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2012 DIGILAW 633 (KAR)

B. Noorulla Khan v. M. R. Seetharam

2012-08-06

N.ANANDA

body2012
Judgment 1. This is a tenant’s revision petition against order of eviction made under Section 27(2) (r) and Section 31(1)(c) of the Karnataka Rent Act, 1999. 2. I have heard Sri. S. Shekar Shetty, learned counsel for petitioner (tenant) and Sri. Gurudath, learned counsel for respondent (Landlord). 3. Before adverting to submissions made by learned counsel for parties, it is necessary to state certain facts, which are not in dispute. The jural relationship between the parties is admitted. It is also an admitted fact that schedule property is a shop used for commercial purpose. The petitioner/tenant after filing statement of objections had not participated in the proceedings before the court below. Therefore, the oral and documentary evidence adduced by respondent/landlord has remained uncontroverted. 4. Sri. S. Shekar Shetty, learned counsel for petitioner (tenant) has made following submissions: I. In the statement of objections filed by tenant, he has denied the age of petitioner/landlord to claim benefit as senior citizen under Section 31(1)(c) of the Karnataka Rent Act, 1999. II. The learned trial judge should not have relied on the xerox copy of Election Identity Card to hold that petitioner/landlord was aged 65 years or more as on the date of filing of petition to avail benefit under Section 31(1)(c) of the Karnataka Rent Act, 1999. III. The area of schedule shop is more than 14 sq. mts. The provisions of the Karnataka Rent Act, 1999, are not applicable. 5. The learned counsel for respondent/landlord would justify the impugned order. 6. It is seen from the objection statement filed by the tenant that he has not admitted the age of petitioner as mentioned in the petition. Apart from this, it is not specifically contended that petitioner was less than 65 years of age and he is not entitled to benefit available under Section 31(1)(c) of the Karnataka Rent Act, 1999. The evidence of respondent/landlord that he is aged about 68 years and he is a senior citizen as on the date of filing eviction has not been controverted. Therefore, the submission of learned counsel for petitioner cannot be accepted. 7. In the objection statement filed by petitioner/tenant, he has not denied description of schedule shop in the petition, wherein, it is shown that schedule shop measures East to West 8 feet and North to South 9 feet. Therefore, the submission of learned counsel for petitioner cannot be accepted. 7. In the objection statement filed by petitioner/tenant, he has not denied description of schedule shop in the petition, wherein, it is shown that schedule shop measures East to West 8 feet and North to South 9 feet. Therefore, the submission of learned counsel for petitioner that the area of schedule shop is more than 14 Sq. Mts., and provisions of Karnataka Rent Act are not applicable cannot be accepted. 8. The evidence of respondent/landlord that respondent has two sons namely M.S. Shankar, aged about 41 years and M.S. Ramachandra, aged about 39 years and they are running automobile business and the schedule shop is required to carry on their business and they are dependants on respondent has not been controverted. Apart from evidence of respondent/landlord, the son of respondent viz., M.S. Shankar has also deposed about requirement of schedule shop for starting automobile business. The evidence of this witness has remained uncontroverted. Therefore, the learned trial judge has passed the order of eviction under Section 27(2)(r) r/w Section 31 (1) (c) of the Karnataka Rent Act, 1999. 9. The learned counsel for petitioner has relied on the judgment of this court in the case of Raj A. Menda and Others v Rani Rasamani Real Estate and Others (2007 (6) Kar.L.J. 349 (DB) : ILR 2007 Kar.2627 (DB)), to contend that exercise of discretion of court in passing a decree or judgment on admission, at the first place cannot be claimed by the plaintiff as a matter of right. In exercising the discretion, the court has to satisfy its judicial consensus on such discretion, admission must be clear, unequivocal, unconditional, unambiguous. In the case on hand, we are dealing with eviction petition and order of eviction made under Section 27(2)(r) of the Karnataka Rent Act. The petitioner/tenant apart from filing objections had not participated in the proceedings before the court below. The trial court granted the decree on appreciation of evidence. Therefore, what has been held in the aforestated decision is not applicable to the facts of this case. 10. The petitioner/tenant apart from filing objections had not participated in the proceedings before the court below. The trial court granted the decree on appreciation of evidence. Therefore, what has been held in the aforestated decision is not applicable to the facts of this case. 10. The learned counsel for respondent has relied on the judgment of Supreme Court in the case of Gopal Krishnaji Ketkar v Mohamed Haji Latif and Others ( AIR 1968 SC 1413 : (1968) 3 SCR 862 ), to submit that a party in possession of best evidence which would throw light on the issue in controversy withholding such evidence, the court has adverse inference against him though onus of proof does not lie on him. In the case on hand, the evidence of petitioner/landlord that he was aged about 67 years at the time of filing eviction petition has not been controverted. The petitioner is the best person to speak about his age. When the same is not controverted by respondent/tenant, the trial court was justified in acting upon evidence of petitioner. 11. The learned counsel for petitioner has relied on the judgment of Supreme Court reported in the case of S.J. Ebenezer v Velayudhan and Others, ( AIR 1998 SC 746 : (1998) 1 SCC 633 ) wherein, the Supreme Court has held: “the bona fide requirement of Landlord should be objectively tested and cannot be based on mere desire of landlord.” At this juncture, it is relevant to state that, under the provisions of Section 27 (2) of the Karnataka Rent Act, 1999, the landlord has to prove requirement and not bona fide and reasonable requirement as he was required to do under the Karnataka Rent Control Act, 1961. 12. The learned counsel for petitioner has relied on the judgment of the Supreme Court reported in the case of Hasmat Rai and Another v Raghunath Prasad ( AIR 1981 SC 1711 : (1981) 3 SCC 103 ) to contend that when eviction is sought on the ground of personal requirement, such requirement must continue to exist till disposal of the case. In the case on hand, the respondent has not adduced any evidence that requirement of landlord had ceased after eviction petition was filed. Therefore, what has been held in the aforestated decision is not applicable to the facts of this case. In the case on hand, the respondent has not adduced any evidence that requirement of landlord had ceased after eviction petition was filed. Therefore, what has been held in the aforestated decision is not applicable to the facts of this case. In view of the above discussion, I hold that there are no reasons to interfere with the impugned order. 13. In the result, I pass the following.— The petition is dismissed.