Karnataka High Court
Shri Basha J vs Shri Anantha Bai on 21 September, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF SEPTEMBER 2010
BEFORE
THE HOi\E'BLE MRJUSTICE JAWAD RA;'HiM _
H.R.R.P. NO.214[201O Ai\ED._,_u"--». '
MISC. CVL. Nos.13892-3g2.e:m:sp_§,3s99,?m"
BETWEEN:
SHRI BAsHA.3
S/O JABBAR SAHEEB, ' ,
AGED ABOUT 44 YEARS, .
RESIDING AT N,C),;3, -
NEW BAMBOO BAzA_R,'._ ;_
KALASIPAYM MAIN ROAD,' _,
BANGALORE - 5,60-002 _ '
PETITIONER
COMMON IN ALL CASES
('BY_ SR1 RAVE}: T"<'A:VI«,"'A av. ,)
AND: »
A sM.T.Aai£A'NTHA BAI
=.V\:',,/_O--.i_,_ATE SWAMI RAO,
QAGED ABOUT 75 YEARS,
' FJEAD BY REPRESENTED BY THE
E. PETITIONER BEFORE THE TRIAL COURT
"2.A'1-SHRI NAGENDRA LAL,
S/O LATE SWAMI RAO,
AGED ABOUT 40 YEARS,
BOTH ARE RESIDING AT
NO.6, VYAPURI LANE, 6""; CROSS,
RE
2
KALASIPALYA MAIN ROAD,
BANGALORE - 560 002
RESPONDENTS
COMMON IN "AL1.."jC_ASES (BY SRI A.KUMARVEL, ADV.,) THIS HRRP FILED U/S 46.(1'j»-OF .VA(§iAIi\*S'iV"§« THE ORDER DATED 1o--'D6-2,o1:B,=_ QPASEBED A HRC.NO.420/2007, ON THE FILE"-OF«THE vI+,AD,DL."IfUDGE, COURT OF SMALL CAUSES, VBANGALO'RE., (SCCH-2)',. ALLOWING THE PETITION FI-LED UNDER 'SEC,2"?,('2)'(a) & (T) AND S.3I(a) & (c) OF KR ACTVAND MISCCVL NO.13899/Io FILED UNDER ORDER, 41 RU--LE'*--5"--~R/w SEC. I51 OF CPC PRAYING TO STAY T_HE c'PERATI_O.N=.OF THE IMPUGNED ORDER DATED O-06--2'G10 P_A,'sE,ED'».IN,V HRC NO.420/2007, PASSED BY THE VI ADUDITIONAI; S'ivi.ALI..';UCAUSEs JUDGE AT BANGALORE AND MISC;CLIL_ N_'o,_13898/Io FILED UNDER SECTION 1551' 0i£.,CPC'i~PR§£\"i'ING TO 'PERMIT THE PETITIONER TO DEPOSI"'T"A_ i'§~.lJjIV| "O.F._,_RS_.23,0t}0/~» BEFORE THE HON'BLE COURT, B'EIN:j_G_.VTHE AR'R'.[EARs* OF RENT As COMPUTED BY THE TRI.AL _--
,_ . A"9;Lin¢j«.d;iis«..;§:;;;.m:_' T'hiL§"'.p€:Titi0.fi':&C0.IT'i|'n_g"QR for admission this day, the Court made ,thev.foi!.o'w§r'.g_ VORDER Tiiieiiopder dated 10.6.2010 in HRC.420/O7 on the file Court of Small Causes, Bangalore, is as--s__ai!e_d infthis revision by the tenant. ,2, it Heard both sides. The petition is admitted and taken 'fup for final disposal.
