Karnataka High Court
Sri J Devilal Bafna vs Sri Mariyappa K B on 11 August, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
HOUSE RENT REV. PETITION NO.53/2018
BETWEEN:
SRI J. DEVILAL BAFNA
S/O LATE SRI. JUGRAJ
AGED ABOUT 73 YEARS
SHOP PREMISES NO.8
IN GROUND FLOOR OF
BUILDING BEARING
NOS.8, 9 AND 10
SEPPINGS ROAD
BANGALORE 1 ... PETITIONER
(BY SRI RAGHUNATH M.D, ADVOCATE)
AND:
SRI MARIYAPPA K.B.
S/O LATE SRI. K.M. BANAPPA
AGED ABOUT 85 YEARS
RA/T 1ST FLOOR BUILDING
BEARING NO.8
SEPPINGS ROAD
BANGALORE-1 ... RESPONDENT
(BY SRI L.S.CHIKKANAGOWDA, ADVOCATE)
THIS HRRP IS FILED UNDER SECTION 46(1) OF THE
KARNATAKA RENT ACT, 1999 AGAINST THE JUDGMENT AND
DECREE DATED 06.12.2018 PASSED IN HRC.NO.10013/2017 ON
2
THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND
XXIV ACMM., MEMBER MACT, BENGALURU AND ETC.
THIS HRRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 27.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
ORDER
This revision petition is filed challenging the judgment and
decree dated 06.12.2018 passed in HRC No.10013/2017 on the
file of the V Additional Small Cause Judge and XXIV ACMM, Mayo
Hall Unit, Bengaluru.
2. Heard the learned counsel appearing for the
respective parties.
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of petitioner before
the Trial Court is that the petitioner is the landlord who is
residing with his wife and two children in second floor of the
building. The respondent is the tenant in the schedule property
under the lease agreement dated 10.09.2010 for monthly rent of
Rs.2,500/- and has paid an amount of Rs.1,00.000/- as security
deposit. The lease is subject to renewal and enhancement of the
rate of rent by 10% for every three years as per terms and
conditions. The petitioner required the petition schedule property
to accommodate his sons to do business of their choice. The
respondent is the pawn broker and doing business in the suit
schedule property. Earlier, the respondent was in occupation of
shop Nos.8 and 9 and shop No.10 was in occupation of one
Dhanraj and against the respondent and Dhanraj, the petitioner
had filed eviction petition and those cases ended in compromise
and the petitioner took the possession of shop No.9 and the
respondent retained the petition shop No.8 with him. In
pursuance of the compromise, a fresh lease agreement came
into existence and the respondent himself realizing the hardship,
voluntarily came forward and paid the rent of Rs.3,500/- per
month. He was regular in payment of rent. Now, the petitioner
required the petition schedule property to accommodate his sons
namely Bhaskar and Dinesh in order to establish business of
their choice. The petitioner issued a legal notice on 24.08.2016
and served the same on the respondent and he replied on
08.09.2016 denying the requirement of the petitioner.
5. The Trial Court after considering the grounds urged
in the plaint as well as in the written statement, allowed the
parties to lead their evidence. The petitioner examined himself
as PW1 and his son as PW2 and got marked the documents at
Ex.P1 to P9. On the other hand, the respondent himself
examined as RW1 and not marked any documents. The Trial
Court having considered both oral and documentary evidence
placed on record allowed the petition and directed the
respondent to vacate and handover the vacant possession of the
suit schedule property to the petitioner within 30 days and also
the respondent is directed to pay the damages of Rs.3,500/- per
month from the date of the suit till the date of vacating the
premises. Being aggrieved by the judgment and decree of the
Trial Court, the respondent has filed this revision petition.
6. The learned counsel for the revision petitioner in his
argument vehemently contend that the Trial Court fails to take
note of the fact that other two shops are already in the
occupation of the sons of the respondent/petitioner and no
affidavit is filed in support of the petition and only verification
was made. The counsel also would vehemently contend that the
sons are not depending on the respondent/petitioner and they
are having their own separate kitchen and the same is elicited in
the cross-examination of PW1. The counsel would submit that
the Trial Court while allowing the petition drawn the presumption
and the presumption is rebuttable.
