IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT HRRP No.70 /2016 BETWEEN:
SRI ANIL KUMAR M SANGHVI S/O.SANGHVI MULCHAND AGED ABOUT 46 YEARS SHOP NO.3, PRESENTLY NO.78 SRI.MAHADESWARASWAMY COMPLEX CHOWDESHWARI TEMPLE STREET BENGALURU-560 002.
(BY SRI.RAMESHCHANDRA, ADV. ) AND:
P.C.POORNIMA W/O.RAMESH B AGED ABOUT 45 YEARS RESIDING AT NO.6, 1ST CROSS RRMR EXTENSION BENGALURU-560 027.
(BY SRI.S.N.BHAT, ADV.) … PETITIONER … RESPONDENT THIS HRRP IS FILED UNDER SECTION 46(1) OF THE KARNATAKA ACT, 1999 AGAINST THE ORDER DATED 06.06.2016 PASSED IN HRC NO.17/2015 ON THE FILE OF THE COURT OF SMALL CAUSES, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 27(2)(j) AND (r) OF KARNATAKA RENT ACT, 1999 AND DIRECTING THE RESPONDENT TO QUIT, VACATE DELIVER VACANT POSSESSION OF THE SCHEDULE PREMISES TO THE PETITIONER WITHIN THEREIN THREE (3) MONTHS TIME FROM THE DATE OF THIS ORDER.
THIS HRRP HAVING BEEN HEARD AND RESERVED ON 19/12/2018 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The revision petitioner/tenant is before this Court in this revision petition under Section 46 (1) of the Karnataka Rent Act, 1999 (hereinafter referred to as ‘the Act’ for short) against the order dated 06.06.2016 in HRC No.17/2015 passed by the Chief Judge, Court of Small Causes, Bangalore.
2. The parties to the revision petition would be referred to as they stand before the Court below.
3. The petitioner/landlady filed petition in HRC No17/2015 under Section 27 (2)(r) and (j) of the Act, seeking eviction of the respondent/tenant and seeking vacant possession of the schedule premises, as the schedule premises is required by the landlady for running the business by her husband and also on the ground that the tenant is possessing the alternate premises. The respondent/tenant filed objections to the petition denying the petition averments and also the relationship of landlord and tenant between himself and the petitioner/landlady. Further contended that the respondent had entered into a lease agreement with one Channabasappa, which is a permanent lease, as such, the landlord can only enhance the rent and cannot evict the respondent/tenant. The petitioner examined herself as P.W.1 and examined her husband as P.W.2 in support of her case and also produced documents Ex.P1 to Ex.P16. On the other hand, the respondent examined himself as R.W.1 and got marked the documents Ex.R1 to Ex.R4.
4. The trial Court, on assessing the material on record both oral and documentary allowed the petition both under Section 27(2)(j) and (r) of the Act and directed the respondent/tenant to quit, vacate and deliver the vacant possession of the schedule premises to the petitioner within three months from the date of the order. Aggrieved by the said order, the respondent/tenant is before this Court in this revision petition.
5. Heard the learned counsel for the revision petitioner and learned counsel for the respondent. Perused the Lower Court Records.
6. Learned counsel for the respondent/tenant submits that the order passed by the court below is opposed to the materials on record both oral and documentary. It is contended that there is no co-relation between the property mentioned in Ex.P3 and to the petition schedule premises. The property described in both the documents differs and the landlady is not definite about the schedule property from which the tenant is to be evicted. Further it is submitted that the requirement of the petitioner/landlady is not true and she has not proved her requirement. No material whatsoever is produced to show that the husband of the landlady requires the schedule premises for running the business or to show that the husband of the landlady is carrying on piece work business. Further it is the case of the respondent/tenant that the petitioner/landlady has not made out a case under Section 27(2)(j) of the Act as the premises said to have been acquired by the respondent is sold much prior to the institution of the petition i.e., in the year 2012 itself and the trial Court has failed to appreciate Ex.R1-sale deed which would indicate that the property has been sold in the year 2012 itself. Further it is contended that the petitioner/landlady has not filed affidavit along with the petition as required under the provisions of Section 27(2)(r) of the Act. Learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court reported in (2008) 10 SCC 685 in the case of SOMANATHASA BADDI v/s CHANNABASAPPA AND OTHERS to contend that filing of the affidavit along with the petition is mandatory. Learned counsel also relied upon a decision of this Court reported in ILR 2004 KAR 3288 in the case of G.SHOUKATH AND OTHERS v/s V.CHANDRAPRAKASH to contend that the landlord has to prove that the premises is reasonably and bonafidely required. Learned counsel also relied upon 2018(2) Kar.LJ 662 (SC) in the case of M/S.ALAGU PHARMACY AND OTHERS v/s N.MAGUDESWARI to contend that, unless and until ground seeking eviction in terms of the concerned contract is not made out, no eviction of a tenant can be ordered.
