Bangalore District Court
Smt.Sharadamma vs Smt.Parvathi A.S on 18 October, 2016
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
DATED THIS THE 18th DAY OF OCTOBER 2016
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B.,
CHIEF JUDGE
H.R.C. No.27/2016
Petitioners: 1. Smt.Sharadamma,
Aged about 72 years,
D/o Late Muniyamma,
W/o Sri Ramanna,
R/a No.1, Muniyellappa Garden,
16th Main Road, HAL 2nd stage,
Indiranagar, Bangalore-560 008.
2. Sri Srinivas,
Aged about 70 years,
S/o Muniyappa @ Papaiah,
S/o Late Muniyamma,
R/at NO.5, Khata/PID/Sy.No.61-8-5,
Doddamavalli, 15th cross Road,
Lalbagh Fort Road, Mavalli,
Bangalore.
3. Smt.Sarojamma,
Aged about 66 years,
D/o Late Muniyamma,
W/o Late Ashwatha,
R/at No.1, 16th Main,
HAL 2nd stage,
Doopanahalli, Indiranagar Post,
Bangalore -560 008.
4. Smt.Lalitamma,
Aged about 64 years,
SCCH-1 2 HRC 133/2013
W/o Muniswamy,
D/o late Muniyamma,
Aged about 66 years,
R/at No.1/1, 1st cross, 12th Main,
HAL 2nd stage, Indiranagar Post,
Bangalore -560 008.
5. Smt.Sunanda,
D/o Late Muniyamma,
Aged about 62 years,
R/at No.1, 16th Main,
HAL 2nd stage, Doopanahalli,
Indiranagar Post,
Bangalore -560 008.
(By Sri K.S.R., Advocate)
-Vs-
Respondents: 1. Smt.Parvathi A.S.,
W/o Late Subramani,
Aged about 45 years,
R/at No.6, Khata/PID/Sy.No.61-8-6,
15th cross Road, Lalbagh Fort Road,
Doddmavalli,
Bengaluru -560 004.
(By Sri Y.V.R. Advocate )
ORDERS
The petitioners have filed this petition under section 27(2)(a) and (r)
of Karnataka Rent Act, 1999 seeking an order of eviction against the
respondent and also to direct the respondent to quit , vacate and deliver the
vacant possession of the schedule premises and for such other reliefs.
SCCH-1 3 HRC 133/2013
2. Brief facts of the case are as under:-
It is the case of the petitioners that they are the children of Sri
Muniyappa @ Papaiah and Smt.Muniyamma. The mother of the petitioners
during her life time acquired the House property bearing Nos.5 and 6
measuring 30 feet x 35 feet situated on 15th cross, Lalbagh Fort Road,
Doddmavalli, Bengaluru and the said property was purchased by her which
has two old asbestos roofed residential units having two small rooms in which
kitchen, bath room and toilet and abutting one another within the subject
matter of the aforesaid sale deed and the mother of the petitioners got
transferred the khatha in her name and she was paying taxes till the time of her
death. The mother of the petitioners died about 60 years back leaving behind
the petitioners as her legal representatives. She died intestate. Her husband
died about 3 months after her death. Subsequent to her death the petitioners
have become the joint owners of the property purchased by their mother.
3. It is contended by the petitioners that the House property purchased
by their mother had two small residential units till recently, one portion of the
residential unit bearing No.5 comprised within the entire property purchased
by the mother of the petitioners which is in occupation of the 2nd petitioner
collapsed because of the incessant rains last year and the asbestos sheet roofed
room in occupation of the 2nd petitioner is also collapsed and the walls of the
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said house have developed cracks, because of which the 2nd petitioner is being
forced to continue to reside in the remaining portion of the house, the
continuation of which has become very dangerous and inhabitable, since the
remaining portion of the house is almost dilapidated and weakened and may
collapse at any time. Since the petition schedule property abuts the said portion
of the property in occupation of the 2nd petitioner, the petition schedule
property in occupation and possession of the respondent as a tenant is required
for the bonafide and personal use of the 2nd petitioner.