AR» 3
3. Respondents initiated eviction proceedings under the provisions of Section 27 (2)(r) and 31(1) of the 1999 (hereinafter referred to as the Act, for _s'h'ort.j)_* ground that, petitioner herein was the tenant»i.i_:r}'d,erf.:thieni_:on.. a monthly rent of Rs.1,250/--; he was-.in,civucte:d.,'a-stftenawnwtihty one Swami Rao, and after hits-demise','contir.u'fee.:as t_enaint;"*. he was alleged to be a chroriiic' defaui'te'r:'ivn payment of rents; he was due' and despite requests and demands...c<'irn'piyj,g,w'ith the demand. As on the 12.7.1999, he was due i regard was filed in of the premises. The suit was rexsi3tédV«-'and then it was withdrawn. In supportggof tfheviground under Section 27 (2)(r) of the Act, it was.uE'r'gedt~.,respondent no.2 is carrying on business in ch_arcova'Ij~~._angdjrequires the scheduie premises for his business; '.V9'.i'T«'i"Ahey referred to fiiing of O.S.3930/94 by the tenant-alleging dispossession. They also pointed out to his .,,Vi'r~.--co.urrigibIe conduct in denying not oniy the claim, but not we 4 paying rent regularly. Filing of cases against them, drawing them into litigation was also highlighted.
4. The petitioner--tenant on his part'..irée's'is»te--df proceedings pointing out to thepgfirst acti'oh.1:'foi*~::ev,icti:on'~if"
which started in the year 1986 u'nder~~theifprovisionkg'-.._of'=the repealed Karnataka Rent Control 'Act, 1961,A..,j(h,erei\nafta_rii. referred to as the Act of short); also pointed out that the action as there was no proof of bona fide requ.ilrerrien.'t; highlighted that respondents one Deviji Rao describingVh.i,n*i---aste'nant,':7wit:h"V'a to illegally dispossess him. V"'§5ha't" of. He referred to further eviction action a'nd4Vil.1_C'>W:_"~~\it failed. He also questioned the ,_ locus o_f_x'S.xI\l.i\/.iijl>:th..a___t0 Seek eviction and referred to his suit ' in In short, he denied the requirement of the .landlords,7jalVl'egVing lack of title. In a further attempt to L defeat action, he alleged respondents were not owners noir4.._do' they have any semblance of right to claim Aiowlniership. In this regard, he brought in certain persons as Vwowners of the property. He also questioned vinculum juris all 5 of landlord and tenant between him and the respondents on the plea that rightful owners had not sought 'ae_viaction. Alternatively he pleaded that even if the respoifi'd'e'nt~s'._:h~a:/:e'a share in the property, they do not have an seek eviction and they should doiso o't,her.'co?ownei:s,.:' S. From the proceedilngs, 'seeni..;m,ulVtif§aceted» defenses, tenable or untenablegiwere p'ut:l_into 'use by the tenant to defeat thefiorder The fact that landlords weredrawn.~to.._t:he'~courté"asA"'e,ar'ly as in the year 1986 bears iiiitself}.ti*iat""right from that time, they ,ha--vve.Tbe.en:'3Ihighl.ighting'their necessity to occupy the schedule" l »,.'lhe""te_'nant restrained their action and ultimateVly«..._V%% in rejection of the eviction p_rd<:ee_dinVgs..'"*The.second attempt also failed as he ' ,,con,te--n_ded«,th'a_t the building was covered under the Rent Act "an'd'thVe 'c'ijvil,',isuit was barred.
, Be that as it may, all possible defenses were taken if Aland' lulck favoured him as all those proceedings culminated Ataldverse to the landlord. However, after repealing of the
1..
6 Karnataka Rent control Act 1961, and enactment of the new Act of 1999, in view of the presumption in favourrdodf the landlord availabie by explanation to landiords have filed the present petition.....,_A4ffhVeyl.::h.aveV""as"I._ mandated, filed with an affidavit,4,'Ato"._be' '4 presumption.
