Bangalore District Court
Smt. Rudranamma vs Sri. Syed Farooq on 1 September, 2016
1 SCCH-1
HRC No.16/2016
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
(SCCH-1)
DATED THIS THE 1st DAY OF SEPTEMBER 2016
PRESENT : SRI H.P.SANDESH, B.A.L, LL.B.,
CHIEF JUDGE.
H.R.C.No.16/2016
PETITIONER : Smt. Rudranamma,
W/o. Renukaradhya,
Aged 72 years,
No.266, Ganga Complex,
SC Road, Natakarathna
Gubbiveeranna Road,
2nd Cross, Gandhinagar,
Bangalore - 560 009.
(By Sri.N.P.Kallesh Gowda, Advocate)
-Vs-
RESPONDENTS : Sri. Syed Farooq, S/o. S.A.Basheer,
Aged about 40 years,
R/at No.100, BSA Road (Tanney Road),
Frazer Town, Bangalore - 560 045.
And also at:
No.266, Ganga Complex,
SC Road, Natakarathna
Gubbiveeranna Road,
2nd Cross, Gandhinagar,
Bangalore - 560 009.
No.302, 10th A Main,
Pillanna Garden,
3rd Stage, Bangalore - 560 045.
(Sri.Vijayakumar P.P., Advocate)
*******
2 SCCH-1
HRC No.16/2016
ORDER
The petitioner has filed this petition under Section 27(2)
(d)(ii), (g), (i), (r) and (31)(c) of the Karnataka Rent Act, 1999 seeking the relief of eviction against the respondent and to direct the respondent to quit, vacate and hand over the vacant possession of petition schedule premises and for such other reliefs as this court deems fit.
2. Brief facts of the case are as under:-
It is the case of the petitioner that, she is a senior citizen and she is the absolute owner of the premises bearing No.266, Ganga Complex, S.C.Road, Natakarathna Gubbiveeranna Road, 2nd Cross, Gandhinagar, Bangalore - 560 009 which is morefully described in the schedule.
3. It is further contended that, the schedule premises was let out to one S.A.Basheer, the father of the respondent on rent for running a business i.e. plastic boards etc., and during his life time, he was running business and after his demise, the respondent is paying rent of Rs.3,000/- p.m. through cheques. The schedule property is measuring 10x12 feet measuring 120 sq. feet and it is a commercial shop and the age of the building 3 SCCH-1 HRC No.16/2016 is 60 years and the respondent has recognized the petitioner as landlord.
4. Further contended that, the respondent is not running any business since two years in the schedule premises and the same is kept under lock. The petitioner requires the schedule premises for her own use i.e. to run the business by her son who is already doing business adjacent to the schedule premises and in this connection petitioner approached the respondent and requested him to vacate the schedule premises. Inspite of request and demand made by the petitioner, the respondent has not vacated the schedule premises and went on postponing for one or the other reasons. It is also contended that, the respondent is liable to vacate and evict from the schedule premises immediately under section 27(2)(d)(ii) and 31(c) of Karnataka Rent Act.
5. It is contended that, the petitioner after waiting for reasonable time caused legal notice to the respondent on 28.01.2016 by RPAD and the same was returned with an endorsement 'Not claimed.' The respondent never heeded the legal notice, neither replied nor complied the demands made in 4 SCCH-1 HRC No.16/2016 the said notice. The petitioner requires the schedule premises for her bonafide use and occupation as her son wants to expand his business. Petitioner is aged 72 years and she is a senior citizen. Hence the Petitioner was constrained to file the eviction Petition.