7. The counsel in support of his arguments relied upon
the order passed by the Apex Court in CIVIL APPEAL
NO.4536/2008 ARISING OUT OF SLP (C) NO.17996/2006
in the case of SOMANATHASA BADDI vs CHANABASAPPA
AND OTHERS and brought to notice of this Court to the
discussion made in respect of Section 27(2)(r) and Explanation
(i) appended thereto. The counsel referring this judgment would
vehemently contend that the Apex Court has observed that if an
application for eviction of the tenant is filed on the ground
enumerated in clause (r) and the same is duly supported by an
affidavit, it is imperative for the Court to presume that the
landlord requires the premises for his own occupation or for any
member of his family dependent on him. The presumption
contemplated by Explanation (i) is rebuttable and the tenant can
lead evidence to show that the landlord does not require the
premises for his own occupation for any member of his family
dependent on him for that his need is not bona fide. The
counsel referring this judgment would vehemently contend that
the revision petitioner has rebutted the case of the respondent
by leading evidence.
8. The counsel also relied upon the judgment passed by
this Court in HRRP No.562/2002 in the case of G SHOUKATH
AND OTHERS V CHANDRAPRAKASH wherein this Court
discussed with regard to presumption regarding the existence of
the requirement of the landlord is irrebuttable. The tenant can
adduce evidence to rebut the said presumption. If any such
evidence is adduced in rebuttal, it is for the Court to decide
whether or not the presumption available to the landlord has
been rebutted.
9. The counsel also relied upon the judgment of this
Court passed in HRRP No.104/2010 in the case of REHMAN
KHAN vs SIDDAGANGAMMA wherein also this Court has taken
note that trial judge erred in raising presumption regarding
requirement of landlady. Landlady failed to prove that adjacent
shops, which were available to her was not suitable to meet her
requirement and trial judge failed to notice lacunae in pleadings
and evidence and the trial judge in the absence of proper
pleadings regarding nature of requirement and suitability of
premises more particularly, when adjacent shops having same
advantages were available to landlady, erred in holding that suit
schedule shop was required for son of landlady to start some
agency, nature of which was not stated either in petition or in
examination-in-chief. The counsel referring these judgments
would vehemently contend that the Trial Court failed to consider
the material on record.
10. Per contra, the learned counsel appearing for the
respondent in his argument would vehemently contend that it is
the contention of the tenant that other son is working in a
private company and the said contention is not correct since he
has relied upon the document at Ex.P9 which clearly discloses
that his son left the job to do the business. The counsel also
would vehemently contend that the pleading is very clear and
verified the petition and also separate affidavit is filed verifying
the contents of the petition. When separate affidavit is filed, it is
clear regarding requirement of the petition schedule premises.
The counsel also would vehemently contend that the
respondent/petitioner is a retired employee and the same is not
disputed. He is aged about 85 years and he has to accommodate
his sons to do the business. It is also the specific case of the
respondent/petitioner that two shops are required for his sons
and no doubt, one son is doing business and another is having
lack of space to do business and hence, he is in need of the
premises and the same has been considered by the Trial Court
and drawn the presumption considering the evidence available
on record, particularly, the admission given by RW1 in the cross-
examination. The counsel also would vehemently contend that
the order does not requires any interference and decisions
quoted by the counsel for the revision petitioner are not
applicable to the facts of the case on hand.
11. In reply to the arguments, the counsel for the
revision petitioner would vehemently contend that there is an
admission that sons are already doing business and when such
being the case, there is no requirement for the
respondent/petitioner and hence, the Trial Court committed an
error in allowing the petition of the respondent/petitioner and
hence, it requires interference.
12. Having heard the learned counsel appearing for the
respective parties and also considering the principles laid down
in the judgments referred supra and factual aspect of the case,
the point that would arise for the consideration of this Court is:
(1) Whether the Trial Court committed an error in
invoking Section 27(r) of the Karnataka Rent
Act, 1999 and whether it requires interference?
(2) What order?
Point No.1:
13. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record,
it discloses that it is the specific case of the petitioner before the
Trial Court that petition schedule premises is required to
accommodate his sons to do business and the same is pleaded in
the petition. It is not in dispute that the respondent is a tenant
and there is an admission in this regard and pleading is also very
clear that earlier, the respondent was doing business in both
shop Nos.8 and 9 and one shop was surrendered earlier since an
eviction petition was filed and the same was compromised. It is
also pleaded in the petition that the petitioner is having two sons
by name, K M Bhaskar and K M Dinesh who intend to do
business of their choice. In fact the petitioner is holding the said
premises and other tenements for the benefit of his sons and
other than the petition schedule shop premises there are no
other suitable accommodation available and hence, the petition
schedule shop premises is required by the petitioner and the
same is disputed by the respondent by filing a statement of
objections contending that there are four shops in the building
wherein all the shop premises are housed and out of which, the
respondent is in the occupation of 4th shop which is no way
connected with the other two shops, which are in occupation of
sons of the petitioner. It is also contended that since the sons of
the petitioner are independent as such, the petitioner cannot
maintain the eviction petition and also it is contended that
second son is employed in M/s P C Mallappa and Sons and he is
also running a business in one of the premises which is facing
cross road.
