M Venugopala Naidu S/O Late Muniswami ... vs B N Puttalakshmamma W/O Late B S Nanjappa on 22 October, 2008

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Karnataka High Court

M Venugopala Naidu S/O Late Muniswami ... vs B N Puttalakshmamma W/O Late B S Nanjappa on 22 October, 2008

Bench: B.V.Nagarathna

HKRP.No.3}4.2GQ6

....'_i_.....

[N 'l'H};'} PHGH COUKI' Ob' KARNA'l'AK1~'\ AT BANGALORE}

DATED THIS THE 2239 DAY OCTOBER, 2008 

BEFORE

'1'm«; Hom~_s1.1~.: MRS-.JUS'1'l(3I:3 id.V.NAGAR_£K;i'Hi§i§C "  "' 

H.i<.1<.P.N0.E _{__:,g_g)@  

BEIWEEN:

M VENUGOPALA NAIDUV, 
S/'0 LATE} MUNISWAMI mAmu--..
SHOP N(}.5, 1~:c>.,s31_--T,  -A  
1 rm MAIN, 3RD'-AIFID ezgrri B 
4TH '1' BLOCK, JAYANAGAR,»'  " " 1.
BANGALoRE--s6o.e.41'--V. '

 lr'E'l'i'l'i()NI3}R

(By :szi:,1~{ v RAM}§<3uAr§'D2<A. mo 85 K..S.KRlSl~iNAPPA,
ADVS.)   ' ,.  '

' V "  _vv,_;":;2_:,;.A,"1*:--<; as 3 NANJAPPA
A{3%ED ABGUT 73 YEARS,

1-{N §3u'4*:'ALAxsHMAMMA

'"  {simiiﬁ EECEASED BY LES)

  A)

1' .1;s'§:~g.x3§.v1za.i.)::;v1, w/0

B¢.N.PRASANNA KUMAR, MAJOR,

 NC).J-- 19, SECI"I'C)I"\'--l, HMT' OFFICERS'
 COLONY, JALAHALLY,

BANGALORE.

I:$.N.GUNi)ANNA,
2"" RESPONDENT HEREIN.

B N GUNIDANNA AGED AB()U'l' 43 YEARS, R]A'I' N081/T, IITH MAIN ROAD, 4TH T BLCJCK, JAYANAGAR, HR!-{£4 . No . 5'34 . 2006 34TH £3 GROSS, BANGALORE~56() O41 ;e1s::s;Jo:~:r.>:c::§$§';'*SLj'--.T:"'-., (By Sri: 3 smu BASHA FOR C] z~:.':_l1:" ,a§ " 4_ SRI.B.N.ANAN'I'HA NARAYANA 55 D.(}.CHINP¥A.§'9A"-GQWDA; ADVS. FOR LIES OF' DECEASED V 'mas HKRP mmsu u/rs 45 (1)ACi'_AGA1~NSi"*':fHn:u ORDER DATEI):2.l1.2€}{)6 PASSED LN' HR<:.;NQ.v,;3H8»1 ON THE FILE OF THE XII A£:I';L.sMALL' ='.1AUSE'.S JUDGE, BANGALORE, (sec:-1--8}, oi+sM:sszN<; THE ggvrcnon PETITION FILES ms 97 (2) 333- 9'? Krmcr AHDVALLOWING THE EVIC-TION PETI'!'I.§1ifJ FILEQ (2) (13 55 (1) 65 {HS 31(a)&(c) or:-KRACr." .

This HRRP gomi:1gf'os:£':fof ,4gL>_M1Vssj:k}iu on this day. the court delivemti 'foI1%:xWing:'~ 2 V is ﬁled by the pctiﬁoner/tenant bci;_1g"agg'ié§ed thté order of eviction passed under Section as as under Section 31(3) and (C) of the Reﬁt Act, 1999 in HK(3.No.384/ 2004 dated by the K1! Addlﬁmall Causes Judge, The rcicvant facts of the case are that the petitioners ﬂied the eviction petition on the ground that the schedule premises which is a shop is required for the wife of the second mspondent Smt.H.K.Uma who is a Science Graduate 5* vi *3; /X'/1 / HRR?.£~io.S'E4.2{}G6 .. 4 ..

schedule premises was required by the tenant 'for the purpose of the said buainess and that the rcspo1:'at1:§_¢I1ffs .._we1e not really in need of the schedule premises, hand it was a more dcsixt: to get my petiti<311t:;*--.€§V<i§ii£:£i;-- _

4. Based on the above picax;i'ix1g$ ,' 't31':": i. the foikmving points for its qonsidérafian:

"I. Whether the gaitiorzers they are required petfiion' pr'efni$es far their bonaﬁde um"

.'.£..VivVhetf;er~1:¥e:titibner_1V2i5;1Vﬁfgicjé that she is a wicictapcind .*;:_eni£:r..£:'fz':.?;ei*rz.jg€md is entitled' to .. i:_1?z=1£éc;E';:'a:y1g ' of the petition schedule ,;7*§;%iseS?V.»A'L'. .

