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2006 DIGILAW 551 (KAR)

PADMAMMA v. K. RAMANNA

2006-07-06

H.V.G.RAMESH

body2006
ORDER This revision is filed under Section 46(1) of the Karnataka Rent Act, 1999 being aggrieved by the order passed by the X Additional Small Causes Judge, Bangalore in H.R.C. No. 1340 of 1996. 2. The eviction petition was filed by the landlord before the Trial Court under Section 21(1)(a), (h) and (p) of the Karnataka Rent Control Act, 1961 during the year 1996 stating that the tenant is in occupation of the petition premises on a monthly rental of Rs. 300/- and she has become chronic defaulter in paying the rentals and is due in a sum of Rs.1,200/- by the end of June 2006; the family of the landlord consists of three sons and a daughter, out of them two sons are married and the premises in which they are residing is too small to accommodate all the family members and accordingly sought for eviction on the ground of bona fide use and occupation. Further, according to the landlord, the tenant has also occupied an alternative premises in the name of her son nearby the petition premises. The said petition was resisted by the tenant. According to her, there are 7 tenements in the ground floor and 7 tenements in the first floor and all the premises belong to the landlord and the premises in occupation of the other tenants is more suitable and he could have opted for those premises. Further, her contention is that the petition premises was allotted to her husband by the Rent Controller on 3-12-1987 and since she refused to pay the higher rent, the eviction petition is filed. The Trial Court, after enquiry, passed an order of eviction on the ground of requirement and dismissed the claim of the landlord insofar as the arrears of rent and availability of alternative accommodation to the tenant. Having suffered an order of eviction the tenant is before this Court. 3. Heard the Counsel for the respective parties. 4. During the pendency of the matter before this Court, an application under Section 5(1) of the Karnataka Rent Act is filed by the respondent-landlord and objection is also filed to the said application by the petitioner-tenant. Having suffered an order of eviction the tenant is before this Court. 3. Heard the Counsel for the respective parties. 4. During the pendency of the matter before this Court, an application under Section 5(1) of the Karnataka Rent Act is filed by the respondent-landlord and objection is also filed to the said application by the petitioner-tenant. It is the submission of the learned Counsel for the revision petitioner that there is no need of the petition premises by the respondent-landlord; he has got other tenements in the same building; he has only chosen to evict the tenant; he has also not examined his landlord where he is residing at present. Further submitted that the tenant cannot be evicted invoking Section 5 of the Karnataka Rent Act, 1999 and that there is a partition suit pending between the landlord and his brother and in the absence of partition and actual division he is not the landlord, as such, eviction order cannot be passed. Further, he relied upon a ruling of the Division Bench of this Court in the case of Shoukath v. V. Chandraprakash, to contend that requirement has to be ,'eal requirement. 5. Per contra, the learned Counsel appearing for the respondent-landlord has submitted that the landlord is residing in a rented premises elsewhere and he is in need of the petition premises for his bona fide use and occupation since he has got three sons and a daughter and also the original tenancy is in favour of the husband of the tenant, he died in the year 1993 itself and subsequently, it has been continued by his wife and as per the mandate under Section 5 of the Act, the landlord is entitled for eviction on completion of 5 years from the date of death of the original tenant. Accordingly, contended that there is no merit in the revision filed. In support of his argument he relied upon the judgment in the case of Taradevi and Another v. Sakku Bai and Another and also one more judgment in the case of Smt. K.S. Nagamma v. Mrs. M.P. Manekshah, regarding application of Section 5 of the Act. 6. Now, let me consider (i) Whether the Trial Court has committed any error in passing the impugned order? and (ii) Whether the landlord is entitled for possession invoking Section 5 of the Karnataka Rent Act, 1999? 7. M.P. Manekshah, regarding application of Section 5 of the Act. 6. Now, let me consider (i) Whether the Trial Court has committed any error in passing the impugned order? and (ii) Whether the landlord is entitled for possession invoking Section 5 of the Karnataka Rent Act, 1999? 7. Insofar as the pendency of the partition suit and also the maintainability of the eviction petition is concerned although, it is the submission of the learned Counsel for the revision petitioner-tenant that respondent is not the landlord and there exists not relationship, according to the Counsel for the landlord, originally, the property was let out by the father of this landlord to the tenant and on his death this petitioner being one of the sons of the original landlord has filed the eviction petition. Might be that some others also having a share in the property and there may be a partition suit pending. However, this will not take away the right of the landlord when either collecting of rents or the eviction petition filed by him has not been disputed or challenged by the other co-sharers. Unless and until the other co-sharers raise an objection for filing of such eviction petition, the tenant cannot contend that the respondent has no right as a landlord to file the eviction petition and 'also the submission of the learned Counsel for the revision petitioner that the landlord is only a rent farmer cannot be accepted, since the landlord has filed the petition in the capacity of the sharer and not merely as a rent farmer. 