Dismissed

Sri. Mohammed Aslam Khan v. Sri. Saravana Eswar P Kumar

Karnataka HC29 Mar 2021HRRP/5/2021

Case brief

AI extract

What is this about?

In a House Rent Revision Petition, the High Court dismissed the appeal challenging an eviction order. The Court held that non-filing of a written tenancy agreement under section 4 does not deprive the landlord of jurisdiction to seek eviction under the Rent Act, 1999, given established tenancy through conduct and determinations.

What did the court decide?

Petition dismissed. Petitioners granted six months' time to vacate the premises subject to payment of outstanding rent.

Sri. Mohammed Aslam Khan Vs Sri. Saravana Eswar P Kumar — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA HOUSE RENT REVISION PETITION NO.5 OF 2021

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BETWEEN:

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1 . SRI. MOHAMMED ASLAM KHAN S/O SRI AKTAR MOHAMMED KHAN AGED 67 YEARS,

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2 . SRI.MOHAMMED SALEEM KHAN S/O SRI AKTAR MOHAMMED KHAN AGED 65 YEARS,

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3 . SMT.BIBI FATHIMA D/O SRI AKTAR MOHAMMED KHAN AGED 63 YEARS,

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ALL ARE R/AT NO.2, OLD NO.25, ARAB LANE, B STREET, RICHMOND TOWN, BANGALORE-560025.

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REPTD THROUGH SPA HOLDER SMT.SHAZI RAHMAN W/O SRI SAYEED UR-RAHMAN NO.2, ARAB LANE ‘B’ STREET, RICHMOND TOWN, BANGALORE 560 025.

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...PETITIONERS

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(BY SRI: R A DEVANAND, ADVOCATE)

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AND:

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1 . SRI. SARAVANA ESWAR P KUMAR S/O LATE T.N.PRASANNA KUMAR AGED 52 YEARS, R/AT NO.301, 3^RD FLOOR, NO.1279, 14^TH CROSS, INDIRANAGAR, 2^ND STAGE, BANGALORE-560038. 2 . DR.CHITRA DINESH D/O LATE T.N.PRASANNA KUMAR W/O DR C.J. DINESH, AGED 60 YEARS, R/AT NO.8/16, PUTTANNA ROAD, BASAVANAGUDI BANGALORE 560004. 3 . SMT.SARITHA PRASANNA KUMAR D/O LATE T.N.PRASANNA KUMAR AGED ABOUT 58 YEARS, ADVOCATE, OFFICE AT NO.59/60, 1^ST FLOOR, LAKSHMANA MUDALIAR STREET, SRI KANTESHWARA COMPLEX, BANGALORE-560 001. 4 . SMT. PAVITHRA NATRAJ D/O LATE T.N.PRASANNA UMAR W/O SRI NATRAJ AGED 56 YEARS, R/AT NO.70, 1^ST MAIN 3^RD CROSS, BSK 5^TH STAGE, VASANTHAPURA, BANGALORE 560 0061.

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...RESPONDENTS (BY SRI: V B SHIVA KUMAR, ADVOCATE FOR C/RESPONDENTS)

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THIS HRRP IS FILED UNDER SECTION 46(1) OF THE KARNATAKA RENT ACT, 1999, AGAINST THE ORDER DATED 09.12.2020 PASSED IN HRC.NO.23/2018 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE PETITION FILED UNDER SECTION 27(2)(r) OF KARNATAKA RENT ACT, 1999, FOR EVICTION.

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THIS HRRP COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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This case involves complicated facts but the issue that arises for consideration lies in a narrow compass i.e., “whether the Small Causes Court had jurisdiction to entertain eviction petition and order eviction of the petitioners without a written agreement of lease?”.

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The above contention is based on section 4 of the Karnataka Rent Act, 1999, (for short ‘Rent Act, 1999’). Submission of the learned counsel for the petitioners is that in the absence of any written agreement of lease as per section 4 of the Rent Act, 1999, the Small Causes Court could not have exercised jurisdiction to order eviction of the petitioners under the provisions of the Rent Act, 1999.

