Sri Kumar @ Shivakumar vs Smt. Jayalakshmi

Aravind Kumar, J.—This is a tenant''s Revision Petition questioning the order passed in HRC No. 10044/2007 dated 22.12.2009 on the file of the XV Addl. Judge, Small Cause Court of SCCH-19, Mayo hall Unit, Bangalore, whereunder Eviction Petition come to be allowed and Revision Petitioner/tenant was directed to vacate and handover possession of Schedule premises by granting two months time.

A petition u/s 27(2)(r) of the Karnataka Rent Act, 1999 seeking eviction of the respondent/tenant from the petition schedule premises came to be filed. It was contended that petitioner is the sole and absolute owner of the Shop bearing No. 1, Opp. Kattariamman Temple, Govindappa Garden, Doddigunta, P.S.K. Naidu Road, Cox Town, Bangalore - 560005 which was described as schedule premises. It was contended that respondent was inducted as a tenant under agreement of tenancy dated 11.02.2004 on a monthly rent of Rs. 550/- and later the same was enhanced at Rs. 650/- per month. It was contended by the petitioner that, she was in need of the petition schedule premises for her bonafide use and occupation wherein she intends to establish a provision store for one of her children who was unemployed and in spite of repeated request to the respondent to quit and deliver vacant possession of the petition premises the respondent has been postponing the same and the request of the petitioner did not yield any fruitful result. Hence, the petitioner is said to have initiated the proceedings by filing eviction petition. It was also contended that respondent had filed a false suit for bare injunction in OS No. 3457/2005 on the file of City Civil Judge, Bangalore, which came to be dismissed. Petitioner also contended that she has huge family and intends to accommodate her children in one or other avocation and that petition schedule premises is required for own use, which is suitable and convenient for the petitioner to accommodate her son. She further contended that requirement is bonafide and genuine and the respondent can secure an alternate accommodation in the vicinity of the schedule premises and as such it was contended that no hardship would be caused to the respondent tenant, if order of the eviction is confirmed.

On service of notice, respondent appeared before the trial Court and filed detailed Statement of Objection, controverting the petition averments. It was admitted by the respondent that, petitioner is the absolute owner of the petition schedule premises and that he was a tenant under the petitioner on a monthly rent of Rs. 550/- per month, it was exclusive of Electricity charges. Further, a plea was put up by the respondent contending that, respondent was inducted by the petitioner''s late husband N. Chari during the year 1993 on a monthly rent of Rs. 400/- and at the time of inception of tenancy, the respondent had deposited a sum of Rs. 10,000/- as refundable advance and petitioner was not in the habit of issuing rent receipts for having received the rents.

3 (i) It was further contended that rent came to be enhanced periodically from Rs. 400/- to Rs. 650/- per month. The present rent is Rs. 650/- per month. The respondent contended that since respondent did not heed to the demand of the petitioner to pay higher rent and advance, petitioner and her sons started threatening to dispossess him from the petition schedule premises and as such respondent was forced to file a suit for bare injunction against the petitioner in OS No. 3457/2005. Respondent denied the averments made in the petition, whereunder petitioner has contended that she has huge family and intends to accommodate her children by doing business. The respondent also denied that there is no necessity for the petitioner to accommodate her children to start business in the petition schedule premises. Respondent also put up a plea that one of the sons of the petitioner was a permanent employee of Indian Tobacco Company (ITC) and another son had to set up his business in computer and daughter is not depending upon the petitioner, and have contended petitioner/landlady does not require petition schedule premises.

3 (ii). It was contended that requirement of the petitioner was not bonafide and eldest son of petitioner Sri Srinivas had forcibly evicted another tenant by name Sri Bhasker, who was running a cycle shop in the premises adjacent to petition schedule premises and as such, the need of the petitioner if any is satisfied and does not require the petition schedule premises to start the alleged business. It was also contended that respondent is running a petty shop business in the petition schedule premises for the past 12 years and eking out his livelihood and the entire family is depending on the income derived from running the business in petition schedule premises. They are leading a life of hand to mouth existence and they are incapable to secure an alternate premises and accordingly seek for dismissal of the petition.

The petitioner in support of the claim made in the petition got herself examined as PW1 and her son Sri. Indrakumar is examined as PW2. The Petitioner produced 12 documents and got them marked as Exs.P1 to P12. In support of his claim respondent got himself examined as RW1 and also examined two witnesses RW2 and RW3. He did not get any documents marked. On the basis of the pleadings and evidence and also considering the arguments of the respective advocates, Court below framed following points for its consideration.

(i) Whether the petitioner is need of the schedule premises for her bonafide use and occupation?

(ii) What order?

Considering the evidence on record and on examination of the pleadings, Court below answered Point No. 1 in the affirmative and passed an order of eviction by allowing the petition u/s 27(2)(r) of the Karnataka Rent Act, 1999 by granting 2 months time to quit and vacate the schedule premises. It is this judgment which is now questioned in the present revision petition.

