Sri Syed Riyaz Ahmed Vs Sri K B Mariyappa

SRI SYED RIYAZ AHMED S/O LATE SRI SYED AHMED AGED ABOUT 56 YEARS OCC: CLOTH BUSINESS BEING CARRIED IN SHOP PREMISES BEARING SHOP NO.9 IN GROUND FLOOR OF THE BUILDING BEARING CORPORATION NO.8, 9 & 10 SEEPINGS ROAD BENGALURU - 560 001 RESIDING AT NO. 167 NARAYANA PILLAI STREET BENGALURU - 560 001.

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…PETITIONER

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(BY SRI: G S VENKAT SUBBA RAO, ADVOCATE)

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AND:

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Digitally signed by NANDINI B G Location: High Court of Karnataka

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SRI K.B. MARIYAPPA SINCE DEAD BY LRS

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1(A) SMT. NALINI W/O LATE SRI. K.B. MARIYAPPA AGED ABOUT 75 YEARS

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1(B) SRI. K.M. BHASKAR S/O LATE SRI. K.B. MARIYAPPA AGED ABOUT 53 YEARS

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1(C) SRI. K.M. DINESH S/O LATE SRI. K.B. MARIYAPPA AGED ABOUT 51 YEARS

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1(D) SMT. VANNITHA D/O LATE SRI. K.B. MARIYAPPA AGED ABOUT 54 YEARS

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ALL ARE RESIDING AT: NO.8, 1^ST FLOOR SEEPINGS ROAD BENGALURU - 560 001

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…RESPONDENTS

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(BY SRI: CHIKKANAGOUDAR L.S., 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 12.02.2019 PASSED IN HRC.NO.10014/2017 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE, AND XXIV ACMM., MEMBER MACT., BENGALURU, ALLOWING THE PETITION FILED UNDER SEC.27(2) (A)(R) OF THE KARNATAKA RENT ACT, 1999.

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THIS HRRP, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL ORDER

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The revision petitioner - tenant being the respondent in HRC.No.10014/2017 on the file of the learned V Additional Small causes Judge and XXIV Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru (SCCH 20), is impugning

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the judgment dated 12.02.2019 allowing the petition filed by the petitioner therein; directing the tenant to vacate the schedule premises; to hand over the vacant possession within

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30 days, pay damages at the rate of Rs.3,500/- per month for use and occupation of the schedule premises and holding that the petitioner is entitled to adjust the amount that is due from the security deposit of Rs.1,00,000/- paid by the tenant and to refund the balance amount.

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the petitioner - landlord filed HRC No.10014 of 2017 before the Trial Court against the respondent - tenant under Section 27(b)(r) of Karnataka Rent Act, 1999, (for short 'KR Act') seeking for an order directing the respondent to vacate and hand over the vacant possession of the schedule shop premises and also to direct to pay the user charges in respect of the petition schedule premises from the date of petition till handing over the possession.

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It is contended by the petitioner before the Trial Court that he is the owner of the building bearing Corporation Nos.8, 9 and 10, Seepings Road, Bengaluru, as he acquired it under oral partition, which is evidenced from palupatti dated

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25.03.1991. Accordingly, his name came to be entered in the revenue records with BBMP. He was paying the tax regularly. It is contended that the property bearing Corporation Nos.8, 9 and 10 comprises of three floors including the ground floor. Petitioner along with his family was residing in the first and second floor of the building. The ground floor consists of three tenements facing the main road. Shop No.9 in the ground floor is the subject matter of the petition which is described in the schedule attached to the petition as it measures 120 sq ft, with the boundaries mentioned therein.

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It is contended that the schedule premises was occupied by the respondent as tenant as per the lease agreement dated 05.04.2004. He agreed to pay rent of Rs.2,000/- and paid Rs.1,00,000/- as security deposit. Defendant agreed to pay the rent on or before 10^th of every succeeding English calendar month, subject to enhancement at 10% for every three years.

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The petitioner contended that shop No.8 was in the occupation of another tenant by name Devilal Bafna. The petitioner is in need of shop Nos.8 and 9 i.e., shop No.8 being

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in possession of Devila Bafna and shop No.9 is in occupation of the respondent, for the purpose of accommodating his married sons by names K M Bhaskar and K M Dinesh, who intend to do business of their choice. It is stated that there are no other suitable accommodation to provide for his sons for the purpose of carrying on their business. It is stated that separate petition was filed against the tenant by name Devilal Bafna who was in occupation of shop No.8.

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It is contended by the petitioner that the respondent has sublet the premises in favour of a third party, violating the terms of lease and collecting much higher rent, even though at the time of filing the petition, the respondent was liable to pay sum of Rs.3,800/- per month. It is stated that the respondent had maintained secrecy about the name and other details of the sub tenant.

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The petitioner contended that since the schedule premises is required by his two sons for carrying on the business, he has issued the legal notice dated 24.08.2016 calling upon the respondent to vacate the premises. The respondent has issued the reply dated 03.09.2016 taking

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untenable contentions. Since the respondent was not ready to vacate and hand over the premises, the petitioner has filed the petition seeking eviction under Section 27(2)(b) and (r) of Karnataka Rent Act.

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The respondent has appeared before the Trial Court and filed his statement of objections denying the contention taken by the petitioner. The respondent admitted that the petitioner is the owner of schedule premises and he also admitted the nature of property as described in the petition and that the petitioner stays in the first and second floor of the building along with family. The ground floor consists of three tenements and the petitioner has let out the schedule premises under the lease agreement dated 05.04.2024 in favour of the

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respondent. Respondent denied the contention of petitioner that the schedule premises is required to accommodate the sons of petitioner to carry on the business. It is contended that in ground floor, the petitioner is running a general store which was looked after by his sons. Therefore, the requirement of petitioner to accommodate their son to carry on the business is only a make believe story to evict the respondent.

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The respondent denied the contention of petitioner

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that he sub-let the premises and thereby violated the conditions of lease agreement. It is contended that the business of respondent is being run through his employees. Respondent while admitting that he is in receipt of legal notice dated 24.08.2016 contended that the same is suitably replied. Respondent contended that he is not liable to pay user charges or to deliver the vacant possession. It is also contended that the respondent is a businessman carrying on business in the schedule premises which is the only source to his livelihood and he is not in a position to look for alternative accommodation. Therefore, prayed for dismissal of the petition.

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The petitioner examined himself as PW1 and got marked Exs.P1 to P7 in support of his contention. The respondent examined RW1 and got marked Exs.R1 and R2 in support of his defence. The Trial Court after taking into consideration all these materials on record, held that the petitioner is entitled to evict the respondent and for vacant possession of the schedule premises under Section 27(2)(r) of Rent Act. However, in the operative portion of the judgment, it

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is held that the petition filed under Section 27(2)(a) and (r) of Rent Act is allowed with costs. It is noticed that the petitioner has never invoked Section 27(2)(a) of the Rent Act, nor there is any discussion by the Trial Court in the impugned judgment with regard to arrears of rent and hence, it could be safely concluded that a typographical error has crept in the operative portion of impugned judgment. Being aggrieved by the impugned judgment and order, the respondent has preferred this revision petition.

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Heard Sri G S Venkatsubba Rao, learned counsel for the petitioners and Sri L S Chikkanagoudar, learned counsel for the respondents. Perused the materials on record.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the revision petitioner has made out any grounds to allow the petition?"

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My answer to the above point is in the 'Partly in the affirmative' for the following:

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REASONS

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It is the contention of petitioner - landlord that he is

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the owner of schedule premises which was leased in favour of respondent - tenant under a lease agreement produced as per Ex.P2. It is the contention of petitioner that shop bearing No.9 measuring 120 sq ft situated in ground floor of the building referred to as schedule premises described in schedule is the subject matter of lease. The jural relationship between the parties and entering into lease agreement as per Ex.P2 are admitted by the respondent.

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It is the further contention of petitioner that he was aged 85 years when the petition was filed in the year 2017. He was having two sons by name K M Bhaskar and K M Dinesh. He wanted the schedule premises to accommodate his sons who are willing to carry on the business. This fact is denied by the respondent. Even though the petitioner has contended that the respondent has sublet the premises in favour of another person and is collecting higher rent, the same was not accepted by the Trial Court and no order of eviction was passed under Section 27(2)(b) of the Act. The petitioner has not challenged the said order rejecting his claim on the ground of sub letting.

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The only contention taken by learned counsel for the tenant is that even though the petitioner is having two sons by name K M Bhaskar and K M Dinesh, they are already carrying on business in one portion of ground floor, along with the petitioner and therefore, there is no bonafides in the claim made by the petitioner.

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The petitioner has filed his affidavit-in-lieu of examination-in-chief re-iterating his contention as taken in the petition. During cross examination, it is elicited that his both sons are intending to expand their business in the schedule premises. The witness admitted that his sons are doing business in the general store, which is situated in the ground floor in two shops measuring 15 x 9 feet respectively. It is elicited that they were doing business since 8 years as he employed them in carrying on his business. The contention of the petitioner that his sons who are assisting him in his business are intending to expand their business was never challenged in the entire cross examination.

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The respondent has filed his affidavit-in-lieu of examination-in-chief re-iterating the defence taken in the

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objection statement. He admits that he was paying rent of Rs.3,400/-. He denied the suggestion during cross examination that sons of the petitioner are not doing any business in the building, where the schedule premises is situated. He also denied the suggestion that there is no alternative accommodation for the petitioner to accommodate his sons. However, he denied the suggestion that he can avail alternative accommodation to run his business.

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Section 27(2)(r) of the Rent Act reads as under:

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"27. Protection of tenants against eviction:-

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(2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

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(r) that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."

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Bare reading of this Section makes it clear that the landlord can seek eviction of the tenant from the premises, when the same is required by the landlord either for reconstruction or rebuilding or for occupation for himself or for any member of his family, if he has no other reasonably suitable accommodation. Therefore, the petitioner is required to prove his contention that the petition schedule premises is required for occupation by his sons for the purpose of carrying on business and that he has no other reasonably suitable accommodation.

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The oral evidence led by the petitioner as referred to above discloses that the petitioner has categorically stated that his sons intend to expand the business and for such purpose he wants the petition schedule premises. There is no cross examination to the witness in that regard. Admittedly, the petitioner was aged 85 years at the time of filing the petition and was running a business in the ground floor. It is not in dispute that his sons were assisting the petitioner in carrying on such business. During the pendancy of this revision petition, the original petitioner died and his sons are impleaded

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as respondents. Respondent Nos.2 and 3 are none other than K M Bhaskar and K M Dinesh referred to by the petitioner in the petition. When both sons of the petitioner were assisting him in the business in a portion of larger building in the ground floor, I find bonafides on the part of petitioner in seeking vacant possession of the schedule premises to accommodate his married sons for the purpose of carrying on business or to expand their business. Now after lapse of morethan 8 years, the original petitioner died and his sons who are admittedly carrying on business in a small premises cannot be expected to continue with the same without seeking to expand their business or to carry on business separately.

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It is not the contention of the respondent that the

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petitioner is having any other reasonably suitable accommodation to accommodate his sons. Once the petitioner proves his requirement, the burden shifts on the tenant to prove that the petitioner is having such reasonably suitable accommodation where he can accommodate his sons. It is not

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even the contention of the respondent that the petitioner is having such reasonably suitable accommodation. Under such

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circumstances, I am of the opinion that the petitioner has proved his requirement under Section 27(2)(r) of the Act and the respondent is liable to be evicted.

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The other contention taken by learned counsel for the tenant is with regard to the order passed by the Trial Court directing the tenant to pay damages of Rs.3,500/- per month for use and occupation of the schedule premises and permitting the petitioner to adjust amount due from the security deposit of Rs.1,00,000/- and to refund the balance amount.

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Learned counsel for the tenant has placed reliance

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on the decision of this Court in Abdul Wajid Vs A S Onkarappa¹ , where the Full Bench has taken the following points for consideration:

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i) Whether the Court of Small Causes constituted under KSCC Act has jurisdiction to take cognizance of suit filed for ejectment by the landlord against the tenant in respect of the premises to which KR Act does not apply, and the lease of which has either come to an end by efflux of time limited thereby or has been duly determined by issuing notice in accordance with law or the permission to occupy has been withdrawn?

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1 ILR 2011 KAR 229

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ii) Whether the decision of the Division Bench in Sarojamma's case (supra) lays down correct law?

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Therefore, the Full Bench of this Court basically considered the position of law with regard to the jurisdiction of Court of Small Causes constituted under Karnataka Small Causes Courts Act (KSCC Act), to take cognizance of the suits filed for ejectment by the landlord, in respect of the premises excluding the premises to which KR Act is made applicable.

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In the present case, admittedly, the schedule premises falls within the ambit of KR Act and therefore, the landlord has invoked the provisions of KR Act. The Special Court notified under the Act has tried the HRC petition. Under such circumstances, the decision relied on by the learned counsel for tenant is not applicable to the facts in the present case.

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The KR Act is enacted to provide for the regulation of rent and eviction of tenants, in certain areas of State of Karnataka, and the matters connected therewith or incidental thereto. This enactment is a beneficial legislation to safeguard the interest of the tenants against arbitrarily fixation of rent or

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eviction of tenants. Section 27 in Chapter VI of KR Act specifically deals with protection of tenants against eviction. Unless a specific case is made out under any of the clauses under Section 27(2) of KR Act, the owner will not be entitled for eviction of the tenant and to get vacant possession. The KR Act never deals with recovery of arrears of rent, except under Section 27(2)(a) of KR Act, where the owner can issue notice demanding whole of the arrears of rent or other charges. If the tenant fails to pay the arrears of rent within the specified period, inspite of receipt of the notice, it will be a ground for his eviction.

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Having said thus, Section 45 of KR Act cannot be lost sight of that the tenant against whom an application for eviction has been made by a landlord under Section 27 of KR Act, shall be entitled to contest the application before the Trial Court or to prefer or prosecute a revision petition under Section 46 of KR Act, against an order of the Trial Court, unless he has paid or pays to the landlord or deposits with the Court concerned, all arrears of rent and other charges due in respect of the premises. If the tenant fails to pay or deposit the rent,

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unless sufficient cause is shown, the further proceedings is to be stopped directing the tenant to put the landlord in possession of the premises by dismissing the appeal or the revision petition, as the case may be.

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In this case, unfortunately Section 45 of KR Act was never invoked even though the revision petition was pending since 2019. It was also not invoked when the matter was pending before the Trial Court since 2017. When the provisions under KR Act do not contemplate the recovery of arrears of rent, except under the circumstances discussed above, the landlord is entitled to recover the arrears of rent from the tenant by instituting a suit in that regard in accordance with law. It is the settled position of law that a tenant under KR Act, against whom a petition under Section 27(2) of the KR Act is filed will not be considered to be in unlawful possession of the premises, to make him liable to pay damages. Until he is evicted from the premises in question, he will continue to be the tenant and liable to pay the rent or the arrears of rent, as the case may be.

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The Trial Court has lost sight of this position of law

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and awarded damages at the rate of Rs.3,500/- per month payable by the tenant for use and occupation of the schedule premises from the date of petition till handing over the possession. The said portion of the order is liable to be set aside. However, the petitioner is entitled to have a lien over the security deposit of Rs.1,00,000/- paid by the tenant until the tenant clears the arrears of rent.

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In view of the above, I answer the above point 'partly in the affirmative' and proceed to pass the following:

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ORDER

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i) The petition is allowed-in-part .

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ii) The judgment and order dated 12.02.2019 passed by in HRC No.10014 of 2017 on the file of learned V Additional Small Causes Judge and XXIV Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru (SCCH20), allowing the petition filed under Section 27(2)(r) of Karnataka Rent Act, 1999, is confirmed.

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