7. Per contra, learned counsel for the petitioner/landlady submits that the landlady has made out a case for eviction under Section 27(2)(j) and (r) and as such the trial Court has rightly allowed the petition which requires no interference by this Court. He further contends that under Section 27(2)(r) of the Act, a legal presumption would arise in favour of the landlord when petition for eviction on the ground that the premises is required for use of the landlord or for any members of his/her family is filed. In support of his submission, he relies upon a decision of the Hon'ble Supreme Court reported in ILR 2004 KAR 2398(SC) in the case of P.SURYANARAYANA (D) BY LRs. v/s K.S.MUDDUGOWRAMMA. He also relies upon a decision of the Hon'ble Supreme Court reported in AIR 1995 SC 576 in the case of RAJ KUMAR KHAITAN AND OTHERS v/s BIBI ZUBAIDA KHATUN AND ANOTHER to contend that when landlord seeks eviction for his requirement or for use or carrying on business by his family members, one need not indicate the precise nature of business.
8. In the light of the above submissions of the parties, the only question that arises for consideration in this petition is as to whether the order of the trial Court needs interference?
9. Learned counsel for the respondent/tenant contended that there is no co-relation between the petition schedule premises and Ex.P3 lease agreement. Ex.P3 lease agreement indicates the premises as shop No.3, Ground floor, premises bearing No.78 situated at Chowdeshwari Complex measuring 20 sq.ft., below the staircase of the complex. Whereas the petition schedule is described as Shop premises situated below the staircase of property No.78, Chowdeshwari Temple Street, Bangalore, measuring 8 ft. x 6 ft. The only difference which could be seen from the petition schedule and the schedule to Ex.P3 is with regard to measurement. But in evidence and material on record, it is seen that the shop is measuring only 8 ft. x 6 ft. The parties to the petition know very well and have understood the premises against which eviction is sought. Further it has come on record in the evidence of R.W.1 which reads follows:
“……………….. I am paying rent of Rs.1,063/- per month. I was inducted as tenant on monthly rent of Rs.600/- or Rs.700/- per month by Channabasappa and Smt.Champaka. Now, I am paying the rent in favour of petitioner. ”
10. The respondent/tenant admits that he is paying rent to the petitioner/landlady in respect of the petition schedule premises. It appears from the record that the respondent/tenant tried to dispute the relationship of landlord and tenant, but was not able to produce any material to substantiate the same. Further, it is the case of the petitioner/landlady that the schedule premises is acquired under final decree passed in partition suit in O.S.No.599/2013 which is produced as Ex.P4. Therefore, the contention of the respondent/tenant with regard to difference in petition schedule premises and schedule in Ex.P3 is liable to be rejected.
11. Further, it is contended that the petitioner/landlady has not proved her requirement with regard to petition schedule premises and there is no material to indicate that her husband requires the premises for carrying on business and also to show that her husband is carrying on business in sale/trading of plastic coated items. To deal with this contention it is necessary to look into the provisions of Section 27(2)(r) of the Act. Section 27(2)(r)reads as follows:
“27(2)(r) 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:
Provided that, where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition:
Explanation-I: For the purpose of this clause and Sections 28 to 31:
(i) where the landlord in its application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required;
(ii) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law.
Explanation-II: For the purposes of this clause and Sections 28 to 31 on occupation by the landlord of any part of building of which any premises let out by him forms a part shall not disentail him to recover the possession of such premises.
Explanation-III: For the purposes of this clause, and Sections 28 to 31 “owner of the premises” includes a person who has been allotted shelf premises by the Bangalore Development Authority or any other local authority by way of an agreement of hire- purchase, lease or sub-lease, even before the full ownership rights accrue to such hire-purchaser, lessee or sub-lessee, as the case may be.”