14. The Trial Court having considered both oral and
documentary evidence placed on record in paragraphs 10 to 15
discussed the evidence of PW1, PW2 and RW1 and particularly,
in paragraph 13, discussed with regard to the requirement of the
petitioner and comes to the conclusion that PW1 wish to
accommodate his sons in schedule property to do business of
their choice. It is also comes to the conclusion that it is not
mere desire, but requirement of 85 years old man to see his
sons have to be settled in their life and also placed resignation
letter before the Trial Court to show that his son is unemployed
and intend to extend his business and the same comes within
the purview of bona fide requirement.
15. The main contention of the counsel for the
respondent/petitioner that the Court has not taken note that
already two shops were in occupation of the sons of the
petitioner and having perused the evidence of PW1 no doubt, it
is elicited that earlier HRC petition was filed against one Dhanraj
in HRC No.10667/1991 and the said shop is in occupation of his
son Bhaskar and PW1 categorically denied that Dinesh i.e., the
other son is working at M/s P C Mallappa and Sons. But he
categorically stated that he was working long back and no doubt,
in the cross-examination he categorically admits that he has filed
the cases against the tenants for the use of his sons and further
admits that in 2010 he has executed fresh agreement in favour
of the respondent/revision petitioner by taking an advance of
Rs.1,00,000/- and except these answers elicited from the mouth
of PW1, nothing is elicited regarding requirement is concerned.
The petitioner also examined his son as PW2 and through him
got marked the document of Ex.P9 to show that he had tendered
resignation in 2018 itself and he was subjected to cross-
examination wherein he admits that earlier HRC was filed for the
use of him and his elder brother and his elder brother is running
auto from ten years and one shop is running under the name
and style Bhanashankari Stores and he is in occupation of the
same since two years and it is only a petty shop. It is suggested
that both the sons are not depending on the petitioner and the
same was denied and also his admission that his father was
instructed to file an affidavit and suggestion was made that he
was not in need of the premises and the same was denied.
16. On the other hand, the revision petitioner also
examined himself as RW1 and he reiterated the averments of
the objection statement in his evidence. In the cross-
examination, he admits that he is doing business in the schedule
premises since 1968 and the petitioner is the landlord and he
admits that earlier HRC petition was filed against him in HRC
No.10666/1991 and other petition was also filed against one
Dhanraj in respect of shop No.10 and he also admits that he was
evicted from shop No.9 and possession was handed over to the
petitioner and he volunteers that he surrendered the possession
based on the compromise and he retained the present shop
No.8. It is also elicited that after HRC No.10666/1991, the time
was extended by 3 to 4 times and lastly, time was extended till
September 2010. He also admits that he is doing pawn broker
business in shop No.8 and recently doing mobile accessories
business and not taken any permission. He admits that shop
No.9 was let out to Syed Ahamed Ellyaz and he admits that
petitioner filed HRC proceedings against the said Syed Ahamed
Ellyaz and also he admits that the petitioner is having two sons
and both are married but he claims that Dinesh is residing in
ground floor, the petitioner is in first floor and Bhaskar is
residing in the second floor. It is suggested that the petitioner
demanded the shop premises for his sons' business but the
witness volunteers that he demanded causing notice. It is the
case of RW1 that Bhaskar is doing business in shop No.10 and
Dinesh is doing business in alternative shop in the same building
and suggestion was made that shop measures only 6 x 8 feet
and the same is insufficient him to do the business and he only
says that he did not know about the same and not specifically
denied. He admits that Bhaskar's shop is measuring 8 x 12 feet
and his shop also measures the same measurement and all
these shops are situated side by side. But he denies the
requirement of Dinesh to extend his business. It is suggested
that Dinesh has quit his job but the witness admits that he was
working in M/s P C Mallappa and Sons.
17. Having re-appreciated both oral and documentary
evidence placed on record it discloses that there is no dispute
with regard to the relationship between the parties as landlord
and tenant and also no dispute with regard to the premises
which is in occupation of the petitioner and the respondent also
admits that earlier he was in occupation of two shops and one he
has surrendered in view of the compromise. It is the case of the
petitioner that petition schedule premises is required to
accommodate his sons. No dispute with regard to the fact that
the petitioner having two sons and also no dispute that he is a
retired person and aged about 85 years and the Trial Court
having taken note of the said fact comes to the conclusion that it
is bounden duty of the petitioner to accommodate his sons to
settle them. No doubt, it is emerged in the evidence of
witnesses that shop which was taken to the possession of the
petitioner i.e., shop No.10 in which his first son Bhaskar is doing
the business and it is also elicited that second son is doing the
business but measurement is stated only 6 x 8 feet and the
revision petitioner also categorically admits that shop
measurement of first son is 8 x 12 and his shop also measures
the same measurement. The other son is having business only in
the shop measures 6 x 8 feet and he intends to extend the
business and hence, the revision petitioner cannot be contended
that the respondent/respondent is not in need of requirement.
It is also important to note that though he took the contention in
the written statement that shops are not adjacent but in the
cross-examination RW1 categorically admits that all the shops
are in existence side by side. The specific suggestion was made
to him that other son Dinesh intends to extend his business and
though it is denied, it is clear that shops are located by the side
by side. When such being the case, the very contention of the
revision petitioner is that requirement is not bona fide
requirement cannot be accepted.
18. No doubt, the counsel for the revision petitioner
relied upon the judgment of the Apex Court with regard to filing
of an affidavit. But it is settled law that even if an affidavit is
filed as contemplated by Explanation (i) is rebuttable and the
tenant can lead evidence to show that the landlord does not
require the premises for his own occupation or for any member
of his family dependent on him for that his need is not bona fide.
But in the case on hand the other contention is taken by the
revision petitioner that no affidavit is filed but on perusal of the
petition it discloses that verification is made in the petition itself
and apart from that separate affidavit is filed along with the
petition reiterating the very averments made in the petition and
hence, the very contention that no affidavit is filed cannot be
accepted though the same is termed as verifying affidavit, but
there is a verification in the petition itself and separate affidavit
is filed and contents of the petition are verified by the
respondent.
19. No doubt, the other judgment of this Court is with
regard to presumption regarding requirement of landlady. When
the requirement is rebuttable, presumption can be drawn but
presumption can be rebutted in view of the principles laid down
in the judgments referred supra. When such being the case, the
Trial Court taken note of both oral and documentary evidence
placed on record. I have already pointed out that in the cross-
examination of RW1 a suggestion was made to the witness that
a specific measurement of the premises in which the other son
i.e., Dinesh is doing business, intends to extent the business and
he also categorically admits the measurement of his premises
and also the premises of other son Bhaskar who is running the
business in shop No.10 and it cannot be contended that the
tenant has rebutted the evidence of the petitioner and though an
answer is elicited that his sons are not depended but the fact is
that father and other two sons also living in the same building
may be they are having separate kitchen that itself is not a
ground to comes to the conclusion that requirement is not bona
fide. It is elicited from the mouth of RW1 that both the sons are
married and he categorically admits that the petitioner has
demanded the shop premises for his sons business but he
volunteers that he demanded in the form of notice. Whether in
the form of notice or by request is immaterial. But the fact is
that both the sons are married and they are having family and in
order to accommodate two sons, the petitioner is in need of the
petition schedule property and in respect of other premises i.e.,
shop No.9. RW1 categorically admitted that case is also filed
against other tenant in respect of shop No.9. When such
admission is given by the respondent in the Trial Court, the
requirement of the petitioner cannot be termed as no
requirement.
20. It is also important to note that in the cross-
examination of RW1, he categorically admitted that he is doing
business in the premises since 1968 and the landlord is
accommodated him to do business in said premises from 1968.
When such being the material on record, the requirement of the
petitioner cannot be termed as no requirement at all and the
relationship between the parties is accepted and the petitioner is
having two sons also accepted and both the sons are married is
also admitted and both are residing separately along with their
respective family is also admitted. When the petitioner proved
that he is in need of the suit schedule property, the very
contention of the revision petitioner that already they are having
two shops cannot be accepted. It is the desire of the petitioner
i.e., the landlord to accommodate his sons and the tenant
cannot come in the way in extending the business of two sons
though they are doing the business in the said shop. I have
already pointed out that merely because they are living
separately is not a ground when there is an admitted fact that all
of them are residing in the very same building and the shop
premises are in the ground floor and presumption has not been
rebutted by adducing any rebuttable evidence and the
judgments which have been relied upon by the revision
petitioner counsel is not coming to the aid of the revision
petitioner to reverse the finding of the Trial Court. Hence, I do
not find any grounds to set aside the order of the Trial Court and
there is no merit in the revision petition. Hence, I answer the
said point as negative.
Point No.2:
21. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
The revision petitioner is given three months
time to quit and vacate the premises subject to
payment of rent without committing any default.
The respondent is also directed to refund the
advance amount of Rs.1,00,000/- to the revision
petitioner at the time of vacating the premises.
Sd/-
JUDGE
SN
