Allowed

Sri Kewalchand Nahar v. Sri S B Kavesh

Karnataka HC22 Jan 2024HRRP/107/2014

Case brief

AI extract

What is this about?

The High Court allowed this Rent Act revision petition. It set aside the trial court's eviction order for failure to prove bona fide need of the landlord. It remitted the case for reconsideration and ordered the landlords to restore the tenant's possession pending further proceedings.

What did the court decide?

The eviction order dated 12.08.2014 is set aside; the case is remitted to the Trial Court for a fresh hearing on merits; and the tenant is ordered to be restored to possession of the premises.

Sri Kewalchand Nahar Vs Sri S B Kavesh — Landlord and Tenant | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF JANUARY, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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HOUSE RENT REVISION PETITION NO.107 OF 2014

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BETWEEN:

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SRI. KEWALCHAND NAHAR D/O PRITHIVIRAJ NAHAR, AGED ABOUT 68 YEARS, OLD NO. 16/2, NEW NO.13/2, D.S. LANE, CHICKPET, BANGALORE-560053.

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...PETITIONER

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(BY SRI. P.D.SURANA, ADVOCATE)

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AND:

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SRI. S.B. KAVESH S/O LATE SRI. SHIVALINGAPPA, AGED ABOUT 40 YEARS, RESIDING AT OLD NO.P3/172, NEW NO. 15, 4^TH CROSS, AZAD NAGAR, BANGALORE-560018.

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SMT. SUNANDA DEVI W/O LATE SRI. SHIVALINGAPPA, AGED ABOUT 68 YEARS, RESIDING AT OLD NO.P3/172, NEW NO. 15, 4^TH CROSS, AZAD NAGAR, BANGALORE-560018

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SINCE DEAD REPRESENTED BY HER LR RESPONDENT NO.1

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AMENDMENT CARRIED OUT AS PER THE ORDER DATED 07.11.2023.

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…RESPONDENTS

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(BY SRI. SATISH KUMAR, ADVOCATE FOR RESPONDENT NOS.1 AND 2)

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THIS HRRP IS FILED UNDER SECTION 46 OF KARNATAKA RENT ACT, 1999, AGAINST THE ORDER DATED 12.08.2014 PASSED IN HRC NO.142/2013 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES AT BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 27(2)(r) OF KARNATAKA RENT ACT.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 08.11.2023 AND COMING ON FOR PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner has filed this revision petition under Section 46 of the Karnataka Rent Act, 1999 (henceforth referred to as ‘Act of 1999’) challenging an order dated 12.08.2014 passed by the Chief Judge, Court of Small Causes, Bengaluru (henceforth referred to as ‘Trial Court’) in HRC No.142/2013 by which, he was ordered to quit and deliver vacant possession of the petition premises to the respondents.

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The parties shall henceforth be referred to as

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they were arrayed before the Trial Court. The petitioner was a tenant/respondent, while the respondents were the petitioners in HRC No.142/2013.

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An eviction petition was filed in HRC No.142/2013 contending that the property bearing old No.16/2 new No.13/2, 1^st Cross, D.S. Lane Chickpet, Bengaluru belonged to Sri. R. Chikkaveerappa i.e., the grandfather of the petitioner No.1 and father of petitioner No.2. After his death, a suit for partition and separate possession was filed by petitioner No.2 and Smt. Sunitha in O.S.No.298/1972. The said suit was decreed on 29.11.1977. The petition property was allotted to the share of the petitioner No.2 and Smt. Sunitha in FDP No.62/1991. Later, Smt. Sunitha sold her share to the petitioner No.1 on 15.05.2013. The petitioners contended that the respondent was a tenant under them and that Smt. Sunitha and the petitioner No.2 had requested him to vacate the premises in March, 2008. However, the tenant

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had requested for time till 1^st of December, 2011 to vacate the premises. The petitioners contended that the tenant was liable to pay monthly rent of Rs.6,000/- as agreed but he did not pay any rent till the end of December, 2011 and did not vacate the premises. However, the tenant caused a notice dated 01.01.2012 claiming that Sri. B. R. Chikkaveerappa was receiving the rent and after his demise, his wife Smt. Gowramma was receiving the rent and thereafter, her son Chandrappa was receiving the rent. After the demise of Chandrappa, his wife Smt. Gowramma was receiving the rent. He claimed that he was liable to pay monthly rent of Rs.350/- and that the total rent payable from July 2006 till December 2011 was Rs.23,100/- of which, he deducted a sum of Rs.11,510/towards property tax and forwarded two cheques for Rs.5795/- in favour of petitioner No.2 and Smt. Sunitha. The petitioners therefore, claimed that the tenant was liable to be vacated for non-payment of the arrears of rent under Section 27(2)(o) of the Act of 1999. Besides this, they claimed that they wanted the petition premises for

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their use and occupation. Consequently, they caused a notice upon the tenant to quit and deliver vacant possession, which was not complied by the tenant. Therefore, the petitioners sought eviction of the tenant from the petition premises.

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In reply, the tenant filed a detailed statement of objections contending that the petitioner No.1, who allegedly had purchased the portion of the petition premises on 15.05.2013, could not have initiated a petition for eviction for a period of one year from the date of the purchase in view of proviso contained in Section 27(2)(r) of the Act of 1999. He therefore, contended that the petition is liable to be rejected. He claimed that he was a tenant under B.R. Chikkaveerappa from the year 1958, which was permanent in nature and that he was entitled to continue as a tenant for all times to come as B.R. Chikkaveerappa had agreed not to evict him. He claimed that on the demise of B.R. Chikkaveerappa his wife was collecting the rent and later her son was collecting the

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rent. He claimed that he was paying monthly rent of Rs.45/- in the year 1958. He contended that the petitioner Nos.1 and 2 cannot maintain a single petition for eviction. He also denied that he was agreed to pay monthly rent of Rs.6,000/- and also claimed that he was not in arrears of rent. He therefore, contended that he was not liable to be evicted under Section 27(2)(o) of the Act of 1999.

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Based on these contentions, the petition was set down for trial. The petitioner No.1 was examined as PW.1 and he marked Exs.P1 to P8, while the tenant was examined as RW.1 and he marked Exs.R1 and R2.

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Based on the oral and documentary evidence,

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the Trial Court held that there was a jural relationship of landlord and tenant. It held that the tenant had not paid any rent even after coming to know that the petition premises fell to the share of petitioner No.2 and Smt. Sunitha. It held that under Section 45 of the Act of 1999,

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a tenant cannot contest a petition filed under Section 27(2)(r) of the Act of 1999 without paying the rent. It

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held that though the petitioners have required the premises for their bonafide use and occupation, the same was not denied by the tenant and as the petitioners did not have any alternate premises, it held that the presumption under Section 27(2)(r) of the Act of 1999 could be drawn. It held that the petitioner No.2 was a senior citizen and she had invoked Section 31(1)(c) of the Act of 1999. However, there was no pleading and proof to invoke Section 31(1)(c) of the Act of 1999. In so far as the contention that the petitioner No.1 could not have filed a petition for eviction within one year from the date of purchase, the Trial Court held that the mother of the petitioner No.1 had got a share in the decree of partition and that the petitioner No.1 had purchased a shop from another person who got a share and therefore, was not an exclusive property of the petitioner No.1. It therefore, held that the petition filed by the petitioner No.1 was not immature and consequently, directed the tenant to quit and deliver vacant possession of the petition premises.

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Being aggrieved by the said order, the tenant has filed this revision petition.

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The learned counsel for the tenant raised the following contentions:-

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i) The petitioners have claimed in the eviction petition that the tenant had orally agreed to pay a monthly rent of Rs.6,000/and therefore, the provisions of the Act of 1999 was not applicable. The Trial Court was bound

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to take this into consideration before proceeding any further, as the jurisdiction of the Court has to be determined based on the averments made in the petition. He contended that the Trial Court blissfully ignored this pleading in the petition resulting in an illegal order of eviction.

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ii) That the petitioner No.1 had purchased portion of the property from Smt. Sunitha on 15.05.2013. The petition for eviction was filed on 04.07.2013. Therefore, the petition at the instance of the petitioner No.1 was prematured, as an eviction under Section 27(2)(r) of the Act of 1999 could not be initiated by a purchaser within one year from the date of purchase under proviso to Section 27(2)(r). He relied upon the judgment of the Hon’ble Supreme Court in Nathi Devi vs. Radha Devi Gupta [AIR 2005 SC 648] . He also referred to the judgments of a Coordinate Bench of this Court in the case of T.P. Lakshmi Narasamma vs. Rajalakshmi and another [ILR 2008 KAR 3835] and T.L. Kumaraswamy vs. Sri John

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Menezes [ILR 2005 KAR 4104] .

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iii) That the petitioners had jointly filed a petition to evict the tenant from the composite property and therefore, if the petition filed by the petitioner No.1 is rejected, the petition filed by the petitioner No.2 cannot be dealt with. iv) That there was no pleading or proof of the bonafide requirement of the petitioners and therefore, the Court committed an error in holding that the tenant had failed to rebut the presumption under Section 27(2)(r) of the Act of 1999. He contended that even for presumption to be raised, there must be an assertion that the petitioners are in need of premises for their bondafide use and occupation, which they must spell out in the petition and not doing so, should result in the dismissal of the petition. He relied upon the judgment of Division Bench of this Court in G.

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Shoukath and others vs. V. Chandraprakash [2004 (3) KCCR 2026 ]. He further contended that the petitioners had not filed any affidavit in support of their eviction petition and therefore, there was no presumption about the legitimacy of their need. In this regard, he relied upon the judgment of the Hon’ble Supreme Court in Samanthara Baddi vs. Chanabasappa [2008 (10) SCC 685] .

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That during the pendency of the petition, the petitioners had constructed the first and second floor, which was let out to tenants who are doing business in cloth. Therefore, when the shops were available, they were not offered to the tenant and hence, the instant eviction petition is liable

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to be dismissed. He relied upon the judgment of the Hon’ble Supreme Court in

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Deena Nath vs. Pooran Lal [2001 (5) SCC 705] and K.N. Anantharaja Gupta vs. D.V. Usha Vijaykumar [AIR 2008

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SC 539] .

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During the pendency of this revision petition, the tenant has deposited rent of Rs.23,840/- for the period July, 2006 to November, 2014 and Rs.4550/- from December, 2014 to December, 2015. The tenant contended that though interim stay was granted by this Court on 14.12.2014, which was extended from time to time, but inadvertently was not extended from 18.07.2016. Thus, taking advantage of this, the petitioners had filed an execution petition and had dispossessed the tenant on 06.12.2016. He therefore, filed an application (I.A.No.1/2016) for restoring the possession of the petition premises. An application (I.A.No.1/2017) is also filed to amend the written statement claiming that apart from the petition premises there was another premises located on the eastern side, half of which fell to the share of mother of the petitioner No.1, while the other

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half fell to the share of Smt. Shivamma, who died leaving behind her two sons Sri K.S. Sagar and K.S. Chandan, who sold it in favour of petitioner No.1 in terms of sale deed dated 05.12.2012. The petitioner No.1 has not only become the owner of the petition premises but also the owner of the adjoining premises which had fallen vacant. He claimed that the premises adjoining the petition premises was rented out to Selva Kumar, who was running a business in hosiery and therefore, the petitioners are not in need of the premises for their use and occupation. He also filed I.A.No.1/2019 for an order of injunction to restrain the petitioner No.1 from inducting any third party into the premises. Similarly, an application under Order XLVII Rule 27 of CPC (I.A.No.2/2017) was filed for production of additional documentary evidence. The learned counsel for the tenant therefore, contended that the possession of the petition premises is liable to be restored in view of Section 144 of CPC. In this regard, he relied upon the judgment of the Orissa High Court in Garuda Singh Majhi vs. Dhana Bai and others [AIR

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1989 ORISSA 103], T. Ramachandra and others vs. N. Ranganatha Chettiar [AIR 2003 KAR 489], State of Gujarat and others vs. Essar Oil Limited and another [(2012) 3 SCC 522] and Indore Development Authority vs. Shailendra and others [AIR 2018 SC 824] .

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Per contra, learned counsel for the petitioners/landlord submitted as follows:-

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(i) that the tenant did not raise any question regarding the jurisdiction of the Court on

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the ground that the petitioners had claimed that the rent payable was Rs.6,000/per month. He therefore, contends that the petitioners cannot raise this contention in the revision petition. He referred to Section 21 of the Code of Civil Procedure and contends that the objection regarding jurisdiction ought to be raised

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before the Court of first instance at the earliest possible opportunity.

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(ii) That though the petitioner No.1 had purchased a portion that fell to the share of Smt. Sunitha, the eviction petition in so far as petitioner No.1 is concerned could be returned and not rejected while the eviction petition in so far as petitioner No.2 is concerned, could be considered. He submitted that the Trial Court has rightly held that the property purchased by petitioner No.1 was not his exclusive property and therefore, the eviction petition at his instance was not premature. (iii) That the tenant had failed to pay the rent which was evident from the deposit made by him before the Trial Court from July, 2006 till December, 2015. Therefore, he was not entitled to contest the petition

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filed by the petitioners under Section 27(2)(r) of the Act of 1999.

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(iv) That the petition premises was located in a commercial area and the same was admitted in the written statement filed by the tenant. Therefore, the bonafide need of the petitioners could not be suspected and the tenant did not establish that the need of petitioners was not bonafide.

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(v) That though the petitioners had

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constructed the first and second floor over the petition premises, that was neither suitable for their intended business. The learned counsel did not dispute the fact that the petitioner No.2 was allotted another premises adjacent to the petition premises and that the same was rented out to another tenant who was doing business in hosiery.

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(vi) That the possession of the premises was taken as there is no stay of the impugned judgment passed by the Trial Court.

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I have considered the submissions made by the learned counsel for the petitioners and the learned counsel for the tenant. I have also perused the records of the Trial Court as well as its order.

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The tenant admitted that he was inducted into the petition premises by Sri. B.R. Chikkaveerappa, the father of the petitioner No.2. He claimed that the last paid rent was a sum of Rs.350/- per month and that he was paying it to the wife of B.R. Chikkaveerappa and later to his son – Chandrappa and upon the death of Chandrappa, to his wife. There is no dispute that upon a suit for partition filed against B.R. Chikkaveerappa by the petitioner No.2 and Smt. Sunitha, the petition property was allotted to the share of the petitioner No.2 and Smt. Sunitha. The tenant acknowledged this fact by issuing a notice dated 01.01.2012 (Ex.P3). He also identified the

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petitioner No.2 and Smt. Sunitha as the owners of the petition property and forwarded a cheque for a sum of Rs.5,795/- to each of them towards the arrears of rent from July, 2006 till December, 2011. The petitioner No.2 addressed a notice dated 18.01.2012 calling upon the tenant to quit and deliver vacant possession of the petition premises and claimed that the tenant had agreed to vacate the premises by or before 01.12.2011 and had agreed to pay rent at the rate of Rs.6,000/- per month, which he did not. After the petitioner No.1 purchased the share of Smt. Sunitha, he and petitioner No.2 caused a notice dated 03.06.2013 (Ex.P5) again demanding the tenant to quit and deliver vacant possession as he had agreed to vacate the premises by or before 01.12.2011. Even in this notice too, the petitioners had claimed that the tenant had agreed to pay monthly rent of Rs.6,000/-. In the petition filed for eviction, the petitioners claimed to be the owners of the suit property, which totally measured 119 sq. ft. and was let-out for commercial purposes. They contended that the petitioner No.1 had purchased 58.75 sq. ft. that fell to

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the share of Smt. Sunitha on 15.05.2013. Both of them claimed that in March, 2008, the petitioner No.2 and Smt. Sunitha requested the tenant to vacate the premises for their personal use and that the tenant had agreed to vacate by or before 01.12.2011. They claimed that the tenant was liable to pay monthly rent of Rs.6,000/- as per the oral understanding but he did not pay the rent as agreed and did not vacate the petition premises. They alleged that the tenant falsely claimed that the monthly rent was Rs.350/-. Even the evidence of PW.1, he stated that the tenant was liable to pay monthly rent of Rs.6,000/- as per the oral understanding.

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In the cross-examination of PW.1, it was suggested as follows:-

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“It is true to suggest that, out of the schedule premises, the share given to my mother is 5 x 11 ½ feet. It is true to suggest that, another portion measuring 5 x 11 ½ feet has fallen to the share of her sister Sunitha.”

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The fact that the tenant had admitted that both petitioner No.2 and Smt. Sunitha were the landladies, establishes that the tenant was fully aware that he was a tenant under both them in respect of distinct properties. In view of the aforesaid, let me consider the contentions urged by the learned counsel for the tenant.

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The first contention is that the petitioners claimed that the tenant had orally agreed to pay rent of Rs.6,000/- per month and therefore, the provisions of the Act of 1999 was not applicable. It is not in dispute that the provisions of the Act of 1999 is inapplicable to a premises, where the deemed rent on the date of commencement of the Act and the standard rent exceeds Rs.3,500/- per month as provided under Section 2(3)(e)(i) of the Act of 1999. However, in the present case, the tenant has acknowledged that the petitioner No.2 and Smt. Sunitha were the owners of distinct portions of the petition property and accordingly, he had forwarded the cheques to both of them towards payment of the arrears of

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rent from July, 2006 to December 2011. In the petition filed for eviction as well as the notices issued by the petitioners, they have all claimed that the tenant had agreed to pay a monthly rent of Rs.6,000/-. If the rent was divided between the petitioners, the deemed rent would be a sum of Rs.3,000/- and therefore, did not exceed a sum of Rs.3,500/- per month. Therefore, the provisions of the Act of 1999 were applicable and the eviction petition could be entertained by the Trial Court under the provisions of the Act, 1999. Therefore, the contention urged by the learned counsel for the tenant is liable to be rejected.

