Karnataka High Court
Vinod S/O Keshav Rao Malvade vs Smt Suma W/O Mallikarjun Shettar on 19 December, 2023
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
HRRP NO.100013 OF 2014
C/w. HRRP NO.505 OF 2013,
HRRP NO.506 OF 2013
& HRRP NO.100012 OF 2014
IN HRRP NO.100013/2014:
BETWEEN:
1. VINOD S/O. KESHAV RAO MALVADE
AGE: 50 YRS, OCC: PVT.SERVICE,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
RAMKRISHNA KESHAV RAO MALVADE
SINCE DECEASED BY HIS L.RS
2. SMT. RAJASHREE W/O. RAMKRISHNA MALVADE
Digitally signed
by VISHAL
AGE: 47 YRS, OCC: HOUSE HOLD,
NINGAPPA
VISHAL PATTIHAL R/O: VITHAL BHAVAN, TABIBLAND,
NINGAPPA
PATTIHAL
Date:
2023.12.22
MANTUR ROAD, HUBLI.
13:47:16
+0530
3. KUM. AKSHAY S/O. RAMKRISHNA MALVADE
AGE: 12 YRS, OCC: STUDENT,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
4. KUM. TEJAS S/O RAMKRISHNA MALVADE
AGE: 8 YRS, OCC: STUDENT,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
THE PETITIONER NO.3 AND 4 ARE MINORS
R/BY THEIR GUARDIAN MOTHER
... PETITIONERS
(BY SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
AND:
1. SRI. MUDAKAPPA S/O. CHANNABASANAGOUDA
BILEBAL, AGE: ABOUT 65 YEARS,
OCC: KIRANI MERCHANT, R/O. MALAVADE
BUILDING, AKKIHONDA, SHIMIGALLI CROSS,
HUBBALLI-580020, DIST: DHARWAD.
2. SMT. SUMA W/O. MALLIKARJUN SHETTAR
AGE: 42 YRS, OCC: HOUSE HOLD WORK,
R/O: KESHWAPUR, HUBLI-20
DIST: DHARWAD.
2. KUMARI. SHRUTI D/O. MALLIKARJUN SHETTAR
AGE: 23 YRS, OCC: STUDENT,
R/O: KESHWAPUR, HUBLI-20
DIST: DHARWAD.
3. KUMAR. VINAYAK S/O. MALLIKARJUN SHETTAR
AGE: 15 YRS, OCC: STUDENT,
SINCE MINOR R/BY HIS NATURAL
MOTHER GUARDIAN I.E., NO.1 ABOVE
... RESPONDENTS
(BY SRI. M.R. MULLA, ADVOCATE FOR R2 TO R4;
NOTICE TO R1 IS DISPENSED WITH)
THIS HRRP IS FILED UNDER SECTION 46 OF THE
KARNATAKA RENT ACT, AGAINST THE ORDER AND DECREE
DATED 14.12.2012 IN R.R.NO.9/2008 PASSED ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD
SITTING AT HUBBALLI, ALLOWING THE PETITION FILED
AGAISNT THE ORDER AND DECREE DATED 02.04.2008 IN
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
RCA.NO.41/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JUNIOR DIVISION), HUBBALLI, ALLOWING THE PETITION FILED
UNDER SECTION 27(2)(b)(F),(p) READ WITH SECTION 27(4), 32
AND 33 OF KARNATAKA RENT ACT, 1999.
