1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAY OF FEBRUARY, 2011 BEFORE THE HON’BLE MR. JUSTICE jAWAD RAHIM HRRP No. 276 OF 2010 BETWEEN: A RAGHURAMA SHETTY AGED ABOUT 57 YEARS S/O SRI ANNAIYA SHETTY KARNATAKA HORTICULTURAL FRUIT AND VEGETABLE SELLING SHOP NO.350, REMCO LAYOUT RPC LAYOUT, 5TH A MAIN,IST D CROSS ROAD IjAYANAGAR II STAGE, BANGALORE 40 PETITIONER (By SRI: T MOHANDAS SHEITY, ADV.) AND SADASHIVA NAIK SINCE DECD BY LRS LAKSHMIDEVAMMA W/O LATE SADASHIVA NAIK Age: 65 S/O SRI C MADAKARI NAIK NO.350, REMCO LAYOUT RPC LAYOUT, 5TH A MAIN, 1ST D CROSS ROAD, VI1AYANAGAR II STAGE, BANGALORE 40, 2. ROOPAKALA W/O DIN ESH NAIK N Age: 35 2 NO.187, 10TH MAIN, 9TH BLOCK 2ND STAGE, NAGARABHAVI BANGALORE. 3. DR.SHASHI KALA S W/O DAYANAND Age: 33 NO.3544, 13TH H CROSS DOOPANAHALLI INDIRA NAGAR 2ND STAGE, BANGALORE. 4. DR.GAYATHRI S W/O SHIVAKUMAR Age: 31 NO.38/C READING ROAD, EDISON, NEW jERCY 08817 5. MADHUKAR S/O LATE SADASHIVA NAIK Age: 31 NO.350 REMCO LAYOUT, RPC LAYOUT, 5TH A MAIN, 1ST D CROSS RAOD, VIJAYANAGAR II STATE, BAN GALORE 40 RESPONDENTS (By Mr. KRISHNA, ADV. FOR M/S SAAN LAW ASSOCIATES, ADVS.) HRRP FILED U/S 46(1) OF K.R ACT, AGAINST THE ORDER DATED: 07.02.2010 PASSED IN HRC.NO.612/2006 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE PETITION FILED U/S 27(2)(q)(r) OF K.R.ACT, ETC., 3 t. THIS PETON IS COMING ON FOR FINAL DISPOSAL ThIS DAY, THE COURT MADE THE FOLLOWING: ORDER The tenant is in revision against the order of eviction against him dated 07.02.2010 in HRC No.612/2006 on the file of the learned Chief Judge, Court of Small Causes, Bangalore. 2. Heard the learned counsel for petitioner and respondents. 3. The contextual facts are: One Sadashiva Naik, initiated proceedings against the petitioner seeking his eviction under Clause (a), (q) and (r) of Section 27(2) of the Karnataka Rent Act, 1999 (hereinafter referred to as ‘the Act’ for brevity) on the assertion that A.Raghurama Shetty — petitioner is the tenant in respect of two shop prernises measuring 8X9 ft and 10X4 ft. on the monthly rent of Rs.1,270/-. He is a chronic defaulter in payment of rent and has failed to pay rents despite demand. 4 Though the tenancy was initially for 11 months which is periodically renewed with effect from 01.02.2006, He further averred that he was in Government service and has since retired, he intends to engage himself in real estate business to generate income for his sustenance. The premises in occupation of the petitioner is best suited for his need. He would be supported in such business by his son Madhukar, who has reasonable experience. Besides these two grounds, he further alleged that tenant had undertaken to vacate the premises but failed to comply with the promise and therefore, he is liable for eviction under Clause (q) of Section 27(2) of the Act. 4. The petitioner tenant resisted the eviction action denying he was defaulter in payment of rent and also refuted landlord’s contention that he requires premises for his own use and occupation. 5. Based on the material proposition in the pleadings the learned trial judge framed relevant points for J. 5 consideration and In the inquiry conducted, the landlord examined himself as PW1, but unfortunately died subsequently on 17.11.2007. His son Madhukar tendered evidence as PW2 on 09.12.2009. In support of petition averments he placed reliance on Ex.P1 to prove the jural relationship of landlord and tenant and copy of the notice requiring the tenant to pay rent and vacate the premises in question as Ex.P2. In rebuttal to such evidence the petitioner — tenant tendered evidence as PW1 and examined 2 witnesses, viz., Venkatachalapathy and N.Narayanaswamy as RW1 and RW2 respectively. Xerox copy of the lease Agreement was filed to show that he has paid advance of Rs.35,000/- which landlord has unjustifiably with held. 6. Analyzing the evidence the learned trial Judge opined that the ground under Clause (q) and (r) of Section 27(2) of the Act were made out but ground under Clause (a) of Section 27(2) of the Act the landlord had failed to establish the tenant was default in payment of rent the petition was consequently allowed directing eviction of the a9, 6 tenant under Section 27(2)(r) and (q) of the Act, while dismissing the petition under Section 27(2)(a) of the Act. The tenant has questioned it in this revision. 7. The learned counsel for petitioner would contend that order impugned is unsustainable as the need projected in the eviction petition by Sadashiva Naik (since deceased) — landlord was no longer existing when the learned trial Judge had passed the impugned order. It he would submit Sadashiva Naik had in his petition in unequivocal terms stated that since he is retired from service he has to engage gainfully himself in the business and in the said business his son would help him. The need projected by Sadashiva Naik was only to enable him to carry on business and eviction was not sought for the benefit of the family. Therefore, upon death of Sadashiva Naik the need is dissipated and therefore, no order of eviction could have been passed under clause (r) of Section 27(2) of the Act. As regards order under clause (q) of Section 27(2) of the Act is concerned, he submits the tenant had at no time / 7 undertaken or notified to the landlord that he would vacate the premises in question and hence the order of eviction under that clause was wholly impermissible. 8. Placing reliance on the evidence of DW2- Venkatachalapathy and DW3-N.Narayanaswamy he would submit that during life time of Sadashiva Naik he evicted two tenants and after taking vacant possession re-let it to other tenant. Therefore, there is no bonafide in the claim. 