Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 344 (KAR)

Ramakrishna v. Ayesha Mohiddin

2011-03-25

JAWAD RAHIM

body2011
Judgment :- (HRRP filed U/S 46(1) of K.R.Act, against the order dated: 31.5.2010 passed in HRC.No.95/2006 on the file of the Chief Judge, court of small causes, Bangalore, acting under Sec. 27(2)(o) of K.R.Act, ordering the respondent therein to vacate and hand over the vacant possession of petition schedule premises infavour of the petitioner therein with in 3 months from the date of this order, failing which, the petitioner therein is at liberty to seek delivery of possession.) This revision is against the order of eviction dated 31.5.2010 in H.R.C.No.95/2006 on the file of Chief Judge, Court of Small Causes, Bangalore. 2. Heard learned counsel for the parties. 3. The factual matrix surfacing from the material on record is: (a) Smt. Ayesha Mohiddin, the respondent herein, sought eviction of the petitioner invoking the provisions of clauses (a), (e) and (r) of Section 27(2) of the Karnataka Rent Act, 1999, (hereinafter referred to as the Act, for brevity), on the premise she is the absolute owner of premises bearing No.57/1, situate at 6th Cross, 5th Main Road, Chamrajpet, Bangalore-560 018, in occupation of the petitioner herein, having acquired it by an indenture of sale dated 25.6.2002 from her grandmother-Lingamma. Since then she has been exercising right of ownership. (b) According to her, petitioner was inducted as tenant in the premises in question by her predecessor-in-title on a monthly rent of Rs.500/- p.m. and premium deposit of Rs.30,000/- refundable on termination of tenancy. He is a chronic defaulter in payment of rent and had fallen in arrears, but had not quantified the amount. (c) She further averred the building is in a dilapidated condition requiring immediate demolition and she intends to reconstruct it suitable for her need. She thus sought his eviction under various clauses of Section 27(2) of the Act. (d) Petitioner resisted eviction action initially denying jural relationship of landlord and tenant between her and him and in this regard specifically averred he knew only Lingamma to be the owner of the property in question who had inducted him in the premises. Lingamma had transacted with him to sell the property in question for a valuable consideration of Rs.3,50,000/- and in this regard had executed an agreement of sale dated 8.11.1995. Lingamma had transacted with him to sell the property in question for a valuable consideration of Rs.3,50,000/- and in this regard had executed an agreement of sale dated 8.11.1995. In terms thereof, he paid the entire sale consideration to her on various dates, in consideration of which, Lingamma executed a deed of absolute sale on 17.8.1998 transferring unto him all her right and interest. Thus he set up title in himself. On this basis, he assertively urged eviction action under the provisions of the Rent Act was untenable and sought dismissal of the petition in limine. He also countered other grounds urged by the landlord seeking his eviction. (e) Apart from resisting eviction action on the ground of lack of jural relationship, through his counter, he filed an application under Section 43(2) of the Act to stay further proceedings and to direct the respondent to obtain a declaration of her title in a civil court of competent jurisdiction. (f) Necessarily the learned trial judge had to decide the issue of vinculum juris between the parties based on the material propositions in the pleadings, particularly grounds urged in the application. (g) To do so, learned trial judge has conducted an enquiry on the plea of the tenant in the application under Section 43(2) of the Act. Both sides have led evidence, ocular and documentary. Analysing it, learned trial judge opined respondent-landlord’s evidence outweighs the plea and evidence of the petitioner-tenant and thus, by order dated 24.4.2010 dismissed the application under Section 43(2) of the Act. (h) It is material to note soon thereafter, without conducting any further enquiry on the merit of the petition filed by the respondent, learned judge has passed the second order on 31.5.2010 allowing the petition, directing the tenant to be evicted under clause (o) of Section 27(2) of the Act. (i) That order is assailed in this revision. 4. On perusal of the impugned order, it is noticed soon after rejecting application under Section 43(2) filed by the petitioner herein, the learned trial Judge has taken up the case and passed the impugned order relying on the decision of this Court in the case of BABULAL AND ANOTHER .vs. K.SHARADAMMA AND ANOTHER reported in 2003 (2) KCCR 1367 . 4. 4. Learned counsel for the petitioner would submit the decision is not applicable to the facts of this case and the conclusion of the trial Court is erroneous. 5. Per contra, learned counsel for the respondent-landlord seeks support from the said decision to contend, once the court holds tenant had failed to establish lack of jural relationship, the court had jurisdiction to direct summary eviction of the tenant summarily under clause (o) of Section 27(2) of the Act, and no further enquiry is necessary. 6. On facts, there is no dispute that the impugned order has been passed by the trial judge summarily directing the tenant to vacate the premises after over-ruling his defence regarding lack of jural relationship. 