I have heard Sri. G.R. Mohan learned Counsel appearing for the petitioner and Sri. M.D. Raghunath learned Counsel appearing for the respondent.

Sri. G.R. Mohan, learned Counsel appearing for the petitioner herein would contend that Trial Court ought to have rejected the evidence of PW1, whereunder it has been held by the Court below that remaining portion which is in use and occupation of the petitioner herein is not suitable to her second son''s business purpose since same is without any basis. He would contend that PW1 states that she intends to establish a provision store for one of her children, whereas PW2 states that he has to start his own business of vegetable in the schedule premises and thus there is inconsistencies in the evidence. Elaborating his submission, he would draw the attention of the Court to evidence of PW1 and PW2 to contend that during the pendency of eviction proceedings an alternate premises has been secured by the son of the petitioner, Mr. Srinivas, and petitioner has not tendered any evidence to establish as to why the said premises is not suitable for her son''s business. Accordingly, it is contended by Sri. G.R. Mohan, in the absence of any evidence to the said effect the Court below committed serious error in allowing the petition.

Per contra, Sri. M.D. Raghunath, learned Counsel appearing for the respondent herein would contend that the Court below has taken into consideration not only the evidence of PW1 but also the evidence of PW2 Sri. Indra Kumar for whose benefit eviction is sought for. This evidence has been considered and appreciated by Court below and does not call for any interference and accordingly supports the order passed by the Trial Court. He would also submit that in cross examination of RW2 it has came on record that his brother Sri. Srinivas is also unemployed and was residing in the residential portion behind the petition schedule premises and he intends to do business in the portion, which has become vacant, on account of Sri. Bhaskar handing over possession who was running Cycle shop. Hence he seeks for dismissal of the revision petition.

Sri. G.R. Mohan, by way of an alternate plea would submit that in the event of this Court coming to a conclusion that requirement of petitioner/landlord as bonafide, this Court may grant sufficient, time to the respondent to shift to an alternate premises. In this regard he prays atleast two years time be granted to enable the tenant to search for an alternate premises and to shift to a new premises.

Having heard the learned Counsels for the advocates appearing for the parties, the following points arise for my consideration.

(i) Whether the petitioner has proved that she requires the petition schedule premises for occupation of her son?

(ii) Whether the judgment passed by the Court below suffers from any infirmity either in law or on any facts and is it required to be modified, reversed or confirmed?

(iii) What order?

On perusal of the records of Court below it is noticed that Trial Court by its order dated 29.03.2007 in HRC No. 10044/2007 had dismissed the eviction petition against which landlord had come up in the revision petition before this Court in HRRP No. 198/2008 and this Court by order dated 05.11.2008 had set aside the order passed by the trial Court, which had held it had no jurisdiction to try the evict petition without going into the question as it was a non residential premises measuring more than 14 Sq Mtrs., and to examine this issue in HRRP 198/2008 referred to supra came to be allowed. On 05.11.2008 the matter was remitted back to the trial Court for considering the mater on merits after obtaining a report from the Court commissioner about the measurements of the petition schedule premises.

Pursuant to the same a Court Commissioner came to be appointed and report was submitted by the said Court commissioner on 19.03.2009 and it was reported that measurement of the petition schedule premises measures 118.44 Sq.Ft. .

The Court Commissioner came to be examined and cross examined. By order dated 06.06.2009 the trial Court accepted the report filed by the Commissioner and necessary issues regarding measurement was raised and held that eviction petition was maintainable. This finding has become final and there is no dispute on this issue.

It is seen from perusal of the evidence of PW1 and PW2, that requirement pleaded by the Petitioner to evict the tenant was that she requires the Petition schedule premises to accommodate her son - PW2 and she being a widow was maintaining entire family and to augment the income of the family she requires to put her second son to establish a provision store and as he is also without any employment. Though attempt has been made in the cross examination to suggest that second son Sri. Indra Kumar is gainfully employed, no material has been placed before the Court below except the self serving testimony of RW1 and there was no evidence placed by tenant to establish that PW2 was gainfully employed. PW2 the second son of petitioner for whom eviction petition was filed was examined as PW2 and he has entered the witness box and stated that he wants to run a business by opening a vegetable shop in the Petition Schedule Premises. In the cross-examination he has denied the suggestion that he is working in S.M.I. Supplies shop, Bangalore and getting a salary of Rs. 10,000/-. it is to be noted that during cross-examination of PW2 no suggestion has been made to this witness that he does not require the Petition Schedule premises to establish business as stated in the Petition.

In support of his defence respondent/tenants has entered witness box and reiterated what has been stated in the statement of objections.

The respondent/tenant has also examined two witnesses namely Sri. Yellappa - RW2 and Bhaskar - RW3. RW2 has stated that he was carrying on tailoring shop in the adjacent shop to the petition schedule premises. In the cross-examination it is admitted that respondent/tenant is his own brother. This witness is self interested witness. In so far as evidence of RW3 it is stated that he was carrying on a cycle shop business and had vacated the same under the threat of the petitioners. In the cross-examination it is admitted by R.W. 2 that shop which was in occupation of said witness has been vacated by him voluntarily. Hence, much credence cannot be given to these two witnesses.

