Karnataka High Court
Sri B.R. Arunkumar S/Of Late Rathnam ... vs Smt. Yeshodha W/Of Late P. Rama Upadhya on 2 April, 2007
Equivalent citations: 2007(6)KARLJ631, AIR 2008 (NOC) 199 (KAR.) = 2007 (6) AIR KAR R 186, 2007 (6) AIR KAR R 186
Author: K. Ramanna
Bench: K. Ramanna
ORDER Justice K. Ramanna, J.
Page 2155
1. This is a revision petition filed by the unsuccessful tenant-revision petitioner to set aside the order dated 15.2.2005 passed by the II Addl. small causes Judge, Bangalore in HRC. No. 644/2000 whereby and where under the court-below allowed the eviction petition filed by the respondent in part under Section 27(2) (r) and 31 of K.R. Act of 1999 but dismissed the eviction petition filed under Section 27(2)(a) and (m) of K.R. Act of 1999. Further the revision petitioner-tenant was directed to quit and vacate the petition schedule premises on or before 15.4.2005. Assailing the same, he has come up with this revision petition.
2. The case of the respondent herein is that she is the owner of the petition schedule premises namely, P-15, 2nd Cross, 4th Main, Nagappa Block, Bangalore - 560 021 which is called as 'Rama Nilaya.' The revision petitioner is a tenant who is in occupation of the said premises who had entered into an agreement dated 8.6.1997 for a period of eleven months on a monthly rent of Rs. 3250/- plus water charges of Rs. 70/- per month and has to pay electricity bills upto data. Since the respondent being a widow had also told the revision petitioner-tenant that the premises is required for the bona fide use and occupation of her handicapped daughter to start computer business but the revision petitioner requested for time. Since the revision petitioner was not regular in payment of arrears of rent, he is a chronic defaulter. Initially the Page 2156 landlady filed a petition under Section 21(1)(a)(d) and (h) of the Karnataka Rant control Act, 1961 and during the pendency of the eviction petition, New Act came into force. Therefore the petition was deemed to be filed under Section 27(2) (a)(m) and (r) and also under Section 31 of the said Act. The defence taken by the revision petitioner-tenant before the trial court is that the entire property consists of residential unit i.e. two units in the ground floor, two units in the first floor and two units in the second floor and the respondent is in occupation of the one unit in the first floor. The respondent and her family members are residing in a portion of the ground floor and all other four portions are in the occupation of the tenants and the respondent is in the habit of demanding higher rent, since the revision petitioner refused to comply with the demand, therefore she has started harassing the tenants.
3. It is contended by the learned Counsel for the petitioner Smt. Nandana for Sri D.R. Ravishankar that the respondent is a widow and she is having a handicapped daughter who is unable to climb the stairs to the first floor which is in occupation of the revision petitioner-tenant. It is argued that the petition schedule premises is a residential one and no steps have been taken to convert the residential premises into a non-residential one. More over, the admissions of PW.2 clearly shows that she is unable to climb the stairs. The trial Court did not believe the version of the revision petitioner that ha was always regular in paying the rant. The trial court has wrongly allowed the petition under Section 27(2)(r) and Section 31 of K.R. Act of 1999 though the respondent has not placed sufficient materials to show that the petition schedule premises is required for her handicapped, daughter to start business in computers. There are no issues or points raised by the trial Court regarding seeking permission to convert the premises into a commercial one by the respondent-landlady. The trial court fails to consider the fact that during the pendency of the eviction petition some portions which were in the occupation of the tenants fell vacant and when there is a suitable accommodation for the respondent the respondent did not occupy it as she is very particular to evict the revision petitioner. She can accommodate her family members for residential purpose but not for commercial purposes since she has not obtained permission for demolition and reconstruction and the trial court has not properly considered the suitability of the petition schedule premises and availability of other suitable accommodation. This aspect has not been properly considered and passed impugned order against the revision petitioner who is a tenant in the petition schedule premises from 1977. Since the revision petitioner is unable to meet the abnormal rent demanded by the respondent, therefore the respondent-land lord filed this eviction petition. The purpose for which the eviction sought for has not been proved by the respondent but the trial Court wrongly came to the conclusion that the petition schedule premises is more suitable for her occupation and for the occupation of the family members which is not proper. Hence learned Advocate prays to set aside the order passed by the trial Court under Section 27(2)(r) of K.R. Act.
