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2003 DIGILAW 265 (KAR)

M. CHINNA DORAI v. B. S. RAMAKRISHNA

2003-03-13

V.GOPALA GOWDA

body2003
V. GOPALA GOWDA, J. ( 1 ) THIS revision petition is directed against the order dated 8-2-2000 passed by the Trial Court in H. R. C. No. 881 of 1996 allowing the petition and directing delivery of vacant possession of the petition schedule premises within four months. ( 2 ) THE eviction petition was filed by the respondents-landlords against the petitioner-tenant under clauses (a), (c), (d) and (h) of Section 21 (1) of the erstwhile Karnataka Rent Control Act, 1961. The eviction petition was resisted by the tenant denying the claim of the landlords and prayed for dismissal of the petition. After trial, the petition was allowed on all the grounds by the Trial Court. This revision petition is filed questioning the correctness of the said order. ( 3 ) HEARD the learned Counsels for the parties and perused the order under revision. ( 4 ) ACCORDING to the landlords, the monthly rent of the premises being rs. 100/-, the tenant has not paid rent from 1-1-1995 despite service of notice. Hence, the tenant is liable to be evicted for non-payment of rent. The case of the tenant is that he was the tenant under the father of first petitioner on a monthly rent of Rs. 7/-; that after his death, he has been paying rent at the rate of Rs. 30/- per month to the first petitioner. The trial Court held that the rate of rent is Rs. 100/- per month and since the rents paid by the tenant do not cover the full period, the tenant is a defaulter. Consequently, eviction is ordered under Section 21 (l) (a) of the act. Since the tenant disputed the quantum of rent, the burden of proving the same was on the landlord. Admittedly, there is neither lease deed nor rent receipts. At least the landlord should have produced the extract of property assessment which would have revealed the rent of the petition premises. Since no documentary evidence is produced to show the rate of rent was Rs. 100/- per month, the conclusion arrived at by the Trial Court is without any basis. Consequently, the eviction ordered under Section 21 (l) (a) of the Act cannot be sustained. ( 5 ) SO far as the alleged permanent structure put up by the tenant is concerned, the photograph-Ex. P. 10 showed mere storage of bricks and tiles beneath a tarpaulin. Consequently, the eviction ordered under Section 21 (l) (a) of the Act cannot be sustained. ( 5 ) SO far as the alleged permanent structure put up by the tenant is concerned, the photograph-Ex. P. 10 showed mere storage of bricks and tiles beneath a tarpaulin. Mere collection or storage of material does not amount of putting up permanent structure. Even the Trial Court has held that the tenant dumped the materials for construction. That itself makes clear that there was no construction much less permanent construction made by the tenant. Despite that, the finding of the Trial court to the contrary, is baseless and wholly unsustainable in law. It follows that the eviction ordered on this ground is also liable to be set aside. ( 6 ) THE next ground of eviction ordered is, the tenant is in the habit of making galata and therefore is a nuisance to the neighbours. Admittedly, the landlords have not adduced any evidence in this regard. The trial Court relied upon the evidence of the tenant to the effect that he cannot produce the other tenants as they were not residing in the premises in which the schedule premises is situated; that one of the other tenant is not in good terms with him and that he had filed a complaint in the police station. The landlord who pleaded nuisance of the tenant have to prove the same. Since the same is not done, the Trial Court grossly erred in holding that the tenant is a nuisance. Consequently, the eviction ordered on the ground of nuisance also cannot be sustained. ( 7 ) THE eviction of the tenant is also ordered under Section 21 (l) (h) of the Act on the ground that the premises is required for the additional accommodation of the landlords. The requirement pleaded is that the present accommodation is not sufficient for the landlords; that the two children of 2nd petitioner are students and they require additional accommodation for their studies; that the petition schedule premises is required for them and also to store material and to accommodate guests. The Trial Court accepted the plea of the landlords and ordered eviction of the tenant. But, the Trial Court failed to take into consideration the following factors. (A) The petition schedule premises is in the first floor whereas the 2nd petitioner is residing in the ground floor. The Trial Court accepted the plea of the landlords and ordered eviction of the tenant. But, the Trial Court failed to take into consideration the following factors. (A) The petition schedule premises is in the first floor whereas the 2nd petitioner is residing in the ground