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2002 DIGILAW 742 (KAR)

ADIL ABBAS v. ABDUL KAREEM BAGMAR

2002-11-29

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( 1 ) THE challenge in these two revisions is to the order dated 15-12-1999 passed by the XV Addl. Small Causes Judge, Mayo Hall, Bangalore in H. R. C. No. 10239/96 allowing the petition filed under Sec. 21 (1) (a) of the Karnataka Rent Control Act, 1961 (the repealed Act for short) and dismissing the petition filed under Sec. 21 (1) (h) of the repealed Act. The landlord has preferred revision against the order dismissing the petition filed under clause (h) whereas the revision by the tenant is against the order allowing the petition under Clause (a) of Sec. 21 (1) of the repealed Act. ( 2 ) FOR the sake of convenience in the course of this order landlord is referred to as the petitioner and the tenant as respondent. ( 3 ) THERE is no dispute as to the relationship of landlord and tenant between the parties. There is however dispute relating the quantum of rent, the tenant claiming it to be Rs. 500/- and not Rs. 800/- as stated by the landlord in his petition. The tenancy was entered into between the father of the petitioner and the respondent tenant. After the demise of the father of the petitioner, the petitioner became the landlord in respect of the petition premises and he was recognised as such by the tenant. There is no dispute on this aspect between the parties. Before the court-below the petitioner filed H. R. C. 10239 of 1996 under clauses (a) and (h) of Sec. 21 (1) of the repealed Act claiming that the tenant is a defaulter in payment of rent and also that he requires the petition premises for his own bonafide use and occupation. The court-below on hearing the parties allowed the petition filed under clause (a) of the repealed Act but dismissed the petition filed under clause (h) of the repealed Act. Being aggrieved both the petitioner-landlord and the respondent tenant have come up in revision before this court. ( 4 ) I have heard learned counsel on both sides at length. ( 5 ) DURING the pendency of the revisions in this court, the old Act was repealed and in its place The Karnataka Rent Act, 1999 (the Act for short) which has in its wake brought about far-reaching changes in the matter of regulation of eviction. ( 4 ) I have heard learned counsel on both sides at length. ( 5 ) DURING the pendency of the revisions in this court, the old Act was repealed and in its place The Karnataka Rent Act, 1999 (the Act for short) which has in its wake brought about far-reaching changes in the matter of regulation of eviction. One such change relates to the orders to be passed by the court on coming to the conclusion that the tenant has defaulted in payment of rents as and when they fell due. In the court below the landlord set up a case that the rent was Rs. 800/- whilst the tenant claimed it to be Rs. 500/ -. The court-below taking into consideration the fact that the tenant himself had enhanced the rent by Rs. 200/- and paid the rents during the months of July, August and September, 1993 at the rate of Rs. 700/- fixed the rate of rent at Rs. 700/ -. Once having fixed the rate of rent as Rs. 700/- the court-below set off the amounts paid by the respondent and admittedly received by the petitioner against the rents that were due and having done so, has reached a conclusion that the respondent was in arrears and failed to pay the same despite the mandatory notice issued by the petitioner before filing of the petition. The said conclusion of the court-below having been arrived at on a correct and proper consideration of the material available on record can not be found fault with and, therefore, the finding which is a pure finding of act can not be interfered with in revision. But, what calls for interference is the conclusion reached by the court-below that the respondent having withheld rents without any reasonable cause is liable to be evicted under clause (a) of sub. sec. 1 of Sec. 21 of the repealed Act. This conclusion cannot be supported in the present scenario, having regard to the change brought about in law as to the consequential order that has to follow such a finding. The relevant provision under the Act is Sec. 27 (2) (a) which reads as follows: 27. sec. 1 of Sec. 21 of the repealed Act. This conclusion cannot be supported in the present scenario, having regard to the change brought about in law as to the consequential order that has to follow such a finding. The relevant provision under the Act is Sec. 27 (2) (a) which reads as follows: 27. Protection of tenants against eviction.- (1) Notwith- 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 ). (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. (a) that the tenant has neither paid nor tendered the whole of arrears of rent and other charges legally recoverable from him within two months from the date on which a notice of demand for payment has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882 (Central Act 4 of 1882): provided that a tenant shall not be entitled to the benefit of service of notice by the landlord under this clause where, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent and other charges payable in respect of those premises: 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 under the second proviso to clause (a) of sub. sec. Thus under the second proviso to clause (a) of sub. sec. (2) of Sec. 27 an order for eviction can be passed only if the tenant fails to pay the land- lord or deposit 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. Without more, there- fore, the order passed by the court-below directing the eviction of the tenant has to be set aside and in its place an order has to be made direc- ting the tenant to pay to the landlord or deposit into the court the arrears of rent calculated at the rate fixed by the court-below viz. ; Rs 700/- per month within one month from the date of this order for which there shall be an order of eviction under Sec. 27 (2) (a) of the Act also. ( 6 ) NOW coming to the case coming under Sec. 21 (1) (h) of the repealed Act, by comparison with the rigour of proof required to be established under Sec. 21 (1) (h) of the repealed Act, the rigour of proof that a landlord has to discharge for getting an order of eviction against a tenant under Sec. 27 (2) (r) of the Act has been considerably whittled down by incorporation of a legal fiction in Explanation I to Sec. 27. By Explanation I to Sec. 27 the Act mandates that the court shall presume that the premises are so required, 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 on him 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 I to Sec. 27 of the Act by introduction of this legal fiction. 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 I to Sec. 27 of the Act by introduction of this legal fiction. In the course of this order shall refer I to Sec. 27 (2) (r) of the Act since the court is required under the Act to examine the relative merits of these revisions only with reference to the provisions contained in the Act. Chapter-VI of the Act lays down the several grounds under which the landlord can recover possession of the premises. Sec. 27 (2) (r) covers the ground of occupation for self or for any member of his family. The relevant provision reads: 27. Protection of tenants against eviction.