Karnataka High Court
Smt Muktha @ Vrinda Prabhu vs Mrs Meera Nayak on 21 February, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
HOUSE RENT REVISION PETITION NO.25/2021 (EVI)
BETWEEN:
SMT.MUKTHA @ VRINDA PRABHU
D/O.LATE P.NARAYAN KAMATH
AGED ABOUT 61 YEARS
R/AT DOOR NO.5-6-522
DANGE GARDEN
VARKANDY LANE, KODIALBAIL
MANGALURU
D.K.DISTRICT - 575 003 ... PETITIONER
(BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE)
AND:
1. MRS.MEERA NAYAK
W/O.SUJEER RAMACHANDRA NAYAK
D/O.LATE M.NARASIMHA DANGE
AGED ABOUT 69 YEARS
2. SMT.GAURI PRABHU
W/O.ASHOK PRABHU
D/O.LATE M.NARASIMHA DANGE
AGED ABOUT 66 YEARS
BOTH ARE RESIDING AT
SRI KRISHNA PALACE APARTMENT
MATADAKANI ROAD
MANGALURU
D.K.DISTRICT - 575 003 ... RESPONDENTS
(BY SRI M.SUDHAKAR PAI, ADVOCATE)
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THIS HRRP IS FILED UNDER SECTION 115 OF THE
CODE OF CIVIL PROCEDURE CODE PRAYING TO SET
ASIDE THE ORDER DATED 06.09.2021 PASSED IN RRP
NO.4/2020 PASSED BY THE COURT OF VI ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU
AND THE ORDER DATED 12.02.2020 PASSED IN HRC
NO.3/2018 BY IV ADDITIONAL CIVIL JUDGE AND JMFC,
MANGALURU AND ETC.
THIS PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel, Shri Ravishankar Shastry
appearing on behalf of the petitioner/tenant and Shri
M.Sudhakar Pai, learned counsel appearing for
Respondent Nos.1 and 2/landlords.
2. This petition is filed by the tenant, being
aggrieved by the order of eviction passed by IV
Additional Civil Judge and JMFC, Mangaluru in
H.R.C.No.3/2018 dated 12.02.2020, which is affirmed
by VI Additional District and Sessions Judge, Dakshina
Kannada, Mangaluru in R.R.P.No.4/2020 vide order
dated 06.09.2021.
3. Brief facts of the case is as under:
The father of petitioner herein by name
P.Narayana Kamath was the tenant under father of
respondents by name, M.Narasimha Dange in respect of
petition schedule premises bearing TS No.408, RS
No.557/89A situated at Kodialbail, Kamla ward of
Mangaluru City Corporation vide registered rental
agreement at Ex.P1 dated 15.05.1968 on a monthly
rent of Rs.160/-. In the year 2009, the landlord died
leaving behind his three daughters as his legal heirs.
During his lifetime and at one point of time, the landlord
and his children have entered into an agreement with
the tenant and his son-in-law, who is none other than
the husband of the petitioner herein/tenant to sell
totally 16 cents of land with tenements out of 56 cents.
As the dispute arose between them, the agreement
holders have filed O.S.Nos.57/1992 and 70/1992
against the landlord and his children for the relief of
Specific Performance of the contract before the Civil
Judge (Sr.Dn.) Mangaluru and the matter went up to
the Supreme Court in Civil Appeal Nos.6404/2008 and
6405/2008, where the claim of agreement holders came
to be rejected vide order dated 16.01.2018.
3.1. On 02.05.2009, the original tenant
P.Narayana Kamath died leaving behind his five married
daughters who are being not his dependents and have
settled at their respective matrimonial homes except the
petitioner herein/tenant who was living with her father
and continued in the petition schedule premises as his
dependent. She has paid the rent of Rs.220/- per month
continuously to the joint account of respondents
herein/landlords at Canara Bank, Mangaluru. Her
husband being the employee of State Bank of India has
acquired residential premises by availing loan from the
Bank. Her right to continue as contemplated under
Section 5 of the Karnataka Rent Act, 1999 (for short
'the Act') was extinguished. But she has neither evicted
the premises nor surrendered the same to respondents/
landlords. Despite the eviction notice dated 27.04.2018
served upon the petitioner/tenant, she did not vacate
the premises but has sent an untenable reply on
14.05.2018.
