B.R. Nanjaraja Shetty vs B.R. Vittal

H. Billappa, J.

This revision is directed against the order dated 23.11.2011 passed by the II Addl. District Judge, Mysuru, in R.R. No. 7/2011 reversing the order passed by the Trial Court in HRC No. 146/2008.

By the impugned order, the revisional court has set aside the order passed by the Trial Court in HRC No. 146/2008 and dismissed the petition filed by the petitioner under Section 27(2)(r) and 31 of the Karnataka Rent Act, 1999.

Aggrieved by that, the petitioner has filed this revision petition.

Briefly stated the facts are:

"The petitioner had filed HRC No. 146/2008 under Section 27(2)(r) and 31 of the Karnataka Rent Act, 1999. The case of the petitioner was the respondent is a tenant in respect of the petition schedule premises on a monthly rent of Rs. 400/- per month. The petition schedule premises was let out to the respondent for non residential purpose on 1.7.1982. The petitioner requested the respondent to vacate and deliver vacant possession of the petition schedule premises as the petitioner required the premises to set up stationery shop with photocopy machine and ice cream parlor to help the petitioner''s son to eke out his livelihood. The respondent went on postponing on one or the other pretext. The petitioner issued legal notice dated 27.8.2008 calling upon the respondent to vacate the petition schedule premises. The respondent failed to comply with the demand made in the notice. It is stated, the petitioner has enough money to set up the business for his son. He is qualified for a loan."

The respondent has filed statement of objections. He has admitted he is a tenant in respect of the petition schedule premises and he is carrying on business of Circulating Library, stationery business and selling mobile recharge cards. It is stated, the petitioner''s son is doing business of selling stationery apart from other business in the name and style as Tripathi Coffee Works and General Stores. The petitioner''s son is also doing Tea Agency in the name and style Siddha Ganga Tea Agency. One shop is let out to Dr. Madhu about 5 years ago. The petitioner is aged and ailing. He is not doing any business. The petitioner has only one son Ranganath. He is well settled and he does not require any premises. The requirement is not bonafide. Therefore, the respondent has prayed for dismissal of the petition.

The Trial Court considering the material on record has that held that the petitioner requires the petition schedule premises for his use and occupation. Consequently, the respondent has been directed to vacate and deliver vacant possession of the schedule premises to the petitioner within two months.

Aggrieved by that, the respondent has preferred revision in R.R. No. 7/2011. The revisional court by its order dated 23.11.2011 has reversed the order passed by the Trial Court and dismissed the HRC petition. Therefore, this revision petition.

The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. The petitioner requires the premises for his use and occupation i.e., to set up a business for his son. The petitioner is a senior citizen. He has filed an affidavit as required under law. The revisional court has allowed the revision mainly on two grounds i.e., the affidavit filed is not proper and that other premises are available. It is not correct. The petitioner has filed verifying affidavit which satisfies the requirement of law. Further, the petition schedule premises is required for setting up business for the petitioner''s son. Therefore, the revisional court was not justified in reversing the order passed by the Trial Court. Therefore, the impugned order cannot be sustained in law. In support of his submission he placed reliance on the decisions of this court reported in 2008(2) KLJ page. 119 and 2009(5) KLJ page. 516.

As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that the revisional court on proper consideration of the material on record has rightly reversed the order passed by the Trial Court. Therefore, the impugned order does not call for interference. Further he submitted that the affidavit does not satisfy the requirement of law. He also submitted that other premises are available and therefore, the requirement of the petitioner is not bonafide. Therefore, the impugned order does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is;

"Whether the impugned order passed by the revisional court in R.R. No. 7/2011 calls for interference?"

It is relevant to note, the petitioner had filed HRC No. 146/2008 for eviction of the respondent under section 27(2)(r) and 31 of the Karnataka Rent Act 1999 contending that the petitioner requires the premises to set up business for his son and he has sufficient funds. The petitioner has filed verifying affidavit.

This court in Chikkamanchaiah v. H. Honnalagaiah reported in 2008(2) KLJ page 119 has held that an application under section 27(2)(r) is to be supported by an affidavit. When once there is a specific provision providing for such an affidavit accompanying an application, then the provision under Order 6, Rules 15(4) of the CPC stands excluded. It is not necessary to file two affidavits. When once such an affidavit filed, presumption has to be drawn by the court in favour of the petitioner.

While considering the scope of section 27(2)(r) and 31 of the Karnataka Rent Act, 1999 in Mohammed Nasrulla Sheriff v. Smt. Azra Shameem and others reported in 2009(5) KLJ page 516 this court has observed as follows at para. 10:

"More importantly I find that the eviction order under Section 31 of the Act cannot be in any way characterized as not supported by material on record or contrary to evidence on record. I say so, for the reason that under Section 31 of the Present Act, the right of a landlord who is a widow is to seek eviction of the premises of which she wants to occupy whether for residential purpose or non-residential purpose and is almost an absolute right and the only requirement is that she wants the premises for her own use and occupation or for her members of the family etc., in fact when the order of eviction is sought for when more than one premises had been let out it can only be in respect of one premises. The order being passed in respect of only one residential premises chosen by the landlord no exception can be taken to the order. If such is the statutory provision and as the landlord has indicated her requirement to use and occupy the premises where the tenant was living, that requirement has to be allowed by the Court and that being the order passed by the Trial Court, I do not find any scope for interference with the order, in exercise of the revisional jurisdiction under Section 46 of the 1999 Act and therefore, the revision petition is dismissed affirming the order passed by the Trial Court."

It is clear, the landlord can seek eviction of the premises which he wants to occupy whether for residential or non residential purpose. The only requirement is that he requires the premises for his own use and occupation or for the members of the family. In the present case, the petitioner is seeking eviction of the respondent for the purpose of setting up business for his son. Therefore, the requirement of Section 31 is fulfilled. Apart from this, the petitioner has deposed that he has enough source and financial capacity to set up the business for his son and that he is also qualified for a loan. It is stated, the petitioner is now aged 66 years and he is a senior citizen. It is clear from the evidence on record that the petitioner requires the premises for the purpose of setting up business for his son. The requirement is bonafide. It was contended that there are other premises. That cannot be a ground to deny the petitioner the use and occupation of the petition schedule premises. Therefore, the revisional court was not justified in reversing the order passed by the Trial Court. The impugned order cannot be sustained in law.

Accordingly, the revision petition is allowed and the impugned order passed by the II Addl. District Judge, Mysuru, in R.R. No. 7/2011 is hereby set aside. Keeping in view that the respondent is running Circulating Library and doing business six months is granted to vacate the premises. The respondent shall vacate and deliver vacant possession of the petition schedule premises to the petitioner on or before 31.10.2015.