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2004 DIGILAW 213 (KAR)

ANWAR BAIG ALIAS SARDAR SAHEB v. ABDUL KHADIR

2004-03-17

A.V.SRINIVASA REDDY

body2004
A. V. SRINIVASA REDDY, J. ( 1 ) THE petitioner-tenant calls in question the validity and correctness of the order dated 10th September, 2003 passed by the XV Additional small Causes Judge, Mayo Hall, Bangalore in H. R. C. No. 10261 of 1999 allowing the eviction petition filed by the respondent-landlord ( 2 ) THE respondent-landlord filed the petition under Section 21 (l) (h) of the Karnataka Rent Control Act ('repealed Act' for short), urging that he requires the petition premises in order to set up his son in the business of selling poultry. It was pleaded by the respondent that his sou for want of accommodation is without any avocation and he has the necessary funds to establish his son in business. The petition was resisted by the petitioner on the ground that the need pleaded is not genuine and that greater hardship would be caused to him if eviction is ordered The cotirt below on appreciating the rival claims found the need urged by the respondent to be real and genuine and accordingly allowed the petition for eviction. The order of eviction passed by it is impugned herein by the petitioner. ( 3 ) I have heard the learned Counsels for both sides. ( 4 ) DURING the pendency of the proceedings in the Court below the karnataka Rent Act, 1999 ('the Act' for short) having come into force the court below lightly appreciated the rival claims in accordance with section 27 (2) (r) of the Act which provision corresponds to Section 21 (l) (h) of the repealed Act. Having thus appreciated the rival claims, the Court below came to the conclusion that need pleaded by the respondent in support of his case of requirement of the premises for his own use and occupation has been fully established. ( 5 ) LEARNED Counsel for the petitioner calling in question the legality and correctness of the order of the Court below cited the ratio of the decisions in Radha Krishnan v Thayappa Sctty, Sha Seshmal v vcnkatarathanarn and Porwal and Sons v Amanulla Khan mahamadkhan, in support of his submission that the respondent is not entitled to an order of eviction under Section 27 (2) (r) of the Act as the need propounded by him is not personal to him and the son for whose benefit the premises are sought is not the owner of the petition premises. It is his submission that the respondent would be entitled to an order of eviction only if the need urged is personal to the landlord and where the need urged is not personal, the person for whose benefit the premises are sought must be the owner thereof It is submitted by him that as the need is neither personal to the landlord and nor is the son, for whose benefit the premises are sought, the owner of the petition premises, the eviction order passed by the Court below is unsustainable in law. In Radha Krishnan, supra, this Court has held that the requirement of the third son of the owner who is not dependent on the owner does not become the requirement of the owner under Section 21 (1 ) (h) of the repealed Act. In Sha Seshmal, supra, this Court has held that a landlord cannot seek eviction under Section 21 (l) (h) of the repealed Act for the accommodation of his son who is divided from him in every respect. In Porwal and Sons, supra, this Court has held that it is incumbent upon the landlord to show that he has sufficient finance for the business besides experience and opportunity. The learned Counsel for the petitioner relied on the ratio of these decisions to convince the court that unless the need propounded by the landlord is of a personal character, the Court should refrain from granting the prayer for eviction. No doubt such submission appears to be well-founded given the fact that the law as it then stood made it mandatory for the landlord to either establish his own personal need or where the need propounded is that of a family member, to establish that it is required for the benefit of a member of the family who is the owner of the premises in the occupation of tenant. Such a submission cannot, however, be entertained in this revision because those decisions were rendered by this Court in appreciation of the law as it then stood which is no longer in force now. As, under the present law. it is not mandatory for the landlord to establish the personal character of the need to succeed in his endeavour to evict the tenant, the ratio of the decisions cited by the learned counsel for the petitioner cannot be looked into for deciding the issue involved in his revision petition. As, under the present law. it is not mandatory for the landlord to establish the personal character of the need to succeed in his endeavour to evict the tenant, the ratio of the decisions cited by the learned counsel for the petitioner cannot be looked into for deciding the issue involved in his revision petition. Under the present law the need of the son or any member of the family has to be construed as the need of the landlord 'himself which word has been given a wide connotation by the apex Court in various decisions by laying down the law that the word 'himself as occurring in Section 27 (2) (r), with reference to the landlord, covers in its ambit the need of a son, daughter or any member of the family ordinarily living with him or dependent on him. Section 27 (2) (r) has not merely done away with the need to establish the personal character of the need, it has also diluted the standard of proof required to be established by the landlord. Explanation I (i) also obligates the Court to draw a presumption in favour of the landlord that the need urged by him is in fact real and genuine. In order to understand the full scope and ambit of Section 27 (2) (r), I quote the provision. It 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 prescnbed 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 former after reconstruction or rebuilding, by the landlord for occtipation 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. (r) that the premises let are required, whether in the same former after reconstruction or rebuilding, by the landlord for occtipation 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 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 occvipation 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 pennissible 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". The need urged by the respondent is for settling his son in business who, for want of accommodation is not in a position to start any business. Construing such a need as the need of the landlord 'himself the Court below has passed the impugned order. Such an approach is neither improper nor illegal given the fact that clause (r) of sub-section (2) of section 27 of the Act covers situations other than those where the premises are sought for the personal need of the landlord. It also covers situations wherein the premises are sought by the landlord 'for occupation of himself or 'for any person for whose benefit the premises are held'. Going by the wide connotation given to the word 'himself by the Apex Court in a catena of decisions, the need propounded by the respondent-landlord would certainly qualify as a ground for eviction under Section 27 (2) (r) of the Act. Going by the wide connotation given to the word 'himself by the Apex Court in a catena of decisions, the need propounded by the respondent-landlord would certainly qualify as a ground for eviction under Section 27 (2) (r) of the Act. When the need propounded is so covered by clause (r) of sub-section (2) of Section 27 of the Act, the respondent in addition would also be entitled to the benefit of a presumption arising under Explanation I (i) to Section 27 (2xr ). The explanation I (i) casts a statutory duty on the Court to draw a presumption that the need so pleaded by a landlord is real and genuine. The shop in question is being used by the petitioner for running a carroms club The club only serves an entertainment purpose and the need propounded in the present case being to establish the son of the landlord, who has no avocation in life, certainly it cannot be said that the element of need is absent in the case put forth by the respondent. The Court below appreciating such need of the landlord, has passed the impugned order. The ground pleaded, if examined in the light of the language employed in Section 27 (2) (r) and the explanation thereunder, cannot be characterised as artificial. The impugned order, therefore, does not call for any interference. ( 6 ) THE revision is accordingly dismissed. The petitioner-tenant is directed to quit and deliver vacant possession of the premises within two months from today. --- *** --- .