floor. Hence, the schedule premises is not suitable for additional accommodation as the same is not attached to the premises of the first petitioner. (B) The landlords got evicted the earlier tenants. If really there was need for additional accommodation, they could have occupied any one of the vacant portions. They have not chosen to do so. On the other hand, they have let out them to others. Even in the premises where the first petitioner is residing, some tenements fell vacant but the 2nd petitioner did not chose to occupy them. The conduct of the landlords clearly prove lack of bona fide requirement for additional accommodation. Learned Counsel for the tenant has rightly placed reliance upon the decision in K. Appanna v S. Rajashekar, wherein it is held that when the landlord let out the portion that became vacant after filing of the eviction petition, the claim for eviction is not bona fide. The counsel also relied upon rightly on the decision in T. Sivasubramaniam and Others v Kasinath Pujari, wherein it is held that mere desire of the landlord is not enough to pass order of eviction. In the instant case also, it is the mere desire of the landlord to seek eviction of the tenant. (C) The 2nd petitioner occupied the ground floor of the building in which the petition schedule premises is situated just three months prior to filing of the eviction petition. This was done with a view to create a ground for the eviction of the tenant in view of the status quo order passed by the Civil Court in O. S. No. 328 of 1996 filed by the tenant against the landlord. (D) The petition schedule premises measures only 8 x 9 feet. In such a small area the landlords cannot store materials and accommodate study of the children of 2nd petitioner and also the guests. If they really in need of additional accommodation for those purposes, they require larger portion than the petition schedule premises. (D) The petition schedule premises measures only 8 x 9 feet. In such a small area the landlords cannot store materials and accommodate study of the children of 2nd petitioner and also the guests. If they really in need of additional accommodation for those purposes, they require larger portion than the petition schedule premises. (E) So far as comparative hardship is concerned, the Trial Court has found that the tenant would be put to little hardship if eviction is ordered. Despite that it has concluded that greater hardship would be caused to the landlords if eviction is not ordered. The Trial Court failed to note that the tenant is residing in such a small portion with his wife and children since a long time. This itself establish that he is so poor that he cannot afford higher rent and advance to secure alternative accommodation. That being so, quite naturally he suffer greater hardship, if, he is evicted from the schedule premises. On the other hand, the landlords are seeking the schedule premises for additional accommodation but the same would be insufficient. They can opt for the adjacent premises in then ground floor itself. Thus, the comparative hardship lies more in favour of the tenant, if, eviction is ordered. The Trial Court failed to consider these aspects. ( 8 ) FOR the aforesaid reasons, the order under revision cannot be sustained. The reasons assigned therein are erroneous, not tenable and acceptable. The order is passed without proper application of mind. ( 9 ) THE contention of the tenant that the first petitioner is a mere rent collector and he cannot seek eviction of the tenant, cannot be accepted. The premises in question is bequeathed in his favour and based on that the katha is also transferred and even tax is also paid. Hence, for all purposes, he is the landlord of the premises. The decision relied upon by the Counsel for the tenant in this regard in MM. Quasim v Manohar lal Sharma and Others, to contend that first petitioner is not the landlord, has no application to this case. ( 10 ) FOR the reasons stated above, this revision petition is allowed. The order under revision is set aside and the eviction petition stands dismissed. Quasim v Manohar lal Sharma and Others, to contend that first petitioner is not the landlord, has no application to this case. ( 10 ) FOR the reasons stated above, this revision petition is allowed. The order under revision is set aside and the eviction petition stands dismissed. ( 11 ) THE respondents are at liberty to withdraw the amount in deposit only at the rate of Rupees 30/- per month for the period ordered under section 21 (l) (a) and remaining amount shall be paid to the petitioner. ( 12 ) BEFORE parting with the case, it has to be observed that the rent of the schedule premises is very meager, not even a fraction of actual rent it feches in these days. It is for the landlords to work out their rights in this regard in the manner known to law. At the same time, the tenant must also realise this and do the needful. --- *** --- .