-._V 3. -_ W.*f;ei!1:%r petitioners proves that _respondén'i has sublet the petition sdzedule one Mr.N and "Srria..ShakuntaIa Lakshmi as contended? .3} Whether petitioner proves that 'rarﬁpdrtdent has aaquired number of oommerdal Aresidemiai premises both in the name qf respondent and his fmnify members as " comended?

.5. Whether petitioners are entitled to an Carder of evidian umcler Section 27(2){r}(b}(i} & under Section 31(1)(a} & {OJ Of the Kamatajca Rent Act, 2999?

6. What crater?"

5. In support of their case the respomienti Lajxdloztis were examined as PWs.1 85 2 and got marked Ex.P1 to P30 J?

K I 2 »,/"

J .

HRH? . No. 51:4 . 2086 ._ 5 _ while the petitioner] tenant got examined RWs.1 and and got marked £:1x.RI to R6. 011 the basis of the above"

the trial court held groint No. 1, 2 and 4 in the point No.5 partly in the aﬁirmaﬁveianti " . and point No.3 in the negative o:xﬁer:'al1oi=§ed"t'iE1e petition under Section 27(2)(i) 85 6) Ma)" (03 of L' the Act granting the petiﬁoner two' '1I3.'(K§I'}..ﬂ1Sﬁ§!ii1}1f.' fiom the date of the oxtittff over vacant possession of the under Section 2'?'(2){b) of V' aggieved by the said p'r§:;iV:ﬁft§;IG11§t9::f',l"_'ta3}1'€;£31VtVVV'has preferred this revision petitiotie " _ 4' E). Quxiag lite-__ of this "revision petition. the r isaavﬁiect two applications, one under Order ' j'(f.l+_'(,1 for aciditionai evidence and another under "£}:'xﬂe1' 1? CPL'. for amendment of the statement of objeetiezaev before the court below. By an order made by 2 .. 'Amie these applications are to be considered at the of ﬁnal hearing.

i have heard the learned counsel for the petitioner and ieanied counsel for the respondents. ;?

W x /' HRHi'.No.5'}4.;§fCJ{}6 .. 5 ..

8. it is submitted by the learned oounsci foo the petitioner that the respondents / landlords have not a case under Section 27('.2.)(I) 55 (j) in as requirements stated in the oviction is foot corroborated by the evidence 1 ._ therefore, the trial court not a'*' presumption in favour of tVb.e.u:i12s1'}<7r1dt.:r1is/V and thereby allowing the pet:§7ﬁGnso% 27(2}m of the Act. He t"Lu'thor of Section i3'?(2){j} wozo in the instant case _A w_a§;xr1o speciﬁc rnention of the properrﬁ :_f;i;:.:oL"';;$£':{:itio11er and that oven if the 'ho is residential premises but, . V.-'t;hé"~o1ﬁ§js:ct..«mattorWof this petition being nonmesidentiai, oouid not have been invoked by the rospomdoofog, 'EH6 further states that on account of the death of Srn"t.}f31.N.Puttalakshm.amma-ﬁrst respondent the petition L11;cio_r Sootioo 31(9) $6 (Q) becomes infructuous and therefore, the eviction ordered on the said Section by the trial court cannot ennuro to the benefit of tho respondents. He ftlrthor submits that if his applications fiied in this revision petition are aiiowod, than the matter would have to be remanded back to the trial court: for frooh oonsitioration. ,, Hl~€.R.P.Nt:>. 5'17? .2006 _ 7 ..

9. Per contra, it is submitted by the learned eouneeI"for the respondents that the requirement of the A' has beer: established before the triai court _ '

2.'?(2)[r] of the Act and that the "«p:a¢e;§' reepemtient with regard to the availavbéﬁiiitﬁgﬁf for the petitioner] tenant wouid:.V:V"pmve Miixasder Secﬁon 27(2}(i) of the ﬁe; . dea!tiiVV'of""the ﬁrst respondent occurred giietition being aiiowed under:.,Seeti0n _?d~u 2&0" Therefore, considering supported the pieadinge off ..the trial court was ghstiﬁed in akiowing theevivctiona" which does not eat! for any interfeferxee at ti;:e hend"3 of this court. Learned counsei for submits that the appiicahlone filed in this-tjetrisiéigg to be rejected in as much as the material _ produced" iayhfthe peﬁtioner herein cannot be in the form of :ez1be$eq1..1e1it events arid ﬁnther the respondents seeking _ «'e§eetregent of tenants in respect of two other shape would not .eeh:e in the way of the Ieeyondent seeking eviction of the VV peiitiener in respect of the schedule shop. He therefore summits that the said applicaﬁons ought to be rejected. /97€ /' 3/ .