IN HRRP NO.505/2013:
BETWEEN:
1. MOHAMMEDZAFAR S/O. ALISAB MIRJI,
AGE: 51 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
2. ANWAR S/O. ALISAB MIRJI,
AGE: 43 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
3. AKBAR S/O. ALISAB MIRJI,
AGE: 40 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
... PETITIONERS
(BY SRI. M.R. MULLA, ADVOCATE)
AND:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YEARS, OCC: PRIVATE SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA S/O. KESHAVRAO MALVADE,
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALAVADE,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
2(b) KUMAR AKSHAY S/O. RAMKRISHNA MALAVADE,
AGE: 16 YEARS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(c) KUMAR TEJAS S/O. RAMKRISHNA MALAVADE,
AGE: 12 YERS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
... RESPONDENTS
(BY SRI. SAGAR HEGDE, ADVOCATE;
SRI. S.R. HEGDE, ADVOCATE FOR R1 AND R2A
(R2(B) AND R2(C) ARE MINORS REP. BY R2(A))
THIS HRRP IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER AND DECREE
DATED 13.12.2012 IN H R C REVISION PETITION NO.8/2008
PASSED ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBLI, PARTLY
ALLOWING THE REVISION PETITION FILED AGAINST THE ORDER
AND DECREE DATED 02.04.2008 IN HRC PETITITON NO.42/2004
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT HUBLI,
PARTLY ALLOWING THE PETITION FILED UNDER SECTION 5,
27(2), (f) AND (p) OF KARNATAKA RENT ACT 1999.
IN HRRP NO.506/2013:
BETWEEN:
1. SMT. SUMA W/O. MALLIKARJUN SHETTAR,
AGE: 42 YERS, OCC: HOUSEHOLD WORK,
R/O. KESHWAPUR, HUBLI.
2. KUMARI SHRUTI D/O. MALLIKARJUN SHETTAR,
AGE: 23 YEARS, OCC: STUDENT,
R/O. KESHWAPUR, HUBLI.
3. KUMAR VINAYAK S/O. MALLIKARJUN SHETTAR,
AGE: 15 YEARS,
SINCE MINOR REPRESENTED BY HIS
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
NATURAL MOTHER GUARDIAN
PETITIONER NO.1
... PETITIONERS
(BY SRI. M.R. MULLA, ADVOCATE)
AND:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YEARS, OCC: PRIVATE SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA S/O. KESHAVRAO MALVADE,
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALAVADE,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(b) KUMAR. AKSHAY S/O. RAMKRISHNA MALAVADE,
AGE: 16 YEARS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(c) KUMAR TEJAS S/O. RAMKRISHNA MALAVADE,
AGE: 12 YERS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
RESPONDENTS NO.2(b) AND 2(c) ARE MINORS
REPRESENTED BY THEIR GUARDIAN
MOTHER RESPONDENT NO.2(a)
... RESPONDENTS
(BY SRI. N.S. BHAT, ADVOCATE FOR CAVEATORS R1, R2(c);
SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE FOR R2 (A))
THIS HRRP IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER AND DECREE
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
DATED 14.12.2012 IN H R C REVISION PETITION NO.9/2008
PASSED ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBLI, PARTLY
ALLOWING THE REVISION PETITION FILED AGAINST THE ORDER
AND DECREE DATED 02.04.2008 IN HRC PETITITON NO.41/2004
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT HUBLI,
ALLOWING THE PETITION FILED UNDER SECTION 27(2), (b) (f),
(p) R/W. SEC. 27(4), 32 AND 33 OF KARNATAKA RENT ACT
1999.
IN HRRP NO.100012/2014:
BETWEEN:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YRS, OCC: PVT. SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA KESHAV RAO MALVADE
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALVADE,
AGE: 54 YRS, OCC: HOUSE HOLD,
R/O. VITHAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
2(b) KUM. AKSHAY S/O. RAMKRISHNA MALVADE,
AGE: 19 YEARS, OCC: STUDENT,
R/O. VITHAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
2(c) KUM. TEJAS S/O. RAMKRISHNA MALVADE,
AGE: 16 YERS, OCC: STUDENT,
R/O. VITTAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
THE PETITIONERS NO.2 (c) IS
MINORS R/BY THEIR GUARDIAN
MOTHER PETITIONER NO.2(a)
... PETITIONERS
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
(BY SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
AND:
1. MOHAMMEDZAFAR S/O. ALISAB MIRJI,
AGE: 54 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
2. ANWAR S/O. ALISAB MIRJI,
AGE: 47 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
3. AKBAR S/O. ALISAB MIRJI,
AGE: 40 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BLDG. AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
... RESPONDENTS
(BY SRI. M.R. MULLA, ADVOCATE)
THIS HRRP IS FILED UNDER SECTION 46 OF THE
KARNATAKA RENT ACT, AGAINST THE JUDGMENT AND DECREE
DATED 13.12.2012 PASSED IN R.R. NO.8/2008, ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, SITTING AT HUBBALLI, PARTLY ALLOWING THE
PETITION AND SETTING ASIDE THE JUDGMENT AND ORDER
DATED 02.04.2008 PASSED IN R.C.A.NO.42/2004, ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AT HUBBALLI,
ALLWOING THE RCA FILED UNDER SECTION 27(2), (b) (f), (p)
R/W. SEC. 27(4), 32 AND 33 OF KARNATAKA RENT ACT 1999.
