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2008 DIGILAW 313 (KAR)

T. P. Lakshmi Narasamma v. Rajalakshmi

2008-06-23

MOHAN M.SHANTANAGOUDAR

body2008
ORDER Mohan Shantanagoudar, J. Petitioner herein is the landlord of the premises in question, of which, respondents herein are the tenants. The premises in question is a residential premises. The petitioner-widow purchased the premises in the year 2000. She filed H.R.C.Petition No.229/2004, for evicting the respondents under Section 31 (1)(a) of the Karnataka Rent Act, 1999 (hereinafter referred to as ‘the Act’ for short). The memorandum of the petition discloses that the petition schedule premises was let out by the previous owner B.N.Srinivasa to S.M.Reddy and after the death of S.M. Reddy, his legal representatives continued as tenants of the premises. After the purchase of the property by the petitioner, the respondents allegedly not paid the rents. It is further pleaded that the petitioner is the widow and she requires the petition schedule premises for the bona fide use and occupation of her and her family members. In response to the notice, the respondents appeared through their Advocate. But, they did not file the affidavit stating the grounds on which they seek to contest the application for eviction. In other words, they did not obtain the leave of the Court to contest the matter. However, the respondents filed their statement of objections and adduced evidence. Petitioner also adduced her evidence. After hearing, the trial Court dismissed the eviction petition, on the ground that the petitioner is not entitled to get possession of the property under Section 31 (1)(a) of the Act as the premises is neither leased by her nor by her husband, but, the same was leased by her vendor. 2. Sri M.N.Gupta, Learned Counsel appearing on behalfof the petitioner submits that the tenants have not obtained leave of the Court below to contest the matter by filing an affidavit as require & “under Section 42 (6) (b) of the Act and that therefore, the tenanst are not entitled to have their say in the matter for opposing the eviction petition. It is further contended that the Court below was not justified in dismissing the eviction petition on the ground that neither the widow nor her late husband had leased the property. He further points out that the trial Court has held that the jural relationship between the parties is proved. It is further contended that the Court below was not justified in dismissing the eviction petition on the ground that neither the widow nor her late husband had leased the property. He further points out that the trial Court has held that the jural relationship between the parties is proved. Per contra, it is contended by Sri V.S.Narayan, Learned Counsel appearing on behalf of respondents-tenants that Section 31 (1) (a) of the Act clearly discloses that if the premises is let out by the widow or by her husband, the widow is entitled to the benefit of Section 31 of the Act, which is a special provision for evicting the tenant. In this matter, admittedly, neither the widow nor her husband had leased the property. Wherefore, according to him, the trial Court is justified in dismissing the eviction petition. He further submits that even if the tenants have not obtained leave of the Court to contest, it is open for them to show to the Court that the petition is liable to be dismissed in limine. 3. It is by, now well settled that sub-section (6) of Section 42 is an exception to the general procedure contemplated under sub-section (1) of Section 42 of the Act to be followed by the Court. Section 42 (6) of the Act prescribes the procedure to decide the application filed by a landlord for recovery of possession on the grounds specified in Clauses (f), (h) or (n) of sub-section (2) of Section 27 or under Sections 30, 31 or 37 of the Act. Admittedly, in this matter, the petition is filed under Section 31 (1) of the Act. Thus, the special procedure as prescribed under Section 42 (6) of the Act has to be followed. Clauses (b) and (c) of sub-section (6) of Section 142 of the Act indicate that obtaining leave of the Court by the tenant to contest the application for eviction is a mandatory requirement and that the consequences of the tenant either not appearing before the Court or obtaining such leave from the Court to attend or to contest the proceedings, implies that the contents of the eviction petition are deemed to be admitted by the tenant in an application for eviction and the petition shall have to be allowed on the grounds specified in the petition. 4. 