7. Both parties have relied on documents necessary'--..tif' of" relationship of landlord and.v_tenan,t.i~ it needs to be emphasized tl1eV:"ten..aVnt's.4V content'i'on that respondents are not ab.sdrl£:t;e o'i.v_n-ers i«--s:_'of avail, as an action for eviction canibe'rriailrstvali*ne'd even by a landlord who may not have absoiute titie,r.but.._".ii's a landlord within the meaning of VvThe"seC.Qfh:i ground that eariier proceedings filed ' ;merite_d'«nodconsideration as under the repealed Act the "landlordlrpiadsvllrequired to establish his case 'beyond ali reasonable doubt' also fails because the landlord gets the 9' iblenefit' of 'presumption' under the new Act of 1999. The Altrlial court has not only acted on the presumption, but has 9 also considered the evidence on record. Evidence on record 7 in this aspect is that the 2"" respondent required additionai accommodation for his expanding charcoal busivnessr._¢and scheduie premises being more suitable, he so_LE"g"ht--«'.evi¢ti_9_r.«,%_ The trial court has noticed that the tenant.'s--~»reS~i.stance fails. as he has not pointed out n3:ala:...fides»..:i4n""~.t4he'~.,,,u,1clairri. Accordingiy, accepting the' Case V"p.rojected"u'i' Iandiords' ocular and documeVni'ta.:ry .evid'ence,h':heggranted a decree of eviction. in i i 3
8. Learned coAu.nsgel..V '"'the:§;_---"Vpetitioner--tenant endeavoured landlords having failed in an order of eviction, have in the present petition. In other vviordés, the same set of facts which thisgcougrt had-.Vneg'ate:d, have come up for consideration and the'refore, they cavnnot be accepted to grant the decree of evi-ct«i'o.ri'.:*«».i.V" If-a,_'rn not inclined to accept this contention bec.ausVe~_i/vhiat was adjudicated eariier is under the provisio.n's of Section 21(1)(h) of the repealed Act if 1961, the provision of Section 21 contained a non~obstante ..._.clause restraining eviction of the tenant unless grounds are 9 the law applicable then and not because of the grounds they had urged. It must be noticed that the ground years ago is again urged which in itself will be the fact that they have not been prevari_c.ate_di~.Vvno[r hail/e'l raised inconsistent pleas, but have ibeenp£:tti_ng4.,fo.rwa'rd'the,' same plea. This, therefore, do'e.s__ notrnean be deprived of the order soughwt_V'pl'fo_r nierellt/'V'because the same ground had failed :e_a%rlier; .l -4 ~
10. So far except the plea that business, there is no other juncture against the impugned find no merit aggiinst the order passedgagainsti.the:Jpetitioner. The same needs no v' 2 inte*rf3erenceV a nd is therefore co nfi rmed. I l.:ea,r'rie'ti_'}counse| for the petitioner at this stage submits,___*t'h.e§F'tenant may be granted reasonable time to dvacatell the premises. Granting time is the discretion of the with the sole object of mitigating hardship and .,.suffering the tenant will be exposed to by eviction. In this are .10 case, more than 35 years ago, the tenant was given notice that he will have to vacate. The lis between theVV.p.art,i_es started from 1986 and therefore, the tenant was;'awaj_=e__:tVhat~~.A he had the threat of dispossession. He has_.n--ot_:':beVeA--n:taken' i by surprise. Besides, his conductain d.é'pfDs'itin4g' rent only after the impugned,.r'order his attitude, In the circumstances,lrfeel he entitled to a discretionary order:,_._fe 'gr-{ant'.At'im_e..:'fo.r_a period. However, ignoring his co,nd,:iJ_ct,iffeel"t~h.eA'i~i..riterests of justice demands some given, which I fix at six months. fr?orn toVday,"i:'~"i,'i_'
12. In the nrejsuilfyj:tbed"p_e'tition is dismissed as devoid of merit. passed in HRC. 420/07 dated is confirrnedv. However, the order directing him to.VV'acate~ithe'rschedule premises within two months is m'od'ifiedV.' A--;i'fjhé',1'petitioner~tenant is granted six months from 'gtodal/... i..e..V" till 31.3.2011 to vacate and hand over if '(possession of the schedule premises to the respondents ' landlords, subject to payment of rent regularly as and when accrues. If he commits default in payment of rent for one W"