4. It is also the case of the petitioner that respondent is in occupation of
the petition schedule property as a tenant under them since about 12 years on a
monthly rent of Rs.1,200/- and the respondent had paid an advance amount of
Rs.700/- and the tenancy is as per English calendar month. The respondent is
in arrears of rent for the last 3 years preceding the date of legal notice in all
amounting to Rs.43,200/-. It was the 2nd petitioner who used to collect the
monthly rent for himself and on behalf of the other petitioners from the
respondent. The petitioners got issued legal notice dated 30.11.2015 to the
respondent calling upon her to pay the arrears of rent and also to vacate and
deliver vacant possession of the schedule property to them on the ground that
second petitioner is in bonafide need of the petition schedule property and the
said legal notice was served on the respondent but he never replied the same.
SCCH-1 5 HRC 133/2013
In addition the respondent has not complied with the demand made in the legal
notice and also has not paid the arrears of rent of Rs.43,200/- but also has not
bothered to pay the subsequent rent till date. It also their case that the second
petitioner has no other alternative or reasonable accommodation of their own
to occupy and make living except the petition schedule property which is in
occupation of the respondent and as such the petitioners are in urgent and dire
need of the schedule property for bonafide use and occupation of the second
petitioner who is a widower having no children. It is also contended that the
respondent owns a house property at Laggere village, Yeshwanthapura Hobli,
Bengaluru, which has been let-out by her in favour of a tenant. The respondent
is an unathorised money lender, carrying on the said business illegally by
charging exorbitant rate of interest without having any kind of licence, hence,
it is difficult for the respondent to either occupy her own house at Laggere or
take some other premises on rent. Hence, prays to allow the petition.
5. In pursuance of this eviction petition , this Court has issued notice
against the respondent and she appeared before the Court through her counsel
and has filed objection statement denying the petition averments. The
respondent has admitted the relationship of present petitioners and their parents.
The respondent has contended that at the time of inception she has paid
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Rs.2,000/- as advance and subsequently paid Rs.15,000/- when the rent was
increased to Rs.1,200/-.
6. It is contended by the respondent that the schedule premises is in good
condition and there is no need of renovation and the petitioner NO.2 has got
several other immovable properties and he does not require the petition
schedule premises for his occupation. Further she contends that the respondent
has paid a sum of Rs.17,000/- as advance and at present she is paying monthly
rent of Rs.1,200/p.m. to the petitioner No.2 and she is not in arrears of rent.
The respondent is alone and if an order of eviction is made, the respondent
being a lady will not be in a possession to secure alternative accommodation.
The children of the respondent are not living with her and she ahs not sufficient
income to arrange alternative residence and she is very prompt in the matter of
payment of rent. Hence, prays to dismiss the petition
7. The petitioners in order to prove their case, they have examined the
second petitioner as PW-1 and he got marked the documents Ex.P.1 to 9. On
the other hand, the respondent herself is examined as RW-1 and has not
chosen to got mark any documentary evidence.
8. After closure of the evidence, I heard the arguments of petitioner
counsel and respondent counsel was absent, hence, taken as heard.
SCCH-1 7 HRC 133/2013
9. After having heard the arguments of petitioner counsel, the
following points arise for my consideration:-
1) Whether the petitioner has made out grounds to invoke
sec.27(2)(a) of Karnataka Rent Act 1999 ?
2) Whether the petitioner has made out grounds to invoke sec.27(2)(r)
of Karnataka Rent Act 1999 ?
3) What order?
10.My answers to the above points are as under:-
1) Point No.1 .. In affirmative
2) Point No.2 .. In affirmative
3) Point No.3 .. As per final order
for the following:-
REASONS
11. Point No.1 : The petitioners in the petition have contended that
the respondent is a tenant on a monthly rent of Rs.1,200/p.m. and she has
not paid rent for the last 3 years and hence, a legal notice was got issued
claiming arrears of rent of Rs.43,200/- and inspite of service of notice dated
30.11.2015 the respondent neither paid the rent nor given any reply and
hence, the respondent is liable to be evicted by invoking section 27(2)(a) of
Karnataka Rent Act ,1999. On the other hand, the respondent has denied the
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allegation that he has not paid rent for a period of three years at the rate of
Rs.1,200/-p.m. and he is in arrears of rent of Rs.43,200/-. Further, this
respondent has denied that the second petitioner used to collect the monthly
rent for himself and on behalf of the other petitioners from the respondent
and also denied the service of notice.