1/ U/, .H§<'.I-{£:'.N0. 531$ . 2096 .. ._

9. Both the, counsal have reiitxi up-on dccisionsj support of timir arguments, which shall be advertcd~¢:'>f ''

10. 'Taking note of the rival submissions. feiieifﬁiig pointa arise for my consideration in tt1i§Ievisi{)n ;:»e:ii»';i.<_;e11V:

'*1. Whether the petiti0ner'haS._madeV.::u'z'va"

me far additional erﬁidsnw Valéjp =.fe.!r. amendment of the siatenterti, bf ob}'ecrifon'sq'_=as"1o necessitate the remand cf thé'-. !1"£€1E.t!er {ca «-the 1112:! court? 7 = :1'. 'c2ns1bér tc..,p0ir_zt"'N0.I is in the negq1it2é;..Vzb?"a::-{her €Tf)"d_€;'?' the trial' cow"! regjui1'ésTA..§niezf¢fence¢_"on the' grmtnci that the re.£:_1:J~:):v:*-.,::a'3»:-.*.;r:§t"' ."".s;.r:_svfctifetii __te ~e5ta.blish their case uncier Secz'ion'£?'?*{2}{rf}TV&,(i$ and Seciiefm 313.1) :3; (C) offhe=Ac'£?" " . é . a1 1. péizisai 6f""t11.§:___9€.;titioI1 far eviction would reveal that rc3§§odnd§i:;t3_ i.e., the Lanciioxtis am the legal one V.S.Nan_iappa who had constructed ﬁvt: that in respect of shop No.5 the eviction was u u " 'Is'}:1e said shop was iet out in the year 2001 01:: a rent of Rs.5U0/- and the ttmagmzy is as per the V' Eﬁgﬁﬁh Calendar month commencing from the ﬁrst day of " each Cialendar month and ending on the last day of the same month. The mspondcnts had sought for eviction of the petiticmer herein on the purported ground that the: second responéent was the oniy earning member of the family and

-'/=,..--

HR1<i£-'.NO.5'§4.;7fU{J6 .. 9 ..

that he was employed in HAL and that the was meager and insuﬁicicnt to meet the mcdicai mqtﬁﬁmgnt of the first respondent as Well as the "c<f_ thc m$jpo11d&1:1t who were a:iiing_Aa-3 we§i""as::ft6'-: z31ce!:"

educational expenses of his daf.1_ghttr, 3 « . _

12. In para #3:: 85 7 of the peﬁﬁox; 'far cvjctiQt1"the *ﬁé1'i*:1it3..of the requiremem. has be¢n"3iEsii;ed in 'fo§..£ov§3*i;;:ugVVV{e1'ms éjzd the same are extracted as.'f£$iit)as.éfs:

"lit is Snb?fsifted"zhai .Sm:t.H.K.Uma, the wife """ ﬁne 2?i'%pe;'i£i9ner'i3vsz:icnoe graduate, besiciosm ' passedocrmirmeroe examinaiion in English "typ;'ng'cz}:;dAhaS=g?so dorrzpleted oomputer training, " VV h§3.pir15;2.Vsu_._f'{'Ez:iéa,§ icriowledge in running job iyping V'i:1.sf£t1.¢te .and' {of open a, telephone booth, Xerox

-- .. miiching' fax machine and to undertake; job typing"--wprk,. The schedule premises IS suitabie 5 I idealiy suited to esfczbﬁsh the said business. A, [t. is;._a1so further suiiabie thaé the petitioner's

-- j%ziri_!y_'_.is raiding behinci Zhe schedule premises, Eaok cgﬁer the _f:;mru'Iy members of the V. . pz-3:z£§<§nners, who are in the evening of their ﬁfe A simulianeousiy look after {he business case. It is also subnzitied that the 13' petitioner is a widow senior ciiakerz, aged about $78 years, the saheduie pmmzlses is banaﬁdeiy reasanabfy frrtrnecifaieiy required 20 the Is' peti£ioner's daughter-in-{aw Smt.H.K.Uma io esiabli$i'z the above said business, who w get sujfﬁlient knowledge in the said field and the schedule premises :8 ideaiiy situated and suitable to establish the said business, with the intention of establzishing the above said busi%s, the petitionem appmaxzahed the respondent appraising their need and requested the re$p0nc1eni to v-V';

i"§RR£'.§\JO.5".f4 .2f}{}6 .. 19 ..

vacate and deliver the vacant possession of the schedule prermkes to augment the income ofv§ﬁz-:_ir{._ family. The respondent in the beginning aotﬁepieétit V' -, to vacate, but later has refused to L'C§,{ff3ii€u :£3't:e" ;_. same.' " ..