12. From the reading of the above provision, it would make it clear that presumption has to be drawn in favour of the petitioner/landlady and the concept of proving the requirement or need by the petitioner/landlady would not arise. But the said presumption in favour of the petitioner/ landlady is rebuttable one. The respondent/tenant could rebut the said presumption by producing cogent evidence before the Court. As contended by the learned counsel for the petitioner, one need not prove the requirement, but the need must be reasonable and bonafide. In the case on hand, the requirement of the petitioner/landlady in respect of the petition schedule premises is for carrying on business by her husband, who according to her is carrying on the business in sale/trading of plastic coated items of various sizes, without there being any premises of his own. In support of the petitioner/landlady’s requirement of petition schedule premises, the husband of the petitioner/landlady is examined as P.W.2 who has stated that he needs premises for running his business which he is carrying on without there being any premises of his own. The respondent/tenant has failed to produce any rebuttable evidence to contend otherwise that the petitioner/landlady would not require the petition schedule premises. The petitioner’s requirement of the petition premises for running business by her husband is a reasonable and bonafide requirement. The respondent/ tenant cannot contend by relying upon decision of the Hon'ble Supreme Court reported in ILR 2004 KAR 3288 (supra) that requirement of the petitioner/landlady is not reasonable nor bonafide. The relevant paragraph of the above decision would read as follows:
“7. A plain reading of the above would show that the legislature has not used expressions like “bonafide requirement, or reasonable requirement” or “bonafide and reasonable requirement” of the landlord. What is necessary is that the premises let to the tenant is ‘required’ by the landlord or a member of his family or by the person for whose benefit the premises is held. The absence of the expressions referred to above does not however make any material difference, for even in their absence, a ‘requirement’, in order to satisfy the essentials of Sections 27(2)(r) must be bonafide and reasonable. What is not bonafide or what is unreasonable on a fair and objective assessment of the facts of a given case cannot be termed to be ‘requirement’ at all. In other words, reasonableness is an attribute implicit in the expression ‘requirement’ which need not be additionally prescribed by the statute.”
Thus, I am of the view that the requirement of the premises by the landlady for carrying on business by her husband is a reasonable and bonafide requirement which she has proved by examining P.W.2 her husband. On the other hand, the respondent/tenant has not led any rebuttable evidence to disprove the requirement of the petitioner/landlady.
13. Learned counsel for the respondent/tenant contended that the petitioner/landlady has not filed affidavit in support of her requirement along with the petition relying upon the decision of the Hon'ble Supreme Court reported in (2008)10 SCC 685 (supra). In the said case, the petition was filed only with verification which was certified by the Administrative Officer of the trial Court. In the case on hand, the petition states about the requirement of the petitioner/landlady that her husband has decided to carry on the business in sale/trading of plastic coated items, which was supported by the verifying affidavit. Moreover, the petitioner/landlady as well as her husband have been examined as P.W.1 and P.W.2 as witnesses by filing affidavit before the Court. In the facts of the present case the above decision relied upon by the respondent/tenant would not assist him.
14. For the above reasons, the finding of the trial Court with regard to requirement of the premises by the petitioner/landlady under Section 27(2)(r) of the Act needs no interference.
15. Learned counsel for the respondent/tenant contended that the petitioner/landlady has failed to prove that she is entitled to eviction and vacant possession of the petition schedule premises under Section 27(2)(j) of the Act. The petitioner/landlady in her petition had contended that the respondent/tenant had purchased a shop premises situated opposite to the schedule premises from the legal representatives of her late sister and contended that as the respondent/tenant possesses alternate premises, she would be entitled for possession of the petition schedule premises. The respondent/tenant has specifically contended that the premises purchased from the sister of petitioner/landlady in the name of the Company i.e. M/s.NAKODA INDIA REFINERY PRIVATE LIMITED (supra) was sold as per Ex.R1 much prior to the institution of the petition itself. The respondent/tenant in his evidence has also made it clear that the premises purchased is already sold and no alternate premises is available to the respondent/tenant as on the date of filing the petition. No document is produced by the petitioner/landlady to show that the respondent/tenant possesses or has acquired alternate premises as on the date of filing of the petition.
On the other hand, the respondent/tenant has produced Ex.R1 in support of his contention that the premises purchased from the sister of the petitioner/landlady is sold in the year 2012. Hence, the trial Court has committed an error in allowing the petition of the petitioner/landlady under Section 27(2)(j) of the Act.
16. Accordingly, the HRRP is partly allowed. The order of the trial Court insofar as Section 27(2)(j) is set aside and order passed by the trial Court under Section 27(2)(r) of the Act is confirmed.
Sd/- JUDGE mpk/-*