Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 764 (KAR)

Leelabai v. Saroja Suresh Salunke

2020-03-19

E.S.INDIRESH

body2020
JUDGMENT 1. This Revision Petition is filed against the judgment and decree dated 16th November, 2019 passed in RR No.1 of 2019 by the Additional District and Sessions Judge, Gadag; and order dated 28th November, 2018 passed in HRC No.2 of 2017 by the Principal Civil Judge and JMFC, Gadag. The petitioner herein is the tenant and the respondent before the Trial Court. 2. For the sake of convenience, the parties in this petition is referred to their rank before the Trial Court. 3. The petition averments are that the petitioner before the Trial Court is the owner of the schedule premises CTS No.437/D and the respondent is the tenant under the petitioner on a monthly rent of Rs.200/- and residing there since her husbands time, and now she is residing in the said premises over a considerable length of period. The tenancy is monthly tenancy. The petitioner-landlord has requested the respondent-tenant to pay the rent. However, the respondent did not pay the rent and as such the petitioner has issued legal notice under Section 106 of the Transfer of Property Act determining the tenancy. Petitioner-landlord also stated that the petition premises is required for her reasonable and bona fide purpose inter alia for personal use and occupation and there is no alternative place. The notice issued by the petitioner to the respondent to vacate and handover the vacant possession of the premises was not served on the respondent. However, the petitioner had taken notice through paper publication and thereafter filed HRC No.2 of 2017 on the file of Principal Civil Judge and JMFC, Gadag under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999 (hereinafter referred to as Act) and sought for eviction of the respondent-tenant from the schedule premises and to put petitioner-landlord in possession of the same and also sought for arrears of rent from 1970 till 01st January, 2017 amounting to Rs.1,12,800/- and also sought for costs. After service of summons to the respondent, the respondent appeared and resisted the petition by contending that the rent is not Rs.200/- per month as stated in the petition but it is Rs.20/- per month and there is no arrears of rent as such. It was the contention of the respondent-tenant that the husband of the petitioner-Suresh was the original owner of the premises in question and the respondent-tenant is residing there since longer period. It was the contention of the respondent-tenant that the husband of the petitioner-Suresh was the original owner of the premises in question and the respondent-tenant is residing there since longer period. The said Suresh transferred ownership of the schedule premises to the petitioner in the year 1990 and the respondent-tenant became the owner. During the lifetime of the husband of the petitioner-landlord, the respondent-tenant used to pay a monthly rent of Rs.20/- as per oral agreement, and rent was paid till 1995. Thereafter, the petitioner has refused to receive the rent from the respondent-tenant. 4. It is also the case of the respondent-tenant that every year she was paying municipality tax in respect of the premises in question and the same has to be adjusted to the rents, if any, to be payable by the respondent-tenant to the petitioner-landlord. Accordingly, she sought for dismissal of the petition. The, trial Court after considering the pleadings on record, has formulated the following points for consideration: 1. Whether there is a landlord and tenant relationship between the petitioner and respondents? 2. Whether the petitioner is entitled for vacant possession for the schedule premises and arrears of rent from January 1970 to 1.1.2017 total amount of Rs.1,12,800/-? 3. What order? 5. In order to establish the case, the petitioner-landlord was examined as PW1 and produced Exhibits P1 to P3. On the other hand the respondent was examined as RW1 and produced Exhibits R1 to R28. The trial Court, after considering the pleadings and on appreciation of evidence on record, by order dated 28th November, 2018 allowed the petition under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999 and directed the respondent-tenant to handover the vacant possession of the schedule premises to the petitioner-landlord within two months from the date of the order. The trial Court also ordered that the petitioner-landlord is entitled for recovery of arrears of rent from 28th January 2014 to 27th January, 2017 and future mesne profit from the date of the petition at the rate of Rs.200/-. Being aggrieved by the said order dated 28th November, 2018, the respondent-tenant filed appeal in RR No.1 of 2019 on the file of Additional District and Sessions Judge, Gadag. The First Appellate Court, after hearing the parties and on consideration of the entire material on record, by order dated 16th November, 2019 allowed the appeal in part. Being aggrieved by the said order dated 28th November, 2018, the respondent-tenant filed appeal in RR No.1 of 2019 on the file of Additional District and Sessions Judge, Gadag. The First Appellate Court, after hearing the parties and on consideration of the entire material on record, by order dated 16th November, 2019 allowed the appeal in part. The First Appellate Court set aside the order passed by the Trial Court with regard to provision under Section 27(2)(a) of the Karnataka Rent Act, however, confirmed the order of the Trial Court in respect of the provision under Section 27(2)(r) of the Rent Act. Being aggrieved by the order dated 16th November, 2019 passed by the First Appellate Court in RR No.1 of 2019, this Revision Petition is preferred before this Court. 