Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 1016 (KAR)

A. R. Srinivasachar v. Rajuharan

2014-11-25

ARAVIND KUMAR

body2014
Judgment 1. This is a landlord's petition challenging the correctness and legality of judgment passed by XV Addl. Small Causes Judge, Mayo Hall Unit, Bangalore, in HRC No.10051/2006 dated 04.08.2008, whereunder petition filed under Section 27(2)(r) and 31 of the Karnataka Rent Act,1999 (for short 'Rent Act'), has been dismissed. 2. I have heard the arguments of learned Advocates appearing for parties namely, Sriyuths K.R. Ananthamurthy, for petitioner and Sri. H.J. Sanghvi, for respondent. Perused the records. 3. It is the contention of Sri. Ananthamurthy, learned counsel appearing for petitioner that trial Court was not justified in dismissing the petition for eviction without appreciating the evidence available on record in proper perspective and not considering the fact that schedule premises is required for bonafide use and occupation of petitioner and his family members. He would draw the attention of Court to finding recorded by trail Court at paragraph 33, whereunder it has been held that there is inconsistency in the evidence of PW1 namely, he had deposed to the effect that he requires schedule premises for his occupation to be used for residential purposes, but in the petition he has pleaded that it is required for the use and occupation of his children for conducting business and as such, there is inconsistency. He contends that stray sentence in the evidence cannot form basis and entire evidence has to be read and when it is read so, it would clearly indicate that petitioner had sought for eviction of respondent on the ground that he requires schedule premises both for business being conducted by his sons in schedule premises and also for using it for residential purposes. Hence, he contends that judgment passed by trial Court dismissing the petition is set aside by allowing the revision petition. In support of his submission, he has relied upon the judgment in the case of PUTTANNA SHETTY (DECEASED) BY LRs AND ORS. vs. PADMA SHETTY (DECEASED) BY LRs AND ORS. reported in 2007 (3) KCCR 2107 (DB). 4. Per contra, Sri. H.J. Sanghvi, learned counsel appearing for respondent would support the judgment passed by trial Court. In support of his submission, he has relied upon the judgment in the case of PUTTANNA SHETTY (DECEASED) BY LRs AND ORS. vs. PADMA SHETTY (DECEASED) BY LRs AND ORS. reported in 2007 (3) KCCR 2107 (DB). 4. Per contra, Sri. H.J. Sanghvi, learned counsel appearing for respondent would support the judgment passed by trial Court. He would elaborate his submission by contending that petitioner is in the habit of filing eviction petitions and after obtaining eviction orders, either it is let out for third parties for higher rent or same is kept vacant and subsequent events, which have taken place in the instant case, as pleaded in application Misc. Civil No.4719/2010 would clearly prove this fact. Hence, he prays for dismissal of revision petition and for affirming the order passed by trial Court. 5. Having heard the learned Advocates appearing for parties and on perusal of judgment passed by trial Court and on considering the pleadings and evidence of parties, I am of the considered view that following points would arise for my consideration: (i) Whether judgment passed by trial Court in HRC No.10051/2006 dated 04.08.2008 dismissing eviction petition filed under Section 27(2)(r) and 31 of the Rent Act, 1999, is to be affirmed or reversed? (ii) Whether subsequent events as pleaded by respondent in Misc. Civil No.4719/2010 would indicate that there are bonafides in the claim made by petitioner? (iii) What order? 6. There is no dispute with regard to relationship between parties. Eviction petition came to be filed under Section 27(2)(r) and 31 of the Rent Act, 1999, contending interalia that it is required for his requirement of running a shop for pooja items, since it is located opposite to Ranganatha Swamy Temple. It was also contended that petitioner is an Archak in the said temple and in order to set up his children and to give employment to his son to eke out livelihood, he requires petition schedule shop. It was also contended that he is aged 68 years and as such, claiming benefit of eviction under Section 31 of the Rent Act, 1999, eviction of respondent was sought for. It was also contended that he is aged 68 years and as such, claiming benefit of eviction under Section 31 of the Rent Act, 1999, eviction of respondent was sought for. Petitioner specifically contended that in a compromise decree entered into in O.S.No.6848/1993 between five (5) members of joint family, five (5) shops came to be allotted in his favour and petition schedule shop which is in occupation of respondent is one of the shops allotted to his share. Said eviction petition was accompanied by the affidavit of petitioner verifying the averments made in petition. It was specifically contended that he has no other alternate and suitable accommodation for starting the said business. 