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The undisputed facts are that the petition

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schedule premises was originally owned by one Sri. T.S. Nanjundaiah Shetty. He died somewhere in the year 1938 leaving behind his last Will and Testament bequeathing the schedule premises to his adopted son Sri. T.N. Prasannakumar reserving life interest in favour of his wife Smt. T.N. Lalithamma. The predecessor of the petitioners Aktar Mohammed Khan was inducted as a tenant in the petition premises by the aforesaid Lalithamma on payment of rent of Rs.15/- per month. She initiated proceedings for eviction of the aforesaid Aktar Mohammed in HRC No.6453/1980 under section 21(1) (a) (h) and (f) of the Karnataka Rent Control Act, 1961(for short ‘Rent Control Act’). This petition was dismissed on 31.08.1983. The revision petition preferred against the said order also appears to have been dismissed.

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Much thereafter, the respondents herein claiming to have inherited the property after the demise of Sri. T.N. Prasanna Kumar initiated proceedings

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for eviction of the petitioners by issue of a legal notice dated 08.02.2018. Though under the said legal notice, the respondents herein claimed rent at the rate of Rs.15,000/p.m., it is not in dispute that the petitioners herein sought for adjustment of the due rents under section 7 of the Rent Act, 1999 before the Rent Controller and in the proceedings in HRC No.3/2008-09, the Rent Controller determined the rent payable in respect of the above premises at Rs.1,500/p.m. vide Ex-P11. The learned Small Causes Judge by considering the records produced by the respondents viz., the eviction petitioners at Exs-P1 to P8 came to the conclusion that the eviction petitioners being the owners/landlords of the petition premises are entitled for vacant possession of the petition premises under section 27 (2) (r) of the Rent Act, 1999.

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[[5. The impugned order is assailed by the petitioners mainly on the ground that the documents relied on by the eviction petitioners though establish their ownership, they do not establish the tenancy or the jural relationship. Referring to

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section 4 of the Rent Act, 1999, learned counsel for the petitioners emphasized that in relation to a tenancy created before the commencement of the Rent Act, 1999, no agreement was entered into between the landlord and the tenant, subsection (2) thereto requires the landlord and the tenant to enter into an agreement in writing with regard to the tenancy and deposit a copy of thereof before the prescribed authority. Proviso thereto further requires that where the landlord and the tenant fail to present jointly a copy of the tenancy agreement under this subsection, such landlord and the tenant shall separately file the particulars about such tenancy with the prescribed authority in such form and in such manner and within such time as may be prescribed.

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It is the submission of learned counsel for the petitioners that the execution of an agreement or submission of the particulars about such tenancy before the prescribed authority is a condition precedent or sine quo non without which no relief could be granted to the

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landlord under the Rent Act, 1999. Referring to the term “Landlord” as defined under section 3(e) read with section 4 of the Rent Act, 1999, learned counsel would submit that in the absence of a written agreement of lease, the provisions of the Rent Act, 1999 cannot be invoked by the landlord to seek eviction of the tenant and therefore, the impugned order passed by the Small Causes Court, Bengaluru solely relying on the decision of the Rent Controller and the documents of title relating to the eviction petitioners cannot be sustained.

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The above submissions are seriously contested by the learned counsel for respondents/eviction petitioners and placing reliance on the definition of the term, “Premises” and “Tenant” as per sections 3(i) and 3(n) of the Rent Act, 1999, learned counsel would submit that the premises in question being a residential premises, the deemed rent whereof having been determined by the Rent Controller under section 7 of the Rent Act, 1999, the premises in question falls within the ambit of the

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provisions of Rent Act, 1999. Insofar as the jural relationship is concerned, in view of the admissions made by the petitioners in their previous pleadings, they are estopped from disputing the jural relationship. In support of his submission, learned counsel has referred to the statement of objections filed by the petitioners whereunder in para 5 to 18 thereof, the petitioners have admitted their status as ‘tenant’. Further, in paras 3, 4 and 5 of Ex-P10, viz., in the petition filed by their predecessor in HRC No.3/2008, petitioner No.1 has not only admitted the ownership of the predecessor of the eviction petitioners, but has also admitted his legal status as that of a ‘tenant’ in respect of the petition premises and under the said circumstances, the petitioners herein are estopped from disputing the jural relationship.

