Kanthalakshmi vs G.S. Sheshachala

B.S. Patil, J.—This revision petition is filed challenging the order dated 04.06.2014 passed by the Chief Judge, Court of Small Causes, Bengaluru, thereby dismissing the petition filed by the revision petitioner under Section 27(2)(a), (g) & (r) of the Karnataka Rent Act, 1999 (for short, ''the Act'') seeking eviction of the respondent-tenant from the petition schedule premises.

HRC Petition No. 208/2013 was filed by the revision petitioner contending that he was the absolute owner of Schedule A premises bearing Municipal Khatha Old No. 1733/48 and New No. 52, PID No. 8-30-52 situated at Gayathri Nagar, Bengaluru, consisting of residential site and AC Sheet roofed house described in Schedule B, which was part of Schedule A property.

Schedule A property originally belonged to one M.S. Srinivas and the same was purchased by the petitioner vide sale deed dated 10.05.2012. The said Srinivas had informed his tenant about the sale transaction and petitioner had also informed the respondent regarding the purchase, whereupon the respondent assured that he would vacate Schedule B property. Respondent had requested the petitioner that he would continue as tenant under the petitioner on a monthly rent of Rs. 1,000/- and to pay advance amount of Rs. 10,000/-. However, when the petitioner approached the respondent, he evaded the request made by the petitioner and denied the very ownership of the petitioner over the schedule property. Petitioner contended that the premises was needed for his own use and occupation to effect improvements. She also alleged that the respondent was not paying rent as agreed. She caused a legal notice terminating the tenancy and called upon the respondent to hand over possession. The notice sent was returned with an endorsement ''not claimed'', and hence she was constrained to institute the eviction proceedings.

The petition was resisted by filing statement of objections contending inter alia that there was no jural relationship of landlord and tenant between the petitioner and the respondent and the payment of rent at the rate of Rs. 1,000/- per month was false. The bona fide requirement of the petition schedule premises was also denied. Respondent contended that he was a tenant in the schedule premises on a monthly rent of Rs. 350/- under M.S. Srinivas; the said Srinivas had filed series of eviction proceedings and failed to get favourable orders; it was the said Srinivas who received the rent till March 2013, and thereafter, he refused to receive the rent and thus at no point of time he had agreed to pay rent at the rate of Rs. 1,000/- to the petitioner.

In order to substantiate his contention, petitioner examined herself as PW-1 and got marked Exs. P-1 to P-13. Respondent also examined himself as RW-1 and got marked Exs. R-1 toR-4.

After considering the respective contentions and the evidence on record, the court below has held that petitioner failed to prove that respondent neither paid nor tendered the whole of the arrears of rent within two months from the date on which notice of demand for payment was served on him. The court below has also held that petitioner failed to establish the assertion that he required the schedule premises to carry out repairs and that he was in need of the premises for bona fide occupation after carrying out suitable alteration. In support of this finding, the court below has found that in the cross-examination petitioner had admitted that after the purchase of the premises, he did not personally request the defendant to pay rents which amply demonstrated that the respondent did not pay any rent to the petitioner and that his assertion that respondent had agreed to pay rent at the rate of Rs. 1,000/- with effect from May 2012 was not established.

Per contra, as found by the court below, the case of the respondent that Srinivas received rents from the respondent till April 2015 and that there was no written information regarding attornment of tenancy by the petitioner or by the respondent was probablized and stood established. The court below has further persuaded itself to record a finding that even as per the petitioner-landlord notices had been issued in the month of August 2013 and till then there was no documentary evidence regarding attornment of tenancy or collection of rents. The learned Judge has further observed that notices issued had been returned with an endorsement that "door was locked and information was dropped"; therefore, in the absence of attornment of tenancy, the case put forward by the landlord could not be accepted.

As regards the requirement of the premises by the tenant for bona fide occupation after carrying out necessary repairs, the court below has found that petitioner had purchased the property which was occupied by the tenant; he could not have carried out any repairs without getting the tenant vacated; no material had been produced to substantiate the contention that petition premises was required to be altered or repaired and used for the purpose of self occupation. The court below has also pointed out that there was no averment made and indeed there was admission by the landlord that he had got other suitable premises.