THESE PETITIONS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
ORDER
1. All the petitions are arising out of R.C.A. Nos.41/2004 & 42/2004 and R.R. No.8/2008 & 9/2010.
2. HRRP.No.100012/2014 is preferred by the landlord - Vinod S/o.Keshav Rao Malvade and others and HRRP.No.505/2013 is preferred by the tenant - Mohammedzafar S/o.Alisab Mirji and others. The said revision petitions arise out of R.C.A. No.42/2004 preferred by the landlord seeking eviction under Section 27(2), (f) &
(p) read with Section 5 of the Karnataka Rent Act, 1999 (for short "the Act"). The trial Court allowed the petition filed under Section 27(2)(f) & (p) and rejected the petitioner filed under Section 5 of the Act. Feeling aggrieved tenant - Mohammedzafar preferred R.R. No.8/2008 against allowing of petition under Section 27(2)(f) & (p) of the Act. The appellate Court confirmed the possession under Section 27(2)(f) providing liberty and right of entry to the respondent - tenant as allowed under law. Aggrieved by the modification to the extent of providing liberty to right of -9- NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 re-entry to the respondents-tenants and rejection under Section 27(2)(p) of the Act, HRRP No.100012/2014 is by the landlord and confirming the ejectment under Section 27(2)(f) of the Act in HRRP No.505/2013 by the tenant.
3. HRRP No.100013/2014 is filed by the landlords- Vinod and others and HRRP.No.506/2013 is by the tenants- Suma and others against R.C.A.No.41/2004, whereby, the petition under Section 27(2)(b), (f) & (p) read with Section 27(4), 32 & 33 of the Act was allowed and R.R. No.9/2008 preferred by the tenant was allowed in part granting eviction with modification under Section 27(2)(f) of the Act with liberty to right of re-entry to the extent provided under law and rejected the eviction sought under Section 27(2)(b), (p), 27(4), 32 & 33 of the Act. HRRP No.506/2013 by the tenant against allowing of Section 27(2)(f) and HRRP.No.100013/2014 against the rejection of the other prayers of the landlord for eviction and allowing of Section 27(2)(f) of the Act with liberty and right of re-entry.
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
4. The parties herein are referred to as "the landlord" and "the tenant", for the sake of convenience.
5. The petition was initiated against two tenements in R.C.A. Nos.41/2004 & 42/2004 against Mudkappa and others and Mohammedzafar S/o. Alisab Mirji and others by the landlord viz., Vinod and others.
6. RCA No.41/2004 filed under Section 27(2)(b), (f) & (p) read with Section 27(4), 32 & 33 of the Act and the petition avers that respondent No.1 - Mohammedzafar, the original tenant without the consent of the landlord has sublet the property to respondent No.2 and as such he has invariably inducted the subtenant and respondent No.2, is not the bonafide tenant and liable for eviction under subletting ground under Section 27(2)(b) of the Act. Further, it is averred that the Municipal Authorities have issued a demolition notice to the petitioner and though the said notice was brought to the notice of the tenant and the risk involved in the property, the recovery of petition
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 property for demolition purpose only under Section 27(2)(f) of the Act.
7. R.C.A.No.42/2004 for eviction under 27(2)(f) &
(p) read with Section 5 of the Act contending that the respondents are not bona fide tenants and they are illegally continuing the limited rights after the lapse of statutory period under the Act, after the death of the original tenant and they are liable for eviction under Section 27(2)(p) of the Act. Further, the petition premises is required for demolition purposes under Section 27(2)(f) of the Act and sought for eviction of the premises.