13. It is ﬁxrtkwr averred that:-s'ii1c,e¢ this gé'fi£§.O_n§§1»x.,}1ei'e«in' j had ajtcmative premises at ,VSt1'é <§t;_.1 ihc schedule prcnﬁses was not» i:.§r__ tho; 1pcfi%::i6nerVjherein' for the purpose of busing;-s;:A."'!7hie..ave:13i1f:z3.ts that effect are as follows:

_V --.'jii;_ is" the respondent

--.ac:;g:i:'red "*:r:2;,;z:rr:E::tcé:=.__<2f eommérciaf and residential prerhigas b:;)th.i1i*1he nztmw of him and his farnify meﬂ¢befa>':"'inVADeﬁ-migatha Char Street, let out the 'same on higher-~re§z£ advance to the number of zefmvnts wad théfespormient is rich enough. "

__fAs_a cV<)"1Vu1?m:r_¢to the said pieadings of the mswndent, A [tag -vgetitiﬁﬁer herein had denied the avexments of the H * regard to Section 27(2)(r) in the foﬂowing i:ei::a$":. «V V '"1"h,e allegation made in para 6 of the peiiiion that the wife of the 2'15' petitioner is a science gradimte and that she had Icnowiedge qf typing conrzputer training and had suﬁicfeni Icnowfedge in running job typing insiituie, to open a iefephone booth xerox nwzchine, fax machine and job iyping irzsiifute work in the peiition scthedule shop and that is suiiabie and ideally suited 20 estabizsh the said business is totally faise and incorrect. Further she can look after the %~/' H§{§<I:'.NO. 534.2306 _. 11 _ fwnily members is aiso false and incorrect. petitioners are put to strici proof of the same. The aliegation made in para 7,~«~~O_.jf'.fhe::' .. petition that the 15' petitioner is aged__-?'--8 and senior citizen is iotaiiy false T' except the fact that she is q "1?'I*i,e~.p:e1i'£io?zV sohecziuie shop is botzaﬁdely r-ecason_a.£)VIy" . required to the 15' petitiozgerﬁ r2aughter¥in4?ciwA if Smt.H.K.Uma to esiabiish bttsiréws go!' ' Suﬁ'?-den; knowledge*irt--.._the said ﬁefd isjdgaffy suited to establish Vihe petitioners approached .Vres_pondés21 _appré1ising their need to ,Aoiéer.13acarzfV"'sc:?Ledule premises to au--gi'.enl'_ 31138 ;rams:y*»:~a totally faise and incorrect. fctzrfasé put to strict proofofthe ' V. ' in

15. ﬁiiﬂer Section 2'?'(2)(j) of ~ the Act is -gggtitioner herein avowed as follows: " §'I'he_ ollegogion made in para 9 of the

-- , petition fhtzt the fespondent acquired mnunerdai and residzential premises both in the name of him ' his ftimfly members in Devanatha Char _ 3b'eef..Var1d fez out the same on higher rent and T. to the number of tenants and the rééﬁspozicieni is rid"; enough is totally faise and The respondent is survived only out of 'inmme derived from the schedule shop. "

" » AA 'T1'é:.¢.' "in support of their case, the second respondent was 'oxozmmed as 1-'W.1 and be hard. ﬁlcd his evidence by way of ' affidavit Whﬂiﬁin the averments made in the petition for eviction are miteratcd. He further states that S.C.No.853/2003 was ﬁlsd in mspcct of the neighbouring shop of the acheduie premises for ejectmcnt of the tanants iii' if?

9»/' .t~£RR§~'.§\€o. 524 . 2006 _.. ..

therein for bonaﬁde use and mrcupaijon for the purpose of installing an the tlaeilities. 11; is submitted by.&.t1§eV"iefa;ei1ed counsel for the respondent that original suit --§v§?*asV $11 the year 1999 and theneafter the"'sa;xdv S-_uit_vwee' u ' into S.(3.No.853['2003 which peﬁﬁonefs counsei.

