Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 692 (KAR)

K. Nanda Kumar v. Venkatarathnamma

2012-08-21

JAWAD RAHIM

body2012
ORDER JAWAD RAHIM, J. 1. These revisions under Section 46(1) of the Karnataka Rent Act, 1999 by the Tenants are directed against the eviction orders dated 06.08.2011 in HRC Nos. 70, 71, 72, 73, 74, 75 & 76 of 2009 respectively, passed by the learned Additional Judge, Court of Small Causes, Bangalore. 2. Heard the learned Counsel Mr. Ravindranath for petitioners in HRRP No. 152, 153 & 154 of 2011, Sri Irshad Ahmad for petitioners in HRRP No. 155 & 156 of2011 and Mr. Humayun for petitioners in HRRP No. 186 of 2011 and learned Counsel Mr. R.B. Sadashivappa for respondent in all the cases. 3. Before I advert to contentions urged by the learned Counsel for both sides reference to factual matrix is necessary, which is as follows:– The respondent - Landlord Smt. Venkatarathnamma, sought eviction of the petitioners herein, from the portions in their possession which forms part of Commercial Complex bearing No. 247, Venkatadri Complex, Narayana Pillai Street, Bangalore, more fully described in the schedule in each of the eviction petitions. She sought eviction of K. Nanda Kumar, Smt. Jamalla Hajoomer, Jagannatha Rao and Mohammed Mustaza @ Asmathulla, who are respondents in HRC No. 70, 71, 73 & 76 of 2009 respectively, under the provisions of Section 27(2) (r) & (j) of the Karnataka Rent Act, 1999 (in short the Act). She also sought eviction of K. Ramachandran and Masood Hassan, who are respondents in HRC No. 72 & 74 of 2009 respectively, invoking provisions of Section 27(2) (r) of the Act. She also sought eviction of A. Nayaz Ahmed, respondent in HRC No. 75 2009 invoking provisions of Section 27(2) (r) & (j) and Section 31 (1)(a) & (c) of the Act. 4. In support of various clauses of Section 27(2) of the Act invoked by her, she averred she is the absolute owner of the property in question which is a commercial complex measuring 22' x 37'. It has ground floor, first floor and second floor, the portions of which are rented out to various tenants, amongst whom she initiated eviction against those who are in occupation of the ground floor, i.e. petitioners in these revision petitions. 5. It is not in dispute revision petitioner in HRRP No. 152 of 2011 (K. Nandakumar) is occupying shop bearing No. A-6 on a monthly rent of Rs. 5. It is not in dispute revision petitioner in HRRP No. 152 of 2011 (K. Nandakumar) is occupying shop bearing No. A-6 on a monthly rent of Rs. 932/- revision petitioner in HRRP No. 153 of 2011 (P.S. Jagannath Rao) is occupying shop bearing No. A-5 on a monthly rent of Rs. 1196/- revision petitioner in HRRP No. 154 of 2011 (K. Ramachandran) is occupying shop bearing No. A-3 on a monthly rent of Rs. 932/- revision petitioner in HRRP No. 155 of 2011 (Mohammed Mustafa @ Asmathuna) is occupying shop bearing No. A-6 on a monthly rent of Rs. 932/- revision petitioner in HRRP No. 156 of 2011 (Masood Hassan) is occupying shop bearing No. A-7 on a monthly rent of Rs. 197/- and revision petitioner in HRRP No. 155 of 2011 (A. Nayaz Ahmed) is occupying shop bearing No. A-4 on a monthly rent of Rs. 930/-. All the shops form part of the ground floor of the commercial complex in question. 6. It is her assertive contention that she requires all the 7 shops in occupation of the revision petitioners forming portions of the ground floor of the commercial complex to start a business in electrical goods to be carried on by her jointly with her son P.P. Maheshkumar. Her son has sufficient experience and expertise in the said business as he had, during the life time of other husband, assisted him. After demise of her husband, she intends to augment her income by commencing the same business in which her son would assist her. For doing it, she requires larger space approximately the area forming the entire ground floor of the premises in question. In this regard she has categorically averred that the entire ground floor plinth area measures 22' x 37' in which the seven shops have been constructed, is required by her. She intends to remove the partition walls between the shops to make it one single unit suitable for her proposed business. Besides, she has also invoked Sections 31(1)(a) and (c) of the Act, against one of the tenant. 7. Mohammed Mustafa @ Asmathulla, revision petitioner in HRRP No. 155 of 2011 apart from resisting the grounds under Section 27(2)(r) of the Act, has averred that the grounds now urged by her to seek eviction are the same grounds urged in earlier proceeding which was a failure. 7. Mohammed Mustafa @ Asmathulla, revision petitioner in HRRP No. 155 of 2011 apart from resisting the grounds under Section 27(2)(r) of the Act, has averred that the grounds now urged by her to seek eviction are the same grounds urged in earlier proceeding which was a failure. This grounds finds support from the petition averments where she has revealed she had filed eviction petitions against the tenants but were dismissed, and subsequently she initiated fresh action asserting new cause of action has accrued to her compelling her to start the business. Besides she seeks eviction alleging the tenants were due rents and described them as chronic defaulters and they were due in all Rs. 1,85,750/- (approximately). 