6. In pursuance of this claim petition, this Court issued notice against the respondent. Respondent appeared before the Court through his counsel and has filed objection statement denying the petition averments. It is contended that, respondent does not know the details of ownership of the suit schedule property. However he contended that, he has taken possession of the shop in question from the petitioner on rent and the petitioner is the landlord and the respondent is the tenant in the premises. He has contended that, the premises was taken by the respondent on rent of Rs.250/- and by paying advance of Rs.25,000/-. The rent was enhanced from time to time and the present rent is Rs.3,000/- p.m. Further contended that, petitioner has given the vacant place and this respondent had constructed the schedule premises for his business purpose and he is carrying on business in the said shop. 5 SCCH-1 HRC No.16/2016
7. The respondent has denied the averment made in the petition that, the father of the respondent has taken the petition schedule premises on rent and he was doing the business. The measurement mentioned in the petition as 10x12 feet measuring 120 sq.ft. is not correct and contended that the actual measurement of the schedule premises is 10x14 feet measuring 140 sq.ft. Further contended that, he has paid the rent till December 2015 without doing any default and denied the contention of the petitioner that, the rents are not paid. Respondent also denied the contention that, the respondent is not running any business since two years in the schedule premises and he has kept the same under lock.
8. The respondent also denied the requirement of the petitioner and contended that, in order to get higher advance and rent the present petition is filed. It is further contended that, petitioner and her son have been demanding to pay higher rent and to vacate the premises and causing threat of eviction. Petitioner has been harassing the respondent with ulterior purposes with oblique motives and to extract unreasonably high advance and high rent from the premises. Respondent has 6 SCCH-1 HRC No.16/2016 denied the contention of the petitioner that, he has demanded the respondent to vacate and handover the petition schedule premises and respondent deliberately failed to vacate the premises with the intention to causing hardship and inconvenience to the petitioner. Further he has denied the suggestion that, the respondent has not complied with the oral demand of the petitioner for vacating the premises and the petitioner was constrained to issue legal notice dated 28.01.2016. It is contended that, the said legal notice is not in accordance with law and the same is not valid.
9. It is also contended that, the petitioner and her son own and possess other non-residential premises and there is no need to evict the respondent from the petition schedule premises. Hence petitioner is not entitled for an order of eviction from the hands of this Court.
10. In order to prove petitioner's case, husband and Special Power of Attorney holder has been examined as PW.1 and got marked the documents at Ex.P.1 to 6. On the other hand respondent examined himself as RW.1 and one more witness as RW.2 and they got marked the documents Ex.R1 to 3. 7 SCCH-1 HRC No.16/2016
11. After the closure of the evidence, I heard the arguments of the petitioner counsel and the respondent counsel.
12. After having heard the arguments urged by the petitioner counsel and the respondent counsel and the material available on record, the points that arise for my consideration are as under:-
1) Whether the petitioner has made out ground to invoke Sec.27(2) (d) (ii) of Karnataka Rent Act 1999?
2) Whether the petitioner has made out ground to invoke Sec.27 (2) (g) of Karnataka Rent Act 1999?
3) Whether the petitioner has made out ground to invoke Sec.27 (2) (j) of Karnataka Rent Act 1999?
4) Whether the petitioner has made out ground to invoke Sec.27 (2) (r) of Karnataka Rent Act 1999?
5) Whether the petitioner has made out grounds to invoke Sec.31 (c) of Karnataka Rent Act 1999.
6) What order?
13. My findings on the above said points is as under:-
1) Point No.1 : In the Affirmative
2) Point No.2 : In the Negative
3) Point No.3 : In the Negative
8 SCCH-1
HRC No.16/2016
4) Point No.4 : In the Affirmative
5) Point No.5 : In the Affirmative
6) Point No.6 : As per final order
for the following:-
REASONS
14. Point No.1: The petitioner counsel has filed this
petition invoking Section 27(2)(d)(ii) of Karnataka Rent Act and the very proviso read as under:
(i)......