3.2. Against the same, an eviction petition in
HRC.No.3/2018 came to be filed by the landlords under
the provisions of Section 27(2)(j) and Section 5 of the
Act. The petitioner herein being the tenant and
respondent before the trial Court has participated in the
proceedings and after adducing evidence, the said
petition came to be allowed directing the petitioner
herein/tenant to vacate the premises within a period of
sixty (60) days. Being aggrieved by the same, the
petitioner/tenant filed a revision petition in R.R.P.No.4
of 2020 and the same came to be dismissed on
06.09.2021 and consequently, the order passed in
HRC.No.3/2018 has been confirmed.
3.3. Being aggrieved by the same, the tenant has
approached this Court by way of this revision petition.
4. It is the contention of the learned counsel for
the petitioner/tenant that the petition filed by the
respondents/landlords itself would not be maintainable,
in view of the agreement having been entered into by
the respondents/landlords and the father of the
petitioner and husband of petitioner. However, he fairly
submits that though the same was agitated in the
original suit but has culminated in a final judgment
against the petitioner/ tenant and is held in favour of
the respondents/ landlords.
5. Per contra, learned counsel for the
respondents/landlords contends that the petitioner/
tenant is presently not residing in the petition schedule
premises and that even in the cross-examination of RW-
1, it is suggested that she is not residing in the petition
schedule premises and the BESCOM bill is showing fixed
amount of Rs.50/- and Rs.75/- whereas the petition
schedule premises is measuring to an extent of 2,000
sq.ft., evidences the fact that the premises is not being
used and is in non-occupation by the tenant.
6. Having heard the learned counsel for the
petitioner/tenant and the learned counsel for the
respondents/landlords and having perused the
judgment of the trial Court as well as the judgment of
the revision Court and documents produced therein, I
do not find any illegality or impropriety in the impugned
order passed by the trial Court as well as the order of
confirmation passed by the revision Court for the
reasons herein mentioned below:
(a) This Court on 20.12.2021 has passed the
following order:
"Issue notice to the respondents.
For the limited purpose of
ascertaining the time that the
respondents can grant for the petitioner
to vacate the premises, interim stay of
execution of the judgment and decree
dated 12.02.2020 passed by IV Additional
Civil Judge & JMFC at Mangaluru in HRC
No.3/2018 till the next date of hearing.
List on 11.01.2022".
(b) There is clearly no ambiguity in the order
passed by this Court dated 20.12.2021, wherein the
interim stay of the execution of the judgment and
decree was granted by this Court for the limited purpose
of ascertaining the period of time that the
respondents/landlords can grant to the petitioner/
tenant to vacate the premises.
(c) The eviction petition was initiated by the
landlords under Section 27(2)(j) of the Act, which reads
as under:
"(j) that the tenant, his spouse or a
dependent son or daughter ordinarily
living with him has whether before or
after the commencement of this Act,
built or aquired vacant possession of
or been allotted a residency or as the
case may be a commercial premises:
Provided that the Court may in
appropriate cases allow the tenant to vacate
the premises within such period as he may
permit but not exceeding on year from the
date of passing of the order of eviction;"
(d) It is also necessary to refer to Section 5(1) of
the Act, which reads as under:
"5. Inheritability of tenancy.-(1) In
the event of death of a tenant, the right of
tenancy shall devolve for a period of five
years from the date of his death to his
successors in the following order, namely:-
(a) spouse;
(b) son or daughter or where there
are both son and daughter both of
them;
(c) parents;
(d) daughter-in-law, being the widow
of his pre-deceased son:
Provided that the successor has
ordinarily been living or carrying on
business in the premises with the deceased
tenant as a member of his family up to the
date of his death and was dependent on the
deceased tenant:
Provided further that a right to
tenancy shall not devolve upon a successor
in case such successor or his spouse or any
of his dependent son or daughter is owning
or occupying a premises in the local area in
relation to the premises let.
(2) xxxxxxxxxxxx"
(e) It is not in dispute that father of petitioner was
the original tenant and pursuant to his death, the
petitioner continued to occupy the premises in question.
