Dismissed

Sri J Devilal Bafna v. Sri Mariyappa K B

Karnataka HC11 Aug 2023HRRP/53/2018

Case brief

AI extract

What is this about?

In this revision petition under the Karnataka Rent Act, 1999, the High Court of Karnataka dismissed the challenge to a Trial Court judgment ejecting a tenant. The landlord, aged 85, successfully proved bona fide requirement to accommodate his two sons for business, rebutting the tenant's claims that adjacent shops were available.

What did the court decide?

Dismissal of the revision petition; affirmation of the eviction order and refund of security deposit on vacating.

Sri J Devilal Bafna Vs Sri Mariyappa K B — Landlord and Tenant | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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HOUSE RENT REV. PETITION NO.53/2018

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BETWEEN:

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SRI J. DEVILAL BAFNA S/O LATE SRI. JUGRAJ AGED ABOUT 73 YEARS SHOP PREMISES NO.8 IN GROUND FLOOR OF BUILDING BEARING NOS.8, 9 AND 10 SEPPINGS ROAD BANGALORE 1 … PETITIONER

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(BY SRI RAGHUNATH M.D, ADVOCATE)

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AND:

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SRI MARIYAPPA K.B. S/O LATE SRI. K.M. BANAPPA AGED ABOUT 85 YEARS RA/T 1^ST FLOOR BUILDING BEARING NO.8 SEPPINGS ROAD BANGALORE-1 … RESPONDENT (BY SRI L.S.CHIKKANAGOWDA, ADVOCATE)

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THIS HRRP IS FILED UNDER SECTION 46(1) OF THE KARNATAKA RENT ACT, 1999 AGAINST THE JUDGMENT AND DECREE DATED 06.12.2018 PASSED IN HRC.NO.10013/2017 ON

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THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM., MEMBER MACT, BENGALURU AND ETC.

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THIS HRRP HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.07.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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This revision petition is filed challenging the judgment and decree dated 06.12.2018 passed in HRC No.10013/2017 on the file of the V Additional Small Cause Judge and XXIV ACMM, Mayo Hall Unit, Bengaluru.

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Heard the learned counsel appearing for the respective parties.

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The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of petitioner before the Trial Court is that the petitioner is the landlord who is residing with his wife and two children in second floor of the building. The respondent is the tenant in the schedule property

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under the lease agreement dated 10.09.2010 for monthly rent of Rs.2,500/- and has paid an amount of Rs.1,00.000/- as security deposit. The lease is subject to renewal and enhancement of the rate of rent by 10% for every three years as per terms and conditions. The petitioner required the petition schedule property to accommodate his sons to do business of their choice. The respondent is the pawn broker and doing business in the suit schedule property. Earlier, the respondent was in occupation of shop Nos.8 and 9 and shop No.10 was in occupation of one Dhanraj and against the respondent and Dhanraj, the petitioner had filed eviction petition and those cases ended in compromise and the petitioner took the possession of shop No.9 and the respondent retained the petition shop No.8 with him. In pursuance of the compromise, a fresh lease agreement came into existence and the respondent himself realizing the hardship, voluntarily came forward and paid the rent of Rs.3,500/- per month. He was regular in payment of rent. Now, the petitioner required the petition schedule property to accommodate his sons namely Bhaskar and Dinesh in order to establish business of their choice. The petitioner issued a legal notice on 24.08.2016

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and served the same on the respondent and he replied on 08.09.2016 denying the requirement of the petitioner.

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The Trial Court after considering the grounds urged in the plaint as well as in the written statement, allowed the parties to lead their evidence. The petitioner examined himself as PW1 and his son as PW2 and got marked the documents at Ex.P1 to P9. On the other hand, the respondent himself examined as RW1 and not marked any documents. The Trial Court having considered both oral and documentary evidence placed on record allowed the petition and directed the respondent to vacate and handover the vacant possession of the suit schedule property to the petitioner within 30 days and also the respondent is directed to pay the damages of Rs.3,500/- per month from the date of the suit till the date of vacating the premises. Being aggrieved by the judgment and decree of the Trial Court, the respondent has filed this revision petition.

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The learned counsel for the revision petitioner in his argument vehemently contend that the Trial Court fails to take note of the fact that other two shops are already in the

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occupation of the sons of the respondent/petitioner and no affidavit is filed in support of the petition and only verification was made. The counsel also would vehemently contend that the sons are not depending on the respondent/petitioner and they are having their own separate kitchen and the same is elicited in the cross-examination of PW1. The counsel would submit that the Trial Court while allowing the petition drawn the presumption and the presumption is rebuttable.