(ii) The tenant has not been in occupation thereof without a reasonable cause for a period of two years, immediately before the date of the filing of the application for the recovery of the possession thereof;
15. It is the contention of the petitioner that, the respondent is not running any business since two years in the schedule premises and the same has been kept under lock. The respondent has denied the same in his objection statement and contended that, he is running the business. The petitioner has reiterated the very same ground in his affidavit and also relied upon the documents i.e. Ex.P3 Legal notice, Ex.P4 3 Postal receipts, Ex.P5 3 returned postal covers. In the cross 9 SCCH-1 HRC No.16/2016 examination of PW.1 it is suggested that, still the respondent is doing the very same business and the said suggestion was denied. PW.1 says that, the respondent was doing the work of repairing the plastic boards in the schedule premises and now from last 4 years he has kept the same as vacant. On the other hand, the respondent in his evidence in the form of affidavit reiterated that, he is still doing the business. In the cross examination he says that, he can produce the documents to show that, still he is doing the work in the petition schedule premises and he is not having any documents for purchase of material and also selling of name plates and badges.
16. The respondent also relied upon the evidence of a witness RW.2, but in the cross examination he admits that, the respondent has paid the rent through cheques till March 2016 and he is not having any documents to show that, the cheques are received from him. However he admits that, father of the respondent was a tenant earlier and the respondent is not doing the business from last 4 years.
17. It is important to note that, the petitioner has contended that the respondent is not doing the business from 10 SCCH-1 HRC No.16/2016 last 2 years. No doubt in the cross examination he says that, he was not doing business from the last 4 years. RW.1 in the cross examination he categorically says that, still he is doing the work in the petition schedule premises, but he is not having any documents for purchase of material and also selling of name plates and badges. He has not placed any material before the Court for running any business. Added to that, the witness who has been examined by the respondent as RW.2 categorically admits that, the respondent is not doing the business from the last 4 years. Hence the evidence is clear that, the respondent is not doing the business though claims that, he can get documents and also he has not placed any material before the Court. Under such circumstances I am of the opinion that the petitioner has made out the ground to invoke Sec.27(2)(d)(ii) of Karnataka Rent Act. Hence I answer point No.1 in the Affirmative.
18. Point No.2: Petitioner has also filed the petition under section 27(2)(g) of Karnataka Rent Act which reads as under:
11 SCCH-1 HRC No.16/2016 "that the premises or any pat thereof are required by the landlord for carrying out any repairs which cannot be carried out without the premises being vacate;"
Though the petitioner has invoked the said provision, nowhere in the petition she has stated anything about the intention of carrying out the repairs and it is only contended that, the age of the building is about 6o years old. In the absence of any pleadings and material, this Court cannot consider the grounds invoked in the petition. In view of the above discussion, I am of the opinion that, the petitioner has not made out the ground to invoke 27(2)(g) of Karnataka Rent Act. Hence I answer Point No.2 in the Negative.
19. Point No.3: Petitioner has also invoked the provision under section 27(2)(j) of Karnataka Rent Act which says that, "the tenant, his spouse or a dependant son or daughter ordinarily living with him has whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted a residence or as the case may be a commercial premises;........the eviction can be invoked.
12 SCCH-1 HRC No.16/2016
20. On perusal of the entire petition averments, nowhere the petitioner has invoked the grounds available under section 27(2)(j). In the absence of any pleadings and material before the Court this Court cannot invoke section 27(2)(j) of Karnataka Rent Act. Hence I answer Point No.3 in the Negative.
21. Point No.4: It is the case of the Petitioner that, the respondent is a tenant under the petitioner on a monthly rent of Rs.3,000/- p.m. Further contended that, the petition schedule premises is required for her own use i.e. to run the business by her son who is already doing business adjacent to the schedule premises. Further contended that, the petitioner approached the respondent and requested him to quit, vacate and handover the vacant possession of the schedule premises, since the said premises is required for her bonafide use and occupation. The respondent inspite of repeated demand has not vacated the premises. Hence petitioner has caused legal notice to the respondent on 28.01.2016 by RPAD, and the same was returned with an endorsement as 'Not claimed.' On the other hand, the respondent has denied the requirement of the petitioner and contended that, the requirement of the petitioner 13 SCCH-1 HRC No.16/2016 is not genuine, only with an intention to extract higher rent and advance petitioner has filed the present petition.
