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2017 DIGILAW 474 (KAR)

A. Narayana Shetty v. T. S. Umadevi

2017-02-10

S.SUJATHA

body2017
ORDER : S. SUJATHA, J. 1. This petition is directed against the judgment and order passed by the XIX Additional Small Causes Judge, Bangalore, in HRC.No.311/2009. 2. Briefly stated, the facts are, the respondents herein had filed a HRC petition against the petitioner herein, seeking for eviction of the petitioner under Section 27(2)(a) and (r) of the Rent Act, 1999 (hereinafter referred to as ' the Act' , for brevity), in HRC No. 311/2009. It was the case of the respondents that the petition schedule property was required for the purpose of the fourth respondent who is running a business of ladies-fashion items. On service of notice, the petitioner had entered appearance and contested the petition. The court below, after analyzing the evidence on record, allowed the petition directing the petitioner herein to quit and deliver vacant possession of the petition schedule property to the respondents within four months, besides directing the petitioner herein, to pay arrears of rent from September, 2008 till the date of passing of the order, amounting to Rs. 9,080/-. Aggrieved by the same, the petitioner is before this court in this revision petition. 3. The learned counsel Shri. T. Mohandas Shetty appearing for the petitioner, assailing the impugned judgment and order would contend that the court below had grossly erred in allowing the petition, in the absence of proof of the fourth respondent requiring the petition schedule premises to start his business. Further, that the respondents have not established their requirement of bona fide use and occupation for which the eviction of the petitioners was sought for. Mere desire of starting a business would not be construed as the need or the necessity of the respondents for the bona fide use and occupation. This material aspect was not properly appreciated by the court below while passing the impugned judgment and order. It is further contended that the petitioner has paid up-to-date rents and he is not in arrears of rents. This ought to have been considered by the court below while passing the order. Thus, he submits that the impugned judgment and order is not sustainable in the eye of law and the same requires to be set aside. 4. It is further contended that the petitioner has paid up-to-date rents and he is not in arrears of rents. This ought to have been considered by the court below while passing the order. Thus, he submits that the impugned judgment and order is not sustainable in the eye of law and the same requires to be set aside. 4. Per contra, learned counsel Shri. V. Vijayashekara Gowda appearing for the respondents, justifying the impugned judgment and order would contend that the respondents have established the factum of the necessity of the petition schedule premises for the fourth respondent who is unmarried and unemployed. In order to commence a business relating to ladies-fashion items, the petition schedule property was very much required. It is not the mere desire of the respondents but the absolute need and necessity, which compelled them to move a petition before the court below seeking for the eviction of the petitioner herein. It is further submitted that the petitioner was a chronic defaulter and had not paid the rents on time. Considering these aspects coupled with the satisfactory evidence let in by the respondents, the court below passed the order which is justifiable and cannot be faulted. 5. Heard the learned counsel for the parties and perused the material on record. The material evidence on record clearly establishes that the respondents have proved the requirement of the petition schedule premises for the bona fide use and occupation. It is settled legal position that there is a difference between the desire and the actual need. The factual matrix of the case discloses the actual need and the necessity of the respondents and not the mere desire. Considering these aspects in the right perspective, the court below has allowed the petition and directed the petitioner herein to quit, vacate and hand over the vacant possession of the petition schedule property within a period of four months from the date of passing of the order besides directing to pay the arrears of rent. It is also significant to note that the petition was filed under Section 27(2)(a) and (r) of the Act. The respondents have proved their case on both these counts. It is also established by the respondents that the petitioner was a defaulter and was in arrears of rent. In view of the same, there is no illegality or infirmity in the order impugned herein. The respondents have proved their case on both these counts. It is also established by the respondents that the petitioner was a defaulter and was in arrears of rent. In view of the same, there is no illegality or infirmity in the order impugned herein. At this juncture, the learned counsel appearing for the petitioner submits that today, he had paid the arrears of rent of Rs. 9,920/- to the respondent's counsel. As such, the ground urged by the respondents in much as not paying the rents, is not justifiable. Making the payment towards the arrears of rent today, would not extinguish the default committed by the petitioner. Indeed, it confirms that the petitioner was a defaulter in paying the rents. 6. Hence, considering the totality of the circumstances of the case and in the fitness of things, this court is of the considered opinion that it would be just and reasonable to direct the petitioner herein to quit, vacate and hand over the vacant possession of the petition schedule premises within a period of six months from today. It is needless to mention that the petitioner shall pay the agreed rate of rent till he hands over the vacant possession of the petition schedule premises to the respondents. The respondents are entitled to withdraw the arrears of rent deposited by the petitioner before this court and the same shall be disbursed to the respondents, forthwith.