Karnataka High Court
Chikkamanchaiah S/O Venkataiah vs H. Honnalagaiah S/O Late Alage Gowda on 24 October, 2007
Equivalent citations: 2008(1)KARLJ119
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
1. HRRP. No. 220/2007 is filed by the petitioner against the order passed by the Small Causes Court under Section 45 of the Karnataka Rent Act, 1989 (for short hereinafter referred to as the 'Act'), whereas HRRP. 297/2007 is filad against the final order passed under Section 27(2)(a) and (r) of the Act directing the eviction of the petitioner from the petition schedule property. Therefore, they are taken up fox consideration together and disposed of by this common order.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original HRC. No. 611/2004.
3. The subject mattar of this eviction proceedings is a residential premises bearing No. 96/115 situate at Bhuvaneshwari Colony, Hoysala Road, ward NO. 52, Hanmanthanagar, Bangalore-90. The case of the petitioner is that he is the absolute owner in peaceful possession of the scheduled property which was allotted to him by the Bangalore City Corporation on 19.11.1991. Thereafter, he put up a residential construction and let-out the scheduled premises to the respondent on a monthly rent of Rs. 200/-. The respondent was not in the habit of paying the rents regularly and that he became a defaulter in payment of rents from. July 1992 till March 1994. Therefore, the petitioner was constrained to issue a notice demanding the arrears of rent and. vacation of the premises. In reply to the same, on 18.5.1994 the respondent admitted the tenancy and contended that the rent is only Rs. 100/- and that he had paid Rs. 10,000/- as advance and that he is residing in the premises for the last 17 years. Thereafter, the respondent filed a suit in OS. Ho. 4133/l996 on the file of the City Civil Judge, Bangalore for a decree of permanent injunction contending that ha has purchased the suit schedule property from the petitioner for a consideration of Rs. 30,000/- and that he is in possession of the property since 1976 and as such he is the absolute owner. The petitioner contested the suit. Ultimately, after the trial it came to be dismissed on 3.11.2003, Thereafter, the petitioner got issued one more notice on 12.4.2004 terminating the tenancy of the respondent and demanded to pay a sum of Rs. 33,800/- being the arrears of rent till such time. The said notice was replied on 13.5.2004. Thereafter, the petitioner sought for eviction on the ground of arrears of rent, it is also stated in the original petition that the premises is required for the personal use and occupation of the petitioner and his family members and that he is residing in a rented premises. Further, it is stated that if the petition is allowed the respondent will not be prejudiced in any manner, on the contrary, if the petition is not allowed, the petitioner will be put to untold hardship, irreparable loss, injury and hardship. Therefore, the petitioner had sought for eviction of the respondent from the petition schedule premises both on the ground of arrears of rent as well as self-occupation. The said petition was accompanied by an, affidavit.
4. After service of notice, the respondent entered appearance and filed detailed statement of objections virtually reiterating the stand taken by him in the reply to the second notice, but denied the issuance of the first notice. He admitted the filing of the suit OS. No. 4133/1996 by him and its dismissal, but contended that he has preferred an appeal in. REA. No. 176/2004 and is pending consideration. He set up a title in himself and denied the arrears of rent claimed and also denied the requirement of the petitioner for his self-occupation. Infact, he set-up a stand that the petitioner approached the respondent about 29 years back stating that a free site was allotted to the petitioner by the Bangalore city corporation and offered to sell the same for a sum of Rs. 30,000/- and that the respondent had paid a sum of Rs. 30,000/- towards the full sale consideration and the respondent was put in possession and that it is the respondent who had put-up construction on the said site and is in peaceful possession and enjoyment of the said property. The petitioner taking advantage of the flliteracy of the resspondent was evading to execute the sale deed and therefore, the respondent was constrained to file OS. No. 4133/1996 and after trial, the same was dismissed and ha had preferred an appeal. Therefore, the respondent contended that the petition is liable to be dismissed.
5. During the pendency of the eviction proceedings, the petitioner had filed an application under Section 45 of the Act for a direction to the respondent to pay the entire arrears of rent at the rate of Rs. 200/- per month and in default to vacate the premises. Both the parties adduced evidence on the application under Section 45 of the Act. The trial court on appreciation of the oral and documentary avidence on record held that the petitioner has established the relationship of landlord and tenant and the rent is at Rs. 200/- per month and the respondent is due in a sum of Rs. 39,400/- as arrears of rent and therefore, allowed the application directing the respondent to pay the aforesaid amount within one month from the data of the order, failing which the respondent was ordered to be evicted forth with and the case was adjourned to 23.7.2007. Aggrieved by the said order the respondent has preferred HRRP. No. 220/2007. The raspondant deposited the rent before this Court and presented this Revision petition.