22. The petitioner in order to prove the ground has examined her husband and SPA holder as PW.1 and he filed an affidavit reiterating the petition averments and got marked the documents Ex.P1 to 6 i.e. Khatha Certificate, Khatha extract, Legal notice, 3 postal receipts, 3 returned postal covers and Senior Citizen card.
23. In the cross examination of PW.1 the respondent has disputed the measurement of the petition schedule premises. Further respondent in the objection has contended that, the measurement of the premises is 140 sq. ft. and this admission will not take away the jurisdiction of this Court. The PW.1 confronted with photos and witness admits the same and the same are marked as Ex.R1 to 3. It is suggested that, all these shops of Ex.R1 to 3 are closed and keeping the same vacant and the same was denied. It is suggested that, he has demanded the higher rent and when the respondent refused to pay the higher rent the present petition is filed and the same was denied. It is suggested that, he has got vacated the tenant 14 SCCH-1 HRC No.16/2016 Prakash, Aswath and Dananjaya (United Rubbers), Uma Finance, Ashmath Pasha Pan Bida in the very same grounds and let out the same for other tenants and the same was denied. It is suggested that, the petitioner is not in need of the petition schedule premises and the same was denied.
24. On the other hand the respondent has examined himself as RW.1 and in his affidavit he has reiterated the averments made in the objection statement. In the cross examination it is elicited that, the distance between his shop and the shop of the petitioner's son is around 100 to 150 feet. It is suggested that, the petitioner shop is adjacent to his shop and the same was denied. Further admits that, he has stated in his objection statement that the said shop is not adjacent to his shop. Also admits that, for the first time he is telling the same and he has not stated in his objection statement that the rents are paid in favour of the Rizwan. He admits that, the photos Ex.R1 to 3 are behind his shop and the same are vacant and the earlier tenants are Dhananjaya, Asmath and Ashwath. He claims that, petitioner has vacated the said shops 4 to 5 years ago. It is suggested that, the business is being carried on 15 SCCH-1 HRC No.16/2016 in the said shops also and the photos Ex.R1 to 3 were taken when the shop was closed in the morning time and the same was denied. He categorically admitted that, the petitioner has demanded higher rent in the month of March 2016 and this case is filed in 2016 January. Respondent has denied the suggestion, that the petitioner is in need of the premises to accommodate her son.
25. Now let me appreciate the evidence with regard to the requirement is concerned. Admittedly the petitioner's son is doing the business. The petitioner's contention is that, the petition schedule premise is required since her son wants to expand his business. Though the respondent has contended that the petition schedule premise is at the distance of 100 to 150 feet from the shop of the petitioner's son, no material is placed before the Court. It is categorically admitted in the cross examination by the respondent that, he has not stated in his objection statement that, the said shop is not adjacent to his shop and for the first time he is telling the same before the Court. The very contention that, the petitioner shop is not adjacent to his shop wherein petitioner's son is doing cannot be 16 SCCH-1 HRC No.16/2016 accepted for the reason that, for the first time the respondent is telling the same. It is further contended that, the RW.1 in the cross examination categorically admits that, the petitioner's son is doing the business. It is further contended that, the legal notice sent to the petition schedule premises is returned with an endorsement as not claimed. On perusal of Ex.P3 a Legal notice was caused to the respondent and the same was returned with an endorsement 'not claimed.' and Ex.P5 postal covers confirm the said endorsement.