17. :1: is in this Qiate-:fi1e"1peﬁtioi1ef has filed an application under Order permission to ariduce at:i£iit:'£<3r;":sal:'evi<5.iAen(1::e.:Et1 'a' subsequent event, namely, -reegﬁpndents have obtained vacant posseaisigxi of another teuant during the seoend week emf 2000, by virtue of 3 Judgment mad .-- V. g5,0»Nd.V353vf2(}{}3 and thexefom. the requirement xespondents even accepted stood in" Hy By .a'ﬁ':--.af:>pficaﬁon under Oxtier Vi Rule 1'? read with 151 of (JP_C':. the petitioner has sought for amendment of his .et:§'t§:naent of objection by incorporating para lizia) in the Vffoiiawitlg manner;

"(ﬁne Rajkrumzxr Padki was ct tenant under the peiiiianers in respect of the shops N03 & 4 constructed in property 814?', 119' Mam, 343* 'B' Cross, Jayanagar 4"' T Black, Banga1ore-41, measuring East---West 9 £2? and No:1fh--S<2uth 20' and the petitior:.er$ obtained an order of eviction agaxhst the said tenant in S.C.No.853/2003 on we HR}~{8,NO. 51:4 .2G(}f5 .,13,_ the file of the Smait Causes Judge, Bcmgalore and further about the 2"" week of Deaember 2906, mi petitioners have obtained vczami possessior; » {he said shop and therefore, even g'f the of L. the petitioners that they require a shop 'V' the daughter-in-law of the 13* pen'tioner"-«ta business to augment the income of ttr.e'f:H:ra:'ly"'~1s accepted, the said requiremeiii' stamﬁs f1d_!y met"--..} by virtue of the above fact flux! pe.£iiionx3¥°-LL._ ; hearing obtained vacant posséssziari 9f the V' from Rajkumar Paadlciz ﬁwrgfofe, thtapgetition ; ﬂied for eviction under Sac£fonV' ;2_?{;?){r)._ of Karnafczka Rent Ac! 199I"";._¢'1gMt1inst the is no1main1ainab_Ie.T' Tixe said amendment is i117 vﬁiéction 27{2){r) of the Act.

18. fine respondent hemin has ﬂied his oi;;'ecu5:;s to ;;»;;:ti'~:_;§1.%:~..:ipp1:catim;:;s. He contends that the v ms;_t§£:nd__(§nt$ their evidence had stated about the 1 'Qf"'$';'{E'.VN.O«853]2UU3 in respect of neighbouring pfremimg' c&5ufTj';ﬂi.£€vV$chcduje shap and that the saw pmcee. ding WasKﬁic;éi.Vthc husband of the first respondent and father x V' ..oi" Lthc resyondcnt and thencfom, the fact that

-- '§3.}C.fSiAo.853/2{X)3 was by the respondent couid not T Wbé: considered as subsequent event. Simjkarly objecting to appiication for amendment to the statement of objccﬁons the mspondents herein submitted that in respect of the two ﬁhops which were subject matter of cjectfzacxﬁ, separate X .H§{§~{J:'.NQ. 5'-'}'4 .2{}{}':} ~14"

proceedings were filed and in xespect of the three shops and hence the possession obtained under the not meet the requirement of the xespondents"'_*1:erein.xt' tJI;«tiet' the eireunxstances respondents" b T applications ought to be dismissect;__ A

19. On perusal of the eoiiteixts oftne filed b3} the petitioner and note..of'the--.fact evidence of the second petitEic;i1eAr"- of Him" g of an independent * of the tenant in resggeetttofeetezo ¢:iuri:eg the pendency of this E court, in my view' the same cannot teibe subsequent event for the purpose 2thC~.--{)Cﬁﬁ0I1CI' herein to lead evidence or seek ' -the matter on that gmund. Under the " the said applications are dismissed and point No..1§s ejiswered in the negative.

" As already noted the petition for eviction. was ﬁled under Section ;m:z)(x3 as (j) and Section 31(3) and ((3) of the Aet, but it was submitted by the learned cotmsei for the petitioner that on account of the death. of the first Iespondent though subsequent to the passing of the impugned order, the ground under Sectior: 31(a) 6:; (<3) would féé ' ex"

// §ﬂ{R£'.£'~EO. 51%' . 2006 .. 15 _ no longer be avaiiabie and therefore, the eviction petition under Section 31 Wouixi have to be dismissed. Ever} if the said posiﬁon is accepted, nevertheless it is for theﬁeﬁifioxxer to make out a case that the grant of 27(2}(r) 35 (3) am not in aocoryianoe v;ith"..asvs._{¢..L' successfully assaii the impuged of 1;:

21. As far as Section '27(i2)(f} --.tV;he.'::fe<:1o,i1t::::1eniV:

stated was that the Vuﬁsspondeiit "iequ1re' d the premises for starting a training and amer' :j"aétivii:acs Vsi;eh"as job em, and in support of the sa,idvVv"¥T3§'1I1i1'eI:ieI::'x:t;.éV E 'E e0PY of the degree certiﬁcate dated 1983., copy of the computer training da{eti».i££.3a;a. 1999, certsified copy of the commerce ' dated 24.8.1984 and oertiﬁcate dated " . for having grassed intemet E}-commextre were and marked as !:}x.P.i to 9.4» and in the moss- " .. AA 'examﬁzation of P.W. 1, the suggestions made to the effect that Wife had no intention or ﬁnaxxciai capacity to start the ' business in the petition setzexilxle premises or that she had no experience to carry on the business or that she had iost: touch of typing or mat she had no knowledge in computers, were denied by him. Apart fmm these suggesticsns put to éiw .,/'"