8. All such grounds urged by her were resisted by the revision petitioners in each of the eviction petitions. They denied she has any desire or necessity to start a new business in electrical goods. They described her claim as untenable, imaginary and urged it is due to sinister design to unjustifiably evict them. In support of such contentions, they averred her son is already in business of electrical goods run in the name and style Sri Vari Electrical at no. 35, Meenakshi Koil Street, Shivajinagar, Bangalore, he is also running COFFEE DAY at no. 120, Dharmaraja Koil Street, Shivajinagar, Bangalore, the landlord herself is the proprietrix of M/s. Thirumala Electrical run at no. 139, Dharmaraja Koil Street, Shivajinagar, Bangalore, in which her son is an active partner. In short they termed her action as full of mala fides without just cause, need or necessity. Alternatively, all the tenants raised a technical ground to non-suit her referring to the dismissal of earlier proceedings filed seeking eviction on similar grounds which were decided on merit. They would contend present action is hit by Section 61 of the Act and hence, the impugned orders are unsustainable in law. 9. Based on the material propositions in the pleadings of the parties, the trial Court framed relevant points for consideration and allowed the parties to support it with evidence. In the enquiry that ensued, respondent landlord examined her son P.P. Maheshkumar as PW-1 and produced 35 documents, while the revision petitioners examined themselves in each case as RW-1 to RW-7. They relied on Exs.R-1 to R-4 which are documents evidencing failure of the landlord in eviction action in HRC Nos. 10164, 10165 & 10166 of 2003 etc. In the enquiry that ensued, respondent landlord examined her son P.P. Maheshkumar as PW-1 and produced 35 documents, while the revision petitioners examined themselves in each case as RW-1 to RW-7. They relied on Exs.R-1 to R-4 which are documents evidencing failure of the landlord in eviction action in HRC Nos. 10164, 10165 & 10166 of 2003 etc. 10. The learned trial judge analyzing the evidence opined respondent landlord's evidence outweighs the defence of the tenants and by the impugned order, allowed the petitions directing their eviction. Assailing it they are in these revision petitions. 11. Learned Counsel for the revision petitioners (tenants) Shri Humayun, Shri Irshad and Shri Ravindranath, were at their best in teasing out the evidence to show it hardly supports the grounds on which eviction was sought by the landlord. They would contend, respondent-landlord is in the habit of instituting eviction petitions as a tool of threat to, extract higher rent and rightly the Court has rejected that ground. They described the impugned order against them as wholly unjustified particularly in view of the fact that the landlord has failed to prove she requires by necessity the portions in their occupation. They further contend four of the tenants against whom she sought eviction are also her tenants in respect of the shops in the 1st floor and any order of eviction against them from the ground floor will result in eviction from both portions. 12. Learned Counsel would contend the impugned order has virtually affected not only their occupation of the ground floor, but in the 1st floor as well and therefore she is not entitled to a decree for eviction. 13. In negation of these grounds, learned Counsel, Sri R.B. Sadashivappa would contend, dismissal of the earlier petitions filed by the respondent-landlord was of no consequence as she always had the right to seek eviction of tenants in changed circumstances. His core contention is, the grounds on which the earlier eviction petition was filed were different from the one on which the present actions were based and therefore there is no res-judicata. He would submit the entire ground floor measures only 22' x 37' and unless all the tenants are evicted, the landlord will not be able to use the portion for her purpose. He would submit the entire ground floor measures only 22' x 37' and unless all the tenants are evicted, the landlord will not be able to use the portion for her purpose. He has highlighted the fact that the landlord after evicting the tenants needs to remove the walls which are partitioning the area so as to make it one single unit to suit her requirement. Pertinently he pointed out the entire area does not exceed 22' x 37' which is just sufficient for her business in electrical goods. His alternate submission is, the tenants have already obtained alternate accommodation and on that ground also they are liable to be evicted. He referred to the tenants who are respondents in HRC Nos. 70, 72, 73, 74, 75 and 76 to show they are also tenants in the 1st floor and they can as well carryon business in that portion. 14. It is not in dispute Venkatadri Complex is constructed on a site bearing no. 247, the size of which is 22' x 37'. It is a commercial complex comprising ground, first and second floor and in each floor the landlord has constructed 7 shops, dimension of each shop being 7.3' x 7.9'. It is not in dispute the shops in the ground floor are of equi-dimension. The mode of ingress and egress to the entire complex is through the common entrance from Dharmaraja Koil Street and leading to the passage in between shops in the ground floor measuring 6' in width to the entire length. At the end of the passage in the ground floor is the staircase leading to the 1st floor, and therefrom to the second floor. 