12. The petitioner in order to substantiate their claim they have
examined the second petitioner as PW-1 and PW-1 has reiterated the
averments of the petition in the affidavit and also relied upon the document
Ex.P.6 legal notice and two postal receipts as Ex.P.7 and postal
acknowledgement for having served the notice. In the cross-examination of
PW-1 , a suggestion was made that the respondent was not in arrears of
Rs.43,200/- and he has paid the entire rent and not in arrears of rent and the
said suggestion was denied. However, it is elicited that he has not issued
any legal notice against the respondent for non-payment of rent and he has
not given any letter to BBMP about the condition of his house. It is
suggested that even though the respondent is not in arrears of rent, in order
to convert the petition schedule premises for commercial purpose the present
petition is filed and the said suggestion is denied. On the other hand, the
respondent in her evidence has reiterated the averments of the objection
statement and contended that she has paid the advance of Rs.17,000/- and
SCCH-1 9 HRC 133/2013
she has been paying the rent regularly to the second petitioner and she has
not been in arrears of rent. In the cross-examination, she says she was
paying rent in favour of second petitioner. She further admits that she is not
having any documents to show that she has paid Rs.15,000/- to the wife of
second petitioner. It is suggested that she is liable to pay the rent for a period
of 3 years and the said suggestion was denied. However, she has paid the
rent to the second petitioner as usual and she has not produced any receipts
for having paid rent.
13. Now, let me appreciate the oral and documentary evidence
available on record. It is the case of the petitioners that the respondent has
not paid rent for a period of 3 years and also they have issued legal notice
which is marked at Ex.P.6. On perusal of the Ex.P.6 there is a categorical
claim in the notice that the respondent has not paid the rent from last 3 years
amounting to Rs.43,200/- at the rate of Rs.1,200/p.m and there is no
absolutely justification for her to withhold the payment of rent and though
the respondent has denied the receipt of notice the respondent has
acknowledged the signature available in Ex.P.8. Ex.P.8 is postal
acknowledgment which confirms the service of notice in terms of Ex.P.6
dated 30.11.2015 and the postal receipts which are marked as Ex.P.7 are also
dated 30.11.2015. Hence, it is clear that notice is dispatched on 30.11.2015
SCCH-1 10 HRC 133/2013
itself and the present petition is filed on 31.3.2016, after lapse of 2 months of
the mandatory notice and the respondent has not given any reply to the said
notice, however, it is contended in the evidence that the rents are paid
regularly but in the cross-examination of RW-1, she volunteers that the rent
has not been paid from the date of filing of this petition. It is also important
to note that the respondent has not given any explanation as regards to not
giving any reply and a specific averment has been made in the petition that
respondent has not paid rent from last 3 yeas amounting to Rs.43,200/- and
the respondent has not denied the said averment. I have already pointed out
that no reply was given to the legal notice and even the respondent has gone
to the extent of saying no such notice was received and the signature found
in Ex.P.8 has been admitted. When such being the circumstances, I am of the
opinion that the respondent has taken a false ground that too denying the
issuance of notice and also taken the defence that rent has been paid
regularly, no piece of evidence is placed before the Court to prove the same.
When there is no documentary proof for having paid the rent from last three
years and petitioner also complied the mandatory provision of section
27(2)(a) of Karnataka Rent Act ,1999, petitioner has made out grounds to
invoke section 27(2)(a) of Karnataka Rent Act ,1999.
SCCH-1 11 HRC 133/2013
14. Point No.2: The petitioner in the petition has contended that in
para 2(b) that the house property purchased by their mother and the same
was having two residential units, out of that one portion bearing NO.5 which
is in occupation of second petitioner had collapsed because of the incessant
rains last year. The portion of the asbestos sheet roofed room in occupation
of the 2nd petitioner collapsed and the walls of the said house have developed
cracks and hence, petitioner is in need of the petition schedule premises for
the occupation of the second petitioner and requirement of the petitioner is
bonafide and same is for the personal use of the second petitioner.
15. On the other hand, the respondent in the objection statement has
contended that the averments made in para 2(b) is absolutely false and
denied the fact that the petition schedule premises is required for the
bonafide use of the second petitioner.
