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2008 DIGILAW 611 (KAR)

Mahadeva v. Vasantha Kumar

2008-10-21

B.V.NAGARATHNA

body2008
Judgment :- Nagarathna, J. This revision petition is filed by the tenant being aggrieved by the order dated 19.2007 passed by the Principal Civil Judge (Jr.Dn), Mysore in HRC.No.24/2007 as well as the order dated 17.6.2008 passed in Rent Revision Petition No.67/2007 on the file of the I Addl.District Judge, Mysore, under which the petition filed under Section 27(2)(f) of the Karnataka Rent Act filed by the respondent was allowed and the said order was confirmed by the first revisional court. 2. The relevant facts of the case are that the respondent/landlord had filed a petition under Section 27(2)(f) of the act requiring the eviction of the premises by the petitioner/tenant on the ground that the schedule property was in a dilapidated condition and the Mysore City Corporation, Mysore had ordered demolition of the said building by permission letter dated 29.1.2007 and therefore, the same was required to be demolished immediately. It was also stated that earlier HRC.No.226/1990 was filed by the respondent under Section 21(1)(j) of the Karnataka Rent Control Act, 1961 but the said petition was dismissed on the ground that the condition of the said building was not proved and that there is no impediment for filing the petition under Section 27(2)(f) of the Karnataka Rent Act, 1999. 3. Thepetitioner herein filed his statement of objections, inter alia, contending that the petition filed under Section 27(2)(f) was not maintainable and that the same ought to be rejected while denying other allegations made in the eviction petition. 4. Based onthe above pleadings the trial court framed the following points for its consideration: "1. Whether the petitioner proves that the suit schedule building is in dilapidated condition and hence it is required to be demolished? 2. What order?" 5. In support of his case, the respondent herein was examined himself as PW.1 and got marked Ex.P1 to P4 while the petitioner herein was examined as RW.1 and Ex.R1 to R4 were marked in evidence. Based on the material on record, the trial court answered point No.1 in the affirmative and allowed the petition under Section 27(2)(f) of the Act. Being aggrieved by the said order, the petitioner herein had filed Rent Revision Petition No.67/2007. 6. Thefirst revisional court formulated the following points for its consideration: "1. Based on the material on record, the trial court answered point No.1 in the affirmative and allowed the petition under Section 27(2)(f) of the Act. Being aggrieved by the said order, the petitioner herein had filed Rent Revision Petition No.67/2007. 6. Thefirst revisional court formulated the following points for its consideration: "1. Whether I.A.No.II filed by the respondent/ tenant (revision petitioner herein) under OrderXLI Rule 27 read with Section 151 of CPC deserves to be allowed? 2. Whether the finding of the trial court that the petitioner-landlord proved that the suit schedule property is in a dilapidated condition and hence it required to be demolished is legal and correct? 3. What order?" and answered the point No.1 in the negative and point No.2 in the affirmative and dismissed the revision petition. Being aggrieved by the said order of dismissal, the petitioner/tenant has preferred this revision petition. 7. I have heard Sri. T.N. Raghupathy, learned Counsel for the petitioner and Sri G.B. Nandeesh Gowda for Sri. R.B. Sadashivappa, learned Counsel for the respondent. .8. It is submitted on behalf of the petitioner that the courts below were not right in allowing the petition for eviction under Section 27(2)(r) of the Act as in the instant case, the requirement for demolition and re-building was at the instance of the respondent/landlord and at his instance Ex.P1 and P3 namely the permission letters and the order for demolition were issued by the competent .local authorities and it was not by virtue of any improvement scheme or development scheme as stated in the said clause or at the instance of any authorities that the premises was required to be demolished. He therefore, submits that the petition itself was not maintainable under Section 27(2)(f) of the Act and hence the courts below ought to have rejected the said petition. 9. Per contra, it is submitted by the learned Counsel for the respondent that the petitioner/tenant has admitted that the building was in a dilapidated condition and that since permission was granted by the competent Municipal authorities though at the instance of the respondent/landlord, the respondent had rightly invoke Section 27(2)(f) of the Act. He therefore, requests that the revision petition be dismissed. 10. He therefore, requests that the revision petition be dismissed. 10. Taking note of the rival submissions, the only point that arises for my consideration is as to whether the respondent/landlord was justified in invoking Section 27(2)(f) of the Act for evicting the petitioner/ tenant from the schedule premises? 