Page 2157
4. On the other hand, learned Counsel for the respondent contends that the respondent herein being a widow filed eviction petition under Sections 27(2)(a)(m) and (r) of the K.R. Act on the ground that the petition schedule premises is required for herself to accommodate her handicapped daughter to start a business. It is further argued that the trial Court considered the version of PW.1 that the premises is required for bona fide use and occupation. It is further argued that before filing the eviction petition notice came to be issued to the revision petitioner herein and the revision petitioner agreed to vacate the premises if some reasonable time was granted to him. Despite the revision petitioner being a chronic defaulter in payment of rent, he has not kept up his promise to vacate it. It is argued that it is the choice of the landlord to choose and occupy any portion of the premises which is in occupation of the tenant. Therefore the trial Court rightly allowed the eviction petition in part and time has been granted to vacate. Considering the evidence of PW.1 and PW.2 coupled with the documentary evidence, court-below has properly appreciated that the tenant has not rebutted the presumption available in favour of the respondent. It is further argued that since the revision petitioner ought to have filed an application under Section 42(6)(b) of the K.R. Act seeking leave of the Court to contest the matter, but no such application has been filed by the revision petitioner. Learned Counsel for the respondent has relied on the following decisions:
(a) 2005 (6) AIR Kar R 439 (Smt. Lakshmma v. B.P. Thirumala Setty) wherein it has bean held, as follows:
(B) KARNATAKA, RENT CONTROL ACT (34 OF 2001], Section 42(6)(a)-Eviction petition as "Special category landlord" - Leave of court to contest - Tenant already prosecuting eviction petition filed under old Act - Mandatory, for tenant to seek leave of Court to contest proceedings which continue on enforcement of New Act of 1999.
The very reading of the provisions of Section 42(6) of the Act would indicate that unless the tenant seeks leave to contest the matter with substantial defence, the presumption that would arise in favour of the landlord falling under the special group of persons enumerated. Under the above sections would automatically require the court to allow the eviction petition. The seeking of leave of the court to contest the application in such circumstance is nothing but mandatory. The very incorporation of the above provision requiring the tenant to seek the permission of the court to contest the matter would go to show frivolous grounds of defence should be curbed/discouraged. It implies that the requirement of the landlord narrated in the eviction petition should be deemed to have been accepted by the tenant unless such permission to contest is sought and secured by the tenant.
(b) ILR 2005 KAR 155 (M. Javerilal v. N. Achalraj Jain) wherein it has been held as follows:
Page 2158 (B) KARNATAKA RENT ACT, 1999 -SECTION 27(2)(r)- Availability of alternate premises - It is no doubt true that particular shop might have come in possession of the petitioner but that by itself cannot be said that the said premises is available and can be termed as an alternate suitable premises time and again it has been stated it is not open to the tenant to dictate the landlord how he should carry on business or where he should carry on and where and how he should reside, that falls in the requirement of the landlord.
(C) 2004 SAR. (Civil) 286 (P. Suryanarayana (D) by Lrs. v. K.B. Muddugowramma) WHEREIN it has been held as follows:
A. Karnataka Rant Act, 1999 Sections 27(2)(r) Explanation I, 27(3), and Section 27(1)(h) of the Act 1961 (since repealed) - Eviction-The provisions of the 1999 Act, relating to eviction on the ground of bona fide requirement-Tenanted premises may be required by landlord whether in the same form or after reconstruction or rebuilding by landlord-concept of comparative hardship which prevailed under the repealed Act, 1961 has been given up under the 1999 Act-Explanation (1) appended to Clause (r), Sub-section(2) of Section 27 of 1999 provides, inter-alia where landlord in his application supported by an affidavit submits that the premises are required by him far occupation for himself or for any member of his family, dependent on him, court shall presume that premises are so required. The presumption have the effect of shifting burden of proof -it will be for the tenant to rebut the same -Premises let for a particular use may be required by landlord for a different use if such use is permissible under law as further provided by said Explanation.
(d) AIR 1985 KAR 23 (T. Vamaha Kini and Etc. v. U. Ramachandra Pai) wherein it has been held as follows:
(A) Karnataka Rent control Act (22 of 1961), Sections 5, 21(1)(h)- Eviction -Landlord can seek eviction of tenant from non-residential premises if such premises are required for business of firm of which he is partner (1979) 1 Kant LJ 129 Foll.
