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2010 DIGILAW 635 (KAR)

BABU RAO v. S. A. DAMODAR

2010-05-25

A.S.PACHHAPURE

body2010
ORDER The petitioners who are the tenants of the petition premises have challenged the order of their eviction passed under Section 27(2)(r) of the Karnataka Rent Act, 1999 (hereinafter called as the 'Act of 1999'). 2. I will be referring to the parties as per their rank before the Trial Court for the purpose of convenience. 3. The respondent herein is the landlord whereas the petitioners are the tenants of the premises bearing No.1, Old No. 295, Rangaswamy Temple Street, Bangalore, described in the schedule to the petition. The premises was acquired by the landlord under a sale deed dated 15-12-1993 and the petitioner were the tenants under the vendor on a rental of Rs. 50/- per month. After the purchase of the premises, the tenancy was attorned in his favour. 4. The landlord has filed eviction petition in HRC No. 1212 of 1994 under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter called as the 'old Ace). The tenants appeared and filed their objections denying the jural relationship of landlord and tenant and ultimately, the matter was decided directing the landlord to approach the Civil Court for a declaration. 5. The landlord filed O.S. No. 6724 of 2000 seeking the relief of declaration and the suit came to be decreed on 13-7-2007 declaring that the respondents are the tenants. 6. The son of the petitioner by name S.D. Ashwin Kumar is said to be unemployed and therefore the petitioner pleaded the requirement of the schedule premises for the purpose of establishing general stores. According to the landlord, the premises is ideal for the purpose of establishing and running a general stores and that he and his son come from business community and have experience in the trade and therefore, claimed that the schedule premises is reasonably and bona fidely required for use of the petitioner and his son for self-occupation. 7. It was the further contention that the original tenant is no more and the L.Rs do not have the right to continue in possession and they are liable to vacate forthwith. As the petitioner claimed the possession of the petition premises and as the respondents refused to vacate, the petition was filed seeking possession under Section 27(2)(r) of the Act of 1999. 8. As the petitioner claimed the possession of the petition premises and as the respondents refused to vacate, the petition was filed seeking possession under Section 27(2)(r) of the Act of 1999. 8. The respondents filed their objections denying the allegations made and stated that against the decree declaring them as the tenants, Regular First Appeal No. 2811 of 2007 is pending in the High Court and the present petition is not maintainable under Section 10 of the Civil Procedure Code, 1908. They also state that in the RFA, the execution of the decree has been stayed by the High Court. 9. Thereafter, the petitioner/landlord was examined as P.W. 1 and in his evidence the documents-Exs. P.1 to P.4 were marked. The L.Rs of the respondent/tenant i.e., respondents 1(a) and (iv) were examined as R.Ws. 1 and 2 and the documents Exs. R. 1 to R. 3 were admitted in evidence. The Trial Court on appreciation of the material on record allowed the petition directing the respondents to hand over the vacant possession of the petition schedule premises within three months from the date of the order. Aggrieved by the said order, this revision has been preferred. 10. I have heard the learned Counsel for the petitioners and also the respondents. The point that arise for my consideration is: ''Whether the order of eviction passed under Section 27(2)(r) directing the petitioners to vacate the petition schedule premises is illegal and perverse?" 11. It is the contention of the learned Counsel for the petitioners that the premises in question is a very small accommodation measuring 5 feet x 12 feet and as the respondent and his son are carrying on business in a larger premises, there is no need for the landlord to seek the possession. So also, it is his contention that the landlord has not proved reasonable and bona fide requirement of the petition schedule premises and the order of eviction is bad in law. It is their further case that the person for whom the possession is required has not been examined by the landlord and therefore, an adverse inference will have to be drawn. On these grounds, they have sought for setting aside the order of eviction. 12. It is their further case that the person for whom the possession is required has not been examined by the landlord and therefore, an adverse inference will have to be drawn. On these grounds, they have sought for setting aside the order of eviction. 12. Per contra, the learned Counsel for the respondent submits that reasonable and bona fide requirement has been amply proved from the material placed on record and that the examination of the son is not necessary as the said fact is not in dispute and that the tenants cannot dictate any terms so far as the sufficiency or insufficiency of the accommodation and therefore, he submits that the Trial Court was justified in granting the decree of eviction. It is also his submission that the Trial Court ought to have taken into consideration the provisions of Section 5 of the Act of 1999 and could have held that the legal representatives of the tenant who are now parties before the Court are not entitled to contest the petition. 13. So far as the question of title is concerned, the dispute has come to an end and it has been submitted by the parties that regular first appeal preferred by the tenants has been dismissed and the decree for declaration that the respondents are the tenants of the petition schedule premises has attained the finality. In these circumstances, the only question that arises for consideration is eviction on the ground under Section 27(2)(r) of the Act of 1999. 