4. Admittedly, in this matter, the tenant has not obtained leave of the Court to contest the case of the landlord. Thus, the contents of the petition are deemed to have been admitted by the tenant and the petition shall have to be allowed on the grounds specified in the petition. Merely because the tenant was allowed to file statement of objections subsequently and allowed to participate in the proceedings by adducing the evidence will not cure the defect incurred by him by not seeking leave of the Court by filing appropriate affidavit at the appropriate -initial stage. In this context, it is relevant to note the observations of this Court in the judgment reported in the case of R.J. Surendranath Vs. S.P.Pandurangan, ILR 2003 Kar 2965: “Para-16 : Though the learned Counsel for the petitioner had sought to submit that the Court having received the objection leave could be deemed to have been granted as indicated earlier, that submission cannot be accepted in as much as the requirement to obtain leave is a mandatory requirement and that should be obtained in the manner indicated in clause.(b) itself i.e; by filing an affidavit along with the prayer for leave to defend or contest the proceedings and the affidavit indicating the grounds on which the respondent tenant seeks leave to contest the application and thereafter if the Court finds that the affidavit so filed by the tenant discloses such facts as would disentitles the landlord from obtaining an order for recovery of the possession of the premises, leave being granted. When granting of leave to contest or defend the proceedings is to be obtained by following this procedure and after the Court prima facie is satisfied about the plausible defence that can be pleaded by the tenant which will disentitle the landlord from seeking eviction and it is only thereafter leave will be granted by the Court, in the absence of such requirement having notbeen complied the question of presuming deemed permission or leave being granted bv the Court for filing of obiectioncannot be inferred. Further sub-section (6) indicates the procedure to be followed after granting of leave and even then the Court is required to consider the eviction petition by taking up the matter on day to day basis and endeavour disposal of the application within a period of 30 days and in the absence of not so disposing of the application within 30 days the Court is required to record reasons for the same.” (Emphasis Supplied) I am in respectful agreement with the aforementioned observations. In view of the same, the submission made on behalf of the tenants that by permitting them to file the statement of objections and to participate in the proceedings, the leave is deemed to have been granted, cannot be accepted. Thus, the eviction petition has to be allowed at the threshold itself. 5. As could be seen from Section 31 of the Act, it is clear that, if the premises are let out by the widow or by her husband, the widow is entitled to recover possession under Section 31 of the Act. In this matter, admittedly neither the widow (petitioner) nor her husband had let out the premises to the tenants. The premises was leased by the vendor of the petitioner herein. The language employed in Section 31 of the Act is plain and simple. No other meaning can be attached to widow’s right to recover immediate possession ofthe premises. Only if the premises was let out by her or by her husband and not by anyone else, widow can recover possession of demised premises immediately under Section 31(1) of the Act. But that does not mean that there is total bar for the widow to get the tenant evicted for all times to come. Proviso to Section 27 (2)(r) of the Act specifies that where the landlord has acquired the premises by transfer, no application for recovery of possession of such premises shall lie under Clause 27 (2)(r) ofthe Act unless a period of one year has elapsed from the date of acquisition. The said proviso makes it amply clear that the transferee landlord have to wait for one year after the purchase of the property for filing the eviction petition. The said proviso makes it amply clear that the transferee landlord have to wait for one year after the purchase of the property for filing the eviction petition. If a widow becomes a landlord in relation to the tenanted premises, she in tenns of proviso to Section 27 (2)(r) of the Act cannot evict the tenant before the expiry of one year from the date of purchase. When the two provisions of the same statute become applicable in a given case, a harmonious construction should be taken recourse to. It is well settled that a statute should be read in a manner which would give effect to all the words used in the Act. Section 31 (1) oftheAct has to be harmoniously read with Section 27 (2) (r) of the Act. If the rule of harmonious construction is not applied, Sections 31 (1) and 27 (2) (r) of the Act would lead to an anomaly. Such an anomaly can be erased if negative test contained in proviso to Section 27 (2) (r) of the Act is applied in the construction of Section 31(1) thereof, that is to say, as in terms of earlier provision, the transferee landlord cannot