Judgment 1. This is a tenant’s revision petition against eviction order made under Section 27(2)(r) of the Karnataka Rent Act, 1999. 2. I have heard Sri S. Siddappa, learned counsel for petitioner (tenant) and Sri Vigneshwara, learned counsel for respondent (Landlady). 3. The schedule premises is a shop premises measuring East to West 8 Feet and North to South 18 feet situate at 6th Main Road, RPC Layout, Railway L.N. Pipeline Chord Road, Bangalore. 4. Sri. Siddappa, learned counsel for petitioner has made following submissions: I. The area of schedule shop is more than 14 sq. mts., therefore, the provisions of Karnataka Rent Act, 1999, are not applicable. II. The Landlady has failed to prove that schedule premises is required for her occupation and non-availability of suitable premises. III. The petition filed under Section 27(2)(r) of the Karnataka Rent Act, 1999, is not supported by an affidavit, therefore, the petition is not maintainable. IV. The learned trial judge has ignored the evidence on record, in particular, the crucial admissions made by the Landlady regarding availability of suitable premises. 5. Sri Vigneshwara, learned counsel for respondent (Landlady) would submit that the plinth area of schedule premises is less than 14 sq. mts., therefore, the provisions of Karnataka Rent Act, 1999 are applicable. The mere fact that other shops have come into possession of Landlady, that by itself cannot be said that the said premises is available and can be termed as alternate suitable premises and it is not open for tenant to dictate landlord how he should carry on business or where he should carry on the business. 6. The learned counsel for petitioner (tenant) has relied on following judgments:— 1. Smt. P. Vatsala Upadhya and Others v Srikanth Keshav Raikar (ILR 2004 Kar. 1637) 2. Somanathasa baddi v Chanabasappa and others ( (2008) 10 SCC 685 ) 7. The learned counsel for respondent (Landlady) has relied on following judgments:— 1. M. Javerilal v N. Achalraj Jain ( 2005 (1) Kar.L.J. 76 : ILR 2005 Kar. 155) 2. Uday Shankar Upadhyay and Others v Naveen Maheswari ((2010) 1 SCC 503 : 2010 AIR SCW 1265) 8. Before adverting to submissions made by learned counsel for parties, it is necessary to state certain facts, which are not in dispute. The schedule premises is a shop used for non-residential purpose. 155) 2. Uday Shankar Upadhyay and Others v Naveen Maheswari ((2010) 1 SCC 503 : 2010 AIR SCW 1265) 8. Before adverting to submissions made by learned counsel for parties, it is necessary to state certain facts, which are not in dispute. The schedule premises is a shop used for non-residential purpose. The relationship between the parties as Landlord and tenant is not in dispute, so also rate of rent. 9. The petitioner/tenant has not raised the question of maintainability before the trial court. The Lease Deed marked as per Ex.P2 reveals that the schedule shop measures 18’ x 8’ = 144 Sq.ft. Therefore, the contention of petitioner/tenant that provisions of Karnataka Rent Act, 1999 are not applicable cannot be accepted. Incidentally it is necessary to state that during pendency of this revision petition, a Commissioner was appointed to inspect and measure the suit schedule property and submit a report. As per report submitted by the Commissioner, the plinth area of schedule shop is less than 144 sq. mts. It is noticed from report of the Commissioner that during spot inspection, the tenant insisted that the Commissioner should also take measurements of sajjas. The learned counsel for petitioner relying on the report of Commissioner would submit if the area of sajja is included, the area of schedule premises would be more than 14 sq. mts. 10. The learned counsel for petitioner has relied on the judgment of this court reported in the case of Smt. P. Vatsala Upadhya, wherein, this court has held: “For the purpose of calculation of area of commercial premises, the frontage of the shop or plinth area as the case may be taken into consideration. The frontage of the shop certainly forms part of the shop premises and it is an appurtenant of the shop premises. Without the use of such appurtenant, the purpose and object for which the tenant has taken the shop on lease cannot be realised.” 