8. Objections were filed by the tenants inter alia contending that:
(i) the description of the property is not correct;
(ii) the original tenant has not sub-let the premises;
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
(iii) after vacating of the premises, respondent No.2 has taken the premises on lease from the petitioners;
(iv) the building is in a very good condition and the petitioners have intention to construct a commercial complex having demolished the first floor and the second floor very recently and it is in a very good condition and illegally an attempt to demolish the petition property;
(v) the petitioners in collusion with the officials of the HDMC have managed to pass the demolition order behind the back of the respondents;
(vi) the contention of the tenants in both the revision petitions for eviction is one and the same apart from one additional contention in RCA.No.42/2004; that the respondents
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 are the bona fide tenants and their eviction beyond the statutory period under Section 27(2)(p) of the Act is illegal and unsustainable.
9. In order to substantiate their claim, the petitioner-landlord in RCA.No.41/2004 examined himself as PW.1 and got marked documents at Exs.P.1 to P.25. On the other hand, the special power of attorney holder of the legal representatives of respondent No.2 in RCA.No.41/2004 examined himself as RW.1 and got marked documents at Exs.R.1 to R.5.
10. The trial Court on the basis of the pleadings in RCA.No.41/2004, framed the following points for consideration:
1. Whether petitioners are entitled for an order of eviction as against the respondents U/s.27(2),
(b), (p) of Karnataka Rent Act 1999?
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
2. Whether petitioners are entitled for an order of eviction as against the respondents U/s.27(2),
(f) of Karnataka Rent Act 1999?
3. Whether petitioners are entitled for an order of eviction as against the respondents U/s.27(4), 32 and 33 of Karnataka Rent Act, 1999?
11. The Trial Court in RCA No.42/2004, in order to substantiate their claim, the petitioner-landlord got himself as PW.1 and got marked documents at Exs.P-1 to P-12 and respondent No.1 got examined himself as RW.1 and got marked documents at Exs.R.1 to R.4.
12. The trial Court on the basis of the pleadings in RCA.No.42/2004, framed the following points for consideration:
1. Whether petitioners are entitled for an order of eviction as against the respondents U/s.27(2),
(f), (p) of Karnataka Rent Act 1999?
2. Whether petitioners are entitled for an order of eviction as against the respondents U/s.5 of Karnataka Rent Act 1999?
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
13. The Trial Court in RCA No.41/2004 granted eviction under Section 27(2)(b)(f)(p) read with Section 27(4) 32 and 33 of the Act was allowed and directed the legal representatives of respondent Nos.1 and 2 to handover possession of the petition property within three months.
14. RCA No.42/2004 filed under Section 5 of the Act, Section 27(2), (f) and (p) of the Act was allowed and petition filed under Section 5 of the Act was rejected.
15. Aggrieved by the same, the tenants in both RCA.Nos.41/2004 and RCA.No.42/2004 namely Smt.Suma and others preferred R.A.No.9/2008 and Mohammedzafar filed Revision Petition No.8/2008. The First Appellate Court ordered eviction on the ground of Section 27(2)(f) of the Act with liberty and right reserved for re-entry. Rejection of Section 27(2)(p) and allowing of 27(2)(f) of the Act, the landlords and tenants are before this Court.
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
16. Heard learned counsel Sri Sagar Hegde for Sri S.R.Hegde, appearing for the petitioners and Sri M.R.Mulla, learned counsel appearing for respondents.