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The counsel in support of his arguments relied upon the order passed by the Apex Court in CIVIL APPEAL NO.4536/2008 ARISING OUT OF SLP (C) NO.17996/2006 in the case of SOMANATHASA BADDI vs CHANABASAPPA

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AND OTHERS and brought to notice of this Court to the discussion made in respect of Section 27(2)(r) and Explanation (i) appended thereto. The counsel referring this judgment would vehemently contend that the Apex Court has observed that if an application for eviction of the tenant is filed on the ground enumerated in clause (r) and the same is duly supported by an affidavit, it is imperative for the Court to presume that the

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landlord requires the premises for his own occupation or for any member of his family dependent on him. The presumption contemplated by Explanation (i) is rebuttable and the tenant can lead evidence to show that the landlord does not require the premises for his own occupation for any member of his family dependent on him for that his need is not bona fide. The counsel referring this judgment would vehemently contend that the revision petitioner has rebutted the case of the respondent by leading evidence.

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The counsel also relied upon the judgment passed by this Court in HRRP No.562/2002 in the case of G SHOUKATH

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AND OTHERS V CHANDRAPRAKASH wherein this Court discussed with regard to presumption regarding the existence of the requirement of the landlord is irrebuttable. The tenant can adduce evidence to rebut the said presumption. If any such evidence is adduced in rebuttal, it is for the Court to decide whether or not the presumption available to the landlord has been rebutted.

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The counsel also relied upon the judgment of this Court passed in HRRP No.104/2010 in the case of REHMAN KHAN vs SIDDAGANGAMMA wherein also this Court has taken note that trial judge erred in raising presumption regarding requirement of landlady. Landlady failed to prove that adjacent shops, which were available to her was not suitable to meet her requirement and trial judge failed to notice lacunae in pleadings and evidence and the trial judge in the absence of proper pleadings regarding nature of requirement and suitability of premises more particularly, when adjacent shops having same advantages were available to landlady, erred in holding that suit schedule shop was required for son of landlady to start some agency, nature of which was not stated either in petition or in examination-in-chief. The counsel referring these judgments would vehemently contend that the Trial Court failed to consider the material on record.

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Per contra, the learned counsel appearing for the respondent in his argument would vehemently contend that it is the contention of the tenant that other son is working in a

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private company and the said contention is not correct since he has relied upon the document at Ex.P9 which clearly discloses that his son left the job to do the business. The counsel also would vehemently contend that the pleading is very clear and verified the petition and also separate affidavit is filed verifying the contents of the petition. When separate affidavit is filed, it is clear regarding requirement of the petition schedule premises. The counsel also would vehemently contend that the respondent/petitioner is a retired employee and the same is not disputed. He is aged about 85 years and he has to accommodate his sons to do the business. It is also the specific case of the respondent/petitioner that two shops are required for his sons and no doubt, one son is doing business and another is having lack of space to do business and hence, he is in need of the premises and the same has been considered by the Trial Court and drawn the presumption considering the evidence available on record, particularly, the admission given by RW1 in the crossexamination. The counsel also would vehemently contend that the order does not requires any interference and decisions

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quoted by the counsel for the revision petitioner are not applicable to the facts of the case on hand.

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In reply to the arguments, the counsel for the

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revision petitioner would vehemently contend that there is an admission that sons are already doing business and when such being the case, there is no requirement for the respondent/petitioner and hence, the Trial Court committed an error in allowing the petition of the respondent/petitioner and hence, it requires interference.

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Having heard the learned counsel appearing for the respective parties and also considering the principles laid down in the judgments referred supra and factual aspect of the case, the point that would arise for the consideration of this Court is:

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(1) Whether the Trial Court committed an error in

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invoking Section 27(r) of the Karnataka Rent Act, 1999 and whether it requires interference?

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(2) What order?

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Point No.1:

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that it is the specific case of the petitioner before the Trial Court that petition schedule premises is required to accommodate his sons to do business and the same is pleaded in the petition. It is not in dispute that the respondent is a tenant and there is an admission in this regard and pleading is also very clear that earlier, the respondent was doing business in both shop Nos.8 and 9 and one shop was surrendered earlier since an eviction petition was filed and the same was compromised. It is also pleaded in the petition that the petitioner is having two sons by name, K M Bhaskar and K M Dinesh who intend to do business of their choice. In fact the petitioner is holding the said premises and other tenements for the benefit of his sons and other than the petition schedule shop premises there are no other suitable accommodation available and hence, the petition schedule shop premises is required by the petitioner and the same is disputed by the respondent by filing a statement of

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objections contending that there are four shops in the building wherein all the shop premises are housed and out of which, the respondent is in the occupation of 4^th shop which is no way connected with the other two shops, which are in occupation of sons of the petitioner. It is also contended that since the sons of the petitioner are independent as such, the petitioner cannot maintain the eviction petition and also it is contended that second son is employed in M/s P C Mallappa and Sons and he is also running a business in one of the premises which is facing cross road.

