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2002 DIGILAW 680 (KAR)

ANANDA KUMAR B. PIRGAL v. A. K. GANGADHARAN

2002-11-11

body2002
( 1 ) IN these two revisions, one by the landlord and another by the tenant, the order dated 1-7-1998 in H. R. C 1160/94 passed by the court-below disposing the eviction petition filed under Sec. 21 (1) (a), (h), (o) and (p) of the Karnataka Rent Control Act, 1961 (the old Act for short) is assailed. ( 2 ) THE court below on consideration of the respective cases put forth by the landlord and the tenant allowed the petition filed by the landlord under Sec. 21 (1) (a) of the old Act and dismissed the petition filed by him on other grounds. While the landlord has preferred the revision against the order dismissing the petition on grounds other than Sec. 21 (1) (a), the tenant has preferred the revision against allowing of the petition on the same ground. ( 3 ) I have taken up these revision petitions together for disposal. ( 4 ) THE old Act has been replaced by The Karnataka Rent Act, 1999 (the New Act for short) which has in its wake brought about substantial changes in the matter of regulation of eviction. The considerations that a court has to weigh in determining a petition for eviction under the New Act are considerably different and the rigour of proof that a landlord aspiring for possession of the tenanted premises has to discharge has been considerably whittled down by incorporation of a legal fiction in favour of the landlord that every application presented for eviction on the ground of requirement of the same for his self occupation has to be treated as genuine without the landlord being required to prove the genuineness of the requirement. The provisions of the New Act, while introducing this legal fiction in favour of the landlord has imposed the only onus of proving that he does not possess a more suitable accommodation for his occupation. Thus, the need of the landlord to prove that the premises is required by him for his own bonafide use and occupation has been totally done away with by explanation 1 to Sec. 27 of the New Act by introduction of this legal fiction. I would be making a reference to Sec. 27 (2) (r) of the New Act in the course of this order. I would be making a reference to Sec. 27 (2) (r) of the New Act in the course of this order. The Old Act having been repealed in its entirety and the New Act has been made applicable to the petition premises, I would be required to examine the relative merits of these revision petitions, only with reference to the provisions contained in the New Act. ( 5 ) I have heard the learned counsel on both sides. ( 6 ) SO far as the dismissal of the petition flied by the landlord under (o) and (P) of the old Act is concerned, the order passed by the court below on the said two points now covered by Sec. 27 can never be faulted because the evidence adduced and the material produced before the court below in support of the case under these clauses is grossly insufficient to prove the case putforth by the landlord under those clauses. ( 7 ) BUT, the case put forth under Sec. 21 (1) (h) of the Old Act by the landlord has to be disposed of without reference to the reasoning given by the court below because as stated earlier, under Sec. 27 (2) (r) of the New Act the case pleaded by the landlord could only be rejected on the ground that a more suitable premises is available to him to fulfil his need. In order to better appreciate the case on the point, I reproduce the relevant portion of Sec. 27 (2) (r) of the Act:protection of tenants against eviction.- (1) Not with standing anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant, save as provided in sub-section (2 ). (1 ). . (1 ). . (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 on one or more of the following grounds only, namely, - (r) that the premises let are required, whether in the same form or after reconstruction or re-building, by the landlord for occupation for himself or 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 purposes of this clause and Sections 28 to 31, - (i) where the landlord in his 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 an occupation by the landlord of any part of a building of which any premises let out by him forms a part shall not disentitle him to recover possession of such premises. Therefore, I would be required only to consider the case sought to be made out by the tenant that the landlord has a suitable premises for his occupation. The court-below has taken into consideration the case put forth by the petitioner himself to the effect that one shop in occupation of Veeraiah Achari was kept vacant and he has not shifted his business or profession to that premise so far. The 2nd floor was also in the process of eviction as the eviction order was obtained and the matter was pending in this court with regard to 2nd floor. It is also admitted by the landlord that the hind portion in occupation of the donor Chandrambal is also vacant and the petitioner has not occupied that portion. The petition shop measures only 8x8'. It is also admitted by the landlord that the hind portion in occupation of the donor Chandrambal is also vacant and the petitioner has not occupied that portion. The petition shop measures only 8x8'. It was for the landlord to reveal the measurement of the other vacant portions and to show that it is not suitable for his occupation because under Sec. 27 (2) (r) the burden is cast on the landlord to show that he has no other suitable accommodation. The petitioner having not denied the availability of some other shop, it was for him to say why the said accommodation is not suitable for his accommodation. The landlord having failed to discharge thus burden an adverse inference has to be drawn that the shops do not measure less than petition premises which measures 8' x 8'. Thus, it can be safely presumed that those portions would not measure less than 8' x 8'. The court-below relying on circumstance of availability of vacant possession in the other portions of the very same premises has rightly rejected the claim of the petitioner-landlord under sub- clause (h) of Sec. 21 (1) of the Old Act. The reasoning adopted by the court-below in this regard will hold good for determining the issue under Sec. 27 (2) (r) of the New Act under which availability of a suitable accommodation disentitles the petitioner-landlord front getting an order of eviction. As it has been established that the petitioner-landlord has suitable alternative accommodation in the same premises which he has not occupied, he is not entitled to the relief