8. Insofar as the requirement of the landlord is concerned, he is said to be having three sons and a daughter out of them two of his sons are married. The Trial Court has passed an order of eviction on the ground that the tenant has nowhere stated that the landlord is not residing in rented premises and there is no rebuttal evidence to that effect. The only contention of the tenant is that the landlord's requirement is not genuine and according to her, if really the landlord is in need of the premises, he would have asked the other tenants to vacate since the accommodation available in other premises is bigger than the petition premises. The only contention of the tenant is that the landlord's requirement is not genuine and according to her, if really the landlord is in need of the premises, he would have asked the other tenants to vacate since the accommodation available in other premises is bigger than the petition premises. A perusal of the impugned order makes it clear that the Trial Court has rightly appreciated the evidence on record and based on the n umber of family members in the family of the landlord has come to the conclusion that for the present the landlord is residing in a rented premises and he intends to shift to the petition premises and that there is a requirement of the petition premises by him. The argument of the learned Counsel for the petitioner-tenant is that the landlord has not examined his landlord i.e., the landlord of the rented premises in which he is residing at present. In this regard, it is the submission of the learned Counsel for the respondent-landlord that the same is not essential since no other material is produced by the tenant to the effect that the landlord is residing in the premises of his own. 9. It appears, originally, the petition premises was allotted by the rent controller to the husband of this tenant during the year 1987 and thereafter during 1993 the original tenant died and this petitioner continued in possession and the eviction petition is filed in the year 1996. Referring to Rule 30 of the Karnataka Rent Rules, 2001, which provides for applications for making legal representatives of deceased person as patties to proceedings, it is the argument of the learned Counsel appearing for the tenant that Section 5 of the Karnataka Rent Act, 1999 is not applicable to the case on hand. Section 5 of the Karnataka Rent Act, 1999 clearly envisages that from the date of death of the original tenant for a period of five years the L.Rs, would have right of continuation in the premises and not beyond that. It does not necessarily indicate that the proceedings should be pending as on the date of death. Section 5 of the Karnataka Rent Act, 1999 clearly envisages that from the date of death of the original tenant for a period of five years the L.Rs, would have right of continuation in the premises and not beyond that. It does not necessarily indicate that the proceedings should be pending as on the date of death. Having regard to the fact that the original tenant died in the year 1993 itself and the eviction petition is filed in the year 1996, it is not that immediately on filing the eviction petition before completion of five years, the eviction order is passed, rather, the Trial Court has disposed of the matter during 6th June, 2002 i.e., nearly after 8 years after filing of the eviction petition and from the date of death of the original tenant five years period has been elapsed during 1998 itself. As such, the landlord will have the benefit of evicting the L.Rs, of the original tenant from the petition premises invoking the provisions of Section 5 of the Act. 10. In the decision in the case of V. Rajaswari v. Bombay Tyres Intl. Limited, the Apex Court while referring to the introduction of Section 14(1)(d) of the Delhi Rent Control Act of 1958 has observed that, the landlady had filed an application under Section 14(1)(e) of the Delhi Rent Control Act, 1958, wherein she could not succeed; the Trial Court as well as the Delhi High Court have found that her entitlement is not activated by bona fides; however, during the pendency of the revision before the High Court Section 14(1)(d) was introduced which provided for, right to recover immediate possession of premises to accrue to a widow; the Delhi High Court while dealing with the review petition was of the view that it was not open to him to take subsequent change in legislation and even the review application filed before the said Court to review the order of• dismissal also came to be dismissed, as against which S.L.P. was preferred. The main contention of the landlady was that she being a widow would be entitled to succeed in the eviction application in view of the change in law and introduction of new provision to the Delhi Rent Control Act of 1958. The main contention of the landlady was that she being a widow would be entitled to succeed in the eviction application in view of the change in law and introduction of new provision to the Delhi Rent Control Act of 1958. The Apex Court while dealing with the appeal filed by the landlady acting under Section 14(1)(d) of the Delhi Rent Control Act was of the view that the tenant practically has no defence whatever; that the landlady is a widow and the premises are required for her own residence and accordingly, has ordered for eviction. Thus, it is well-settled that during the pendency of the case in a judicial proceeding if there is any change in the legal position or any new provision is introduced that would enure to the benefit of the parties. As such, the contention of the tenant that landlady cannot invoke the provisions of Section 5(1) of the Karnataka Rent Act, 1999 which came into force by notification dated 31-12-2001 holds no water. Although, the landlady did not avail the benefit of Section 5 of the Act during the pendency of the matter before the Trial Court, she has succeeded on the ground of reasonable requirement and being aggrieved by the said order of eviction the tenant preferred this revision, during which period, to see that the further proceedings are not prolonged and also to avail the benefit of Section 5 of the Karnataka Rent Act, the application is filed by the landlady contending that the original tenant has expired in the year 1993 and by the end of 1998, five years period has been elapsed. As such, the application filed by the landlady is very much maintainable and the benefit enures to her. However, even the order of eviction passed by the Trial Court under Section 21(1)(h) i.e., for the present Section 27(2)(r) of the Karnataka Rent Act, 1999, cannot be found fault with. 11. For the foregoing reasons, the revision petition is dismissed. However, one year's time has been granted from today to the petitioner tenant to vacate and hand over the vacant possession of the petition premises subject to payment of rentals regularly as and when it falls due. Parties to bear their own costs.