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The Trial Court having considered both oral and documentary evidence placed on record in paragraphs 10 to 15 discussed the evidence of PW1, PW2 and RW1 and particularly, in paragraph 13, discussed with regard to the requirement of the petitioner and comes to the conclusion that PW1 wish to accommodate his sons in schedule property to do business of their choice. It is also comes to the conclusion that it is not mere desire, but requirement of 85 years old man to see his sons have to be settled in their life and also placed resignation

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letter before the Trial Court to show that his son is unemployed and intend to extend his business and the same comes within the purview of bona fide requirement.

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The main contention of the counsel for the respondent/petitioner that the Court has not taken note that already two shops were in occupation of the sons of the petitioner and having perused the evidence of PW1 no doubt, it is elicited that earlier HRC petition was filed against one Dhanraj in HRC No.10667/1991 and the said shop is in occupation of his son Bhaskar and PW1 categorically denied that Dinesh i.e., the other son is working at M/s P C Mallappa and Sons. But he categorically stated that he was working long back and no doubt, in the cross-examination he categorically admits that he has filed the cases against the tenants for the use of his sons and further admits that in 2010 he has executed fresh agreement in favour of the respondent/revision petitioner by taking an advance of Rs.1,00,000/- and except these answers elicited from the mouth of PW1, nothing is elicited regarding requirement is concerned. The petitioner also examined his son as PW2 and through him

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got marked the document of Ex.P9 to show that he had tendered resignation in 2018 itself and he was subjected to crossexamination wherein he admits that earlier HRC was filed for the use of him and his elder brother and his elder brother is running auto from ten years and one shop is running under the name and style Bhanashankari Stores and he is in occupation of the same since two years and it is only a petty shop. It is suggested that both the sons are not depending on the petitioner and the same was denied and also his admission that his father was instructed to file an affidavit and suggestion was made that he was not in need of the premises and the same was denied.

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On the other hand, the revision petitioner also examined himself as RW1 and he reiterated the averments of the objection statement in his evidence. In the crossexamination, he admits that he is doing business in the schedule premises since 1968 and the petitioner is the landlord and he admits that earlier HRC petition was filed against him in HRC No.10666/1991 and other petition was also filed against one Dhanraj in respect of shop No.10 and he also admits that he was

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evicted from shop No.9 and possession was handed over to the petitioner and he volunteers that he surrendered the possession based on the compromise and he retained the present shop No.8. It is also elicited that after HRC No.10666/1991, the time was extended by 3 to 4 times and lastly, time was extended till September 2010. He also admits that he is doing pawn broker business in shop No.8 and recently doing mobile accessories business and not taken any permission. He admits that shop No.9 was let out to Syed Ahamed Ellyaz and he admits that petitioner filed HRC proceedings against the said Syed Ahamed Ellyaz and also he admits that the petitioner is having two sons and both are married but he claims that Dinesh is residing in ground floor, the petitioner is in first floor and Bhaskar is residing in the second floor. It is suggested that the petitioner demanded the shop premises for his sons’ business but the witness volunteers that he demanded causing notice. It is the case of RW1 that Bhaskar is doing business in shop No.10 and Dinesh is doing business in alternative shop in the same building and suggestion was made that shop measures only 6 x 8 feet and the same is insufficient him to do the business and he only

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says that he did not know about the same and not specifically denied. He admits that Bhaskar’s shop is measuring 8 x 12 feet and his shop also measures the same measurement and all these shops are situated side by side. But he denies the requirement of Dinesh to extend his business. It is suggested that Dinesh has quit his job but the witness admits that he was working in M/s P C Mallappa and Sons.