In the background of the aforesaid findings, I have heard the learned Counsel for both parties and on perusal of the entire materials on record, the only question that falls for consideration is,

"whether the order under challenge suffers from illegality warranting interference and if so, whether the petitioner-landlord has made out a case as pleaded by him for eviction of the respondent-tenant under Section 27(2)(a)(g) & (r) of the Act?"

First of all, it has to be noticed that the revision petitioner - landlord has established by producing Ex. P-1 - sale deed dated 10.05.2012 and the khatha extracts at Exs. P-2 to P-4 that he purchased the suit schedule property from M.S. Srinivas. In fact, respondent denies the very title of the petitioner. He has categorically admitted that he was the tenant under M.S. Srinivas - vendor of the petitioner. He has also admitted that he was paying Rs. 350/- per month as rent to M.S. Srinivas. If that is so, as the petitioner has purchased the property and has proved the fact that he had purchased it under sale deed - Ex. P-1 on 10.05.2012, and that pursuant to the sale deed khatha was recorded in the name of the petitioner established that he stepped into the shoes of his vendor. There is a statutory attornment of tenancy in favour of the purchaser in terms of Section 109 of the Transfer of Property Act. In fact, this position has been clearly laid down by the Apex Court in the case of Dr. Ambica Prasad v. Md. Alam and Another -(2015) AIR SCW 2471.

In so far as payment of rent at Rs. 1,000/- and the assertion made by the petitioner that respondent agreed to pay rent at the rate of Rs. 1,000/- per month, there is no material placed before the Court. However, the fact remains that even as per the evidence of the respondent, he was paying rent in favour of M.S. Srinivas till April 2013, and thereafter the said Srinivas refused to receive the rent. If that was so, what prevented the tenant to pay the rent to the purchaser who had stepped into the shoes of the vendor and who had indeed demanded payment of rent and had issued legal notice in this regard, is ununderstandable. Indeed, PW-1 has stated in his evidence that the tenant did not pay rent to the petitioner. The court below has failed to appreciate the statutory obligation cast on the tenant to pay rent. Therefore, the finding recorded by the court below that the revision petitioner did not make any ground regarding non-payment of rent is absolutely untenable.

Similarly, the finding recorded on the requirement under Section 27(2)(g) & (r) of the Act, are also the result of non-appreciation of evidence on record. No reasons logically flowing from the materials on record are stated in the order to support the findings on this aspect. The court below proceeds to dismiss the claim made under Section 27(2)(g) of the Act on the ground that if the premises or part thereof was required by the landlord to carry out any repairs, the same could not be carried out as the premises was in occupation of the tenant. This finding is illegal, in as much as, landlord has pleaded that the premises was required for his own use and occupation after carrying out suitable alterations and repairs. It is true, landlord can carryout the alterations only after the tenant vacated the premises and that is why he has filed the petition under Section 27(2)(g) & (r) of the Act. There is absolutely no meaning in saying that requirement to carry out repairs and alterations could not be acceded because the premises was in occupation of the tenant and that landlord had purchased the property knowing fully well that the tenant was in occupation of the premises. This finding, in my view, is totally erroneous.

As regards the bona fide need pleaded and established by the landlord, the Trial Court has just brushed aside the evidence on record stating that there was admission made disclosing that landlord had other suitable premises. In terms of the provisions contained under Section 27(2)(r) of the Act, the landlord is required to make out a case that the premises let out was required for occupation for himself and/or for any members of his family. In the instant case, except making the observation that evidence of landlord disclosed that he had other suitable premises, the court below has not referred to the details of such availability of any other suitable premises for the land owner. It is the discretion and choice of the landlord to prefer the premises in question even if he has any other alternative premises. Therefore, the court was in error in recording a findings that landlord had not pleaded and proved bona fide need of the premises. Hence, I find that the order under challenge suffers from serious infirmities in law and on facts. There is non-application of mind to the materials available on record. Therefore, the revision petition deserves to be allowed.

Accordingly, this revision petition is allowed. The HRC petition filed under Section 27(2)(a), (g) and (r) of the Act is allowed. Tenant-respondent is granted six months time to vacate and hand over the vacant possession of the premises, subject to the condition that he pays arrears of rent at Rs. 350/- per month from May 2013 to August 2015 and continues to pay the rent at Rs. 1,000/- per month with effect from 01.09.2015. Respondent shall file an affidavit before the court that he will vacate and hand over vacant possession of the premises within six months from today i.e., on or before 21.03.2016. The said affidavit shall be filed within three weeks from today.