9. In negation of these grounds the learned counsel for legal heirs of respondent — landlord would submit that the eviction petition was filed under the provisions of Section 27(2) (r) of the Act, which permits eviction of tenant not only for own use and occupation of landlord but for the benefit of his family members, Since Sadashiva Naik died intestate the property devolves on the his legal heirs of Sadashiva Naik, who are respondents herein and they require the premises for their own use and occupation. Therefore, the grounds urged to seek eviction of the tenant 8 under clause (r) was maintainable and the need was subsisting when the impugned order was passed. 10. The learned trial judge has considered the evidence in the right perspective which establish the respondents require premises for their own use and occupation. Regarding eviction under clause (q) of Section 27(2> of the Act he submits that Ex.P1 — lease deed contain specific clause that the tenant would vacate the premises soon after demand is made by the landlord and such term in the Agreement binds the tenant. Therefore, due notice was issued to him requiring him to vacate the premises under that clause and he was liable to vacate the premises. Failure on his part generated cause of action under clause (q) of Section 27(2) of the Act, Hence, order of eviction under that clause is tenable. He refers to the evidence of PW2-Madhukar, who has deposed in support of the petition averments and that is sufficient evidence to confirm the order of eviction. 9 11. The contention of both sides have received my consideration and I have examined the material on record in supplementation thereto. 12. As rightly contended by the petitioner’s counsel it is noticed Sadashiva Naik, who initiated eviction action has in categorical terms stated that having retired from service he intends to engage himself in business of real estate, in which business his son — Madhukar would render assistance. The circumstance in support of such plea undoubtedly shows that Sadashiva Naik himself wanted to carry on with such business with the help of his son Madhukar. There is no averment in the petition that he requires premises in question of his own use and occupation for himself and or other members of the family. He certainly proclaimed he would engage himself in business and for that purpose requires premises. it is also an averment in the petition that Madhukar is already in the business. Had Sadashiva Naik averred he requires the premises for himself and for benefit of family members, even upon his 10 death requirement would subsist. 13. In this regard it is necessary to refer to the decision in the case of the case of G.SHOUKATH vs V.CHANDRAPRAKASH reported in 2004(5) KAR.L.j. 44 (DB), wherein examining the conspectus of provisions of the Act and the provisions of repealed Karnataka Rent Control Act, 1961, clear law is laid down. The word ‘requirement’ must be combined with ‘bona fide and reasonableness’. Though in the present enactment the word requirement is only mentioned, whereas repealed enactment bonafide and reasonableness were the words appearing and it makes no difference. This court has spelt out that genuineness or reasonableness is an attribute implicit in the expression. Unless these two aspects are established, it cannot be said that the Landlord requires premises for own use and occupation, 14. Applying the said dictum to the facts of this case it could be said that though Sadashiva Naik was justified in seeking eviction of the tenant for his own use and 11 occupation it was confined to him only. He had not averred or deposed in evidence that premises is required to carry out business for himself and other family members of the family. Even though learned counsel for respondent endeavored relentlessly to contend that the averment in the eviction petition that PW2-Madhukar would assist him is enough, to sustain the ground, that is no so. He did not state that Madhukar would carry on business in the premises in question. 15. In this view though it could be said that Sadashiva Naik had brought material to establish ‘requirement’ for own use and occupation but it dissipated upon his death. This view is further supported from the fact that even after death of Sadashiva Naik his legal heirs though continued the is did not seek amendment of the eviction petition to plead that even though Sadashiva Naik had expired they require the premises of own use and occupation for all of them or either of them. 16. Besides, even in his evidence PW2-Madhukar 12 has reiterated the grounds urged in petition by Sadashiva Naik without supplementing it further. The relevant portion of his examination in chief is at Para-5 and 6, which is extracted herein: “5. I state that my father had retired from service of Bharath Electronic Limited, after retirement he had under taken self profession of real estate transactions, but he lacked reasonably suitable accommodation to establish this self profession, he required petition schedule shops premises for his self occupation to establish his own office of real estate agency. Two other shops available in building No.350 are not vacant since they are leased out, and no other shop is available and no other reasonably suitable accommodation is available to enable him to establish his self occupation, he required the petition schedule shops premises for his immediate and bonafide use. Further among the schedule shops premises one is with dimension of 8 X 9 feet and the other is with dimension of 10 X 4 feet, both are adjacent to each other. Each one of them independently is not adequate to establish real estate agency office, my father 13 was intending to remove the bifurcation wall in between the two shops premises thereby make it spacious for the purpose. My father chooses the schedule shop premises only for his self occupation. My father was also assisted by me, I am aged about 28 years and I am an Arts Graduate and am unemployed. Under these circumstances, we are entitled for eviction of the petitioner schedule premises under clause (r) of sub-section (2) of Section 27 of the Karnataka Rent Act 1999. 