This evidence of witnesses have been examined by trial Court while considering the claim of the petitioner as to whether she required the petition schedule premises for her bonafide use and occupation and has analysed the same at paragraph 10 of its judgment. On perusal of the judgment passed by the Court below and on reappreciation of evidence tendered by P.W. 1 this Court is of the considered opinion that conclusion arrived at by the trial Court neither suffers from infirmity in law nor on facts. In so far as the contention of the respondent that petitioner with the help of her elder son Sri. Srinivas under the threat of forcible dispossession obtained possession of the premises from Sri Bhasker who was running a cycle shop at the adjacent shop was considered by the Court by analysing the evidence of the said tenant Mr. Bhaskar who has been examined as R.W. 3 to come to a conclusion that premises which was in occupation of R.W. 3 is not convenient for the petitioner''s son to run the business even though it is in occupation of the petitioner. On analysing the evidence of P.W. 1 and P.W. 2 this Court is of the considered opinion that petitioner has satisfied the ingredients required u/s 27(2)(r) of the Karnataka Rent Act and accordingly the order of the Court below is confirmed by holding that it does not suffer from any infirmity either in law or on facts.

Re: Point No. 3: The submission made by Sri. G.R. Mohan by way of alternate plea that respondent tenant has been running a petty business in the petition schedule premises from past 12 years and entire family is depending upon the income derived by the respondent from the business carried on in petition schedule premises, is required to be examined with reference to evidence let in by respondent.

Respondent has got himself examined as R.W. 1 in the instant case. In paragraph 14 of examination-in-chief he has stated that he is running a petty shop in the petition schedule premises for the past 12 years and eking out his livelihood and entire family is dependent on the income generated from the business carried in petition schedule premises. It is also stated that respondent is making hand to mouth existence. The tenor of cross-examination reveals it is more on the measurements of the petition schedule premises since this was a case which came to be remanded by this Court by order dated 5-11-2008 passed in HRRP No. 198/2008. It is an admitted fact that in earlier round of litigation the trial Court had not considered the issue regarding the requirement of petition schedule premises by land lady and while answering the first question regarding jurisdiction had dismissed the petition. After Commissioner submitted his report the respondent has let in additional evidence by contending that Bhaskar was forcibly evicted from the shop adjacent to the petition schedule premises and they acquired an alternate premises. It has been suggested to R.W. 1 in the cross examination that petition schedule premises and premises which was in occupation of Bhaskar is to be made as one composite shop for enabling P.W. 2 to start independent business to which R.W. 1 has stated that they do not require the petition schedule premises. It has come in evidence of the respondent that he is owner of autorickshaw K.A. 05 A 4910. Though a suggestion is made that he is running an autorickshaw, the witnesses has denied that he does not have a permit. A suggestion has been made to the respondent tenant R.W. 1 that he does not require the petition schedule premises as he is already running an autorickshaw and he is not carrying on any business in the petition schedule premises which though denied the respondent tenant has not produced either the permit of the above said autorickshaw as to in whose name it stands or as to who the running of said autorickshaw. These facts have been considered by the Court below including the evidence of P.W. 2. Admittedly R.W. 3 who was examined on behalf of respondent-tenant namely Bhaskar has admitted in his cross-examination that he has voluntarily vacated the petition schedule premises. Thus, contention of the respondent that Bhaskar had been evicted forcibly is contrary to the admission made by the witness R.W. 3 Mr. Bhaskar himself. Though it is contended by the respondent that he is carrying on the business in petty shop, he has not denied the fact that he is not in possession or not having ownership of autorickshaw bearing No. K.A. 05 A 4910.

Be that as it may, the respondent-tenant is carrying on the business for the last 12 years is not disputed by the petitioner. Petitioner having entered the witness box has not stated that respondent is not carrying on the business in petition schedule premises. In view of this evidence, this Court is of the considered opinion that granting of 10 months time would be reasonable since the respondent tenant by such time would be able to search for an alternate premises and shift from the petition schedule premises. Under these circumstances question No. 3 formulated herein above is required to be answered by holding that respondent-tenant is entitled to be granted 10 months time to quit, vacate and hand over vacant possession of the petition schedule premises to the respondent land lord. In view of the above discussion the following order is passed.

ORDER

The revision petition is dismissed. The order passed by the XV Additional Judge, Court of Small Causes, Mayo hall Unit, Bangalore date 22-12-2009 in HRC No. 10044/2007 is confirmed and the time granted by the said Court is extended by granting 10 months time from today to the revision petitioner/tenant to quit, vacate and hand over vacant possession of the petition schedule premises to respondent/landlady subject to undertaking by way of affidavit is filed by revision petitioner on or before 22-4-2010, agreeing thereunder to vacate and hand over possession on or before 28-2-2011 and continue to pay rents regularly and punctually and also undertaking thereunder not to sublet, underlet or induct any third parties to the petition schedule premises. No order as to costs.