6. As the respondent had deposited the entire arrears of rent as ordered by the trial court, the trail of the eviction, proceedings was proceeded further. The petitioner filed his examination-in-chief by way of an affidavit and was partly cross-examined. The respondent did not step in to the witness box. The trial Court on appreciation of the oral and documentary evidence an record held that the case of the arrears of rent is made out and it was also held that the petitioner requires the scheduled premises for his self-occupation. Therefore, the trial Court had passed an order of eviction on both that grounds. Aggrieved by the same HRRP. No. 297/2007 is filed. The petitioner has entered caveat.
7. Sri. P.S. Manjunath, learned Counsel for the respondent, contends that the eviction petition is liable to be rejected on the sole ground of the petitioner not having filed the affidavit as contemplated under Explanation-I to Section 27(2) of the Act, inasmuch as, in the absence of such an affidavit, no presumption could have been drawn in favour of the petitioner and the petitioner ought to have adduced evidence to substantiate his claim of self-occupation and the court was under an obligation to consider the case on merits and pass a reasoned order and as the same is not done, the order of eviction is liable to be set-aside. Insofar as the question. of arrears of rent is concerned, he submits that the trial court ralias on the so called admission of the respondent in the first reply notice, where it is stated that the respondent has admitted the relationship of landlord, and tenant and the rate of rent is at Rs. 100/- if that is so, the court ought to have acted upon the remaining portion of his statement to the effect that he has paid nearly a sum of Rs. 17,600/- and should have given deduction to the same while arriving at the quantum of arrears of rent. The same having not been done, the finding recorded both on the application filed under Section 45 as wall as on marits under Section 27(2)(a) and (r) of the Act is vitiated and require a to be interfered with.
8. per contra, the learned Counsel appearing for the petitioner submitted that this is a case where the tenant has completely abused the process at the court and want to the extent of setting up a title in himself and denying the title of the petitioner filed a suit for injunction which ultimately was dismissed both by the trial Court as wall as this Court and is squating on the property nearly for last 29 year without paying a pie. Under these circumstances, the trial Court was fully justified in passing the impugned orders which are based on the legal evidence and do not call for any interference.
9. On these contentions, the points for consideration in these two Revision Petitions are as under:
1) Whether the affidavit which is filed along with the petition would not satisfy the requirement of Explanation-I to Section 27(2)(r) of the Act.
2) whether the finding of the Court below on the question of requirement for self-occupation is not justified?
3) I Whether the finding of the Court below on the question of rate of rant and arrears of rant requires interference?
10. Point Nos. 1 & 2:- Sri. P.S. Manjunath, the learned Counsel for the respondent brought to my notice the amended provision of the Civil Procedure code which applies even to the eviction, proceedings under the Act, Order VI Rule 15(4) mandates that the person verifying the pleading shall also furnish an affidavit in support of his pleadings. Then the learned Counsel brought to my notice Explanation-I to Section 27(2)(r) of the Act, which reads as follows:
Explanation I -For the purposes of this clause and Sections 28 to 31,-
(1) Where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or far any member of his family dependant on him, the Court shall presume that the premises are so required;
(2) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law.
11. The learned Counsel relying on these two provisions submits that the affidavit filed by the petitioner, along with the eviction petition, is under Order VI Rule 15(4) and it cannot be construed as an affidavit which is filed in pursuance to Explanation-I to Section 27(2)(r) of the Act and therefore, no presumption could have been drawn by the Court below, while passing a decree for eviction on the ground of self-occupation.
12. In order to appreciate the said, contention, it is necessary to look to Rule 33 of the Karantaka Rent Rules, 2001 which makes the provisions of the Civil Procedure Code applicable to the proceedings under the Act which reads as under:
33. The provisions of the Civil Procedure code to be generally followed:
In deciding any question relating to procedure not specifically provided for in the Act or by these rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908.