Therefore it is clear that the trial Court has rightly allowed the eviction petition filed under Section 27(2)(r) which does not require any interference and the findings recorded are well founded and reasonable. Hence he prays for dismissal of revision petition.
5. I have carefully examined the materials placed on record and heard the learned Counsel for the revision petitioner. I proceed to see whether the impugned order is illegal and incorrect.
6. It is an undisputed fact that the respondent is a widowed landlady having a handicapped daughter PW. 2. Of course, the entire building consists of ground floor, first floor and second floor and the petition schedule premises is situated in the first floor which is in the occupation of the revision petitioner. Initially the revision petitioner entered into a lease agreement Page 2159 for a period of eleven months in the year 1997 agreeing to repay the monthly rent of Rs. 3250/- which includes water charges and lease agreement continued from time to time up to 7.2.1999. While extending time till 7.2.1999 the respondent herein has informed the revision petitioner herein, that the premises is required for her handicapped daughter for her bona fide use and occupation. Since the respondent herein requested time to vacate, since the tenant fails to vacate the same, therefore she filed eviction petition for non-payment of arrears of rent and bona fide occupation. Initially the eviction petition filed under Section 21(1)(a)(d) and (h) of the K.R. Act and the eviction petition was pending when the New Act came into force. So at the time of lease agreement, the revision petitioner herein proved that the respondent has collected the rent from time to time and issued the receipts. EX.P-2 is the reply notice issued by the respondent herein specifically stating that Rs. 50,000/- is given to the revision petitioner-landlord as advance. Considering the fact that there was no arrears of rent payable by the revision petitioner and the trial Court after considering the materials has rightly in all framed seven points. Among them Point Nos. 3, 4 and 5 are answered in the affirmative and held Point No. 6 as partly affirmative. No doubt PW.2 is none other than the daughter of P.W.1 i.e. the respondent. P.W. 1 herself has admitted that her daughter Anuradha has no strength in her leg. She is unable to walk as also to climb the stairs. No doubt that in the year 1998 she planned to start computer software business and prepared project report for engineering students. The case made cut by her is that though she made attempts to secure a government job, she was not successful. Therefore the trial court considered the case made out by PW.1 and PW.2 that PW. 2 is unable to climb the stairs on account of handicap. No doubt the respondent herein is a widow and she has filed the eviction petition under Section 27(2)(r) and Section 31 of K.R. Act. The revision petitioner - tenant has not filed affidavit seeking leave of the Court to contest the matter and the trial Court has framed the point as to whether the respondent proves that the petition schedule premises is required for her occupation and also for her family members. Since the respondent is a widow and in order to accommodate her daughter to start business, she sought for eviction of the revision petitioner. The revision petitioner being a tenant is not expected to dictate terms directing the landlady to occupy the premises which fell vacant during the pendency of the eviction petition. It is the choice of the landlady to select the premises which is more suitable for her occupation.
7. As far as not obtaining necessary permission from the competent authority to convert the petition schedule premises into a non-residential one, unless the tenant vacates the premises, it is not possible for her to apply for conversion, demolition and reconstruction because as soon as she applies for permission, the authorities concerned would inspect the premises. If somebody is in occupation of the premises, they will not consider her prayer for conversion or demolition. This Court as well the Apex Court held in numerous decisions that the right to choose a particular portion is Page 2160 the prerogative of the landlord. Since the premises which fell vacant during the pendency of the eviction petition was not suitable for the use and occupation of her handicapped daughter, the trial Court is right in allowing the eviction petition filed under Section 27(2)(r) of K.R. Act. More over, the revision, petitioner has not discharged or rebutted the evidence placed on record by the respondent-landlady. The burden always lies on him to rebut the presumption as to requirement of the landlord. Therefore considering the facts and circumstances of the case that the petition schedule premises is required for the respondent for her use and for the use of other family members since she is a widow and is having a handicapped daughter, I do not find any good reason to interfere with the impugned order. Hence the revision petition is dismissed. However, six months time is granted for the revision petitioner to vacate and hand over possession of the petition schedule premises to the respondent-landlady. He shall file an affidavit undertaking that he will vacate the premises or on before 2.9.2007 and he shall pay the rents regularly to the respondent.