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2013 DIGILAW 783 (KAR)

ASHA v. P. S. VEERARAGHAVAN

2013-07-05

B.S.PATIL

body2013
ORDER B.S. PATIL, J.-This revision petition is filed under Section 46 of the Karnataka Rent Act, 1999 (for short, 'the Act') challenging the order dated 04.02.2013 passed by the learned III Addl. Senior Civil Judge, Bangalore in HRC No. 121/2011, directing eviction of the petitioners from the petition premises within 60 days from the date of the order. 2. The facts that are not in dispute are, that the petition schedule premises belongs to one P.V. Subramania Iyer-father of respondents 1 to 6 herein. He had let out the same to one Suvalal Jain-husband of petitioner No. 2 and father of petitioners 1 & 7. According to the respondent-owners, the premises was let out about 50 years back by P.V. Subramania Iyer, who died on 18.10.1985 leaving behind the petitioners before the Court below as his legal representatives. It is also relevant to notice here that earlier HRC No. 338/2009 had been filed by respondents 1 to 6 herein against Suvalal Jain. In the said petition, eviction order was passed. However, at the stage of execution, objection was raised by the heirs of the original tenant-Suvalal Jain contending that when the order of eviction was passed, Suvalal Jain was not alive and therefore, the order having been passed against a dead person, was not executable. Accordingly, the execution petition came to be dismissed. It is thereafter that the present eviction proceedings in HRC No. 121/2011 came to be initiated by respondents 1 to 6 herein. 3. The petition was objected by the present petitioners and respondent No. 7. The Court below framed the relevant points for consideration, keeping in mind the respective contentions raised in the pleadings by the parties. They are as under: (i) Whether the petitioners prove that there is jural relationship existing between the respondents and themselves? (ii) Whether the petitioners prove that they require the schedule premises for reasonable and bona fide use and occupation of the third petitioner? (iii) Whether the petitioners prove that schedule premises is in a dilapidated condition? (iv) Whether the petitioners are entitled for relief sought for? (v) What order? 4. In support of their case, respondent No. 3 herein examined himself as PW-1 and Exs.P1to P15 were produced and marked. The respondents did not examine any witnesses. 5. (iii) Whether the petitioners prove that schedule premises is in a dilapidated condition? (iv) Whether the petitioners are entitled for relief sought for? (v) What order? 4. In support of their case, respondent No. 3 herein examined himself as PW-1 and Exs.P1to P15 were produced and marked. The respondents did not examine any witnesses. 5. On the basis of the evidence on record, the Court below has passed the order under challenge directing eviction of the petitioners herein and respondent No. 7. Aggrieved by the said order, the present revision petition is filed. 6. The main contention urged by the learned Counsel for the petitioners is that the Court below has not afforded a fair and reasonable opportunity to the petitioners to cross-examine PW-1 and to lead their evidence. It is urged by the learned Counsel that the Trial Court has hurried through the matter and has passed the eviction order. It is his further submission that the landlord-petitioners 1 to 6 herein failed to make out any case for bona fide use and occupation of the premises as per Section 27(2) (r) of the Act and therefore, the matter requires interference by this Court. 7. Per contra, learned Counsel appearing for respondents 1 to 6 strongly supports the findings recorded by the Court below. He takes me through the order sheet maintained by the Court below to contend that on several occasions, the matter was posted for further cross-examination of PW-1 and opportunity was given to the petitioners to adduce their evidence. Despite the same, solely with an intention to protract the proceedings, petitioners herein stayed away from the proceedings and therefore, it was not open for them now to contend that the Court below did not provide fair and reasonable opportunity to the petitioners to lead evidence and for cross-examining PW-1. He further points out taking me through the findings recorded by the Court below that specific findings based on the evidence on record has been returned holding that PW-1 - petitioner No. 3 before the Court below was residing in a rented house and that the premises was handed over for his self occupation. 8. He further points out taking me through the findings recorded by the Court below that specific findings based on the evidence on record has been returned holding that PW-1 - petitioner No. 3 before the Court below was residing in a rented house and that the premises was handed over for his self occupation. 8. Having heard the learned Counsel for both parties and in the light of the contention raised by the petitioner particularly stating that the Court below has failed to afford a fair and reasonable opportunity to the petitioner to cross-examine PWs-1 & 2 to lead evidence on their part, I have carefully perused the proceedings maintained by the Court below. 9. The certified copy of the order sheet is made available for perusal. As can be seen from the proceedings of the Court below, the evidence of PW-1 was recorded on 14.12.2011 and the matter was adjourned to 05.01.2012. On that date, PW-1 was cross-examined. Petitioner having submitted that there was no further evidence on his part, the matter was posted for the evidence of the respondent to 17.01.2012. Thereafter, the respondent came up with an application for recalling PW-1 for further cross-examination. The said application was contested. However, on the adjourned dates, particularly on 04.02.2012, the respondents before the Court below remained absent. Hence, the Court took the evidence of the respondents as closed and the matter was adjourned. Subsequently on 21.02.2012, the Court below passed an order taking the evidence of the respondents as not adduced and their side closed. The order sheet further discloses that applications filed by the petitioner-tenants seeking to recall the order closing their evidence had been allowed on costs and the matter was posted for cross-examination. Though PW-1 was kept present, respondents did not choose to further cross-examine him, nor did they lead evidence. The notings made by the Trial Court in the proceedings further disclose that even after providing sufficient opportunity for the second time, the tenant-petitioners did not make use of the opportunity and indulged in dragging on the proceedings and therefore, ultimately the Court was constrained to proceed in the matter to hear the eviction petition and pass the judgment based on the evidence on record. Therefore, it is clear that the contentions urged by the Counsel for the petitioners that there was no fair opportunity given to the petitioners to lead their evidence or to cross-examine PW-1 is wholly misconceived and untenable. 10. Petitioners have indulged in protracting the matter and have not availed the opportunity given by the Court below. Therefore, no fault can be found with the procedure adopted by the Court below. 11. As regards the merits of the matter, the Court below has recorded specific finding holding that evidence of PW-1 established the bona fide requirement of the land owners for self-occupation of the premises. In the absence of any evidence produced rebutting the assertions made by the petitioners and in view of the fact that the tenants have been in occupation of the premises for the last more than 50 years and that at one point of time, the original tenant had suffered an order of eviction, but the said decree could not be executed as the order was passed against a dead person and keeping in mind the various other facts and circumstances as dealt with by the Court below, I find that this is not a matter where interference is called for by this Court in exercise of the revisional power. 12. However, taking note of the long occupation of the premises and the hardship that is likely to be caused to the petitioners if they are immediately asked to vacate the premises, I am persuaded to grant six months time from today to vacate the premises, subject to the condition that the petitioners shall file an affidavit within two weeks from today, undertaking to pay the rents regularly and further undertaking to vacate the premises on or before 05.01.2014. 13. Subject to the above observations, this revision petition is disposed of.