Smt. Asha Singhvi vs Sri Sha Manikchand. C and M/s. N.S. Silks

N. Ananda

This is a tenant''s revision petition against eviction order made u/s 27 (2) (a) (g) (b) (r) (o) and Section 31(1)(b) & (c) of the Karnataka Rent Act, 1999 (for short, ''the Act''). I have heard Sr. Rameshchandra, Learned Counsel for petitioner and Sri. Kashyap N. Nayak for first respondent and Sri. Bhuvan K.P., Learned Counsel for second respondent. I have been taken through evidence and the impugned order.

The schedule premises is a shop premises measuring East to West 9 feet and North to South 15 feet. It is the contention of landlord that petitioner (tenant) has been paying rent at the rate of Rs. 2,500/- per month. The landlord has contended that petitioner (tenant) was paying a sum of Rs. 1,700/- in respect of shop premises and a sum of Rs. 800/- in respect of godown.

The learned trial judge taking into consideration the rent receipts as per Ex. R1 to R4 has held that petitioner (tenant) was paying rent of Rs. 800/- per month. The learned trial judge has disbelieved evidence of respondent/landlord that petitioner/tenant was paying a sum of Rs. 800/- by way of cheque and a sum of Rs. 1,700/- by way of cash. In the result, the learned trial judge has determined the rate of rent at Rs. 800/- per month.

In my considered opinion, when respondent has not come up with truth and respondent had failed to establish that petitioner (tenant) was paying rent at the rate of Rs. 1,700/- per month, the learned trial judge should not have ordered eviction u/s 27(2)(a) of the Act. Therefore, finding of the learned trial judge recorded u/s 27(2)(g) of the Act is set aside.

It is the contention of respondent/landlord that he requires schedule premises for his use and occupation and he does not have alternate suitable accommodation to run his business. The respondent has deposed that his sons are carrying on business in a rented premises and schedule premises is required for use and occupation of his sons.

The Learned Counsel for petitioner relying on the judgment of Supreme Court reported in K.N. Anantharaja Gupta Vs. Smt. D.V. Usha Vijaykumar, would submit that, when the respondent/ landlord had sought for eviction on the ground that his sons would carry on business in the schedule premises after the same is altered or reconstructed, the court must be satisfied that:

(i) the suit premises is so dilapidated that it needs demolition;

(ii) the landlord has the capacity to reconstruct the suit premises after demolition;

(iii) The sanctioned plan has to be taken from the concerned authority.

The Learned Counsel would submit that mere expression or desire would not entitle the respondent/ landlord to get a decree of eviction u/s 27(2)(r) of the Act.

In the case on hand, learned trial Judge has granted an order of eviction u/s 27(2)(g) of the Act, amongst other grounds.

Section 27(2)(g) of the Act reads thus:-

27(2)(g). that the premises or any part thereof are required by the landlord for carrying out any repairs which cannot be carried out without the premises being vacated;

In a decision reported in K.N. Anantharaja Gupta Vs. Smt. D.V. Usha Vijaykumar, the landlord had sought for eviction for use and occupation of premises after demolition and reconstruction of building already in existence.

In the case on hand, the financial capacity of landlord to reconstruct the building has not been disputed. The petitioner has admitted that he is a tenant in occupation of schedule premises for more than 25 - 30 years. Therefore, the case of landlord that the schedule premises requires alteration and repair cannot be suspected. It is not a case where the landlord has sought for eviction on the ground of demolition or reconstruction for his occupation. Therefore, what has been held in the above decision is not applicable to the facts and circumstances of this case. Even otherwise, from the evidence it is established that the schedule premises is considerably old. The financial capacity of landlord to reconstruct the premises after demolition has not been controverted.

It is needless to state that respondent cannot reconstruct a building without approved plan. Therefore, I do not find any infirmity in the finding recorded by the trial court.

The trial court has granted order of eviction u/s 27(2)(b) of the Act. There is no evidence on record to show that tenant has sublet the premises. Therefore, the trial court had no justification to grant an order u/s 27(2)(b) of the Act.

The learned trial judge on appreciation of evidence has held that sons of respondent/landlord are carrying on business in a rented premises. The petitioner/tenant has failed to establish that they have other suitable accommodation. On the other hand, it is established from the evidence on record that respondent is carrying on business in the schedule premises and he owns a shop in S.P. Road. Therefore, the respondent/landlord has proved that schedule premises is required for his use and occupation and he has not other alternate suitable premises.

The first respondent has contended that he is not the proprietor of M/s. N.S. Silks and there is no jural relationship of landlord and tenant. The second respondent appeared and took up the contention that first respondent is only a caretaker and that she is the tenant. In that way, both the respondents have denied the jural relationship of landlord and tenant. Even they have gone to the extent of denying that petitioner is the owner of schedule premises.

During cross-examination, RW.1 has clearly admitted that he is a tenant under the petitioner from the year 1985 and he was inducted as tenant of schedule premises. In the reply notice given on behalf of respondent No. 1, first respondent in unequivocal terms has admitted the relationship of landlord and tenant between petitioner and first respondent. The relevant portion of reply notice reads thus:

It is no doubt true that your client is the absolute owner of property bearing No. 35/3, Appaji Rao Lane, Nagarathpet Cross and my client is the tenant in respect of one shop and a godown.

