATI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM A N N E X U R E LIST OF WITNESS EXAMINED ON BEHALF OF PETITIONER:
PW.1 - Jagadish LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENT:
RW.1 - A.Raju Bhandari LIST OF EXHIBITS MARKED ON BEHALF OF PETITIONER:
Ex.P.1 Certified copy of SPA Ex.P.2 Office copy of legal notice Ex.P.3&4 COP and postal acknowledgments Ex.P.5 reply notice Ex.P.6 Encumbrance certificate Ex.P.7 Certified copy of Sale deed
LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENT:
Ex.R.1 letter written by the petitioner
Ex.R.2 photo of entire building of petitioner
Ex.R.3 one CD
SCCH - 11 17 HRC No.274/2009
Ex.R.4 Certified copy of petition in HRC No.273/2009
Ex.R.5 Certified copy of Order in HRC No.273/2009
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM