Manilal Madhavji and Sons vs S. Shivashankar and Others

A.V. Chandrashekara, J.

Heard learned counsel appearing for the parties. Perused the impugned order dated 25.4.2014 passed in H.R.C. No. 227/2012 by the learned Chief Judge, Small Causes Court.

The petitioner was the respondent in the said petition filed for eviction under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999. The respondents herein were the petitioners in the said petition. After contest, the petition has been allowed directing the revision petitioner herein to pay arrears of rent at the rate of Rs. 2,575/- per month, within one month from the date of the order and also to vacate and deliver the vacant possession of the schedule premises within 3 months. It is this order, which is called in question on various grounds as set out in revision petition.

For the sake of convenience, the parties may be referred to as petitioners and respondent as per their ranking before the court below.

Petitioner No. 2 is the legally wedded wife of petitioner No. 1. The fact that the respondent was inducted as a tenant into the schedule commercial premises belonging to petitioner No. 1 is not in dispute. Petitioner No. 1 - Shivashankar has gifted the property in favour of petitioner No. 2 - his wife Komala, through a registered gift deed dated 24.9.2012 and within 3 months from the date of the said gift deed, both of them have chosen to file an eviction petition jointly under the above provisions. Petitioner No. 1 - Shivashankar is examined as PW. 1 and respondent is examined as RW. 1. The petitioners have got marked 6 documents on their behalf. The petition has been allowed and the operative portion of the order as found in paragraphs 14 and 15 is as follows:

"It is true that 2nd petitioner has acquired the property under gift deed executed by 1st petitioner in respect of the schedule property. But making of 1st petitioner as party in this case appears to be formal in nature only to intimate that she has acquired the schedule property under gift deed. No attornment notices are exchanges between 2nd petitioner and respondent. The 2nd petitioner has not raised any objection regarding collection of rent by 1st petitioner from the respondent. Hence, I am of the opinion that 1st petitioner, who is the landlord of the schedule property and respondent is tenant under him, has every right to claim eviction of the respondent from the schedule property on the ground of bona fide requirement of the schedule property for his purpose as well as for the purpose of his wife to accommodate her. Therefore, the contention taken by the respondent that petition is not maintainable as same has been filed within one year from the date of acquisition by the 2nd petitioner holds no water at all since petitioner No. 1 continued to be landlord even to this date by collecting the rents from the respondent.

Petitioners in the petition have stated about the requirement of the schedule premises for their own use and occupation. In this connection a separate affidavit of petitioner has been filed along with the main petition to draw presumption under Section 27(2)(r) Explanation I (i) of Karnataka Rent Act. Such presumption is not rebutted in any manner by the respondent."

What is argued before this Court by the learned counsel for revision petitioner is that petitioner No. 2 acquired the property by way of gift deed by her husband on 24.9.2012 and within 3 months from the date of the gift made in her favour, she chose to file a petition seeking eviction and therefore it is violative of proviso appended to Section 27(2)(r) of the Karnataka Rent Act, 1999. Section 27(2)(r) of the Karnataka Rent Act, 1999 reads thus:

1127. Protection of tenants against eviction:

(1).........

(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:-

(a)...........

(r) that the premises let are required, whether in the same form or after reconstruction 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 reasonable suitable accommodation."

If the alienation had been made to third party, the rigor of said proviso would have been applicable. Admittedly, petitioner No. 2 is none other than the wife of petitioner No. 1 and they are living together. Therefore, the rigor of the said proviso is not applicable in all its force to the present case.

Apart from this, the revision petitioner had chosen to file an application under Section 43 of the Karnataka Rent Act, 1999 disputing the very relation of landlord and tenant. Later on, the said application was contested and ultimately, the said application was dismissed. Against the said order of dismissal of application filed Under Section 43 of the Karnataka Rent Act, 1999, the revision petitioner was before this Court and the order of dismissal of L.A. filed under Section 43 of the Karnataka Rent Act, 1999 was dismissed, of course, subject to payment of Rs. 10,000/- as cost.

Insofar as the recovery of arrears of rent, an execution petition has already been filed by the decree holders seeking eviction and also recovery of arrears of rent. Memo of calculations can be filed by both the parties and the Executing Court can decide the said controversy.

Insofar as reasonable time to be granted is concerned, the learned counsel appearing for the revision petitioner has requested the court to grant atleast 3 years time, so that the revision petitioner can find an alternative accommodation in order to relocate his business. The learned counsel for the petitioners has fairly submitted that he would leave to the discretion of the court, insofar as it relates to the time to be granted. Taking into consideration that the premises is situated in an important old commercial area in Bengaluru City, reasonable time will have to be granted for the revision petitioner. Hence, no merits are found to interfere with the well considered order with regard to the existence of relation of landlords and tenant and bona fide requirements of the petitioners and the arrears of rent to be paid.

The revision petition is dismissed, granting time of two years to the revision petitioner. The revision petitioner shall vacate and hand over the vacant possession of the suit schedule property on or before 28.2.2017 subject to payment of Rs. 2,575/- per month as damages commencing from 1.3.2015 till 28.2.2017. The revision petitioner shall file an affidavit undertaking to comply with the conditions imposed in this order, within 15 days from today in the Registry and he shall also undertake that he would not seek any further extension of time.