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I have bestowed my careful thought to the above submissions and have carefully scrutinized the material on record.

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Insofar as the compliance of the requirements of section 4 of the Rent Act, 1999 is concerned, it is relevant to note that section 4 does not provide for any legal consequence for non filing of the a declaration by ‘tenant’ or ‘landlord’. Failure to comply with the said requirement does not take the petition premises outside the purview of the Rent Act, 1999 nor does it take away the right of the landlord to seek eviction of the tenant on proof of the grounds enumerated in Section 27 of the Rent Act, 1999. In that view of the matter, the impugned order passed by the Small Causes court being in conformity with the provisions of Rent Act, 1999, does not warrant any interference by this Court. Viewed from another angle, the term “Landlord” is defined in section 3(e) of the Rent Act, 1999 as under:-

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“ Section 3(e) of the Act defines landlord as in this Act, unless the context otherwise requires “Landlord” means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to

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be entitled to receive the rent, if the premises were let to a tenant.”

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The term ‘tenant’ is defined in section 3(n) as under :-

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Section 3(n) of the Act defines “Tenant” as in this Act, unless the context otherwise requires “Tenant” means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable and includes.-

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(1) a subtenant;

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(2) any person continuing in possession after the termination of his tenancy but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 has been granted.”

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A plain reading of the above definitions indicate

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that a person qualifies to be a “landlord” as and when he is entitled to receive the rent in respect of the premises falling under the Rent Act, 1999.

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Moreover in the instant case, the records of the previous proceedings between the parties clearly disclose that right from the inception, there was no dispute with regard to the jural relationship between the parties. Both the parties claim their right and title through their predecessors. The previous proceedings initiated by the ancestors of the petitioners/tenants clearly indicate that the predecessors of the petitioners has admitted to be the tenants in respect of the petition schedule premises under the predecessors of the eviction petitioners. Rent Act, 1999 does not require any attornment unlike the provisions of the Transfer of Property Act, 1882. Under section 5 of the Rent Act, 1999, the tenancy is heritable subject to the terms and conditions provided therein. Under the said circumstances, there being clear material as evidenced in Exs.P10, P11 and P12 to show that the petitioners were the tenants of the petition schedule premises, the contention urged by the petitioners that for want of lease agreement, the eviction ordered by the Small Cause Judge is without jurisdiction cannot be

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sustained. There being clear material to show that the premises in question is a residential premises fetching a rent of Rs.1,500/- as determined under Section 7 of the Rent Act, 1999 and there being clear and cogent material to show that the petitioners are occupying the schedule premises as tenants in succession to late Atkar Mohammed Khan who was inducted as a tenant, in my view, the learned Small Causes Judge had jurisdiction to entertain the petition and to order eviction of the petitioners on satisfying of the grounds under section 27 (2) (r) of the Rent Act, 1999. As such, I do not find any justifiable reason to interfere with the impugned order. Consequently, the petition fails and the same is liable to be dismissed.

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Accordingly, the petition is dismissed. In view of dismissal of the main matter, I.A.No.1/2021 does not survive for consideration and the same stands dismissed.

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As it is submitted that the petitioners are long standing tenants occupying the premises since the time of

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their ancestors and require reasonable time to secure alternative premises, in the interest of justice, six months’ time is granted to the petitioners to vacate the petition schedule premises, subject to payment of upto date rents at the rate of Rs.1,500/- per month subject to executing an affidavit to vacate the premises by the end of October 31, 2021 without driving the respondents-eviction petitioners for any further litigation.

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Sd/- JUDGE

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*mn/bss

Sri. Mohammed Aslam Khan v. Sri. Saravana Eswar P Kumar

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Sri. Mohammed Aslam Khan v. Sri. Saravana Eswar P Kumar

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