11. In a decision reported in the case of P.R. Radhakrishna Setty and Sons Company, Bangalore v A.N. Satish Babu ( 2004(2) Kar.L.J. 223 ) this court has held:- “4. As per Section 2(3)(g) of the Rent Act, the Rent Act is not applicable to nonresidential premises excluding the premises having a plinth area of not exceeding 14 square meters used for commercial purpose. What is important is “plinth area used for commercial purpose”. As per Section 2(3)(g) of the Rent Act, the Rent Act is not applicable to nonresidential premises excluding the premises having a plinth area of not exceeding 14 square meters used for commercial purpose. What is important is “plinth area used for commercial purpose”. The word “used” assumes importance. Therefore, only the area used for commercial purpose shall be taken into consideration. In such an event, walls cannot be used and as such their measurements need not be taken. According to the Commissioner’s report, the plinth area measures East to West 9.5’ towards North and 8’ towards South and North to South 15.5’. Thus, the premises used for commercial purpose is not more than 14 sq. mtrs. R.W.2 examined before the Trial Court has admitted that the petition schedule premises does not measure more than 14 sq. mtrs. Hence, the objections filed to the Commissioner’s Report and the contention taken regarding the extent of the petition schedule premises are untenable and rejected. The decisions relied upon in this regard have no application to the present case.” 12. In view of what has been held in the above decision, the area of sajjas, which are primarily meant to protect windows from light or rain cannot be considered as plinth area used for commercial purpose. Therefore, the submission of learned counsel for petitioner that the trial judge did not have jurisdiction to grant an order of eviction cannot be accepted. 13. The learned counsel for petitioner has submitted that petition filed under Section 27 (2)(r) of the Karnataka Rent Act, 1999, was not supported by an Affidavit as required under Explanation-I (i) to Section 27(2)(r) of the Karnataka Rent Act, 1999. 14. The learned counsel for petitioner has relied on the judgment of Supreme Court reported in the case of Somanathasa Baddi. In the aforestated judgment, the Supreme Court has held that in the absence of affidavit in terms of Explanation I(i) the court cannot presume that requirement of landlord is bona fide. The Supreme Court has held that presumption contemplated by Explanation I (i) is rebuttable. In the aforestated judgment, the Supreme Court has held that, verification of the plaint certified by administrative officer of the trial court cannot be treated as an affidavit. Therefore, no presumption can be raised by the rent controller that the landlord needs premises for his occupation or for other members of the family. 15. In the aforestated judgment, the Supreme Court has held that, verification of the plaint certified by administrative officer of the trial court cannot be treated as an affidavit. Therefore, no presumption can be raised by the rent controller that the landlord needs premises for his occupation or for other members of the family. 15. In the case on hand, the Landlady has not filed an affidavit as required under Explanation I(i) to Section 27(2)(r) of the Karnataka Rent Act, 1999. Therefore, no presumption would arise regarding requirement of Landlady. 16. The learned trial judge has held that on the date of filing of petition through her Power of Attorney, the Landlady had filed verifying affidavit. On careful consideration of the petition, I do not find any verifying affidavit in support of the petition. Thepurpose of filing verifying affidavit in terms of Explanation I (i) is to solemnly affirm the contents of the petition regarding requirement of Landlord. Therefore, the Trial Court ought not have raised presumption regarding requirement of the Landlady. 17. In the case of M. Javerilal, this Court has held: “12. The bona fide requirement of landlord has undergone a sea-change under the new enactment. What is required to be proved Under Section 27(2)(r) of the New Act are only two components -one is requirement and another is non-availability of suitable premises. Both the conditions will have to be satisfied for seeking eviction.” 