under Sec. 27 (2) (r) of the New Act. ( 8 ) WHAT remains is the ground under Sec. 21 (1) (a) of the Old Act and presently Sec. 27 (2) (a) of the New Act. The court-below has considered the fact that the respondent-tenant had deposited only Rs. 3900/- when he was due Rs. 5000/- for 50 months rent. It has also taken into consideration the fact that the respondent-tenant never replied to the legal notice issued by the petitioner- landlord though he has not denied the fact of receipt of Ex. Pl (a) under which the petitioner-landlord claimed to have issued the legal notice Ex. P1 to the respondent-tenant. The respondent-tenant had not come up with a case that what was received by him under Ex. Pl (a) under which the petitioner-landlord claimed to have issued the legal notice Ex. P1 to the respondent-tenant. The respondent-tenant had not come up with a case that what was received by him under Ex. P1 (a) was not the legal notice but something else. The notice was received by him on 6-4-1993. The court-below has found that even after receipt of the notice he has defaulted in payment of rents and even as on the date of the petition the court- below found that the respondent-tenant was in arrears. As the tenant had neither paid nor tendered the whole of the arrears of rent within two months from the date on which a notice of demand for payment had been served on him by the landlord, the landlord is entitled to recover possession of the premises from him subject, however, to the second proviso to sub-clause (a) of sub. Sec. (2) of Sec. 27 of Act 34 of 2001 which reads as follows:provided further that where in a proceeding for eviction of a tenant on the ground specified in this clause, the tenant is to be evicted, the Court shall make an order directing the tenant to vacate the premises unless he pays to the landlord or deposits into Court within one month of the date of order, an amount calculated at the rate at which it was last paid, for the period for which the arrears of rent and other charges were legally recoverable from him, including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made. Thus, in the light of dismissal of the case put forth by the landlord on the ground of self- occupation, the landlord would be entitled to recover possession only in the event of failure on the part of the tenant to deposit or pay the entire rents due within one month from the date of this order. The order now passed is, therefore, subject to the rider contained in the second proviso to clause (a) of sub. Sec. (2) of Sec. 27 of the Act. The order now passed is, therefore, subject to the rider contained in the second proviso to clause (a) of sub. Sec. (2) of Sec. 27 of the Act. ( 9 ) LASTLY, it is contended by learned counsel for the petitioner that in the light of Explanation-II to Sec. 27 the petitioner is not disentitled from recovering the possession even though a part of the building of which the petition Premises forms part of is not occupied by him. Explanation II caters to a situation where the landlord, occupying a different portion of the premises of which the portion let out forms a part, is seeking possession of the rented portion. It reads:explanation. II.- For the purposes of this clause and Sections 28 to 31 an occupation by the landlord of any part of a building of which any premises let out by him forms a part shall not disentitle him to recover the possession of such premises. The explanations refer to the circumstances which would not bar the passing of an order for eviction if the landlord has proved his case under sub-sec (2) of Sec. 27. They owe their existence to the intention of the Legislature to exclude these circumstances as grounds of defence against an order of eviction if the same is established by the landlord under sub- sec. (2) of Sec. 27. To derive the benefit, of this Explanation II to Sec. 27 firstly, the landlord must be in occupation of a part of the premises of which the petition premises forms a part and being in occupation of part of the premises he must have made out a case on any of the grounds available under the various clauses to sub- Sec. (2) of the Act. But, this is not such a case because the landlord has not established his case under sub. sec. (2) of Sec. 27 of the Act. Therefore, Explanation II to Sec. 27 would not, on its own, come to the aid of the petitioner to recover possession. The Explanations are purely classificatory in nature and are intended to serve the purpose of aiding the court in having a clear understanding of the position in law while considering the case of the landlord under the various grounds available under sub. The Explanations are purely classificatory in nature and are intended to serve the purpose of aiding the court in having a clear understanding of the position in law while considering the case of the landlord under the various grounds available under sub. Sec. (2) of Sec. 27 for eviction and they by themselves would not serve as the sole basis for making an order of eviction, if the landlord has failed to prove his case under Sec. 27 because under sub. Sec. (1) of Sec. 27 no order for recovery of possession of any premises shall be made by the court in favour of the landlord against a tenant save as provided in sub-sec (2 ). The petitioner-landlord having failed to prove his case under sub- sec (2) cannot seek to obtain an order of eviction purely on the basis of the Explanations to Sec. 27 of the New Act. ( 10 ) IN the result, for the reasons stated above, there is no merit in the revision filed by the landlord in H. R. R. P 1488/98 and the same is dismissed accordingly. However, the H. R. R. P No. 1334/98 filed by the tenant is disposed of under clause (a) of sub. sec. 2 of Sec. 27 subject to the second proviso to Sec. 27 (2) (a) of the New Act. The respondent-tenant shall vacate the premises unless he pays the landlord or deposits into the court within one month of the date of order, an amount calculated at the rate at which it was last paid, for the period for which the arrears of rent and other charges were legally recoverable from him, including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made. If the rent is deposited in this court in these proceedings, the tenant shall give details of the deposits made by him to the landlord within the aforesaid period of one month by a registered notice. If the deposits made by him do not cover the entire arrears of rent, the tenant shall deposit the balance amount within one month from the date of this order, failing which he would have to vacate the premises forth with on the expiry of one month. --- *** --- .