7. Respondent - tenant on service of notice appeared and filed statement of objections denying the averments made in the eviction petition. On the basis of pleadings, parties tendered their evidence. Petitioner got himself examined as PW1. In his evidence he has reiterated the averments made in claim petition and he has stated in his examination-in-chief to the following effect: "2. I requires the shop premises under the possession of respondent for my bonafide requirement and for the requirement of my children to set up a shop of pooja items and other stationary items in the petition schedule premises since I am one of the archak in the Ranganatha Swamy temple situated opposite to the petition schedule premises in R.T. Street. This is a must to give employment to the my son to earn his livelyhood and also for myself. I do not xxxxxxxxx for eviction." 8. Thus, pleadings and evidence would indicate that petitioner sought for eviction of respondent from petition schedule premises on the ground of bonafide requirement. Though lengthy cross-examination has been conducted, nothing worthwhile has been elicited to discredit the testimony of petitioner. In cross- examination of PW1 dated 01.02.2008, it has been extracted to the effect that 'petition schedule premises is also required for being used as my residence'. It is this admission found in the cross- examination, which swayed in the mind of trial Court to arrive at a conclusion that there is inconsistency between the pleadings and evidence and as such, petition is liable to be rejected. It is no doubt true that petitioner has not stated in the eviction petition to the effect that he requires schedule premises for also being used as residence. It is no doubt true that petitioner has not stated in the eviction petition to the effect that he requires schedule premises for also being used as residence. However, he has stated that it is required for his bonafide requirement. The admission in cross-examination would clearly indicate that when witness posed with the question as to whether he would also use the schedule premises for his residence, he has indicated that 'he would also use it for residence'. This admission does not even remotely suggest that petitioner's evidence being either inconsistence with pleadings or his evidence being at variance with the pleadings. It is an undisputed fact that petitioner is residing on the hindside of petition schedule premises namely, in the portion which is abutting the petition schedule premises. It is not in dispute that petitioner is an Archak at Ranganatha Swamy Temple, which is situated just opposite to petition schedule premises and as such, if claim of petitioner is to sell the pooja articles by conducting business through his son, who is also without any avocation and if said premises would also be used as a residence, it cannot be inferred that there is variance between the pleadings and evidence. Rule 33 of Karnataka Rent Rules, 2001, would indicate that Court adjudicating a petition under Karnataka Rent Act, 1999, shall follow the procedure as provided under the Rent Act and otherwise be guided by the provisions contained in Code of Civil Procedure. In other words, it would indicate that procedure is summary in nature and strict rule of evidence would be inapplicable. Even otherwise, a stray sentence found in the evidence as noticed by trial Court at paragraph 33 of its judgment cannot form basis for rejecting the petition filed under Section 27(2)(r) of the Rent Act, 1999. A stray sentence in the evidence cannot form basis to deny the substantive relief. In this regard, judgment of Division Bench in the case of PUTTANNA SHETTY (DECEASED) BY LRs AND ORS. vs. PADMA SHETTY (DECEASED) BY LRs AND ORS. reported in 2007 (3) KCCR 2107 (DB), can be looked up wherein it has been held as under: "9. In AIR 1968 SC 1413 xxxxxxxxx support the plaintiff. In this regard, judgment of Division Bench in the case of PUTTANNA SHETTY (DECEASED) BY LRs AND ORS. vs. PADMA SHETTY (DECEASED) BY LRs AND ORS. reported in 2007 (3) KCCR 2107 (DB), can be looked up wherein it has been held as under: "9. In AIR 1968 SC 1413 xxxxxxxxx support the plaintiff. Even otherwise, an admission particularly in civil matter dealing with properties has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the plaintiff in property matter as has been done in the case on hand." 9. Stray admission in the instance case as already noticed hereinabove would not suggest that petitioner has stated that he would convert the petition schedule premises for his residence. On the other hand, he has stated that petition schedule premises is also required for being used as residence. This admission will have to be read in the background of fact that petitioner had filed one more petition namely, HRC No.10050/2006 wherein he has contended that he intends to make use of premises in the said case along with adjoining shop, which is in occupation of third respondent and as such, it cannot be construed that claim made by petitioner is tainted or need being malafide and not a bonafide requirement. In that view of matter, I am of the considered view that trial Court committed a serious error in dismissing the petition filed under Section 27(2)(r) of the Rent Act, 1999. Trial Court also failed to note the statutory presumption is available in favour of landlord and thereby casting a burden on the respondent to disprove the same. As such, it cannot be said in the facts and circumstance of instant case that respondent has rebutted the presumption by virtue of a stray sentence in the cross examination of P.W.1 there is not other reason assigned by trial Court to disbelieve the claim of petitioner. Hence, trial Court was not justified in rejecting the claim of petitioner. Accordingly, Point No.1 is partly answered in favour of