18. In the case on hand, the Power of Attorney holder of Landlady (PW.1) has deposed; that there are 3 shops in a row and one amongst them is the schedule shop. As and when other shops are vacated, they have inducted new tenants. He has further deposed that they had filed eviction petition in HRC 76 of 2009 and got the tenant by name Santhosh Shetty evicted and thereafter, the shop was let out. PW.1 has further admitted that these shops including the schedule shop are situated in a row. The area of these shops is identical and the shops have similar advantages. PW.1 has deposed; that in the adjoining building, they have 5 shops. The Landlady owns one more building in 4th Cross. When confronted with the photograph of schedule shop, he has admitted that the photograph shows the schedule shop. He has also admitted that there are two shops in the same row, thereafter, there is another building separated by a passage. The Landlady owns one more building in 4th Cross. When confronted with the photograph of schedule shop, he has admitted that the photograph shows the schedule shop. He has also admitted that there are two shops in the same row, thereafter, there is another building separated by a passage. In all there are 5 shops in a row. PW.1 has admitted that those shops were vacated by the tenants and new tenants were inducted. PW.1 has also admitted that shops seen in Ex.R.1 have fallen vacant and they have not been occupied. The tenants in occupation of those shops vacated the shops after eviction petitions were filed. 19. The learned counsel for respondent/Landlady relying on a judgment of this Court in the case of M. Javerilal, and the judgment of Supreme Court reported in the case of Uday Shankar Upadhyay, would submit that Landlord is the best judge of his requirement and tenant cannot dictate terms to the Landlord. In a decision in M. Javelilal’s case, the Court has held that Landlord is in occupation of shop and the schedule shop is situate in Rajendra Market, Avenue Cross Road, Bangalore. This shop under dispute and the shop, which became available to his landlord are situate in different localities. In the circumstances, this court has held that Landlord is the best judge of his requirement and tenant cannot dictate terms to the Landlord. 20. In the case of Uday Shankar Upadhyay, the Supreme Court dealing with Section 12 of Madhya Pradesh Accommodation Control Act (41 of 1961) has held that: “the court cannot dictate to landlord to which floor he should use in his business. It is for the landlord himself to decide.” In the case on hand, the shops, which were available to the Landlady, were adjacent to schedule shop. The area of all the shops is equal and they have same frontage and similar advantages. In the circumstances, it is not possible to accept the contention of Landlady that adjacent shops were not suitable to meet her requirement. 21. The learned trial judge having noticed that the adjacent shops were vacant and were available to the Landlady, has rejected the contention of tenant by holding that schedule shop is a corner shop. This contention is not supported by pleadings or evidence. 21. The learned trial judge having noticed that the adjacent shops were vacant and were available to the Landlady, has rejected the contention of tenant by holding that schedule shop is a corner shop. This contention is not supported by pleadings or evidence. The learned trial judge has held that the judgment of Supreme Court in the case of K.N. Anantharaja Gupta v D.V. Usha Vijaykumar ( AIR 2008 SC 539 : (2007) 13 SCC 592 : 2007 AIR SCW 7427), is not applicable to the instant case. 22. In the case of K.N. Anantharaja Gupta, the Supreme Court has held: “We have examined this provision viz., Section 27 (2) (r) of the Act in detail. After a careful examination of this provision, we summarize as follows:— No order or decree for the recovery of possession of any premises shall be made by the Court against the tenant, save as provided in Section 27(2). A plain reading of Section 27(2)(r) would clearly show that a decree for eviction or an or an order for recovery of possession can be passed by a Court if the premises let is required, whether in the same form or after reconstruction or rebuilding by the landlord for occupation for himself or for any member of his family if: (i) he is the owner of the said premises and (ii) the landlord or such person has no other reasonably suitable accommodation.” In the instant case, whether the Landlady had other suitable accommodation depends upon the nature of requirement, as there is no dispute that the adjacent shops were available to her. In the absence of pleadings as to nature of business, the contention of Landlady and finding of the trial court that adjacent shops are not suitable to meet the requirement of Landlady cannot be accepted. 