Whereas, the other children of original tenant-
P.Narayan Kamath have shifted from the petition
schedule premises and staying with their respective
family elsewhere. The initial objection raised by the
petitioner/ tenant is with regard to maintainability of
petition under Section 27(2)(j) of the Act. This would
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not take much time for this Court to adjudicate the
issue for the simple reason that the objection raised was
with regard to there being several co-owners who are
the landlords and that inter se, they have initiated
partition suit amongst themselves and for that reason,
the petition would not be maintainable is hard to
countenance. This issue is no longer res integra as the
Hon'ble Apex Court in the case of M/s.India Umbrella
Manufacturing Company and others Vs.
Baghbangel Agarwalla (dead) by LRs., reported in
AIR 2004 SC 1321 has held that the co-owners can
file eviction suit in respect of joint family property.
Further in the case of Mahinder Prasad Jain v.
Manohar Lal Jain reported in 2006(2) SCC 724, the
Hon'ble Apex Court has held that one of the co-owners
are entitled to file a suit for eviction, owned by the co-
owners against the tenant, which has been rightly
considered by the revisional Court in the impugned
order.
(f) It is also not in dispute that the
petitioner/tenant is none other than the married
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daughter of the original tenant, who had initially taken
the premises on lease in the year 1968 and thereafter,
it was extended from time to time. It is also not in
dispute that the original tenant died on 20.05.2009,
pursuant to which, the present petitioner-tenant has
continued in the petition schedule premises. As per
Section 5 of the Act, the inheritability of tenancy is for a
period of five (05) years from the date of death of the
original tenant, to which the petitioner-tenant being the
daughter would be entitled to the said inheritability as
contemplated under Section 5 of the Act. It is also not
in dispute that the petitioner/tenant is married and is
now residing with her husband elsewhere and was not
dependent on the deceased original tenant.
(g) It is also seen that in view of the memo filed
by the learned counsel for the respondents/landlords
producing document along with photographs to show
that the petitioner/tenant is not presently residing in the
premises. Nothing is controverted and neither any
contrary evidence produced by the petitioner/tenant to
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show that she is presently residing in the petition
schedule premises.
(h) In view of the above, it is apparent that the
petitioner/tenant is not residing in the petition schedule
premises anymore, which is also substantiated by the
electricity bill of the premises depicting nominal
amount, thereby an inference could be easily drawn to
the effect that the petitioner/tenant is residing
elsewhere and is not residing in the petition schedule
premises.
(i) Even considering Section 5 of the Act, the
petitioner/tenant could get the benefit to continue to
reside in the petition schedule premises for a period of
five (05) years pursuant to the death of original tenant
namely, her father. The original tenant having died on
20.05.2009, five (05) years would expire by the end of
May, 2014. In the present case on hand, eviction
petition was instituted in the year 2018. Therefore, even
period of five (05) years has also come to an end. It is
the case of respondents/landlords that petitioner/tenant
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has secured alternate accommodation and has been
residing in the same. Therefore, the initiation of petition
under Section 27(2)(j) of the Act cannot be found fault
with and so also, the benefit of Section 5 of the Act
having already been exhausted & extinguished, the
same will not enure to the benefit of petitioner/tenant.
(j) The trial Court has considered all these aspects
and on evaluation of the same, has rightly passed the
order of eviction against the petitioner/ tenant, which is
rightfully confirmed by the revisional Court. However, it
is disturbing to note that despite petitioner/tenant
securing alternate accommodation and apparently, not
residing in the petition schedule premises which is
evident by electricity bill showing nominal bill amount,
the petitioner/tenant has continued with the litigation
only with an intention to protract the proceedings and
harass the respondents/landlords. The revisional Court
has also noted the conduct of the recalcitrant tenant in
dragging the proceedings and by abusing process of
law. Hence, I do not find any illegality or impropriety in
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the orders passed by both the trial Court as well as the
revision Court.
(k) However, considering the fact that some
amount of time requires to be granted to the petitioner/
tenant as already held by this Court vide order
20.12.2021, I deem it appropriate that a period of six
(06) months would be reasonable for the
petitioner/tenant to shift and move her belongings if
any, kept in the petition schedule premises. Therefore, I
pass the following:
ORDER
i) The Revision Petition filed by the
petitioner/tenant is dismissed;
ii) The orders passed in HRC.No.3/2018, dated
13.08.2018 and confirmed in
RRP.No.4/2020, dated 06.09.2021 are
upheld;
iii) The petitioner/tenant shall vacate and
deliver vacant possession of the petition
schedule premises to the respondents/
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landlords within a period of six (06)
months from the date of this order.
Sd/-
JUDGE
DH/LB