14. P.W. 1 in his evidence has stated that he is a businessman and is carrying on the business in his premises which is at a distance of about a kilometer. As on the date of the recording his evidence, he was aged about 53 years and he stated that he wants that his son should do the business and that he has sufficient experience and in the circumstances, he states that the premises is required bona fidely for the purpose of running a shop in the petition schedule premises. So far as the documents at Exs. P. 1 and P. 2 are concerned, they are the judgment and decrees in O.S. No. 6724 of 2000 and Ex. P. 3 is the SSLC marks card of his son whereas Ex. P. 4 is the certificate of Bachelor of Business Management of his son. So far as the documents at Exs. P. 1 and P. 2 are concerned, they are the judgment and decrees in O.S. No. 6724 of 2000 and Ex. P. 3 is the SSLC marks card of his son whereas Ex. P. 4 is the certificate of Bachelor of Business Management of his son. So looking to the documents at Exs. P. 3 and P. 4, it is very much clear that his son is also having the qualification in the business management. It is in such circumstances, he submits that the premises though small in accommodation is required for his son to run the business. On this aspect of the matter, there appears to be no serious dispute and except denial of the evidence of P.W. 1, nothing is elicited in his cross-examination. RW. 1 is respondent 1(a) and he has filed an affidavit as a substitute for his chief examination and he states tha the is carrying on retail business in the petition schedule premises by vending coconuts and pooja items like betel leaves, camphor etc. Nowhere he has denied that the landlord's son does not require the petition schedule premises for the purpose of the business. He also states that in case of eviction, he will be put more to hardship than the landlord. The cross-examination reveals that he does not know anything about the children of the landlord and he also does not deny the fact about the experience of Ashwin Kumar in the business. He admits that the petition schedule premises is in commercial area and that he can have alternate accommodation in the said area. 15. RW. 2 is a witness examined by the respondents and she states that the landlord is in possession of premises of larger dimension than the petition premises and that the disputed premises is not fit for any business. So from the evidence of RWs. 1 and 2, it can be said that they are defending the eviction petition solely on the ground that the petition schedule premises is a small accommodation in which the landlord cannot do any business. In my considered opinion, this contention and the evidence is not acceptable as the petition schedule premises measures 5 x 12 ft. 1 and 2, it can be said that they are defending the eviction petition solely on the ground that the petition schedule premises is a small accommodation in which the landlord cannot do any business. In my considered opinion, this contention and the evidence is not acceptable as the petition schedule premises measures 5 x 12 ft. and to use the petition premises to run the business is the discretion left with the landlord and neither the tenant nor any person can dictate as to in what way the premises could be utilised. In a city like Bangalore, even smaller premises can be used for doing business and the Court can take the judicial notice of this fact. 16. The Counsel for the respondents has relied upon the decision of this Court in the case of R. Sethurajan v. N.S. Krishna Setty1. The decision refers to Explanation I to Section 27(2)(r) of the Act of 1999. The said explanation reads: "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 occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required". 17. So in the case on hand, the landlord in support of his application has filed an affidavit and a presumption could be raised and even the initial burden has been discharged by the landlord by examining himself putting forth the claim of the petition premises for the use of his son to do the business. Though it is contended that the premises in question is not suitable to the landlord to carryon the business, the question as to whether it is suitable or otherwise is a matter for the subjective satisfaction of the landlord and the tenant has no authority to dictate the terms. The requirement of the premises and its scope differs from person to person depending upon the status in the society, the preferences, likes and dislikes and there cannot be any fixed norms regarding the subjective satisfaction. So in that view of the matter, it cannot be said by any stretch of imagination that the insufficient accommodation could be a ground to refuse the relief sought for. 18. So in that view of the matter, it cannot be said by any stretch of imagination that the insufficient accommodation could be a ground to refuse the relief sought for. 18. The Counsel has also relied upon the decision of the Apex Court in the case of Subhash Jadhau and Another u Rauishankar Rasalkar1, wherein, the premises was sought by the landlord for doing business in readymade garments. It was held that the landlord cannot not store the entire consignment in the shop itself and it was not open for the tenant to contend that landlord can make use of premises available in first and second floors of his building and in such circumstances, it held that the tenant cannot dictate the terms of the landlord to occupy particular premises. 19. As could be seen from the evidence which has been led through R.Ws. 1 and 2 and the cross-examination of P.W. 1, there is nothing to rebut the presumption raised under Explanation I to Section 27(2)(r). The material placed on record is sufficient to hold that the landlord requires the petition premises for the personal use and occupation to run the business for his son and there is ample material on record in addition to the presumption. In such circumstances, I do not think that the petitioners have made out any grounds to call for any interference. 20. So far as the right of legal representatives of the deceased tenant is concerned, as no such order was passed by the Trial Court and the landlord did not file any revision challenging the refusal of relief under Section 5 of the Act of 1999, I do not find it necessary to consider the same. 21. In that view of the matter, I do not find any merit in this revision petition and it is accordingly dismissed accordingly. The petitioners are granted three months time to vacate the petition premises.