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2002 DIGILAW 755 (KAR)

G. A. NARASIMHA MURTHY v. P. N. MURTHY

2002-12-05

body2002
( 1 ) IN this revision petition filed under Sec. 50 (l) of the Karnataka Rent control Act, 1961 (repealed Act or old Act for short), the order dated 23-2-1999 passed by the Chief Judge, Court of Small Causes, Bangalore City in H. R. C. No. 826/94 dismissing the petition filed by the petitioner landlord under Sec. 21 (1) (d) and (h) of the Act, is under challenge. ( 2 ) THE petition premises comprising of two shops bearing No. 48, Journalist Colony, First Cross, Bangalore is owned by the petitioner. The petition under clause (h) was filed by the petitioner on the ground that the same was required for establishing a research centre for his son who is highly qualified medical Ayurvedic practitioner as he is carrying out his practice in a small and cramped room at No. 3/89. Bull Temple Road, Gavipuram, Bangalore. The petitioner also claimed that he is publishing a monthly periodical by name Ayugnana and also doing research work and publishing work which require the assistance of staff members. The petition premises is in a commercial locality and suitable for the petitioners son to have his research institute and for the purpose of publishing his periodical and for the sale of medicines and publications. The court below declined the relief sought by the petitioner on the ground that the claim made by the petitioner is neither reasonable nor bonafide and the requirement of the petitioners son would not be the requirement of the petitioner. Being aggrieved the petitioner has come up in this revision. ( 3 ) I have heard the learned counsel on both sides. The learned counsel for the petitioner submitted that he does not press the claim under Sec. 21 (1) (d) of the repealed Act. ( 4 ) DURING the pendency of the revision in this court, the old Act was repealed and in its place The Karnataka Rent Act. 1999 (the Act for short) which has in its wake brought about far reaching changes in the matter of regulation of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, has been brought on the statute book. ( 4 ) DURING the pendency of the revision in this court, the old Act was repealed and in its place The Karnataka Rent Act. 1999 (the Act for short) which has in its wake brought about far reaching changes in the matter of regulation of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, has been brought on the statute book. By comparison with the rigour of proof required to be established under Sec. 21 (1) (h) of the Old Act, the rigour of proof that a landlord has to discharge for getting an order of eviction against a tenant on any of the grounds available to him under Sec. 27 of the Act has been considerably whittled down by incorporation of a legal fiction in Explanation I to Clause ( r) of Sub. sec. 2 of 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 accommo dation for his occupation. Thus, the onus on the landlord to prove that the premise is required by him for his own reasonable 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 I shall refer to Sec. 27 (2) (r) of the Act since the court is required under the Act to examine the relative merits of this revision petition only with reference to the provisions contained in the Act as the Old Act has been repealed in its entirety and the case is required to be decided under the provisions of the Act as has been held by a Division Bench of this court in M/s. MERCURY PRESS and ORS. VS. AMEEN SHACOOR and ORS. ILR 2002 KAR 2304. VS. AMEEN SHACOOR and ORS. ILR 2002 KAR 2304. The relevant portion of the said decision reads:if any case or proceedings other than execution proceedings initiated under the Old Act is pending in regard to a premises to which the New Act applies, such case or proceeding either original or appellate or revisional, shall have to be continued and disposed of in accordance with the provisions of the New Act, though they were initiated under the old 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 not only the ground of occupation for self but also for occupation for any member of his family for whose benefit the premises are held. The relevant provision reads: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 reasonable 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. ( 5 ) FROM a conjoint reading of Section 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 for his own use and occupation or for any member of his family if he is the owner thereof. Therefore, the landlord is not required to prove the element of reasonableness and bonafide requirement The requirement of a landlord for self occupation or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held could be defeated only if it is shown that as of now the landlord has other reasonable suitable accommodation. From the facts available on record it is quite clear that as of now the landlord is not in possession of any other suitable accommodation for the purpose for which the petition premises is sought by him. From the facts available on record it is quite clear that as of now the landlord is not in possession of any other suitable accommodation for the purpose for which the petition premises is sought by him. ( 6 ) IT is submitted by learned counsel for respondent tenant that the claim of the landlord for eviction of the tenant from the premises has to fail because in terms of Sec. 27 (2) ( r) a claim made for eviction for the requirement of a son can be sustained only if the son happens to be a owner of the premises thereof and in the present case the requirement urged being that of the son of the petitioner who is not a owner of the petition schedule premises, this court can not grant the prayer for eviction. ( 7 ) HOW the expression for his own use which is in pari materia with the expression occupation for himself as found in Sec. 27 (2) ( r) of the Act has to be construed is 1aid down by the Apex Court in JOGINDER PAL v. NAVAL KISHOR BEHAL , JT 2002 (Suppl 1) SC 219 in the following terms: keeping in view the social or socio religious milieu and practices prevalent in a particular section of society or a particular religion, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. To similar effect is the decision in NARAYAN PILLAI v. O. K. PONNAPPAN ACHARI, All India Rent Control Journal, 1981 (1) 673. The said decision reads: if the father has non residential buildings and the son is interested in starting his own business even though the son many not be financially dependent on his father it would be natural for the father to place it at his disposal for the sons business. In such a situation the son could be said to be dependent on the father in the matter of the need for the non residential building possessed by the father. In such a situation the son could be said to be dependent on the father in the matter of the need for the non residential building possessed by the father. Though in strict legal parlance dependence may mean looking up for support or maintenance, in the context in which that term appears in Section 11 of the Kerala Buildings (Lease and Rent Control) Act it connotes a wider concept and covers a larger field. In the case on hand the requirement is for the son of the petitioner. In the light of the close interrelation the claim made by the petitioner for the benefit of his son has to be given a wide construction and treated as the requirement of the landlord himself. ( 8 ) IN G. SUBRAMANYA UDUPA v. D. RAMAPPA, I. L. R. 1995 KAR 540 this court had occasion to consider the phrase himself as appearing in Sec. 21 (1) (h) of the old Act with reference to the reasonable and bonafide requirement of the landlord for occupation of premises. This court while observing that the term himself has to be given the widest possible interpretation, has held : the word himself as used in the section necessarily takes within its sweep the requirement of accommodating such persons in the premises which becomes necessary for the benefit of the landlord. It cannot be accepted that only persons who are economically dependant on the landlord can be taken within the sweep of the expression himself. Therefore, the fact that the son of the petitioner is not dependent on him can not be made a factor for declining the relief sought by the landlord for occupation of the premises for himself on the ground that the requirement of the son of the landlord is not the requirement of the landlord himself. I have gone through the pleadings, evidence and the impugned order in the background of the new provisions and find that in the altered situation in law the prayer of the petitioner has to be allowed under Sec. 27 (2) (r ) of the Act. ( 9 ) IN the result, for the reasons stated above, the impugned order is unsustainable in law. Accordingly, the revision petition is allowed and the respondent is given three months time to quit and deliver vacant possession of the property of the premises to the petitioner. --- *** --- .