evict a tenant before expiry of one year from the date of purchase, Section 31 of the Act which provides for immediate recovery of tenanted premises, would not be applicable. By applying the rule of harmonious construction as aforementioned, this Court can safely conclude that if a widow becomes a landlord in relation to a tenanted premises, she, in terms of Section 31 (1) of the Act, cannot evict the tenant before expiry of one year from the date of purchase, if neither the widow nor her husband had let out the premises. Explanation-I appended to clause (r) of sub-section (2) of Section 27 of the Act provides for presumption in favour ofrequirernent of the landlord, if the landlord in his application supported by an affidavit submits that the premises are required by him for occupation of himself or for any member of his family. The rule as enacted by the above said Explanation is available not only for the purpose of Section 27(2)(r) of the Act, but also for Section 31 of the Act. The rule as enacted by the above said Explanation is available not only for the purpose of Section 27(2)(r) of the Act, but also for Section 31 of the Act. Presumption enacted by the Explanation-I appended to Clause (r) of sub-Section (2) of Section 27 of the Act is mandatory and has to be drawn in view of the phraseology employed by the legislature in enacting the provision which speaks “the Court shall presume that the premises are so required”. The presumption has to be drawn, of course, the tenant may rebut the presumption. The mandatory presumption enacted by the Act shall have the effect of shifting the burden of proof; while the landlord may rest on the presumption till it is rebutted (as observro in the case of P. Suryanarayana (Dead By LRs.) Vs. K. S. Muddugowramma, 2004 (3) SCC 589 ). Therefore, the widow in order to get the benefit of the provision of Section 31 of the Act will have to show her requirement as contemplated under Section 27(2)(r) of the Act. In view of the same, the provisions of Section 27 (2)(r) of the Act are to be read with Section 31 of the Act. While deciding the “application filed under Section 31 of the Act, both the provisions have to be read harmoniously. It is clear from Sections 28 to 31 of the Act that the right to immediate possession accrues to a class of persons. Section 31 of the Act reveals that, in the event of premises being required by a widow for herself or for anyone of her family members, she may apply to the Court for recovery of immediate possession of the premises. The theory appears to be that a widow should not be at the mercy of law’ s delay. The legal presumption arising in favour of the landlord’s requirement under Explanation-I to Clause (r) of Section 27 (2) of the Act is also made available to Section 31 of the Act. The widow has to prove her requirement for the purpose of getting an order under Section 31 of the Act in the manner as she is required to prove under Clause (r) of Section 27 (2) of the Act. But the widow is vested with right to immediate recovery of possession under Section 31 of the Act. The widow has to prove her requirement for the purpose of getting an order under Section 31 of the Act in the manner as she is required to prove under Clause (r) of Section 27 (2) of the Act. But the widow is vested with right to immediate recovery of possession under Section 31 of the Act. As has been held by this Court in the case of Smt. K.S. Muddugowramma Vs. R. Suryanarayana & Ors. (ILR 2003 (1) Kar 775) the present Act provides comprehensive remedies and imparts operational speed and modernises the-whole law for the good of the community. The Court will implement the law based on the policy decision of the legislature. Therefore, the provisions of Section 27 (2)(r) including the proviso to Section.27(2)(r) of the Act also will have to be read in the aid of Section 31 of the Act to avoid anomaly. If Section 27(2)(r) of the Act is ignored while dealing with the matter under Section 31 of the Act, then, the legislative intention will be frustrated. It is relevant to note that Section 31 (1) of the Act is akin to Section 14D of Delhi Rent Control Act. Proviso to Section 27 (2)(r) of the Act is akin to Section 14 (6) of the Delhi Rent Control Act. It is relevant to note that Section 31 (1) of the Act is akin to Section 14D of Delhi Rent Control Act. Proviso to Section 27 (2)(r) of the Act is akin to Section 14 (6) of the Delhi Rent Control Act. The aforesaid provisions read thus: The Delhi Rent Control Act, 1958 The Karnataka Rent Act, 1999 Section 14 (6) Section 27(2)(r): Where a landlord has acquired any xxxx xxxx xxxx premises by transfer, no application Provided that where the landlord has for the recovery of possession of such acquired the premises by transfer the premises shall lie under sub-section (1) premises by transfer, no application for on the ground