11. It is not in dispute that the building which is a residential premises is in a dilapidated condition and therefore at the instance of the respondent/landlord demolition of the schedule premises was sought and accordingly, as per Ex.P1 and P3 permission letters and order for demolition dated 21.2007 and 29.1.2007 were obtained by the respondent/landlord. The evidence on record on both sides also makes it apparent that the building is in dilapidated condition and that any improvement on the said building would necessarily require demolition. However, the question raised in this revision petition is as to whether the respondent could have invoked Section 27(2)(f) of the Act for seeking eviction of the petitioner/tenant. .12. Section 27(2)(f) of the Act reads as follows: ."Eviction on ground of Demolition ordered by Local Authority/Government: (f) that the premises or any part thereof are required by the landlord for the purpose of immediate demolition ordered by the Government or any local authority or the premises are required by the landlord to carry out any building work at the instance of the Government or a local authority in pursuance of any improvement scheme or development scheme and that such building work cannot be carried out without the premises being vacated." .13. It is seen that the provisions for seeking eviction of a tenant Section 27(2)(e) to 27(2)(i) form a scheme under which the premises in the occupation of the tenant has either become unsafe and is required for carrying out repairs or re-construction, or, the premises is required for immediate demolition for the purpose of carrying out any improvement scheme, or, development scheme or the premises is required for carrying out any repairs which cannot be carried out without the premises being vacated, or, that the premises are required or to make any substantial addition or alteration which cannot be carried out without the premises being vacated or that the premises is required for the purpose of immediate demolition with a view of re-build. Therefore, the common intention and object of Section 27(e) to (i) are that the requirement of the premises being for repairs, demolition and re-construction and that the same not being able to be executed without the tenant being evicted. Though there is a common object and purpose in clause 27(2)(e) to (i) nevertheless each of the clauses therein operate under different circumstances and are mutually exclusive and depending upon the facts and circumstances of each case, the landlord would have to select the clause under which the petition could be filed. 14. In the instant case, the landlord has filed the petition under Section 27(2)(f). That sub-Section states that the premises or any part thereof are .(i) required by the landlord for the purpose of immediate demolition ordered by the Government or local authority or the premises are required by the landlord to carry out any building work at the instance of the Government or a local authority in pursuance of any improvement scheme or development scheme, and .(ii) that said building work cannot be carried out without the premises being vacated. Hence unless both the above requirements of the sub-clause are fulfilled, the landlord cannot invoke the provisions of Section 27(2)(f) of the Act. 15. In the instant case it is noticed that the order at Ex.P 1 and P3 for demolition as well as the premises are at the instance of the respondent/landlord, but it is not at the instance of the Government or local authority in pursuance of any improvement scheme or development scheme. There is also no notice or order of demolition ordered by the Government or any local authority against they respondent herein. In fact at the instance of the respondent herein that permission was granted as per Ex.P1 and P2. Therefore, the requirement of the landlord to carry out the demolition and re-construction was not at the instance of the Government or local authority in pursuance of any improvement scheme or development scheme. Under the circumstances, in my view, the eviction petition filed under Section 27(2)(f) was not the correct provision under which it could have been filed and therefore, the same ought to be rejected. 16. Under the circumstances, in my view, the eviction petition filed under Section 27(2)(f) was not the correct provision under which it could have been filed and therefore, the same ought to be rejected. 16. Both the trial court as well as the first revisional court have not applied their mind with regard to the requirements of Section 27(2)(f) as also, whether there was any other provision under which the respondent/landlord could have filed the eviction petition. Taking note of the contents of Ex.P 1 and P3 and also the requirements of Section 27(2)(f) of the Act, in my view, since the very invocation of Section 27(2)(f) was not correct and proper, the eviction petition filed under the said provision is dismissed and consequently, this revision petition is allowed. No costs.