BKRP.No.534.2G06 _'"l6_ aw. 1 which have been denied, no material has been elicited contrary to the case of the respondeﬁts. P.\&f?2.eWho is respondent No. 1 herein, in her extxss-ex;vm;1ineiii£§:r1;" has statecf. that in respect cf the neighbou;fj;iEg.:: sheen double the measurement of ttiekretiitioil she has ﬁled a. suit for ejectmeﬂt <:)'n .tt1e 'as is stated in her affidavit She' suggestion that f.E:1e:"$t1ed;1'Ie is «hot for the business of her Lher daughter»iI1~1aW had no irgte-.e tion leusiness that only to vacate the petiﬁon was filed. Even in Iespeet. of E'.W;'»'3,~ putting a few suggestions to her, :19 wofthyfv' matefial support of the case of the petitioner ibeen ei{cV:ite£i*." On the other hand, the evidence of the sr¢s;.§nasg.g;ana;om is that the respondents' famiky five persons and that xespondent No.2 was the member of the family employed in HAL and that n his salary being meager, there was need for starting an 'enterprise by the wife of the 2"' respondent so as to make both ends meet and oonsisdextizlg the that that she had the xequisite qualiﬁcation in typing as well as in the use of computer and that the scheduie premises along with the adjacent premises which were taken possession by the 7}.

fvﬁx H}-2.b'.l.~'.N0. $4 .2006 .. ..

respondents by ﬁling as ejectmest suit being adjacent to the residential portion of the schedule premises and" the same being convenient and suitabie to esjniﬁeiieéejt is:._er business coupled with the fact xespoﬂdetjt, isntéa' widow aged about 7'5 years and w_}:_'.o required attention of the .ot11er xiiexiibers the 1 eviction was in zespecgtof the ﬁemises as Weii as in respect of tE§e"':;1djaee1;t.Vtts'aio.shops so that the area available in thtjthitﬁ 'shops eollld have been made use of t "€--_k>tI1puter and Typing lI1€'s12i1Zl'1i€"t'€;%Ii1£If'i;§p 'at ieqsifement made out by the respoizdents' pleadings as well as with the documexttsxﬁr o._:si«.._"evi(ienoe which, in my view, are stifiicieiat to A' 'ra.ise_¢ . a presumption w in favour of the ' ;respo3;<:ients""ir_1 terms of sub-- clause (1) of explanation»! of H .. raised the presumption that the require the scheduie premises for the purpose "of..stafi:i11g an enterprise by the wife of the 2"' Iespondest is dependant on him, a question arises as to whether '' Vt " time said presumption has been rebutteci by pieading as well as by evidence by the petitioner herein. As already observed, the pleadings with regard. to the requirement of the premises under Section '2'?(iZ}(r§ have been extracted and eiaborated I W HRRi:'.Nc~. 5'}-4 .2806 "18"

above and the tenor of the cxoss-examination of the respondents by the petitioner in the form of suggeeiions which have only been denied and in the abseneoof rebuttai evidence, in my opinion, the hasu failed to rebut the pxesuxnption'-, '1i_z'e respondents regaxtiing the eneegi of' em; * within the ecope oftsection ﬁne I

22. The trial Ciouzrt nae gone evidence on xeeond and has held ti1eJ:_'i.'1e respondent was in the business to be the eiaim with legend to the sch:ec_iu_le piemieee was genuine and in the abeenee of any " e§;ic§encewi':o« dispute the claim of the Iesponadents, rightly come to the conclusion that in the abeenee other alternative suitable premises and the scheéiuie premises being more convenient and suitable for 'th;e'A'1.'respondents, the claim of the respondents ought to be ' '.l'aking note of the reasoning of the trial Court and for the afoiesaid reasons, in my view, the petitioner herein has failed to suooessthﬂy assaii that the finding of the tin! 'Court with regard to Sections 21 and 1Z7('2)(1') is not in accordance with law. = // i-§HR§:'.fs¥O. 33% .2C§{§6 wig"

22:3. As far as Seeticm 2'7(2)(j) is concerned, the contention of the respondents is that the petiﬁoner had a number of eomznertzial and residential premises" his name as Well as in the name of his é."u'.'_ Bangalore and let out the samev-fo"r'}1ighc§r j coupled with the fact that no petitioner in the scheduieV»;):;'*ez13isee§ h__e'Q1£ghf':.i(§"'be":evicteai on the mid ground. .