specified in clause (e) the recovery of possession of such premises of the proviso thereto, unless a period shall lie under this clause unless a period of five years have elapsed from the of one year has elapsed from the date of date of the acquisition acquisition 14-D-Right to recover immediate Section 31(1): Right to recover possession of premises to accrue immediate possession of premises to a widow: to accrue to a widow:- (1) Where the landlord is a widow (1) Where the landlord is,- and the premises let out by her, or (a) a widow and the premises let out by by her husband, are required by her her, or by her husand; for her own residence, she may apply (b) xxx xxx xxx to the Controller for recovering the (c) xxx xxx xxx immediate possession of such premises (2) Where the landlord referred to in (2) Where the landlord referred to in sub-section (1) has let out more than one sub-section (1) has let out more than premises, it shall be open to him to make one premises, it shall be open to her an application under that sub-section in to make an application under that respect of any one residential and one sub-section in respect of any of the non-residential premises each chosen by premises choosen by her. him. While dealing with similar situation under Delhi Rent Control Act, the Apex Court in the case of NATHI DE VI Vs. RADHA DEVI GUPTA ( AIR 2005 SC 648 ), has observed that the widow landlord can file eviction petition after five years from the date of purchase. him. While dealing with similar situation under Delhi Rent Control Act, the Apex Court in the case of NATHI DE VI Vs. RADHA DEVI GUPTA ( AIR 2005 SC 648 ), has observed that the widow landlord can file eviction petition after five years from the date of purchase. It is relevant to note that Section 14(6) of Delhi Rent Control Act prescribes five years waiting period after the purchase. In that context, the aforementioned observation is made. While coming to the said conclusion, the Apex Court has applied the rule of harmonious construction. In this Context, it is relevant to note Paragraph -29 of the aforecited judgment, which reads thus: “Para-29: If a widow becomes a landlord in relation to the tenanted premises, she in terms of Section 14(6) of the Act cannot evict the tenant before expiry of five years from the date of purchase, as noticed hereinbefore. When two provisions of the same statute become applicable in a given case a harmonious construction should be taken recourse to.” By relying upon the aforementioned judgment and by applying the rule of harmonious construction, this Court is of the considered opinion that the widow-landlord cannot file eviction petition within one year from the date of purchase in case if neither she nor her husband has let out the premises. Consequently, in such an event there is no bar for filing eviction petition after one year from the date of Purchase. In this mater, admittedly the widow -landlord has filed the eviction petition after four years from the date of purchase of premises. Therefore, there is no hurdle for the widow to get the tenants evicted. This aspect of the matter is overlooked by the Court below. 6. In this matter, as mentioned above the tenant has not rebutted the presumption by entering into the defence in accordance with law, inasmuch as, he has not obtained leave of the Court by filing the affidavit stating the grounds on which he seeks to contest the application for eviction as contemplated under Section 42 (6) of the Act. The presumption with regard to requirement is attracted for the landlord widow; but the tenant has not rebutted the presumption. Other than applicability of presumption, there is ample material available all record to substantiate that the need pleaded by the land lord is bona fide and reasonable. The presumption with regard to requirement is attracted for the landlord widow; but the tenant has not rebutted the presumption. Other than applicability of presumption, there is ample material available all record to substantiate that the need pleaded by the land lord is bona fide and reasonable. It is clear from the material on record that the petitioner widow has no reasonably suitable alternative accommodation for herself and for her family members. The need of the widow under the facts and circumstances cannot be said to be unreasonable. In view ofthe same, the order of the Court below cannot be sustained and the same is liable to be set aside. Accordingly, the following order is made: The order dated 10th August 2006 passed by the learned XII Addl. Small Causes Judge, Bangalore, in HRC.No.229/2004, is set aside. The eviction petition filed by the landlord is allowed. Having regard to the facts and circumstances of the case, the respondents are granted time to vacate and deliver vacant possession ofthe premises till the end of April 2009. Petition is allowed accordingly.