7. Therefore, the question is, whether summary order of eviction could be passed under clause (o) of Section 27(2) of the Act if his plea regarding lack of jural relationship of landlord and tenant is rejected. 8. Necessarily the proposition so canvassed must be tested by the conspectus of the provisions of the Act which contain a non-obstante clause in sub-section (1) of Section 27 and the right of defence engrafted in Section 42 which envisages thus: “27. Protection of tenants against eviction: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant, save as provided in sub-section (2).” 9. Section 42(1) of the Act is also relevant which mandates thus: “42. Section 42(1) of the Act is also relevant which mandates thus: “42. Procedure to be followed by the Court: (1) No order which prejudicially affects any person shall be made by the Court under the Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Court.” Thus Section 42(1) is congruent with Section 27(1) of the Act leaving no scope for doubt that the Legislature has incorporated a clear restriction in sub-section (1) of Section 27 of the Act that ‘no order or decree for recovery of possession of any premises shall be made by the court, district court or High Court in favour of the landlord against the tenant save as provided under sub-section (2).’ Therefore, unless grounds envisaged in clauses (a) to (q) of sub-section (2) of Section 27 of the Act are made out, order of eviction is prohibited. 10. Besides, even to order eviction under these clauses, Section 42 of the Act further mandates that even when eviction is sought on any of the grounds enumerated in clauses (a) to (q) of Section 27 (2) of the Act, ‘no order which prejudicially affects any person shall be made by the court under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made until his objections, if any, and in evidence he may produce in support of the same, have been considered by the court.’ Sub-section (2) of Section 42 provides ‘the court shall, while holding an inquiry in any proceedings before it, follow as far as may be the practice an procedure of a Court of Small Causes, including recording of evidence.’ It supplements the object spelled out by sub-section (1) that a tenant needs to be given an opportunity of showing cause against the order proposed to be made and therefore sub-section (2) of Section 42 gains importance as it provides for holding an inquiry following the procedure and practice of a Court of Small Causes including recording of evidence. 11. 11. Thus, it could be seen even though an order of eviction against the tenant is permissible on proof of grounds enumerated in Section 27(2) of the Act, before such adverse order is passed, he is conferred with an indefeasible right to defend such action and is entitled to full opportunity. But it is noticed invariably courts/tribunals dealing with petitions for eviction apply Section 42(6) of the Act to restrict such defence, ignoring the circumstances in which the restriction incorporated by sub-section (6) on the right of defence would operate. Sub-section (6) of Section 42 reads thus: “42 Procedure to be followed by court: (1).... (2).... (6) (a) Every application by a landlord for the recovery of possession of any premises on the ground specified in clauses (f), (the) or (n) of sub-section (2) of Section 27, or under Section 30, 31 or 37 shall be dealt with in accordance with the procedure specified in this sub-section. (b) the tenant on whom the summons is duly served whether in the ordinary way or by registered post in the prescribed form shall not content the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave to the Court as hereinafter provided and in default of his appearance in pursuance of the summons or of obtaining such leave, the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. (c) the Court shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises. (d) where leave is granted to the tenant to contest the application, the Court shall ordinarily commence the hearing of the application within seven days of the grant of such leave and shall provide day-today hearing and dispose off the application within thirty days of commencement of such hearing. Failing such commencement of hearing or disposal of application within such time, the Court shall make a record of its reasons therefor. Failing such commencement of hearing or disposal of application within such time, the Court shall make a record of its reasons therefor. (e) where the leave to contest under clause (c) is denied to the tenant, he may file an application for review before the Court within ten days of such denial and the Court shall endeavour to dispose of such application within seven days of its filing.” This provision operates only when an order of eviction is sought on grounds specified under clauses (f), (h) or (n) of Section 27(2) or under Sections 30, 31 to 37 of the Act requiring a tenant on whom summons is duly served to seek leave to contest the proceedings. In other words, clause (b) of Section 42(6) requires a tenant on whom summon is duly served shall not contest the prayer for eviction unless he files an affidavit stating grounds which he seeks to contest the application for eviction and obtains leave of the court in the manner provided by clause (c) only when eviction is sought on grounds specified in clauses (f), (h) or (n) of Section 27(2) or under Sections 30,31 to 37 of the Act, and not when the order of eviction is sought on the grounds covered by other clauses contained in sub-section (2) of Section 27, for example, clauses (a) to (e), (g), (i) to (m), (o) to (q). This, therefore, would mean even when an order of eviction is sought against the tenant under clause (o) of Section 27(2), having rejected his defence regarding to seek leave to contest the proceeding the indefeasible right of defence is conferred on him by sub-section (1) of Section 42. 