15. The design of the building, its dimension and its topography necessarily needs detailed consideration because the eviction action initiated by the landlord is admittedly only in respect of tenants in occupation of the ground floor shops. It is also not in dispute landlord wants to evict all of them to convert the entire ground floor into a single unit for her use. That would mean, she would be converting the entire ground floor portion of the complex comprising 7 shops by structurally altering it to make it one unit. It is also not in dispute landlord wants to evict all of them to convert the entire ground floor into a single unit for her use. That would mean, she would be converting the entire ground floor portion of the complex comprising 7 shops by structurally altering it to make it one unit. By doing so, she would be utilizing the common passage as part of the single unit, leaving no chance of user of it by any other occupant of first floor or second floor. 16. The building has 1st and 2nd floors where there are a number of shops, i.e. seven on each floor. Access to the said shops is, as of now; through the common passage connecting Dharmaraja Koil Street measuring 6' wide and 22' in length. On the either side of the passage are shops totaling seven in number in the ground floor. The passage is the only mode of access to the staircase which is at the end of the passage. That staircase is the only mode of access to the 1st and 2nd floor from the second floor. The landlord has not explained what will be the mode of ingress and egress to the occupants of 1st and 2nd floors after she structurally alters the ground floor to make it one single unit. One can easily visualize that once the ground floor is converted into one unit, it will be in exclusive physical possession of the landlord and there will be no thoroughfare permissible. The passage undoubtedly will get into the plinth of the ground floor thereby dissipating the passage completely making it non existent and giving no mode of access to the staircase which is the only mode of gaining entry to the upper floors. The landlord is silent in her eviction petition and also in evidence as to what will be the alternate mode of access to the occupants of the 1st and 2nd floors after she structurally alters the ground floor and occupies it. 17. The landlord is silent in her eviction petition and also in evidence as to what will be the alternate mode of access to the occupants of the 1st and 2nd floors after she structurally alters the ground floor and occupies it. 17. In this fact situation, the legal issue that needs to be answered is:– In eviction action against one or more tenants occupying a portion of the building, and other portions being occupied by other tenants, even if the landlord establishes his/her requirement to occupy the schedule premises on any of the grounds under clauses (a) to (s) of Section 27(2) of the Act, would such order be legally sustainable if the consequences of such order is likely to adversely affect the other tenants in occupation of the same building against whom no eviction order was sought? This issue has to be examined keeping in mind the intent and purpose of the Legislature in enacting the rent laws and in this case, the Karnataka Rent Act, 1999. The aims and objects incorporated therein are as under:– "An Act to provide for the regulation of rent and eviction of tenants, in certain areas of the State of Karnataka, and for the matters connected therewith or incidental thereto. Be it enacted by the Karnataka State Legislature in the fiftieth year of the Republic of India." 18. In fulfillment of the aims and objects, the Legislature has engrafted protection to tenants under Section 27(1) of the Act which reads 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)." Section 27(2) of the Act is the only provision under which order of eviction could be passed against the tenant and it is pertinent to note the provision begins with a non-obstante clause 'Notwithstanding anything to the contrary. Therefore, it is evident that to evict a tenant, the landlord must substantiate with sufficient material grounds enumerated under clauses (a) to (s) of Section 27(2) of the Act and of course, an element of presumption is provided in favour of the landlord if eviction is under clause (r). 19. Therefore, it is evident that to evict a tenant, the landlord must substantiate with sufficient material grounds enumerated under clauses (a) to (s) of Section 27(2) of the Act and of course, an element of presumption is provided in favour of the landlord if eviction is under clause (r). 19. The provisions of sub-sections (1) and (2) of Section 27 of the Act make it clear that no order of eviction could be passed against the tenant except on grounds enumerated in Section 27(2). These are applicable when the landlord seeks to evict a particular tenant. 20. The question now is, even if the landlord has succeeded in establishing with acceptable material evidence anyone of the grounds enumerated in clauses (a) to (s) of Section 27(2) against the tenant, could such order be passed ignoring the interest of other tenants in occupation of other portions of the same building. 