23. On careful consideration of the evidence of PW.1, I find that PW.1 has not deposed that schedule shop is a corner shop. On the other hand, description of schedule shop discloses that it is bounded on the East by—Road; West by—House No.1622; North by—Road and South by—Drainage. The house property shown on western side does not exist. As per evidence of PW.1, including schedule shop there are three shops in a row. 24. PW.1 has not deposed that the schedule shop is more advantageous than the adjacent shops, which are available to the Landlady. The house property shown on western side does not exist. As per evidence of PW.1, including schedule shop there are three shops in a row. 24. PW.1 has not deposed that the schedule shop is more advantageous than the adjacent shops, which are available to the Landlady. Therefore, the Landlady has failed to prove that adjacent shops, which are available to her are not suitable to meet her requirement. The Landlady has admitted that area of schedule shop and adjacent shop, which was vacated by one Muniraju are of the same dimension. The Landlady has also admitted that other shop which was vacated by one Santhosh Shetty has the same area as that of schedule shop. Above all, in the petition, the petitioner has not stated the nature of business which her son (GPA holder-Somashekara Swamy examined as PW.1) intends to start in the schedule shop. The relevant averments of petition would disclose that the son of Landlady (PW.1) intended to start an agency under the name and style of M/s. S & S Agencies and got license to run the dealership. PW.1 in his evidence by way of affidavit has stated that schedule shop is required to run dealership business and it is suitable for said business. During cross-examination, PW.1 has deposed; that petitioner wants to start distribution agency of M/s. Himalaya and M/s. John Polar however, no documentary evidence is produced by PW.1 to prove that he has been appointed as Distributing Agent by the aforestated companies. 25. The learned trial judge has failed to notice these lacunae in the pleadings and evidence. The learned trial judge in the absence of proper pleadings regarding nature of requirement and suitability of premises more particularly, when adjacent shops having same advantages were available to landlady, should not have held that the suit schedule shop is required for the son of landlady namely PW.1 to start some agency, the nature of which has not been stated either in the petition or in examination-in-chief. 26. The respondent/tenant (RW.1) has deposed; that he is running a cycle repair shop in the schedule shop. He does not have alternate accommodation and out of the income from cycle repair shop, he is maintaining his family members. These facts are not controverted in the cross-examination of RW.1. 27. 26. The respondent/tenant (RW.1) has deposed; that he is running a cycle repair shop in the schedule shop. He does not have alternate accommodation and out of the income from cycle repair shop, he is maintaining his family members. These facts are not controverted in the cross-examination of RW.1. 27. RW.1 has deposed; that he has paid advance amount of Rs.55,000/-to the earlier tenant (RW.2) as instructed by the Landlady. 28. RW.2-Humayun Khan has deposed; that earlier, he was in occupation of schedule shop. He had paid advance amount of Rs.55,000/-to his Landlady. As he intended to vacate the shop, he had approached the landlady. As the Landlady did not have sufficient funds to return the advance amount of Rs.55,000/-, he came in contact with the respondent/tenant (RW.1). The respondent/tenant approached the Landlady and her son. The Landlady and her son agreed to lease out the shop on monthly rent of Rs.500/-and advance amount of Rs.74,000/-. The respondent/tenant paid advance amount of Rs.74,000/-to Landlady, out of which landlady paid a sum of Rs.55,000/-to RW.2. On receiving advance amount, Landlady handed over possession of schedule shop on the same day to respondent/tenant (RW.1). During cross-examination of RW.2 these facts have not been controverted. 29. Thus, we find that the Landlady has been getting orders of eviction against tenants from time to time to induct new tenants at higher rent and advance amount. 30. The learned trial judge without considering all these aspects, without bearing in mind that presumption available under Section 27(2)(r) of the Karnataka Rent Act is rebuttable presumption has held that the Landlady has proved her requirement of schedule shop. Therefore, the impugned order cannot be sustained. 31. In the result, I pass the following:- The petition is accepted. The impugned order is set aside. The eviction filed in HRC 75 of 2008 is dismissed. Parties to bear their costs.