IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR H.R.R.P. No.51 OF 2017 BETWEEN B.S.Vishwantha Guptha, S/o. Late B.C.Shringaraja Guptha, Aged about 58 years, R/o. “Malasamba”, 1st Cross, Jayanagar, Shimoga, Pin Code-577201.
(By Sri. R.Gopal, Advocate) AND 1. Rafiq Ahamad, S/o. Late Mohammed Yusuf, Aged about 54 years, 2. Shafiq Ahamad, S/o. Late Mohammed Yusuf, Aged about 49 years, 3. Sri. Mohammed Riyaz, S/o. Late Mohammed Yusuf, Aged about 47 years, All respondents are R/o. Ghousia Complex, …Petitioner 1st Cross, Garden Area, Shimoga-577201.
(By Sri. B.S.Prasad, HCGP) …Respondents This HRRP is filed under Section 115 of CPC, against the order dated 20.06.2017 passed in R.R.No.07/2015 on the file of the II Additional District Judge, Shivamogga, Dismissing the revision petition and confirming the order dated 15.06.2015 passed in HRC No.27/2013 on the file of the I Additional Civil Judge and JMFC, Shivamogga, allowing the petition filed under Section 27(2)(r) of Karnataka Rent Act, 1999.
This HRRP coming on for disposal this day, the court made the following:
ORDER Heard the petitioner’s counsel and the respondents counsel.
2. Petitioner is a tenant in shop No. 5 situated in ground floor portion of Ghousia Complex Building, 1st Cross, Garden Area, Third Division, Shivamogga City. Respondents initiated eviction proceedings under Section 27 (2) (r) of the Karnataka Rent Act. The trial court passed an order of eviction and challenging the same, the petitioner preferred a revision petition in the District Court, Shivamogga. By order dated 20.6.2017, the II Additional District Judge, Shivamogga, dismissed the revision petition and therefore the defendant is before this court.
3. Learned counsel for the petitioner argues that the petitioner filed two applications, one under Order 41 Rule 27 CPC for production of additional evidence and another application under Rule 33 of the Karnataka Rent Rules, 2001 read with Section 151 of CPC for a direction to the respondents/landlords to keep Sri Mohammed Wasim present before the court. He argues that the District Court did not decide these two applications while passing the impugned order. Even there is no reference to these two applications in the impugned order. Referring to section 27 (2) (r) of the Karnataka Rent Act, the learned counsel argued that the landlord is not entitled to an order of eviction if another suitable accommodation is available to him. The reason for making an application under Order 41 Rule 27 CPC was to show that during the pendency of the revision before the District Court, three shops under the occupation of three other tenants fell vacant and that the respondents leased those shops to other tenants. If really the landlord wanted to accommodate his son in shop No.5 which is under the occupation of the petitioner, after the other shops fell vacant, the said son could have been accommodated in the other shops. It is a subsequent development that should have been considered by the District Court. He also argued that the son of the first respondent secured an employment at Dubai and therefore requirement as has been put forth by the respondents did not subsist during the pendency of the revision petition. This should have been taken note of. Non-consideration of these aspects has resulted in failure of justice and therefore this petition is required to be allowed.
4. On the other hand, the learned counsel for the respondents argues that though the court below has not referred to these two applications, the impugned order is sustainable because the landlords cannot be compelled to occupy another premises. It is within the discretion of the court below to grant an order of eviction. Both the courts below have held that the tenanted premises in the occupation of the petitioner is required for the respondents. The entire eviction proceedings under the Rent Act is summary in nature. The applications filed by the petitioner in the District Court are not maintainable. For these reasons, the petition is to be dismissed.
5. I have considered the points of arguments.
Section 27 (2) (r) of the Rent Act reads as below : -
“27. Protection of tenants against eviction.-
(1) xxx (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 one or more of the following grounds only, namely -
(a) to (q) not extracted (4) that the premises let are required, whether in the same form or after re- construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation.
Explanation not extracted”
6. A reading of this section makes it very clear that the landlord cannot seek eviction of the tenant if a reasonable suitable accommodation is available to him. No doubt, the court of first instance allowed the eviction petition and ordered the petitioner to hand over vacant possession of shop No.5 to the respondents. When this order was challenged by the petitioner by filing a revision petition before the District Court, Shivamogga, according to the petitioner certain subsequent developments took place. For this reason he made two applications. According to the petitioner three shops fell vacant and instead of occupying one of them, the respondents let out them to other tenants. It is also stated that Mohd. Wasim, son of first respondent, secured an employment at Dubai and therefore the respondents cannot insist on eviction of the petitioner. These are subsequent developments that the petitioner wanted to establish before the District Court. It is not as though the court sitting in revision cannot take note of subsequent developments. When the petitioner says that three shops fell vacant, the respondents being the landlords could still say that those shops are not suitable to them and in this context evidence is necessary to be recorded. Emphasis here is given to the word ‘suitable’. A defence is always available to the tenant to say that suitable accommodation is available and therefore his eviction cannot be sought. If applications are made in this context, it cannot be said that the petitioner has no right to make the applications. The District Court ought to have considered these two applications while disposing of the revision petition. There is no reference to these applications at all. Therefore, the matter requires to be remanded to the District Court for disposal of the rent revision petition afresh by considering the two applications made by the petitioner. Hence, the following order : -
i) Revision Petition is allowed. The impugned order is set aside.
ii) The II Additional District Judge, Shivamogga, is directed to dispose of Rent Revision No. 7/2015 by deciding the two applications filed by the petitioner/tenant under Order 41 Rule 27 CPC read with Section 151 of CPC and also Rule 33 of the Karnataka Rent Rules.
iii) The parties are directed to appear before the II Additional District Judge, Shivamogga, on 24.6.2019.
iv) The District Court is hereby directed to dispose of the revision petition within a period of six months from 24.6.2019.
ckl Sd/- JUDGE