The contention of second respondent that she is the tenant and first respondent (her husband) is the caretaker of the premises is equally untenable. Thus, respondents 1 & 2 have denied the relationship of landlord and tenant without any bonafide reason.

Thus, respondents 1 & 2 have denied relationship of landlord and tenant without any bonafide reason. Above all, the first petitioner was also in occupation of godown premises. The landlord had filed O.S. No. 1973/2000 and he was granted an order of eviction. The first petitioner (tenant) was directed to vacate and hand over godown premises. Therefore, the respondents did not have bonafide reasons to deny the jural relationship.

The first petitioner namely Sha Manikchand was aged about 63 years on the date of filing the petition. During pendency of petition he had amended the petition to seek eviction u/s 31(b)(c) of the Act. During evidence of PW.1 (first landlord) it was elicited that he was aged, therefore, he is not able to lead active life.

The Learned Counsel for petitioner relying on this admission would submit that the trial court ought not to have granted an order of eviction u/s 31(b) and (c) of the Act.

In a decision reported in 2004 (2) KLJ 411 (in the case of Smt. PADMASIVASWAMY -vs- U.P. VATSALA AND ANOTHER) this Court has held:-

In the present Act a new substantive provision has been provided u/s 31 of the Act to enable a widow to get immediate possession of the premises if the premises is required for use by her or for any one ordinarily living with her. The provision is so worded that it narrows down the scope for opening the door to any sort of defence against a claim made under the provisions, by employing simple and lucid style words in the making of the provision. The provision reads:

Right to recover immediate possession of premises to accrue to a widow.-

(1) Where the landlord is.-

(a) a widow and the premises let out by her, or by her husband;

(b) a handicapped person and the premises let out by him;

(c) a person who is of the age of sixty-five years or more and the premises let out by him, is required for use by her or him or for her or his family or for any one for ordinarily living with her or him for use, she or he may apply to the Court for recovery of immediate possession of such premises.

(2) Where the landlord referred to in sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of any one residential and one non-residential premises each chosen by him.

Explanation I.- For the purposes of this section, "handicapped person" shall mean a person who is as if being an assessee entitled for the time being to the benefits of deduction u/s 80U of the income tax Act, 1961 (Central Act 48 of 1961).

Explanation II.- The right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use.

But, Mr. Sathyanarayana, Learned Counsel for the respondents, submits that a petition cannot be sustained on the ground available u/s 31 alone as it does not provide an independent cause of action. According to him, the provision is only related to and governs the time that a Court may grant to a widow who has succeeded in establishing her case u/s 27(2)(r) of the Act. It is his contention that if the widow fails in establishing her case u/s 2(2)(r), she is not entitled to the relief of recovery of possession of the tenanted premises u/s 31 of the Act.

The provision is coined in a very simple language and is free from ambiguity. There is so much difference in designing the legislative diction of these two provisions that it is impossible to contend that Section 31 is meant only to serve as a subsidiary to Section 27(2)(r) of the Act and does not, on its own, provide an independent cause of action. Each of these provisions provide for two entirely different situations that one can present a petition for eviction independently under any of the grounds provided for in these provisions. It may be that a person could maintain a petition for eviction under both the heads but that does not mean to say that one is dependent on the other or that to avail of the remedy of immediate possession u/s 31 a person has to invariably substantiate his claim u/s 27(2)(r). I find no merit in this contention.

Coming to the merits of the claim u/s 31 of the Act, this being a new development that has taken place on the coming into force of the present Act, the Court below had no occasion to go into this aspect of the matter and the issue has to be determined by this Court, Section 31 being a substantive provision providing a new remedy to a special class of persons, the Court has to examine whether the petitioner is entitled to the said relief. The conditions to be satisfied by a widow for getting the relief under this provision are: (i) the premises must have been let out by her or her husband; (ii) she must be of the age of sixty-five years or more; and (iii) the premises let out by her is required for her or for any one ordinarily living with her. In the case on hand the premises, even according to the respondents, was let out by the petitioner herself. There is no disputing the fact that she is aged more than 65 years. The need propounded by the petitioner in the petition is that she requires the premises for accommodating her daughter as she needs her support being a widow living all by herself as her son is staying abroad. Thus, the petitioner satisfies all the conditions required to be satisfied for getting the benefit of Section 31 of the Act. Therefore, she is entitled to recover immediate possession of the premises from the respondents-tenants.

Under Section 31 of the Act, the landlord is entitled to eviction if the conditions specified in Clause (a) (b) and (c) are satisfied and further it is satisfied that schedule premises is required for use of landlord or by his any one family member ordinarily living with him. In the case on hand, the landlord has sought for eviction on the ground that the premises is required for use and occupation of his sons. The landlord is carrying on business in a rented premises and they do not have alternate suitable accommodation. In the circumstances, the learned trial judge is justified in granting eviction u/s 27(2)(r) as also u/s 31(b) of the Act. In the result, I pass the following:

ORDER

(i) The petition is accepted in part.

(ii) The eviction order passed u/s 27(2)(a) (b) of the Act, is set aside.

(iii) The eviction made u/s 27 (2) (g) (r) (o) and also u/s 31(1)(b) and (c) of the Act, is confirmed.

(iv) The petitioner (tenant) is granted three months time from today to vacate and deliver vacant possession of schedule premises to first respondent-landlord.