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Karnataka High Court · body

2008 DIGILAW 533 (KAR)

Mohammed Nasrulla Sheriff v. Azra Shameem

2008-09-20

D.V.SHYLENDRA KUMAR

body2008
Judgment :- This revision petition under Section 46(1) of the Karnataka Rent Act, 1999 is by the tenant who has suffered an order of eviction in terms of impugned order dated 14.8.2003 passed by the X Addl. Small Causes Judge, Bangalore, in HRC No.546/95 allowing the petition of the owner under Section 27(2)(r) of the Act which enables the landlord to seek eviction of the tenant for the bonafide use and occupation of the premises of the landlord and Section 31 of the Act which is a special provision in favour of the landlord who is a widow and can seek eviction of the tenant for her occupation with immediate possession of the premises if the premises is required by the landlord. 2. It is this order which is questioned in this revision petition on the ground that the learned judge of the trial court has not taken into consideration the evidence on record. The fact that the petitioner whose requirement is pleaded has not entered the witness box by herself, should have been taken note of and hence, the learned judge of the trial court should have drawn adverse inference not doing so vitiates the order; that the order is not tenable under Section 27(2)(r) of the Act; that the eviction petition should have been dismissed, is the case of the petitioner. 3. Sri. Abhinav and Smt. Ujwala learned counsel appearing for the petitioner have therefore vehemently submitted that the trial judge has committed an error in allowing the petition under Section 27(2)(r) of the Act. Sri. Abhinav submits that the petitioner never made out a case of her bonafide requirement to occupy the premises, her conduct was such that she has been obtaining permission only for the purpose of selling away the property and not for her own occupation; that the evidence let in on behalf of the eviction petitioner was not fully supportive of the case of the petitioner; that it is only the power of attorney who entered the witness box but the person who required the premises never entered the box and therefore the eviction petition should have been dismissed. It is submitted that non-examination or non-consideration of such relevant aspects even after order of eviction under Section 31, the order suffers from the same defect and therefore, the order is liable to be set aside. 4. It is submitted that non-examination or non-consideration of such relevant aspects even after order of eviction under Section 31, the order suffers from the same defect and therefore, the order is liable to be set aside. 4. Appearing on behalf of the respondents learned counsel supported the order of the learned trial judge submits that the decision points out that the owners has placed sufficient material before the court not only to prove the personal requirement of the petitioner, but also their being no dispute that the first petitioner in HRC case was a widow and was entitled to invoke the provision of Section 31 of the Act, and therefore, the order of eviction cannot be disturbed, it should be affirmed. 5. The eviction petition has considerable history being one filed initially under Section 21 (1)(h) of the Karnataka Rent Control Act, 1961. Though the eviction petition came to be dismissed on the ground of the petitioners having failed to prove their bonafide requirement, the landlords had preferred a revision petition to this court and this court while allowing the revision petition directed the trial court to permit the party to lead additional evidence. During the pendency, the revision petitioners had come up with applications for amendment not only to place additional evidence and permission to seek additional evidence as well but also for an additional prayer under the provisions of Karnataka Rent Control Act, 1999 which had replaced, the 1961 Act. During the pendency of the house rent revision petition, this court allowed such applications and remanded the matter to the trial court to re-examine after allowing the amendment application and permitted the parties to lead additional evidence. 6. During the pendency of the house rent revision petition, this court allowed such applications and remanded the matter to the trial court to re-examine after allowing the amendment application and permitted the parties to lead additional evidence. 6. It is thereafter the matter has been examined by the trial court and additional evidence had been let in and after examination of such evidence on record, the learned judge of the trial court having opined that eviction petitioner was able to make good the case of requirement for bonafide use and occupation, particularly, as the petitioner herself who was residing with her husband in Vijayawada having shifted to Bangalore, after the death of her husband and residing presently in Bangalore and initially she was living with her sister the 4th petitioner and her husband, having later shifted to a rented premises and the landlord of the premises where in she is presently residing having been examined and he having affirmed her living in his premises as a tenant, concluded that the petitioners have made out the requirement of Section 27(2)(r) of the Act. In respect of the applicability of section 31 not much is in dispute and such requirement was to be met. 7. Though it is urged that the eviction petitioners/landlords had allowed a part of the building which they owned jointly to remain vacant and had kept it under lock and key. The trial court having concluded that the requirement of the petitioners is a bonafide requirement and not a plea just to evict the tenant from the premises, I find that petitioners having placed sufficient material to show that the first petitioner herself was living in a rented premises, the aspect that they had kept one premises vacant does not assume much importance and not much supporting evidence having been let in by the tenant the submission is to be rejected before the trial court. 8. Be that as it may, if it is the requirement of the landlord to occupy the premises, it is not for the court to examine as to whether the other premises could have been used or not. That cannot throw doubts about the bonafides of the landlord and to say that the requirement is not made good. 9. If the landlord has been staying in a rented premises, and wants to occupy the petition schedule premises, there cannot be any impediment. That cannot throw doubts about the bonafides of the landlord and to say that the requirement is not made good. 9. If the landlord has been staying in a rented premises, and wants to occupy the petition schedule premises, there cannot be any impediment. Therefore, the order of eviction under Section 27(2)(r) of the Act does not call for interference. 10. More importantly I find that the eviction order under Section 31 of the act cannot be in any way characterized as not supported by material on record or contrary to evidence on record. I say so, for the reason that under Section 31 of the present Act, the right of a landlord who is a widow is to seek eviction of the premises of which she wants to occupy whether for residential purpose or non-residential purpose and is almost an absolute right and the only requirement is that she wants the premises for her own use and occupation or for her members of the family etc. In fact when the order of eviction is sought for when more than one premises had been let out it can only be in respect of one premises. The order being passed in respect of only one residential premises chosen by the landlord no exception can be taken to the order. If such is the statutory provision and as the landlord has indicated her requirement to use and occupy the premises where the tenant was living, that requirement has to be allowed by the court and that being the order passed by the trial court, I do not find any scope for interference with the order, in exercise of the revisional jurisdiction under Section 46 of the 1999 Act and therefore, the revision petition is dismissed the order passed by the trial court. 11. While Sri. Shankar Reddy learned counsel appearing for the landlords submits that granting time of three months is reasonable particularly, as the landlords have been deprived the occupation of the premises, and that the litigation has been prolonged for thirteen years. Learned counsel for the tenant submits that atleast a minimum period of six months should be allowed for the tenant to vacate the premises as the members of the family of the tenant are residing there. 12. In the circumstances, I find that granting time for a period of six months would be reasonable. Learned counsel for the tenant submits that atleast a minimum period of six months should be allowed for the tenant to vacate the premises as the members of the family of the tenant are residing there. 12. In the circumstances, I find that granting time for a period of six months would be reasonable. Hence, six months time is granted to vacate and hand over vacant possession of the premises subject to the revision petitioner-tenant filing an undertaking in the normal format within two weeks from today before the Registrar. If the undertaking is not filed within two weeks, it is open to the landlords to execute the eviction order as though no time is granted.