17. Learned counsel for the landlord-petitioner would submit that the petitioners have proved the eviction under Section 27(2)(f) of the Act and the notice issued by the HDMC at Ex.P.10 for immediate demolition of the building as the same is in dilapidated condition and also the letter given by the surrounding occupants of the petition premises and the photographs of the petition premises at Exs.P-15 to 20 would prove the contention of the petitioner that the eviction under Section 27(2)(f) of the Act is inevitable. Learned counsel would contend that, in order to prove his eviction under Section 27(2)(p) of the Act, the petitioners have produced the plaint copy in O.S.No.277/2000 filed by the original tenants respondent No.1 against the petitioners. The respondents are in possession of the petition premises as a tenant seven years prior to the filing of the suit and the respondents are not the bona fide
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 tenants as they have not produced any material to that effect about induction of them in the suit schedule property by the petitioner-landlord. Learned counsel for the petitioner would contend that the petitioner-landlord has proved the eviction sought under Section 27(2)(p) and section 5 of the Act which is totally overlooked by the Fist Appellate Court.
18. In support of his contention learned counsel has placed reliance on the judgment of this Court in the case of Taradevi and another Vs. Sakku Bai and others.1
19. Per contra, learned counsel for the respondent- tenants would contend that:
(i) Section 27(2)(p) should be read with Section 5 of the Act.
(ii) the notice has not been issued by the HDMC for the demolition, only the first floor is in dilapidated condition and not the ground 1 [(2003)3 Kant.L.J. 281
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 floor and the HDMC officer ought to have been examined to prove the issuance of notice by the HDMC for demolition;
(iii) illegally, the ground floor is added in the show-cause notice.
(iv) The father of the respondent died after the filing of the suit and would contend that the right of tenancy had accrued to the legal representatives under the Old Act and Section 5 has given retrospective effect by operation of the statutory stipulation contended in Section 70(2)(b) of the present Act.
20. The learned counsel has placed reliance on the judgment in the case of Radhey Shyam Rastogi vs. Ashish Kumar and another2 to contend that an application for appointment of an independent advocate or 2 [(2008)10 SCC 225]
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 engineer /commissioner would be fit and proper for coming to a proper finding regarding the condition of the building in order to decide that the building require demolition.
21. Learned counsel placed reliance on the judgment in the case of Smt.Madhurama since deceased by her LRs. Sri C.Vasudeva and others Vs. Sri Shashidhar Sindigi3 and in the case of Mahadeva vs. Vasanth Kumar4 to contend that if the tenant dies prior to the coming into force of the Tenancy Act, Section 27(2)(f)(p) is not applicable.
22. Taking note of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is, whether the landlord is entitled for eviction under Section 27(2)(f) & (p) of the Act and whether the rejection of the petition of the landlord under Section 27(2)(p) of the Act by the First Appellate Court is justifiable?
3 HRRP.No.169/2008 4 ILR 2009 Karnataka 356
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
23. It is not in dispute that the building is a commercial building in which two tenements have been occupied as stated in the petition. It is also not in dispute that the petitioner is the landlord. Ex.P.10-notice in RCA.No.41/2004 is issued by the HDMC for immediate demolition of the building as the same is in dilapidated condition. Notice in RCA.No.42/2004 for immediate demolition of the building is issued by the HDMC as the same is in a dilapidated condition along with the letter given by the surrounding occupations of the petition premises. Exs.P.15 to 19 are the photographs of the petition building. Section 27 (2) (f) of the Act reads as under:
"27. Protection of tenants against eviction.- XXXXXXXX (2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
XXXXXXXX
(f) that the premises or any part thereof are required by the landlord for the purpose of immediate demolition ordered by the Government or
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 any local authority or the premises are required by the landlord to carry out any building work at the instance of the Government or a local authority in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated;
24. A plain reading of the said sections states/demonstrates that the premises or any part thereof are:
(i) that the premises part thereof are required for, by the landlord for the purpose of immediate demolition ordered by the Government or local authority;
(ii) that the premises are required by the landlord to carry out any building work at the instance of the Government or local authority in pursuance of any improvement scheme or development scheme and that
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 such building work cannot be carried out without their premises being vacated.