26. It has to be noted that, though the respondent has taken the defence that, the petitioner is demanding higher rent and when he refused to pay the higher rent, the present petition is filed, in the cross examination RW.1 categorically admits that, petitioner has demanded higher rent in the month of March 2016 and the case is filed in 2016 January. If really the petitioner has requested higher rent, the demand should be prior to the filing of the petition but he claims that, the demand was made in March 2016. On perusal of Order Sheet this petition is filed in the month of February 2016. Hence the question of demanding higher rate of rent in the month of 17 SCCH-1 HRC No.16/2016 March 2016 does not arise. However the contention that, the petitioner has demanded higher rent in the month of March cannot be accepted in view of the admission elicited from the mouth of RW.1. I have already pointed out that, the RW.1 categorically admitted that, the petitioner's son is doing business in the very same building and also the petition schedule premises is adjacent to her son's business. Though it is contended by the respondent that, it is in the distance of 150 feet, no material is placed before the Court to that effect. When the owner is doing the business and he intends to expand the business, it cannot be contended that, the requirement of the petitioner is malafide. Also, no rebuttal evidence as against the evidence of PW.1. RW.2 also in the cross examination categorically admitted that, respondent is not doing the business from the last 4 years and RW.2 though examined by the respondent, his evidence supports the case of the petitioner. Hence this court has to presume that, the requirement of the Petitioner is genuine and the Petitioner is in need of the petition schedule premises for her bonafide use and occupation. Hence, I am of the opinion that the petitioner has made out the ground 18 SCCH-1 HRC No.16/2016 to invoke the Petition U/s. 27(2)(r) of the Karnataka Rent Act, 1999. Accordingly, I answer Point No. 4 in the Affirmative.
27. Point No.5: It is the case of the Petitioner that, she is a senior citizen and aged about 72 years and the petition schedule premises is required to expand her son's business. She has invoked the provision of Sec.31(1)(c) of the Act and the Act clearly says that, "a person who is of the age of sixty five years or more and the premises let out by him is required for use by his or for his family or for any one for ordinarily living with him for use, he may apply to the court for recovery of immediate possession of such premises".
In order to prove that she is a senior citizen, she has produced Senior Citizen ID card which is marked as Ex.P6. On perusal of Ex.P6, the petitioner's date of birth is mentioned as 17.11.1943 and hence now she is aged 73 years and the Ex.P6 has not been disputed by the respondent and the fact of petitioner is a senior citizen is also not disputed by the respondent. Under such circumstances, Petitioner has made 19 SCCH-1 HRC No.16/2016 out the ground to invoke Sec.31(1)(c) of Karnataka Rent Act. Hence, I answer point No.5 in the Affirmative.
28. Point No. 6:- In the result, I proceed to pass the following:-
ORDER The petition filed by the petitioner U/s. 27(2)(d)(ii), (r) and 31(1)(c) of the Karnataka Rent Act, 1999 is hereby allowed.
The petition filed by the petitioner U/s. 27(2) (g) & (j) of the Karnataka Rent Act, 1999 is hereby rejected.
The respondent is hereby directed to quit, vacate and deliver the vacant possession of the petition schedule premises to the petitioner immediately from the date of this order in view of invoking Sec.31(1)(c) of Karnataka Rent Act.
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, signed and then pronounced by me in the open court dated this the 01st day of September 2016) (H.P.SANDESH) Chief Judge 20 SCCH-1 HRC No.16/2016 SCHEDULE All that peace and parcel of the property bearing No. 266, Ganga Complex, SC Road, Natakarathna Gubbiveeranna Road, 2nd Cross, Gandhinagar, Bangalore - 560 009 measuring East to West 12 feet and North to South 10 feet in all measuring 120 and bounded on:
East by : Property of Smt. Rudranamma
let out to tenants
West by : Passage
North by : Passage
South by : Property retained by
Smt.Rudranamma.
(H.P.SANDESH)
Chief Judge
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE PETITIONERS :
PW-1 : Sri. Renukaradhya LIST OF WITNESSES EXAMINED FOR THE RESPONDENT: RW-1 : Syed Farroq RW-2 : Rizwan Pasha 21 SCCH-1 HRC No.16/2016 LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONERS:
Ex.P-1 : Khatha Certificate Ex.P-2 : Khatha Extract Ex.P-3 : Legal Notice Ex.P-4 : 3 postal receipts Ex.P-5 : 3 Returned postal covers Ex.P-6 : Senior Citizen ID card
LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT:
Ex.R-1 to 3: 3 Photographs (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
*S.D.* **********