12. Besides, it would be relevant to examine the circumstances in which an order of eviction under clause (o) of Section 27(2) is permissible. It postulates thus: ‘that the tenant in his reply having denied the ownership of landlord, has failed to prove it or that such denial was not made in a bona fide manner.’ An order of eviction under this clause is permissible only if the tenant having denied ownership of landlord has filed to prove it or that such denial was not made in a bona fide manner. Whether such plea of the tenant denying ownership of the landlord was bona fide or not is a question of fact to be enquired. Whether such plea of the tenant denying ownership of the landlord was bona fide or not is a question of fact to be enquired. Having taken such plea, he could prove that it was taken in good faith and was bona fide. If he does so, he will not be liable for eviction under clause (o). Undoubtedly the enquiry is contemplated to decide whether such plea was bona fide or not. 13. At this juncture, it is necessary to make it clear that if eviction action by the landlord is on grounds covered under clauses (f), (h) or (n) of Section 27(2) as also Sections 30, 31 to 37 as referred to in sub-section (6) if Section 42, and in such eviction action if, for example, clauses (a) or (r) or any other clause of Section 27(2) is included, then the requirement of Section 42(6) requiring the tenant to seek leave will not apply. The restriction under sub-section (6) on the right of defence will not operate. While on this point, it will also be necessary to notice that the tenant can legitimately raise the plea of lack of jural relationship which is permissible under Section 43. The restriction under sub-section (6) on the right of defence will not operate. While on this point, it will also be necessary to notice that the tenant can legitimately raise the plea of lack of jural relationship which is permissible under Section 43. Section 43 postulates ‘where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgment of payment of rent purported to be signed by the landlord a prima-facie evidence of relationship and proceed to hear the case.’ Therefore, sub-section (1) permits the court to accept the document of lease, receipt of acknowledgment of payment of rent signed by the landlord as prima facie evidence of relationship and then ‘proceed to hear the case.’ That means, after rejecting the plea of the tenant regarding lack of jural relationship, the court is required to ‘proceed to hear the case.’ In cases otherwise, as provided by Section 43(2), ‘if the lease pleaded is oral and either party denies relationship and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) is produced, or, in the opinion of the court there is reason to suspect the genuine existence of the document of lease or the receipt of acknowledgment of payment of rent, the court shall at once stop all further proceedings before it and direct the parties to approach a competent court of civil jurisdiction for declaration of their rights.” 14. This clearly indicates no summary order of eviction is permissible eunder clause (o) on failure of the tenant to prove the plea regarding lack of jural relationship and the tenant could show such defence was bona fide. In that case, the court is required to ‘proceed to hear the case’ after rejecting his defence. 15. Having discussed the position of law emerging from the conspectus of the provisions contained in Sections 27(2), 42(1) and 43 of the Act, we have to examine whether this court in the case of BABLAL has laid down law permitting grant of summary order of eviction under clause (o) of Section 27(2) on rejection of the plea of the tenant. Having discussed the position of law emerging from the conspectus of the provisions contained in Sections 27(2), 42(1) and 43 of the Act, we have to examine whether this court in the case of BABLAL has laid down law permitting grant of summary order of eviction under clause (o) of Section 27(2) on rejection of the plea of the tenant. On perusal of the facts and circumstances taken into consideration by this court in the said decision, it is seen tenant-Babulal and another questioned the order of eviction passed against them under Section 21(1)(h), (i) and (j) of the Karnataka Rent Control Act, 1961, (repealed) raising several grounds amongst which they had raised the following two substantial questions for consideration: (a) The tenant against whom order of eviction under clauses (h), (i) and (j) of Section 21 (1) was passed, assailed the same contending the Karnataka Rent Control Act, 1961, having been repealed and the petitioner having not taken steps to amend the petition and having not included the corresponding provisions in the present Karnataka Rent Act, 1999, under which eviction was sought, the petition could