16. The petitioners in order to prove their requirement, they have
examined second petitioner as PW-1 and he reiterated the averments of the
petition and also relied upon the document Ex.P.1 to 9. Petitioners have
produced four photographs with C.D. to prove the fact that second petitioner
who was in occupation of the premises was collapsed. The PW-1 was
subjected to cross-examination. In the cross-examination, it is elicited that
roof is damaged as per the photo in sl.No.4. Further admits that petition
SCCH-1 12 HRC 133/2013
schedule premises roof is also not damaged. He further says that respondent
is in occupation of the petition schedule premises from last 12 years. In the
cross-examination, it is suggested that in order to convert the petition
schedule premises for commercial purpose the petition schedule premises is
filed and the said suggestion was denied. He further admits that he has not
produced any document to show that the respondent is having a house at
Laggere and also admits that he has not produced any document to show
that respondent is doing money lending business. It is suggested that he has
not given any letter to the BBMP about the condition of his house.
17. On the other hand, respondent has been examined as RW-1 and
the respondent in her evidence in the form of affidavit has contended that
schedule premises is in good condition and there is no need of renovation
and petitioner has got several other immovable properties and petitioner
NO.2 does not require the schedule premises for his occupation. Apart from
that respondent has contended that she has paid the advance of Rs.17,000/-
and the present petition is filed only with an intention to harass the
respondent. RW-1 was subjected to cross-examination and in the cross-
examination it is elicited that she is paying the rent of Rs.1,200/p.m. and she
claims that she has paid advance amount of Rs.15,000/- to the second
petitioner's wife 4-5 years ago. It is suggested that wife of the second
SCCH-1 13 HRC 133/2013
petitioner passed away in 2005 itself and the said suggestion was denied.
However, she admits that she is not having any document to show that she
has paid Rs.15,000/- as advance to the wife of the second petitioner. In the
further cross-examination she admits that the second petitioner is staying in
the adjacent premises. Further admits that 2nd petitioner is not having any
issues and his wife also passed away and he is alone in the house. RW-1
further admits that the portion in which Srinivas was residing was collapsed
due to heavy rain in the last year. Witness also confronted with the first
photo of Ex.P.8 and admits the same. RW-1 further admits that second
petitioner is not having any house due to the fall of the residence in which he
was residing and hence, he is requesting him to quit and vacate the premises.
RW-1 also admits that she has received the notice in terms of Ex.P.8 and
Ex.P.8 bears her signature and she has not given reply. However, she denied
the requirement of the petition schedule premises by the second petitioner.
18. Now, let me appreciate the oral and documentary evidence
available on record regarding requirement is concerned. The very proviso
section 27(2)(r) of Karnataka Rent Act ,1999 says that if the landlord is not
having any other suitable accommodation for his requirement the same has
to be presumed as genuine. The petitioner in support of the petition has filed
separate verifying affidavit along with the petition but he has not filed
SCCH-1 14 HRC 133/2013
separate affidavit as envisaged under section 27(2)(r) Explanation I of
Karnataka Rent Act ,1999, hence, presumption cannot be relied upon,
however, this Court has to take note of whether the petitioner has made out
the ground to invoke section 27(2)(r) of Karnataka Rent Act ,1999. Though
the respondent has denied the requirement of the petitioner in the objection
statement , in the cross-examination categorically admitted that the portion
in which Srinivas who is the second petitioner herein was residing was fallen
because of the incessant rains in the last year and also confronted with the
photographs and the same is also admitted and further RW-1 admitted that
second petitioner is not having any house due to the fall of residence in
which he is residing and hence, requires the petition schedule premises and
these admissions takes away the case of the respondent regarding bonafide
requirement of the petitioner. However, in the cross-examination, it is
contended that second petitioner has got repaired the adjacent premises and
he is staying in the very same premises. Though several defence was taken,
RW-1 in the cross-examination has categorically admitted that she can
produce documents to show that he has got repaired the house but she has
not produced any documents to prove the same. Ex.P.9 photographs with
C.D. discloses that building has been collapsed and the case of the
petitioners have been proved by producing documentary evidence i.e.,
SCCH-1 15 HRC 133/2013
Ex.P.9 and oral evidence of PW-1 substantiate the claim of the petitioner
that second petitioner is not having any residential premises for his
occupation. Though respondent has taken the contention that second
petitioner is having several immovable properties, the respondent has not
placed any material before the Court to prove the same. In the absence of
any documentary proof regarding suitable accommodation, this Court has to
believe the version of PW-1 and also from the evidence, it is very clear that
petitioner No.2 is not having any premises. Under the circumstances, the
petitioner has made out grounds to invoke section 27(2)(r) of Karnataka
Rent Act ,1999 and the need of the petitioner is genuine. Hence, I answer
point No.2 in the affirmative.