- (1) Notwithstanding 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 ). (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 re-construction 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. (underlining is mine) ( 7 ) FROM a conjoint reading of Sec. 27 (2) (r) and Explanation I it becomes clear that the Act creates a legal presumption in favour of the landlord that the premises is in fact required by him for occupation for himself or for any member of his family dependent on him. In the light of presumption that is available to a landlord under explanation-I to Sec. 27 of the Act, there could be no challenge to the requirement of the premises by the landlord in the present case for his own use and occupation or for any member of his family if he is the owner thereof. The court below on a very detailed consideration of the respective cases pleaded by the parties came to the conclusion that the petitioner failed to prove the bonafide requirement of the premises for his own use and occupation. In arriving at the said conclusion the court brought out the distinction between a need arising from a mere desire and a need arising from an element of must have. Characteris-ing the need of the petitioner in the present case as one arising from a mere desire the court rejected the claim under clause (h) of Sub. Sec. 1 of Sec. 21 of the repealed Act. The conclusion so reached by the court below cannot be faulted under the law that was then prevailing. But in the altered scenario the same cannot be sustained as the establishment of the requirement of the premises for self occupation by proving that the need is bonafide and reasonable is no longer necessary in the altered position that obtains under the present Act. The requirement of a landlord for self- occupation or for occupation of a relative who is the owner thereof could be defeated only if it is shown that as of now the landlord has a suitable accommodation. From the facts available on record it is quite clear that as of now the landlord not in possession of any other suitable accommodation. From the facts available on record it is quite clear that as of now the landlord not in possession of any other suitable accommodation. In the changed situation in law the fact that he or his brother had let out the first-floor of the premises after it fell vacant cannot be held against the petitioner as a circumstance to defeat his claim. From the material available on record two things emerge viz. that the petitioner is staying with his aunt in the adjoining premises for want of accommodation and that as of now there is no other suitable accommoda-tion for his occupation. As these two factors are the only ingredients essential to prove the case of requirement of the premises by the landlord for self-occupation, the petitioner landlord is entitled to an order of eviction against the respondent-tenant under Sec. 27 (2) (r) of the Act. ( 8 ) LEARNED Counsel for the respondent Mr. K. S. Ramesh relied on the principle enunciated in RAM DASS v. ISHWAR CHANDER, AIR 1988. S. C. 1423, VANEET JAIN v. JAGJIT SINGH, AIR 2000 S. C. 2081, SHIV SARUP GUPTA v. MAHESH CHAND GUPTA, AIR 1999 S. C. 2507, M. S. ZAHED v. K. RAGHAVAN, A. I. R 1999 S. C. 219 touching the powers of High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the Rent Court and contended that revisional powers do not extend to interfering with and upsetting the findings of fact. The contention urged is that the court-below having held against the landlord on the point of bonafide and reasonable requirement of the premises this court must be conscious of the limitations inherent in the concept of revision and should dissuade itself from interfering with the finding of fact recorded by the court-below on the point. Revisional jurisdiction, though analogous to power of superintendence the extent of powers available under the revisional jurisdiction differs from case to case depending on the language employed in the statute. The submission made by Mr. K. S. Ramesh that it is impermissible for this court in its revisional jurisdiction to interfere with the finding of fact recorded by the court below however erroneous it may be, is not tenable having regard to the legal presumption that is available to the landlord under Sec. 27 (2) (r) of the Act. The submission made by Mr. K. S. Ramesh that it is impermissible for this court in its revisional jurisdiction to interfere with the finding of fact recorded by the court below however erroneous it may be, is not tenable having regard to the legal presumption that is available to the landlord under Sec. 27 (2) (r) of the Act. Having observed so, I must mention that the finding of the court-below has not been set aside because on reassessment of the evidence I found that a different view is possible in the matter. By setting aside the order of the court-below I have merely given effect to the law that is in force now and it is the duty of this court, even in the limited exercise of its jurisdictional power, to test the order of the Rent Court on the touchstone of whether it is according to law. The order is interfered with not because it betrays lack of reason or objectivity but because it was based on a premise of law that then governed the case which premise is no longer relevant and applicable at present, as the case has to be decided on an entirely different premise than the one on which it was proceeded with and concluded. Thus none of the several cases on which learned counsel Mr. K. R. Ramesh relied on would be of any assistance to him in the present case. There could be no quarrel with principles laid down in those decisions in the light of the law prevailing then, but none of those rulings would have any bearing now on the merits of these revisions because of the changed scenario in law and, therefore, there is no need for me to discuss those rulings. ( 9 ) IN the result, for the reasons stated above, H. R. P 193/2000 is allowed and the respondent-tenant is directed quit and deliver vacant possession of the premises within a period of three months from the date of this order. The grant of three Months shall be subject to the payment of all arrears of rent within one month from the date of this order. The grant of three Months shall be subject to the payment of all arrears of rent within one month from the date of this order. H. R. P 74/2000 filed by the respondent-tenant is disposed off with a direction that he shall deposit into court or pay to the landlord all arrears of rent within one month from the date of this order, failing which he shall suffer an order under S. 27 (2) (a) of the Act also and shall be liable to be evicted immediately on the expiry of the one month period and he shall not be entitled to the three months time granted in this order made under Sec. 27 (2) (r) of the Act. --- *** --- .