24. in support of. tI 1_e-it ﬁeejﬁondents produced b:x.i5';':22 "'ir.attia "essessment extracts in the nanie bf son and his Wife. P.W.2 also (iep<>seVtf:i_V:gettiV: 1g tigietﬁizents i3}x.P.i32 to R28 marked in V_e{zide;iice in Véupggptz of their case under Seeticm 2'?{2}[j). As ' : ".':~s.ga1?:;St said evidence, the "petitioner herein has * stated that in his absence, his son and iooked after the shop and that he is eking V " *Q_§1t 1iis li.ve1ii1ood out of the meeme derived fm-In the yetition V'b's'ei1edu1e pxemises and that gweater hardship would be caused to him ifhe is evicted from the schedule premises.' in the cross-exami13.ati<m, he has iwwever admitted that property bearing 610.148 :31' Davaxxathachar street, Ghamaarajpet, Bangalore which measures Ziaﬂft. X :34 ft. has ;>i1»-i.%<J:«".i'~éo. 5'£é.;30oe* _ 30 ..

been partitioned and one ehop is in the said pmperty. He has aiso acimitted that he is using the schedule for electrical goods business and that i$1x.ir'.'22 is the name of his wife, his sons and himself.

petitioner has also deposed by 1 of his father (pea i3oner~teIea;t_;t}, hie,'.wife' after the shop and that " 1, Q5 Main Road, bgm divided between the chiidnexlﬂ' ef' and that in property Ba11galore- 18, a shed meaee::Le§" to the petitioner which is that the said shw was gifted to 1:113 on 2.8.2004 i.e., subsequent teggjiheeeﬁiing "of petiﬁon tbr eviction. ._ .,';x_'he'Vv'evéidence produced by the petitiener herein Ex- is a certiﬁed copy of the plaint in AA f4d.4889I99 which was subsequently converted into "--S..s;3.No.853[03 cleariy shows at para 5 that with the intention of opening a xerox, job---typing machine and S'l'i)[l$:$£) booth in the scheduie premises, which is the subjwt matter of the said suit, the ejectment of the tenant herein was sought by the xespondents herein and therefore "i-IR}-1P.i\JC>. 5&4 . £23306 .. ..

the intention of the xespendents, both in the suit filed in respect of two other shops estabﬁshed. as well ae. of the schedule premises is eozneistetat. islxwiviéi copy of the partition deed and Ex--KS issued by the Commercial 'i'a;};_ These '' documents make it apparent there has been an aiiohx:en{'Vot;:tt1e_ to the petitioner herein as .of.her members of his fami£3,* that of inciividuai rights in a: hvshrhich is availabie for the peﬁti§.onef'fehes!;t business. The fact that the V1vv.en:io1'eeiize:m::Vh .;a£€h'-e._E'x--R5 is issued by a Competent authoz'iij,r_' tovvexiitieéiausgve that in another premises, the business ieglibheieg vv onlaiso defeats the stand of the pebltioner A not have alternative accommodation Where he _ business. Ex--Rf> is a gft deed executed tks.e.pe'f£a"oner herein. in favour of his daughter on 2.8.04, n eubeeeiuent to the filing of the eviction petition by the VV 'reepondent landlord and therefore much importance cannot be given to the said document.

'26. From the evidence on record, it is apparent that there is one Shep in property hearing 910.148 of Devanathchar :32 HERE . NO . 3'34 . 2006 .. ..

Street, Chamarajpet and also from the evidence of h1"N--2, it becomes apparent that the business in pI'("313Z1.'tS¢S in the absence 0f the tenant is son and daughter--in--iaW, who afthe. t1as',alm ' stated that his son is working company. Under the it has te that V the petitioner has aiten1ati§ze------§t'emi$_es, v'-Xifhiﬂil, he can eoutinue the busines'.§"it1 and therefore the respondents hereitx hasV'ﬁ1atteV5;;§;e,3 iﬁijder Section 237(2) ti} of the t it t

27. = ' --E3) "of the Act is compxehensivety worded, Vvieasmﬁtthes; states that alternative premises if oreﬂotted not only to the tenant but even if it .A 'is, his spouse or a dependant son or daughter son or daughter were living with the and if the premises viz, commercial or Asresideﬂtiai, as per the facts of the case are available, that t be a ground for evicting the tenant from the scheduie at the instance of the landlord. The proviso izmwever states that pericwd upto one year fmm the date of passing of the eviction order can be granted to the tenant to hand over vacant possession of the pxemises if a case if made out under Section 27%} (r) of the Act. H§{§{£:'.NQ.f3'Z{"4.2{3<3t%