25. Hence, the conditions enumerated are in two folds:
(i) as ordered by the Government or local authority, the premises is required for immediate demolition;
26. In the instant case it is evident at Exs.P.3 and 5 the notice is not at the instance of the landlord but at the instance HDMC-local authority in light of the building being in a dilapidated condition. The trial Court and the first appellate Court have rightly applied their mind with regard to the requirement under Section 27(2)(f) of the Act and granted the order of eviction. Taking note of the contents of Exs.P3 & 5, the requirement of Section 27(2)(f) of the Act are correct and proper. The premises is in a dilapidated condition and the notice issued by the local authority demonstrates the condition of the building and the
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 photographs at Exs.P.15 and 20 state the position of the building demonstrate the condition of the building and thus the question of appointing a Commissioner or any competent to receive the report regarding the status of the property is not necessary and the decision in the case of Radhey Shyam Rastogi (stated supra) placed reliance by the learned counsel for the tenant is not applicable to the present facts and circumstances of the case. The decision in the case of Mahadeva (stated supra) placed reliance by the counsel appearing for the tenant was in the context of where the notice was issued by the Government at the instance of the landlord. The said decision is distinguishable as in the present case, the notice has been issued by the HDMC authorities themselves and no materials have been placed by the respondent-tenant to evidence that the at the instance of the landlord the authority has issued notice.
27. Thus the landlord has proved the eviction of the tenant under Section 27(2)(f) of the Act and the liberty
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 granted by the First Appellate Court is not available to the tenant in the present facts and circumstances of the case.
28. In order to prove eviction under Section 27(2)(p) of the Act, Section 27(2)(P) needs to be looked into which reads as under:
"27. Protection of tenants against eviction.- XXXXXXXX (2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
XXXXXXXX
(p) that the person in occupation of the premises has failed to prove that he is a bonafide tenant;"
29. Section 27(2)(p) states that, a person in occupation of the premises has failed to prove that he is a bona fide tenant. The landlord is entitled for recovery of possession. In RCA 41/2004, respondent No.1 has inducted respondent No.2 in the suit schedule property and respondent No.2 has failed to place any material on record
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 in regard to the induction by the petitioner-landlord in the said premises. It is also relevant to note that respondent No.2 also died and his legal heirs are brought on record before the Trial Court and they had failed to establish their entitlement over the property beyond five years as enumerated under Section 5 of the Act. Thus, the so called tenants in RCA No.41/2004 have failed to establish that they are bona fide tenants under Section 27(2)(P) as well as Section 5 of the Act. In RCA No.42/2004, the original tenant died after coming into force of the Act, thus section 5 of the Act is applicable and on death of the tenant the right of tenancy shall devolve for a period of five years from the date of his death on the said count, the petitioner- landlord is entitled for eviction against the tenants in RCA.No.42/2004.
30. The First Appellate Court has gone on an erroneous finding and has dismissed the petition under Section 27(2)(p) of the Act. Section 5(1) of the Act reads as under:
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014
5. Inheritability of tenancy.- (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of ten years from the date of his death to his successors in the following order, namely:- (a) spouse; (b) son or daughter or where there are both son and daughter both of them; (c) parents; (d) daughter-in-law, being the widow of his pre-deceased son: Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant: 13 Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let.
31. In light of the same, the First Appellate Court was not justified in dismissing the petition of the landlord under Section 27(2)(p) or Section 5 of the Act. The eviction of the tenant under Section 5 and Section 27(2)(p) needs to be allowed and to be directed for eviction under the said provision and the First Appellate Court was not justified in
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NC: 2023:KHC-D:14865 HRRP No.100013 of 2014 C/w. HRRP No.505 of 2013, HRRP No.506 of 2013, & HRRP No.100012 of 2014 reversing the judgment and decree of the Trial Court. Accordingly, this Court pass the following:
ORDER
(i) The revision petition of the landlord in HRRP.Nos.100012/2014 and HRRP No.100013/2014 are hereby allowed.
(ii) HRRP.No.505/2013 and 506/2013 are hereby dismissed.
(iii) The petition of the landlord under Section 27(2)(p), 27(2)(f) and Section 5 of the Act are hereby allowed confirming the order of the Trial Court.
(iv) The respondents-tenants to handover possession of the petition premises within a period of three months from the date of this order.
Sd/-
JUDGE VNP & EM / CT: UMD List No.: 1 Sl No.: 35