not have been maintained and order of eviction could not have been passed. (b) The second ground urged was, without invoking clause (o) of the new Act, the landlord could not have sought for eviction of the tenant under that clause and the court could not have passed the order under Section 27(2) without recording a categorical finding on that issue. This court referring to the corresponding provisions in Section 27(2) of the new enactment, viz., Karnataka Rent Act, 1999, opined in paragraph 20 as under: ‘….There is no dispute that the present Act is applicable to the premises in question. If that is so, the only other question will be on the available pleading as had been pleaded by the parties and evidence let in, if there is scope of passing orders under the corresponding provisions of the present Act. The eviction petition having been allowed and the requirement of bona fide use and occupation of the petitioners, even if it is not indicated, it can be safely inferred that it is under the provisions of Section 27(2) (r) which corresponds to the provisions of Section 21(1)(the) under the old Act. The eviction petition having been allowed and the requirement of bona fide use and occupation of the petitioners, even if it is not indicated, it can be safely inferred that it is under the provisions of Section 27(2) (r) which corresponds to the provisions of Section 21(1)(the) under the old Act. In fact the provisions of Section 27(2)(r) of the present Act are not as rigorous and as strict as against a land-lord seeking for eviction of a tenant on the grounds of personal use and occupation. The material on record had clearly made out a case for passing an order of eviction under the provisions of Section 27(2)(r) of the present Act though not under any other provision.’ With this observation, the first ground was over-ruled. 16. Regarding the second ground urged by the tenant that the landlord having not invoked clause (o) of the new enactment, the order of eviction under that provision was not permissible, this court observed as follows: “21. Though the Court did not have occasion to look into the provisions of Section 43 of the Present Act in the light of the application made by the respondent-tenants, the respondent-tenants had taken up the defence that there is no relationship of “land-lord” and “tenant” as between the petitioners and the respondents. If a defence of this nature and been taken up and the tenant is unable to make good his case, then failure to make good such defence also constitutes an independent ground for passing an order of eviction by the Court under Section 27(2)(o) of the Act. Though the Trial Court had not recorded a categorical finding on this aspect, examination of the material on record itself indicates that the respondent-tenants would have suffered an eviction order under this provision also, had the Trail Court bestowed its attention to this aspect of the matter.” 17. Learned counsel for the respondent-landlord could not point out from the said decision to any observation of this court that ‘summary’ order of eviction could be passed against the tenant if he fails to prove his defence regarding lack of jural relationship. All that this court has observed in the said decision is found at paragraph 21 extracted above. Learned counsel for the respondent-landlord could not point out from the said decision to any observation of this court that ‘summary’ order of eviction could be passed against the tenant if he fails to prove his defence regarding lack of jural relationship. All that this court has observed in the said decision is found at paragraph 21 extracted above. This court has observed, if defence of this nature had been taken and the tenant is unable to make good his case, then failure to make good such defence also constitutes an independent ground for passing an order of eviction under Section 27(2) of the Act. It would mean that failure on the part of the tenant to make good such defence constitutes an independent ground for ordering his eviction under clause (o), but this court has not opined that summary order of eviction could be passed depriving him of the indefeasible right of defence provided under Section 42(1) of the Act. 18. In the result, the conclusion would be, when eviction action is brought under various clauses of Section 27(2) of the Act including clause (o), the tenant is conferred with a statutory right to contest the proceeding by virtue of Section 42(1) of the Act and no summary order of eviction could be passed against him as in the instant case. 19. The judgment in the case of BABULAL is regrettably misunderstood by the learned trial judge consequent to which he has contravened the provisions of Section 42(1) of the Act depriving opportunity to the tenant to contest the proceeding and thus, the impugned order directing summary eviction is unsustainable. 20. In the result, the petitioner succeeds in his legal pursuit. The impugned order dated 31.5.2010 passed in HRC.95/06 on the file of Chief Judge, Court of Small Causes, Bangalore, directing summary eviction of the tenant under clause (o) of Section 27(2) of the Act is set aside. HRC.95/06 is restored to file. The trial court is directed to decide the case after giving opportunity to the tenant as envisaged under Section 42(1) of the Act and dispose of the same on merit in accordance with law.