petitioner-landlord and against respondent - tenant. RE. POINT NO.2: 10. Hence, trial Court was not justified in rejecting the claim of petitioner. Accordingly, Point No.1 is partly answered in favour of petitioner-landlord and against respondent - tenant. RE. POINT NO.2: 10. Respondent has contended that petitioner-landlord has 20 shops in the premises and he is in the habit of evicting tenants from those shops and letting out same for higher rent to new tenants. In this regard, learned counsel for respondent has contented that eviction order obtained by landlord in HRC No.10050/2006 has been duly executed and possession of the shop has also been taken and same is not being made use of for the purpose it was sought for. At the threshhold, this argument requires to be rejected for simple reason since P.W.1 has stated in both the petitions that he requires these two premises for the use and occupation by himself and his son to conduct business in pooja articles as it is located just opposite to Ranganatha Swamy Temple. He has also stated that he intend to convert these two shops into one unit and commence his business. Until and unless he obtains possession of petition schedule premises, he may not use the premises, the possession of which has since been obtained by him in HRC No.10050/2006. This act of petitioner cannot be viewed with any suspicion. It is not in dispute that other shops namely, shops other than which was allotted to petitioner under compromise decree entered into in O.S.No.6848/1993, are not in the ownership of petitioner. As such, shops which have been allotted to brothers of petitioner, if lying vacant, after evicting tenants or if brothers of petitioner have evicted their tenants and have kept those shops vacant or let out same to third parties, no malafides can be attached to the petitioner in the instant case. Hence, subsequent events which is pleaded in application Misc. Civil No.4719/2010 would not come to the rescue of respondent - tenant to dislodge the claim of petitioner. RE. POINT No.3: 11. Trial Court has dismissed the eviction petition in its entirety which was filed under Section 27(2)(r) and 31 of the Karnataka Rent Act, 1999. Section 31 of the Rent Act, 1999 has been pressed into service by landlord contending that he being above 65 years, is entitled for recovering immediate possession of petition schedule premises. RE. POINT No.3: 11. Trial Court has dismissed the eviction petition in its entirety which was filed under Section 27(2)(r) and 31 of the Karnataka Rent Act, 1999. Section 31 of the Rent Act, 1999 has been pressed into service by landlord contending that he being above 65 years, is entitled for recovering immediate possession of petition schedule premises. Reading of Section 31 would indicate right to recover immediate possession of premises is available to landlord subject to conditions stipulated being attracted. In other words, tenant is deprived of even elementary right of defence to defend eviction proceedings brought against him by the landlord invoking said provision. Explanation - II to Sub-Section (2) of Section 31 would indicate that right to recover possession under said Section can be exercised only once in respect of residential and nonresidential premises for landlord's use. In other words, it cannot be invoked for filing more than one eviction petition or it cannot be pressed into service for seeking eviction of more than one tenant. In the instant case, petitioner had already invoked said provision in the earlier petition namely, HRC No.10050/2006 and as such, it cannot be gain said by the petitioner that he would be entitled to recover possession of petition schedule premises in the second eviction petition also by invoking said provision. As such, order passed by trial Court dismissing the petition under Section 31 of the Rent Act, 1999, cannot be found fault with. 12. Respondent has been carrying business in petition schedule premises from the year 1990 and he is said to be carrying on business in silverware from the date of inception of tenancy and as such, he has to be granted reasonable time to relocate himself. This Court is of the considered view, if three months time is granted to respondent to quit, vacate and handover vacant possession of petition schedule premises to petitioner-landlord, it would meet the ends of justice. 13. For reasons aforestated, I proceed to pass the following: ORDER i) HRRP No.247/2008 is hereby allowed. ii) Order passed by XV Addl. Small Causes Judge, Mayo Hall Unit, Bangalore, in HRC No.10051/2006 dated 04.08.2008, is hereby set aside in part. iii) Eviction petition filed under Section 27(2)(r) of Karnataka Rent Act, 1999 is hereby allowed. 13. For reasons aforestated, I proceed to pass the following: ORDER i) HRRP No.247/2008 is hereby allowed. ii) Order passed by XV Addl. Small Causes Judge, Mayo Hall Unit, Bangalore, in HRC No.10051/2006 dated 04.08.2008, is hereby set aside in part. iii) Eviction petition filed under Section 27(2)(r) of Karnataka Rent Act, 1999 is hereby allowed. Respondent is hereby directed to quit, vacate and handover vacant possession of petition schedule premises to landlord within three (3) months from today. iv) Order of dismissal of eviction petition filed under Section 31 of Karnataka Rent Act, 1999 passed by trial Court is hereby affirmed. v) Parties to bear their respective costs. vi) Registry is directed to retransmit the records to jurisdictional Court.