--- 23 -

28. 'l'£1e bunien of proof with regard to acquisition of aiternative premises by a tenant is on -}.i§;I.réii;lo1d and it is for the tenant to discharge his suitability or otherwise of the pmniiees eliot¢teéi_oVr ; tsuilt by the tenant. in :'"et.l'.:1e respondent iandlond has _1;l:1e_ 'eﬁmiien provzing that the peti§i_one1* tenar:t.heg§ a rile premises located in Uhamaxeiégeet. is also admitted in the cmssuexereirlatioxi' there is no €\¥i£3iCIlC€..Ql1ﬂ or othexwtise by the ._ of-' the said premises. Under the eircu£es--f;%m¢,e'sV;'-- has to infer by way of adverse irrierence 'petitioner tenant has an aiternative 'V 'A « (shop) which is suitable to mm' and therefore . be no impediment for the petitioner to shift his bzisinese. to the said premises.

29. " ﬁt this stage, it is Ieievant to consider the citations x upon by the learned counsel for the petitioner viz.,, M. ~JA'JER!LAi.: Vs ACHALRAJ JAIN reported iii: [LR 2005 MAR 1555 is a ease arising under Section 27(2) (:1 ofthe Act, wherein, it is stated that "the Iandloul has to prove two _/"T HRR?.PéQ. 514 . 2006 _. ..

qualiﬁcations of the Wife and the second pet:itioner___ on the basis of which she intends to establish a kz'usi§:eSsj in computer traiaing and job typing and 4' production of the said documents wouki not of the same and therefore the taken note of as proof of tEie"--:'equifement of respondent landlord. It is to boitge met Exs---P1 to P4 are the of issued by the oompetent authoIities..attd*Vth.§21t 1' P4 are issued by i:$az1gaIore_V V. V" ndary Eduoaﬁon ﬁe-hich a£e'pﬁbﬁc authorities and Exs-P2 and V"?'.3" issued by a Registered trust comgputers centre ae well as i:'.x--P'5 is a iseﬂeai .... by another ooxnputer training eentze. ' that that the pmcmdings in the inetant ease " of summaxy proceedings and there being no evidence tie the effect that the Wife of the second 2 .. AA 'tteepofadent is not at all trained in computer and typing and the certiﬁcate issued are bogus or fabricated, in my view, them is no impediment to consider the evidence on record for the we of requirement on the schedule :2 premises.

HRR.l.~'.N0. 31% .2006 .. ..

31. Similarly rekianee placed on decision of t;he___Madras High Court in the case of K. (;'rANAPA'l'HY Vs VAE'{§1'}§J_M:N.§}AM reported in AIR 1971 Madras 425 is of no -Tire petitioner herein as the pmpoeiﬁen "

decision that "it is not open te "

Court with a specific case'yvitt1 'a ef'Vre£éef to go back on them to claim the same reiief on the defendant" is not applicabie tethe the instant case, inasmuch§--..Vas;:Ef'ﬁ;e., '1:*ee1}:,~«eude'Vefi:3" have reiied. on the stzttengfli to prove the Iequxre' ment of the 'schedule infaet there is no evidence on the of fneV_ 1;retiEioitef'}ierei11 to dislodge the evidence on the '- ve:'e$§;3£¥11:ients. ' **** " "

"s;i:n;iar1y, the decision Laid down in em case of A»..4¢§1AKeI3$L'TVHAHeovAL Vs BAIFHAL was {JHHARGAN {AL mpggéma in AIR 1929 LAHORE see (1) states "that the V' r can succeed only on the strength of his own title and mereiy by picking holes in the title of the defendants and showing that it was a weak one" is also not applicable to the facts of the present case.

Hi-{§{P.N0. 5'14 .2906 .. 2;: ..

33. For the aibxesaiei reason and in View of the fact that the petitioner tenant has not made out a case aside the impugned order passseci hy the Revision petition ought to be is 'he1:1vce'& dismissed.

34. Qonsidering the fae'tTV_tj;'I1~aj: L' two months' time to the &tb§_¢1 §:¢_Vfnr order of the trial Court to quii 'vacant possession of the schedule p11eV1niee:szVV--;~..:;.3ci:'»i{£'§e;§;i31g i;z'i': the proviso to Section note of the rival S11bIi1vxiSSj_iC5A!:1l§Vi;VA'£i§f eounsel, a péeriod of four monttfs time .gfantet£._. to the petitioner to vacate and ha:_ux'i¢«ever vaeant possession of the schedule premises to . , , A VthaA re:é§pof1:ients,« which, the respondents are at iiberty $19 éeﬁe:1 in accorcianm with law.

Sd/-2 Iuciga *KV!liBKVImnI-

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