21. The answer, undoubtedly, has to be in the negative for the following reasons:– (i) A combined reading of sub-section (1) and (2) of Section 27 and Section 42 of the Act would show that sub-sections (1) and (2) deal with permissibility of eviction action to evict the tenant, but Section 42 is independent in its application. The phraseology used in Section 42 of the Act leaves no scope for doubt that absolute safeguard is engrafted in Section 42 to protect the interest of occupants of building as tenants against any adverse order which may be of any kind. Therefore, even though an order of eviction is permissible under various clauses of Section 27(2) of the Act, such order would not be legally sustainable if it prejudicially affects the tenants/persons in occupation of building under the landlord. More particularly, Section 42 operates and protects the interest of such of those tenants who are in occupation of portions of the common building against whom no eviction action has been initiated by the landlord. (ii) From the facts involved in this case, it is evident that the landlord intends to remove the partition walls of the 7 shops in the ground floor to make it one unit. As of now, the topography of the ground floor shows there are 7 shops and the main entrance is through Dharmaraja Koil Street which leads to a passage measuring 6' in width and 22' in length. As of now, the topography of the ground floor shows there are 7 shops and the main entrance is through Dharmaraja Koil Street which leads to a passage measuring 6' in width and 22' in length. On either side of the passage are shops, about three on each side. The occupants of the ground floor are using the passage, so also customers. At the end of the passage there is a staircase leading to the 1st floor and therefrom to the 2nd floor where there are similar shops rented out to other tenants who are doing business. (iii) By removing the partition walls in the ground floor, the passage will be utilized to form a complete one unit and if that happens, the mode of access to the 1st floor and 2nd floor is totally lost. (iv) If the order of eviction is implemented the mode of access to the 1st and 2nd floors will be completely sealed and it will adversely affect the interest of tenants in the upper floors. (v) This is what is prohibited by Section 42 of the Act which mandates 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 and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Court. (vi) Sub-sections (2), (3), (4), (5) and (6) lay down the detailed procedure to be followed by Courts in such a situation. 22. At the first look, the provision of Section 42 of the Act may appear to be one dealing with the procedure to be followed in an action for eviction, but the intention of the Legislature clearly surfaces from the language itself that 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. Any person would include not only the tenant against whom the eviction order is sought, but also a person against whom no eviction proceedings are initiated. 23. Any person would include not only the tenant against whom the eviction order is sought, but also a person against whom no eviction proceedings are initiated. 23. In this view, it was incumbent on the trial Court to have notified to the other tenants in occupation of the 1st and 2 floors about the proceedings initiated by the landlord and to give them an opportunity of being heard as they were likely to be affected by the order of eviction against the revision petitioners. The trial Court has ignored a very material issue that had arisen for consideration consequent to which, the order of eviction if allowed to be sustained, will jeopardize completely the protection granted to persons in occupation of the 1st and 2nd floors and render their occupation impossible. 24. It is apparent that the landlord had not averred or substantiated through evidence that the order of eviction she sought against the revision petitioners would not prejudicially affect them or other persons (tenants) in occupation of the 1st and 2nd floors. However, tenants did not lag behind. It could be seen from the cross-examination of PW-12 (P.P. Maheshkumar) that four of the revision petitioners who were also tenants in the 1st floor questioned him that the order of eviction against them in respect of the ground floor will completely seal the ingress and egress to shops under their occupation in the 1st floor. Despite such questioning, the landlord did not seek to either amend the pleadings or lead additional evidence to show what will be the mode of access to the tenants in the 1st and 2nd floors. 25. In this view, while being satisfied that the orders of eviction are unsustainable on this legal issue itself, it is necessary to remand the matter to the trial Court for de novo consideration after giving an opportunity to the landlord to amend her pleadings, if she so desires, to explain what will be the mode of access to the 1st and 2nd floors if she were to occupy the ground floor by converting the 7 shops into one single unit, subject to such defence as the petitioners/tenants would take, and also to give opportunity to such other persons who are likely to be adversely affected by an order of eviction. 26. 26. Keeping in mind the time already consumed, it is desirable to direct the trial Court to dispose of the case as expeditiously as possible. Both parties shall co-operate in early disposal, preferably within 3 months to facilitate the trial Court to dispose of the case expeditiously. Parties shall appear before the trial Court on 5.9.2012. 27. With the above observations, all the revision petitions are allowed. The orders impugned are set aside.