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In so far as second contention urged by the learned counsel for the tenant, it is true that a petition under Section 27(2)(r) of the Act of 1999 could not be filed within one year from the day, the landlord acquired the premises by transfer, as provided under proviso to Section 27(2)(r). The petitioner No.1 claims to have purchased the eastern portion of the petition premises from Smt.

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Sunitha on 15.05.2013. Therefore, the petitioner No.1 could not have filed the eviction petition on 04.07.2013. To this extent, the contention of the learned counsel for the tenant deserves to be accepted. However, the petition for eviction cannot be partly allowed and partly dismissed, as the tenant came in possession of the entire premises under a composite lease. This is notwithstanding the fact that under Section 27(3) of the Act of 1999, the Court is entitled to allow eviction from a part of the premises, if the landlord is agreeable to the same.

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As regards the next contention that the petitioners did not establish their bonafide need, in the case on hand, the petitioner No.2 being the owner of the western portion of the petition premises claimed that she was in need of the petition premises for her own use and occupation. However, the entrance to the petition premises is on the eastern and southern side. The petitioner No.2 owns property on the northern side of the petition premises. The petitioner No.2 who claimed that

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she was in need of petition premises for her own use and occupation, did not enter the witness box and did not claim that she was in need of the premises. On the contrary, there is not even a whisper in the petition as to how and why the petitioner No.2 needs the petition premises. The petitioner No.2 has not even sworn to an affidavit that she was in need of the petition premises and therefore, there was no question of the Court presuming that the need of the petitioner No.2 was genuine. Contrarily, PW.1 admitted that two floors above the suit property were constructed, which were rented out to tenants, who were doing business in clothes. The boundaries of the petition premises show that the petitioner No.2 owns another commercial premises on the northern side of the petition premises. No evidence is adduced regarding the premises on the northern side. It is now stated before this Court that the petitioner No.2 got the premises on the northern side under the partition decree and that she had rented it out to another tenant, who was conducting business in hosiery. Therefore, the petitioners did not establish their

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bonafide need of the petition premises. The contention of the learned counsel for the tenant that the petitioners did not establish their bonafide need to occupy the premises, deserves to be accepted.

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Now coming to the most crucial question regarding the dispossession of the tenant from the petition premises during the pendency of this petition, the same is not disputed. On the contrary, it is claimed that since the interim order granted by this Court was not extended, on 06.12.2016 the petitioners recovered possession through the process of the Court. When the petition was admitted by this Court and an order of stay of eviction was granted, the tenant too would be under the bonafide impression that his possession is protected. The way in which the tenant was dispossessed goes to show that his business was upset suddenly causing hardship and inconvenience apart from the loss in business. The executing Court must have been more conscious while executing the eviction order, more particularly when it was informed that the

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revision petition filed by the tenant was admitted by this Court. Be that as it may, this Court in terms of the order dated 14.12.2016 had directed the petitioners/landlords not to induct any third party in possession of the petition premises. In that view of the matter and in view of the finding recorded that the petitioners could not pursued a joint petition even while the petitioner No.1 was under a disability to file a petition within one year, this Court exercising power under Section 144 of CPC can order restoration of the possession of the tenant in the petition premises. Hence, I.A.No.1/2016 is allowed and the landlords/petitioners shall restore the possession of the petition premises to the tenant.

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In view of the above, the following order is

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passed;

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ORDER

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i) The petition is allowed .

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ii) The impugned order dated 12.08.2014 passed by the Chief Judge, Court of Small Causes,

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Bengaluru in HRC No.142/2013 is set aside and the case is remitted back to the Trial Court for reconsideration on merits.

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iii) In view of the passage of time, the petitioners/landlords are at liberty to adduce fresh evidence in support of their bonafide need of the petition premises for their use and occupation. I.A.Nos.1/2017 and 2/2017 are disposed off reserving liberty to the tenant to place the documents before the Trial Court. Likewise, the tenant is also permitted to lead any fresh evidence, if required.

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iv) It is open for the tenant to file a formal application before the Trial Court seeking restoration of the possession of the petition premises. If an application is filed, the Trial Court shall first pass an order forthwith, without calling for objections from the petitioners/landlords, directing restoration of possession of the petition premises to the

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tenant and thereafter, decide the petition on merits as expeditiously as possible, at any rate, within a period of six months from the date of restoration of possession of the petition premises to the tenant.

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Sd/JUDGE

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PMR

Sri Kewalchand Nahar v. Sri S B Kavesh

Case brief

What is this about?

What did the court decide?

Sri Kewalchand Nahar v. Sri S B Kavesh

Case brief

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