6. Though this Court has issued notice in this Revision Petition on 18th February, 2020, notice with regard to respondent is awaited. The learned counsel for the Revision Petitioner pleads urgency in the matter on the ground that the respondent has filed execution petition in Execution case No.38 of 2019 on the file of Principal Civil Judge, Gadag and the said Court has issued warrant to the petitioner herein to vacate the premises by today. In view of the urgency pleaded therein, the petition was taken up for hearing. 7. Heard the learned counsel for the Revision Petitioner and perused the entire case papers. The undisputed facts of the case are that the respondent-herein is the owner of the premises in question and the petitioner is tenant on a monthly rent of Rs.200/- and residing there for a considerable length of period. The tenancy is monthly tenancy. It is also stated in the petition that the landlord has requested the tenant to vacate the premises as also to pay the entire arrears of rent with regard to the premises in question. The records would further disclose that the Revision Petitioner has not disputed the ownership of the premises in question. The only ground which the learned counsel for the Revision Petitioner pressed into service in this revision petition is, that the rent was fixed at Rs.20/- per month and not at Rs.200/- per month as stated in the petition and this aspect of the matter was not considered by the both the Courts below. The only ground which the learned counsel for the Revision Petitioner pressed into service in this revision petition is, that the rent was fixed at Rs.20/- per month and not at Rs.200/- per month as stated in the petition and this aspect of the matter was not considered by the both the Courts below. Having considered the entire material on record and the evidence adduced by the parties before the Trial Court and appreciation of evidence made by the Trial Court and also the re-appreciation of evidence made before the First Appellate Court with regard to Section 27(2)(r) of the Karnataka Rent Act, this Court is of the opinion that the Revision Petition deserves to be dismissed. The language employed in Section 27(2)(r) of the Act clearly envisages the fact that the owner of the premises in question need not prove the bona fide requirement of the premises in question is presumed to be for the bona fide requirement. This Court, in the case of Anwar Baig alias Sardar Saheb v. Abdul Khadir reported in ILR 2004 Kar.1918 has held that the need propounded by the respondent would certainly qualify as a ground for eviction under Section 27(2)(r) of the Act. When the need propounded is so covered by clause (r) of Sub-section (2) of Section 27 of the Act, the owner in addition would also be entitled to the benefit of a presumption arising under Explanation I(i) to Section 27(2)(r). The Explanation I(i) casts a statutory duty on the Court to draw a presumption that the need so pleaded by a landlord is real and genuine. Having followed the law declared by this Court, with respect to genuineness bona fide use of the premises also, it is to be held that the premises in question is to be required for petitioner-landlord and having considered the entire evidentiary value adduced before the Trial Court, the petition deserves to be dismissed. 8. Pursuant to the dismissal of the petition expressed by this Court today, the learned counsel for the Revision Petitioner-Tenant pleaded for grant of a reasonable time to vacate and to handing over the vacant possession of the premises to the respondent-landlord on the ground that the petitioner herein is residing in the very same premises for more than 45 years and it is difficult for her to vacate the premises at the threshold. In that view of the matter, this Court directed the learned counsel for the Revision Petitioner to secure information over telephone, and thereby, the learned counsel went outside the Court Hall and talked to his client and having taken permission of the Revision Petitioner, has filed a memo seeking time till 30th June, 2020 to vacate and handover the vacant possession of the premises in question. This Court, having considered the fact that the revision petitioner is a women aged about 74 years and also taking note of the fact that it is difficult for her to vacate the premises immediately pursuant to the execution proceedings initiated by the respondent herein, and also taking into account the totality of the circumstances, this Court accepts the memo field by the learned counsel for the revision petitioner stating that the revision petitioner-tenant undertakes to vacate the premises on or before 30th June, 2020 and to handing over the vacant possession of the premises in question to the landlord-respondent herein. It is to be noted that till 30th June, 2020 the order passed by the learned Judge in Execution Petition No.38 of 2019 is kept in abeyance and it is also made clear that the tenant-petitioner herein shall not claim for any further time in the matter to vacate and handover the vacant possession of the premises to the landlord-respondent herein on or before 30th June, 2020. Ordered accordingly.