Sri. Jaya Andrews vs Yusuf (deceased) by L.Rs.

Ajit J. Gunjal, J.—Though the matter is listed for admission, by consent of the learned Counsel appearing for the parties, this revision petition is taken up for final hearing.

The landlord challenges the order passed by the learned District Judge allowing the revision of tenant.

The landlord is referred to as the Petitioner and the tenant is referred to as the Respondent in this order.

Eviction is sought by the Petitioner in respect of the petition schedule property which is a vacant land measuring 455 square feet with a building thereon. The case of the Petitioner is that the Respondent is a tenant on a monthly rent of Rs. 10/-. The Petitioner was working as a turner at St. Joseph''s Work Shop at Jeppu, Mangalore and that he was getting a meagre salary. He wants to set up an independent workshop of his own. It is his case that he has no other alternate suitable premises for setting up such a business. The premises which is in the occupation of the tenant is suitable for commencing the workshop. It is his further case that he has got the necessary qualification and experience as turner and in the connected works and has got financial capacity. Therefore, sought eviction for his bonafide and reasonable use. He would further submit that if order of eviction is not granted, greater hardship will be caused to him. It is his further case that the Respondent is very irregular in payment of rents and is in arrears of rent.

In Response to the notice, the Respondent entered appearance and has denied that he is a monthly tenant of the petition premises at the rate of rent of Rs. 10/-. It is his case that in the said building, he and his family members are residing. He has denied that he is irregular in payment of rents. In so far the averment in the eviction petition regarding bonafide use and occupation, he has denied the said averment in toto and submits that the eviction petition is liable to be dismissed. The learned trial Judge has accepted the case of the Petitioner and directed the Respondent to quit and deliver the vacant possession. The same was challenged by the Respondent before the learned District Judge in Revision Rent Petition No. 39 of 1999. The learned District Judge has reversed the order passed by the learned trial Judge and recorded a finding that the Petitioner has failed to make out a case of bonafide requirement. The said order is challenged by the landlord before this Court.

Mr. Subhash, learned Counsel appearing for the Petitioner would submit that during the pendency of the revision petition before the learned District Judge, the original tenant died and proceedings were continued by the legal representatives. In view of the fact that the original tenant having died during the pendency of the proceedings, he would submit that Section 5 of the Karnataka Rent Act, 1999 is squarely applicable and the tenancy would devolve upon the legal heirs only for a period of five years from the date of death of the original tenant. In the circumstances, notwithstanding the fact that the learned District Judge has reversed the order passed by the trial Court, the legal representatives are liable to be evicted. Even otherwise, he would submit that the learned District Judge was clearly in error in holding that the Petitioner does not require the petition premises for his bonafide use and occupation.

Sri Sripathy, learned Counsel appearing for the Respondent would submit that it is no doubt true that the original tenant died during the pendency of the revision petition. However, he submits that Section 5 of the Karnataka Rent Act, 1999 is not applicable. He would further submit that the learned District Judge on consideration of all the material has primafacie recorded a finding that the Petitioner has failed to make out a case that his requirement has an element of need. In the circumstances, he submits that the order does not call for interference.

I have been taken through the order passed by the learned District Judge as well as the learned trial Judge. In so far as the first contention of the learned Counsel for the Petitioner that Section 5 of the Karnataka Rent Act, 1999 is concerned, that question is already concluded by the decision of this Court reported in Shahwar Basheer and Others Vs. Veena Mohan and Others, Sub-section (1) of Section 5 of the Karnataka Rent Act, 1999 makes it abundantly clear that in the event of death of the tenant, the right of tenancy would devolve upon the legal representatives only for a period of five years. Admittedly the original tenant died during the pendency of the revision petition. In the circumstances, the legal representatives can continue for a period of five years from the date of death of the original tenant.

In so far as the finding recorded by the learned District Judge in respect of bonafide requirement is concerned, it is to be noted that the petition schedule premises is a vacant land measuring 455 square feet which also includes the building bearing No. 1/24-18/1490/2. The learned District Judge has chosen to reverse the finding of the trial Court on the ground that the Petitioner had not taken the permission for the change of user of the land. It is to be noted that the Petitioner is yet to succeed in the eviction petition and take possession of the schedule property. As long as he is not in a position to take possession of the schedule property, it would not be right to say that he should seek permission of the concerned competent authority for change of user. It has come in evidence that the Petitioner was working under some one else and has acquired proficiency as a turner. It has also come in evidence that the salary he was getting was meagre and therefore, he wants to set up an independent workshop which cannot be said to be unreasonable. This part of the evidence has not been properly appreciated by the learned District Judge keeping in mind the scope of Section 27(2)(r) and the explanation thereof. It is seen that Section 27(2)(r) of the Karnataka Rent Act, 1999 comprises of two elements, one is requirement and another is reasonable and suitable accommodation. Explanation to Section 27(2)(r) of the Act would indicate that whenever the landlord makes an application and the same is supported by an affidavit or a statement made in that behalf that he requires the premises for himself or for any member of his family, the Court shall presume that the premises is so required. It is seen that if the premises let out is required by the landlord for a different use, such use is permissible in law. It is not a dispute that the vacant land can be used for setting up of workshop. However, such exercise can only be done after obtaining necessary permission from the competent authority. As such, as stated by me earlier in this order, unless the Petitioner gets possession of the premises, he cannot apply to the concerned competent authority seeking permission for conversion. It is only after he takes possession, such an application can be made by the Petitioner to the competent authorities. The evidence on record would clearly indicate that the requirement of the Petitioner has an element of need and he does not have any alternate suitable premises. Since the twin elements of Section 27(2)(r) of the Act has been satisfied by the Petitioner, the learned District Judge was in error in reversing the finding of the trial Court. The learned District Judge has made a reference to Section 40 of the Karnataka Rent Act, 1999 and the contention of the Respondent has been rightly rejected by him. The learned District Judge has referred to Exh.P.4 which is an agreement for a period exceeding 12 months. He has chosen to say that the same is not admissible in evidence as it is not registered. The District Judge is clearly in error as Ex.P.4 can be said to be monthly tenancy. See AIR 1985 Kar 23 in the case of T. Vamana Kini and Etc. v. U. Ramachandra Pai and 1977 (1) K.L.J. 382 in the case of Raghavendra v. Maratha Co-operative Credit Bank Limited.

In view of what is stated above, the revision petition is allowed. The order of the learned District Judge is set aside and that of the trial Court is restored. It is needless to say that the legal representatives of the original tenant shall continue for a period of five years from the date of death of the original tenant and then quit and deliver vacant possession of the petition schedule premises with a further condition that the tenant shall file an undertaking by way of an Affidavit within four weeks from today, to the effect that:

i) He will not induct any third party to the schedule premises;

ii) He shall pay the agreed rent towards use and occupation;

iii) He shall not drive the landlord to file execution and that he shall not seek any further extension of time to vacate the schedule premises.

Revision Petition stands disposed of. No costs.