13. In view of Rule 33 of the Rules, it is clear that the provisions of the Code of Civil Procedure is made applicable to the proceedings under the Act as far as possible. If the Act and the Rules specifically provide for any particular procedure, then to that extant the application of the code of civil Procedure is excluded, under the Act an application under Section 27(2)(r) is to be supported by an affidavit. When once there is specific provision providing for such an affidavit accompanying an application, then the provision under Order VI Rules 15(4) of CPC stands excluded. It is not necessary to file two affidavits, one under Order VI Rule 15(4) of CPC and another as contemplated under Explanation-I to Section 27(2)(r) of the Act. Such an affidavit under Order VI Rule 15(4) of CPC would, be necessary in support of the application filed under the other provisions of the Act to which, Explanation-I is not applicable.
14. It is not in dispute that along with the application, the petitioner has filed an affidavit supporting the facts stated in the petition. When once such an affidavit is filed, presumption has to be drawn by the Court in favour of the petitioner, Infact, interpreting this provision the supreme court in the case of P. Suryanarayana by LRs. v. K.S. Muddugowramma ILR 2004 KAR 2398 has held as under:
The presumption enacted by Explanation-I (i) appended to Clause (R) of Sub-section (2) of Section 27 of the Act is mandatory and has to be drawn in view of the phraseology employed by the Legislature in enacting the provision which speaks - the Court shall presume that the premises are so required". The presumption has to be drawn of course the tenant may rebut the presumption. The mandatory presumption enacted by the 1999 Act shall have the effect of shifting the burden of proof; while the landlord may rest on the presumption, it will be for the tenant to rebut the same.
15. In the eviction petition the petitioner has stated that the premises is required for his self-occupation and has filed an affidavit as contemplated under Explanation-I of Section 27(2)(r) of the Act supporting the allegations made in the application. The allegation which is to be made in a petition under Section 27(2)(r) of the Act is that the premises is required by the landlord for occupation for himself or for any member of his family dependent on him when once such an application, supported by an affidavit is made, than the Court shall presume that the premises is so required and nothing more requires to be done as far as the landlord is concerned. it is only when the tenant leads evidence rebutting the said presumption, may be the landlord has to strain his nerves to prove his case by producing such evidence which is required for acceptance by the Court. In the instant case, such an application supported by an affidavit is made and therefore, the Court below was justified in drawing the presumption in favour of the petitioner stating that the premises is so required for self-occupation of the petitioner. Though the tenant-respondent had a right to lead the evidence to rebut the said presumption, he did not choose to enter the witness box even in the cross-examination of the landlord-petitioner the entire cross-examination is confined to the title of the property and the arrears of rent and the case of self-occupation is not challenged at all. In the light of the aforesaid material on record, the Court below committed no error in recording a finding in favour of the petitioner that a case under Section 27(2)(r) is made out. Therefore, there is no infirmity in the impugned order which calls for interference on this ground.
16. Point No. 3:- Insofar as the ground of arrears of rant is concerned, the material on record, shows that the respondent-tenant went to the extent of denying the title of the petitioner and setting up a title in himself. Though in the first reply notice he stated that the monthly rent is Rs. 100/- and he has paid a sum of Rs. 10,000/- towards the advance amount and Rs. 7,600/- for the purpose of construction, in the statement of objections to the eviction petition, ha had denied having issued such a reply to the first notice. In the second reply notice the stand taken by the respondent is that he became the absolute owner of the property by virtue of purchase of the schedule property by him from the petitioner and that the petitioner has executed a sale dead in his favour. It is his further contention, that for the last 29 years he is in possession of the property and that he has paid a sale consideration of Rs. 30,000/- to the petitioner and therefore, it is not his case that ha has paid any rent at any point of time to the petitioner. It is in the light of this evidence on record and relying on the admission contained in the first reply notice as well as the evidence of the petitioner both under Section 45 of the Act as well as under Section 27(2)(a) and (r) of the Act, the Court below has come to the conclusion that the rate of rent is at Rs. 200/- per month and fox non payment of the same, the respondent is liable to be evicted. Therefore, the said finding which is based on the legal evidence cannot be found fault with, In fact the tenant went to the extent of getting up a title in himself and filed a suit which was dismissed after contest and the Regular First Appeal against the said judgment and decree, before this Court is also dismissed.
17. In the light of the aforesaid circumstances, the Court below committed no error in passing both the impugned orders. However, when once the tenant deposited the entire arrears of rent as ordered, the eviction order under Section 27(2)(a) of the Act would not become enforceable. Accordingly, the Revision petitions are dismissed.
16. The petitioner is permitted to withdraw the amount deposited by the respondent in HRRP. No. 220/2007.