M/s. Bhawanidas Ramdas and Sons vs Smt. M.P. Namratha

S.N. Satyanarayana, J.—The respondent in HRC 171/2014 on the file of Chief Judge, Court of Small Causes, Bengaluru, (SCCH-1) has come up in this revision petition impugning the order of eviction dated 28.7.2015.

The main grounds of contest are as follows:

Firstly, that the petition for eviction which is filed under Section 31(1)(a) of the Karnataka Rent Act, 1999 (''the Act'' for short), is not maintainable, inasmuch as the respondent-tenant, petitioner herein was not inducted into the petition schedule property by the petitioner before the Court below, respondent herein or her husband. Therefore, she could not have invoked the provisions of Section 31(1)(a) of the Act. Secondly, that the reliance placed on Section 42(6) of the Act is inappropriate in the facts and circumstances of the case, for the reason that the statement of objections filed by the respondent - tenant is accepted. Therefore, question of seeking leave to contest the petition does not arise and that receiving the statement of objections itself amounts to grant of leave. Thirdly, that the Court below while passing an order of eviction has not granted any time for vacating the petition schedule premises.

Further, though there is no ground raised with reference to maintainability of the petition regarding the finding given by the trial Court with reference to measurement of the building, at the time of admission that was also pressed into service.

Heard the learned counsel for the revision petitioner - tenant as well as the contesting respondent-landlord. The revision petitioner is admittedly tenant of petition schedule property. One of the objection, which was raised in the statement is that the respondent - tenant is not properly represented on the ground that respondent was a proprietary concern and the same was belonging to one Rukmini Bai, she not being made as a party, the petition is not maintainable along with other defences which were taken to oppose the petition. Also various other grounds were raised including the petition not being maintainable as well as with reference to measurement of the property is more than 14 square meters, therefore, petition for eviction is not maintainable under the provisions of the Act.

In this proceedings, it is seen that on service of notice in eviction proceedings, the respondent - tenant has entered appearance and filed statement of objections contending that the petition is not maintainable since the respondent is not represented by the proprietor. So far as this objection is concerned, elaborate evidence is lead in by the parties, which ultimately discloses that at no point of time, the respondent has represented to the petitioner as to the nature of respondent''s firm, namely M/s. Bhawanidas Ramdas and Sons, whether it is a partnership firm or proprietary concern. In the evidence, it was clearly accepted by the tenant that Sri. Harilal, who is , made as party representing the firm was the one, who was interacting with the landlord for the purpose of issuing cheque of rent and for various other purpose. In the evidence, he conceded that the person who is said to be the proprietrix is none other than his mother, who is aged about 91 years and that business is conducted by himself and his brother. Again, for that also, no document was furnished. On the contrary, he contested the petition on merits and in the evidence and pleading the petitioner-landlord was able to demonstrate that said Harilal is the authorised representative of the respondent concern. As such, it is seen that the finding of Court below in holding that said concern, namely M/s. Bhawanidas Ramdas and Sons is properly represented by Harilal, appears to be just and proper and therefore, the order of eviction passed against them in a petition filed under Section 31(1)(a) of the Act is held to be proper.

Coming to the ground regarding the reliance placed on Section 42(6) of the Act, the finding of trial Judge is as seen in paragraphs 18 to 23. With reference to the discussion while dealing with point No. 2 framed in the said proceedings, the Court below has rightly observed that in the proceedings before the Rent Court, the respondent who is required to seek leave of the Court to contest the matter as contemplated under Section 42(6) of the Act has failed to secure the same. Though he states that he has filed statement of objection, which is accepted by the Court below, that is not sufficient requirement of compliance of Section 42(6) of the Act, which reads as under:

"42 (6) (a) every application by a landlord for the recovery of possession of any premises on the ground specified in clauses (f), (h) or (n) of sub-section (2) of section 27, or under sections 30, 31 or 37 shall be dealt with in accordance with the procedure specified in this sub-section.

(b)the tenant on whom the summons is duly served whether in the ordinary way or by registered post in the prescribed form shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave of the Court as hereinafter provided and in default of his appearance in pursuance of the summons of obtaining such leave, the statement made the landlord in his application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.

(c) the Court shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises.