6. Now that my father Sadashiva Naik is demised, we are the only surviving legal heirs to his estate and further we require the schedule premises for our bonafide use.” 17. The evidence so tendered by PW2-Madhukar is only in support of the averments made initially by Sadashiva Naik, and no further case is made out to support they require the premises. He has reiterated that his father wanted to remove the bifurcation wall between two shops tomake it spacious and carry on business. He has not said that they require the premises for their own use and occupation. Only statement now made is that ‘my father 14 Sadashiva Naik is demised, we are the only surviving legal heirs to his estate and further we require the schedule premises for our bonafide use 18. Such a statement is a casual expression without supportive material to support the ground under Clause (r) of Section 2 7(2) of the Act. Even if we accept it shows that they require premises for own use and occupation without pleading in the eviction petition such statement is of no avail. 19. Apart from the evidence of PW2-Madhukar, it is necessary to refer to what Sadashiva Naik himself had deposed, which is as follows: “1. That I have filed above petition praying for an order of eviction of the petition schedule shops premises against the Respondent under Subsection (2) of clauses (a), (q), (r) and Section 27 of the Karnataka Rent Act 1999. The facts contained in the petition may kindly read as part and parcel of this affidavit in order to avoid repetition. 15 2, had retired from the service of Bharath Electronic Limited, I require the petition schedule shops premises for my personal occupation namely to establish my own office of Real Estate Agency. I do not have any other non-residential premises or any other alternative reasonably suitable accommodation to establish my office. There is no other portion of the building except the petition schedule shops premises suitable for my essential requirement to enable me to establish my office. Further I choose the schedule shop premises for self occupation. Thus I bonafide require the petition schedule premises to enable me to establish the office of Real Estate Agency. My requirement is bonafide and reasonable. In view of my advanced age and under above circumstances it is just and necessary that the Honourable Court be pleased to presume that the shops premises are so required and the Honourable court pass an order of eviction of the petition schedule shops premises against the Respondent and direct the Respondent to deliver vacant possession immediately, as also, the Honourable Court be pleased to direct the 16 Respondent to tender up to date rental amounts of the schedule shops premises from September 2006 and onwards.” 20. Based on the factual matrix discussed above I am satisfied that the respondents had made out no case for grant of decree of eviction under Section 27(2)(r) of the Act. The order of eviction under that clause is not sustainable, 21. Regarding eviction under clause (q) of Section 27(2) of the Act it must be noticed the order of eviction is permissible under clause (q) of Section 27(2) of the Act, only in the following circumstances: “that the Tenant after having agreed with or having informed the Landlord in writing the date to vacate the premises does not do so on or after the date so agreed or informed.” 22. In this case there is no such material evidence produced by the landlord. They are relaying on the clause (7) of such Agreement — Ex.P1, which reads as follows: S 17 The Respondent has been called up on to vacate and hand over vacant possession of the schedule shops premises with in one month, besides making it crystally clear, that Respondent’s tenancy has been terminated, thereby severing the Land Lord and tenant relationship, but the Respondent not only failed in this respect but also did not care to reply to• the legal notice dated 25-09-2006 even till this day. As such the Respondent entitles the petitioner eviction of the Respondent from the schedule shops premises in accordance with clauses (15) and (17) of rent agreement dated 08-03-2004 as well the renewed rent agreement.” 23. This is certainly not a material evidence which is required to be produced in support of eviction under Clause (r) of Section 27(2) of the Act. The learned trial Judge has not examined the fact that landlord had failed to show the tenant had informed in writing the date to vacate the premises. Clause (7) of the Agreement — Ex.Plis merely a covenant in the lease Agreement which does not meet 18 requirement of clause (q) of Section 27(2) of the Act. Therefore, the order of eviction under this clause is also not maintainable. 24. In the result, the revision is allowed. The order of eviction dated 0702.2010 passed in HRC No.612/2006 on the file of the learned Chief judge, Court of Small Causes, Bangalore is set aside. JTTmt d1 VK