19. Regarding granting of time is concerned this enactment was
brought into force with an intention to dispose off the case as early as
possible and also the very proviso of section 42 (7) mandates the Court that
every application made to the Court shall be heard as expeditiously as
possible and endeavour shall be made to conclude the hearing and to
dispose off the application within six months of it being filed. In view of
this mandate given to the Court to dispose of the matter within 6 months , it
is clear that the relief is to be given within the stipulated time. Considering
the said proviso , the Court has to grant the just and reasonable time to
SCCH-1 16 HRC 133/2013
vacate the premises and when the time is fixed for 6 months for disposal of
the application and the word is used that Court shall be heard as
expeditiously as possible and endeavour shall be made to conclude and
dispose off the application within 6 months and granting of 4 months would
be reasonable , since this case is filed on 31.3.2016 and already 6 months 18
days is lapsed and the matter is not disposed off within six months as
stipulated under section 42(7) of the Act.
20. Here, it has to be noted that in this case respondent is a widow
and the same has been admitted by the petitioner also and having considered
the fact that petition has been filed on 31.3.2016 6 months is already lapsed
and also considering the respondent is a widow, I am of the opinion that it is
just and reasonable to give 4 months time since she is alone residing in the
petition schedule premises. However, it is clear that she is also having her
children in Bangalore and the same has been admitted by her in the cross-
examination. Considering the above facts into consideration, four months
time is just and reasonable.
21. Point No.4: In view of the discussions made above, I proceed to
pass the following:-
SCCH-1 17 HRC 133/2013
ORDER
The petition filed by the petitioner under Section 27(2)(a) of Karnataka Rent Act, 1999 is hereby allowed.
The respondent is directed to pay arrears of rent of Rs.43,200/- for a period of three years and thereafter to pay rent at the rate of Rs.1,200/p.m. till she vacates the petition schedule premises. The respondent is directed to pay the arrears of rent within one month from the date of this order and if the respondent fails to deposit the same within one month , the petitioner is entitled for eviction of the respondent immediately after lapse of one month.
The petition filed by the petitioner under Section 27(2)(r) of Karnataka Rent Act, 1999 is hereby allowed.
The respondent is hereby directed to quit, vacate and deliver vacant possession of the petition schedule premises to the petitioner within four months from the date of this order.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer , transcribed by her, corrected & then pronounced by me in Open Court on this the 18th day of October 2016) (H.P.SANDESH) SCCH-1 18 HRC 133/2013 Chief Judge, Court of Small Causes, Bangalore.
SCHEDULE All that piece and parcel of the Asbestos sheet roofed house bearing No. R/at NO.6, Khata/PID/Sy.No.61-8-6, 15th cross road, Situate on 15th cross road, Lalbagh Fort road, Doddamavalli, Bengaluru -560 004, measuring East to West 35 ft and North to South 15 ft and bounded on East by 15th cross road, West by Private property, North by Private property and South by House property bearing No.5 in the occupation of M.Srinivas.
(H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PETITIONERS :
PW-1 : Srinivas LIST OF WITNESSES EXAMINED FOR THE RESPONDENT :
RW-1 : Parvathi A.S. LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P-1 : Khatha extract
Ex.P-2 : Khatha certificate
SCCH-1 19 HRC 133/2013
Ex.P-3 : Khatha extract
Ex.P-4 Khatha certificate
Ex.P-5 Tax paid receipts(4)
Ex.P-6 Office copy of legal notice
Ex.P.7 Postal receipts (2)
Ex.P.8 Postal acknowledgement
Ex.P.9 Photographs with C.D.
LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT:
-Nil-
(H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.