(d) where leave is granted to the tenant to contest the application, the Court shall ordinarily commence the hearing of the application within seven days of the grant of such leave and shall provide day-to-day hearing and dispose off the application within thirty days of commencement of such hearing. Failing such commencement of hearing or disposal of application within such time, the Court shall make a record of its reasons therefor.

(e) where the leave to contest under clause (c) is denied to the tenant, he may file an application for review before the Court within ten days of such denial and the Court shall endeavour to dispose of such application within seven days of its filing."

In clause (a) of Section 42(6) it is clearly stated that in a petition filed for recovery of possession under Section 31, the same is required to be dealt in accordance with the procedure specified in said sub-section. Clause (b) of said sub-section would clearly state that "on service of summons, the tenant shall not contest the prayer for eviction from the premises unless he filed an affidavit stating the grounds on which he seeks to contest the petition for eviction and obtain leave of the court as hereinafter provided". If that is taken into consideration, in the instant case, the record would disclose that no affidavit is filed by the tenant seeking permission to raise objection regarding the ground, which was urged for eviction and no leave is secured as contemplated under the said provision at any stage in the proceedings before the Court below.

At clause (c) of sub-section (6) it is clearly seen that "the Rent Court shall give leave to the tenant to contest the application if only the affidavit filed by tenant discloses such fact as would disentitle the landlord for obtaining an order for recovery". In the instant case, leave is not sought, such leave is also not granted by the Court below. In that view of the matter, the Court below is entitled to pass an order of eviction accepting the contentions raised therein. Therefore, this Court would observe that in the light of default on the part of tenant in not following the procedure as contemplated under Section 42(6) of the Act, question of considering his objection either by relying on the judgment rendered in the matter of Kant a Goel v. B. P. Pathak reported in AIR 1977 SC 1599 and in the matter of Nathi Devi v. Radha Devi Gupta reported in (2005) 2 SCC 271 : (AIR 2005 SC 648), wherein the earlier judgment is followed, does not arise. When the tenant has failed to take permission to contest the application, it is as good as he has conceded to the grounds urged for eviction against him. In that view of the matter, this Court finds that the trial court has rightly considered the pleadings of the parties, also the legal position with reference to the judgments relied upon by the counsel for the petitioner and has rightly come to the conclusion that the petitioner is entitled to seek eviction of respondent from the petition schedule premises.

Even otherwise, on the facts of the case, when it is looked into, it is seen that the petitioner - landlord, respondent herein is a widow and she has a child to take care of. She has no other source of income and the petition schedule premises is the property which is available for her to be utilised to set up a business for her livelihood, which she has established in the evidence led in the proceedings before the Court below. In that view of the matter, the order of eviction passed directing the respondent to quit, vacate and deliver vacant possession of the property appears to be just and proper.

Now coming to the ground with reference to measurement, it is observed by the trial Judge in his discussion at paragraphs 15 to 17 that the respondent-tenant in his evidence has accepted the measurement of property, which is also reflected in the katha extract, sale deed and copy of the notice, which are produced and marked as Exs.P1, 2, 7 and 8 in the proceedings before Court below. Therefore, the ground urged with reference to petition was not maintainable for eviction before the Court below is also properly considered and answered by the Court below.

Coming to the ground with reference to no time being granted at the time of passing the order of eviction, it is seen that in the circumstances where the petitioner who is aged about 33 years as on the date of filing of the petition being a widow and a lady with minor child to take care and her livelihood depending on setting up of a business for herself, the need of petitioner is considered as paramount as against that of the respondent, who is in business for more than 30 years and capable of shifting the same to any other premises. Even otherwise, in the instant case it is seen that though time was not granted by the Court below while passing the order of eviction on 28.7.2015, this Court by staying the operation of the judgment of Court below has allowed the tenant-revision petitioner to be in possession of the petition schedule premises till today. In that view of the matter, this Court feels that sufficient time being available to the revision petitioner to look for a suitable other property and to shift the business, no harm would be caused in confirming the order of eviction and directing them to vacate and deliver vacant possession of the petition schedule property forthwith to the respondent herein, landlord.

Accordingly, this revision petition is dismissed as no grounds are made out to admit the same.