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17. Having re-appreciated both oral and documentary

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evidence placed on record it discloses that there is no dispute with regard to the relationship between the parties as landlord and tenant and also no dispute with regard to the premises which is in occupation of the petitioner and the respondent also admits that earlier he was in occupation of two shops and one he has surrendered in view of the compromise. It is the case of the petitioner that petition schedule premises is required to accommodate his sons. No dispute with regard to the fact that the petitioner having two sons and also no dispute that he is a retired person and aged about 85 years and the Trial Court having taken note of the said fact comes to the conclusion that it

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is bounden duty of the petitioner to accommodate his sons to settle them. No doubt, it is emerged in the evidence of witnesses that shop which was taken to the possession of the petitioner i.e., shop No.10 in which his first son Bhaskar is doing the business and it is also elicited that second son is doing the business but measurement is stated only 6 x 8 feet and the revision petitioner also categorically admits that shop measurement of first son is 8 x 12 and his shop also measures the same measurement. The other son is having business only in the shop measures 6 x 8 feet and he intends to extend the business and hence, the revision petitioner cannot be contended that the respondent/respondent is not in need of requirement. It is also important to note that though he took the contention in the written statement that shops are not adjacent but in the cross-examination RW1 categorically admits that all the shops are in existence side by side. The specific suggestion was made to him that other son Dinesh intends to extend his business and though it is denied, it is clear that shops are located by the side by side. When such being the case, the very contention of the

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revision petitioner is that requirement is not bona fide requirement cannot be accepted.

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No doubt, the counsel for the revision petitioner relied upon the judgment of the Apex Court with regard to filing of an affidavit. But it is settled law that even if an affidavit is filed as contemplated by Explanation (i) is rebuttable and the tenant can lead evidence to show that the landlord does not require the premises for his own occupation or for any member of his family dependent on him for that his need is not bona fide. But in the case on hand the other contention is taken by the revision petitioner that no affidavit is filed but on perusal of the petition it discloses that verification is made in the petition itself

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and apart from that separate affidavit is filed along with the petition reiterating the very averments made in the petition and hence, the very contention that no affidavit is filed cannot be accepted though the same is termed as verifying affidavit, but there is a verification in the petition itself and separate affidavit is filed and contents of the petition are verified by the respondent.

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No doubt, the other judgment of this Court is with

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regard to presumption regarding requirement of landlady. When the requirement is rebuttable, presumption can be drawn but presumption can be rebutted in view of the principles laid down in the judgments referred supra. When such being the case, the Trial Court taken note of both oral and documentary evidence placed on record. I have already pointed out that in the crossexamination of RW1 a suggestion was made to the witness that a specific measurement of the premises in which the other son i.e., Dinesh is doing business, intends to extent the business and

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he also categorically admits the measurement of his premises and also the premises of other son Bhaskar who is running the business in shop No.10 and it cannot be contended that the tenant has rebutted the evidence of the petitioner and though an answer is elicited that his sons are not depended but the fact is that father and other two sons also living in the same building may be they are having separate kitchen that itself is not a ground to comes to the conclusion that requirement is not bona fide. It is elicited from the mouth of RW1 that both the sons are

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married and he categorically admits that the petitioner has demanded the shop premises for his sons business but he volunteers that he demanded in the form of notice. Whether in the form of notice or by request is immaterial. But the fact is that both the sons are married and they are having family and in order to accommodate two sons, the petitioner is in need of the petition schedule property and in respect of other premises i.e., shop No.9. RW1 categorically admitted that case is also filed against other tenant in respect of shop No.9. When such admission is given by the respondent in the Trial Court, the requirement of the petitioner cannot be termed as no requirement.

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It is also important to note that in the crossexamination of RW1, he categorically admitted that he is doing business in the premises since 1968 and the landlord is accommodated him to do business in said premises from 1968. When such being the material on record, the requirement of the petitioner cannot be termed as no requirement at all and the relationship between the parties is accepted and the petitioner is

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having two sons also accepted and both the sons are married is also admitted and both are residing separately along with their respective family is also admitted. When the petitioner proved that he is in need of the suit schedule property, the very contention of the revision petitioner that already they are having two shops cannot be accepted. It is the desire of the petitioner i.e., the landlord to accommodate his sons and the tenant cannot come in the way in extending the business of two sons though they are doing the business in the said shop. I have already pointed out that merely because they are living separately is not a ground when there is an admitted fact that all of them are residing in the very same building and the shop premises are in the ground floor and presumption has not been rebutted by adducing any rebuttable evidence and the judgments which have been relied upon by the revision petitioner counsel is not coming to the aid of the revision petitioner to reverse the finding of the Trial Court. Hence, I do not find any grounds to set aside the order of the Trial Court and there is no merit in the revision petition. Hence, I answer the said point as negative.

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Point No.2:

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