Karnataka High Court
Vinod S/O Keshav Rao Malvade vs Smt Suma W/O Mallikarjun Shettar on 19 December, 2023
-1-
NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
HRRP NO.100013 OF 2014
C/w. HRRP NO.505 OF 2013,
HRRP NO.506 OF 2013
& HRRP NO.100012 OF 2014
IN HRRP NO.100013/2014:
BETWEEN:
1. VINOD S/O. KESHAV RAO MALVADE
AGE: 50 YRS, OCC: PVT.SERVICE,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
RAMKRISHNA KESHAV RAO MALVADE
SINCE DECEASED BY HIS L.RS
2. SMT. RAJASHREE W/O. RAMKRISHNA MALVADE
Digitally signed
by VISHAL
AGE: 47 YRS, OCC: HOUSE HOLD,
NINGAPPA
VISHAL PATTIHAL R/O: VITHAL BHAVAN, TABIBLAND,
NINGAPPA
PATTIHAL
Date:
2023.12.22
MANTUR ROAD, HUBLI.
13:47:16
+0530
3. KUM. AKSHAY S/O. RAMKRISHNA MALVADE
AGE: 12 YRS, OCC: STUDENT,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
4. KUM. TEJAS S/O RAMKRISHNA MALVADE
AGE: 8 YRS, OCC: STUDENT,
R/O: VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
THE PETITIONER NO.3 AND 4 ARE MINORS
R/BY THEIR GUARDIAN MOTHER
... PETITIONERS
(BY SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
AND:
1. SRI. MUDAKAPPA S/O. CHANNABASANAGOUDA
BILEBAL, AGE: ABOUT 65 YEARS,
OCC: KIRANI MERCHANT, R/O. MALAVADE
BUILDING, AKKIHONDA, SHIMIGALLI CROSS,
HUBBALLI-580020, DIST: DHARWAD.
2. SMT. SUMA W/O. MALLIKARJUN SHETTAR
AGE: 42 YRS, OCC: HOUSE HOLD WORK,
R/O: KESHWAPUR, HUBLI-20
DIST: DHARWAD.
2. KUMARI. SHRUTI D/O. MALLIKARJUN SHETTAR
AGE: 23 YRS, OCC: STUDENT,
R/O: KESHWAPUR, HUBLI-20
DIST: DHARWAD.
3. KUMAR. VINAYAK S/O. MALLIKARJUN SHETTAR
AGE: 15 YRS, OCC: STUDENT,
SINCE MINOR R/BY HIS NATURAL
MOTHER GUARDIAN I.E., NO.1 ABOVE
... RESPONDENTS
(BY SRI. M.R. MULLA, ADVOCATE FOR R2 TO R4;
NOTICE TO R1 IS DISPENSED WITH)
THIS HRRP IS FILED UNDER SECTION 46 OF THE
KARNATAKA RENT ACT, AGAINST THE ORDER AND DECREE
DATED 14.12.2012 IN R.R.NO.9/2008 PASSED ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD
SITTING AT HUBBALLI, ALLOWING THE PETITION FILED
AGAISNT THE ORDER AND DECREE DATED 02.04.2008 IN
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
RCA.NO.41/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(JUNIOR DIVISION), HUBBALLI, ALLOWING THE PETITION FILED
UNDER SECTION 27(2)(b)(F),(p) READ WITH SECTION 27(4), 32
AND 33 OF KARNATAKA RENT ACT, 1999.
IN HRRP NO.505/2013:
BETWEEN:
1. MOHAMMEDZAFAR S/O. ALISAB MIRJI,
AGE: 51 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
2. ANWAR S/O. ALISAB MIRJI,
AGE: 43 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
3. AKBAR S/O. ALISAB MIRJI,
AGE: 40 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
... PETITIONERS
(BY SRI. M.R. MULLA, ADVOCATE)
AND:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YEARS, OCC: PRIVATE SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA S/O. KESHAVRAO MALVADE,
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALAVADE,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
2(b) KUMAR AKSHAY S/O. RAMKRISHNA MALAVADE,
AGE: 16 YEARS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(c) KUMAR TEJAS S/O. RAMKRISHNA MALAVADE,
AGE: 12 YERS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
... RESPONDENTS
(BY SRI. SAGAR HEGDE, ADVOCATE;
SRI. S.R. HEGDE, ADVOCATE FOR R1 AND R2A
(R2(B) AND R2(C) ARE MINORS REP. BY R2(A))
THIS HRRP IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER AND DECREE
DATED 13.12.2012 IN H R C REVISION PETITION NO.8/2008
PASSED ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBLI, PARTLY
ALLOWING THE REVISION PETITION FILED AGAINST THE ORDER
AND DECREE DATED 02.04.2008 IN HRC PETITITON NO.42/2004
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT HUBLI,
PARTLY ALLOWING THE PETITION FILED UNDER SECTION 5,
27(2), (f) AND (p) OF KARNATAKA RENT ACT 1999.
IN HRRP NO.506/2013:
BETWEEN:
1. SMT. SUMA W/O. MALLIKARJUN SHETTAR,
AGE: 42 YERS, OCC: HOUSEHOLD WORK,
R/O. KESHWAPUR, HUBLI.
2. KUMARI SHRUTI D/O. MALLIKARJUN SHETTAR,
AGE: 23 YEARS, OCC: STUDENT,
R/O. KESHWAPUR, HUBLI.
3. KUMAR VINAYAK S/O. MALLIKARJUN SHETTAR,
AGE: 15 YEARS,
SINCE MINOR REPRESENTED BY HIS
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
NATURAL MOTHER GUARDIAN
PETITIONER NO.1
... PETITIONERS
(BY SRI. M.R. MULLA, ADVOCATE)
AND:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YEARS, OCC: PRIVATE SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA S/O. KESHAVRAO MALVADE,
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALAVADE,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(b) KUMAR. AKSHAY S/O. RAMKRISHNA MALAVADE,
AGE: 16 YEARS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
2(c) KUMAR TEJAS S/O. RAMKRISHNA MALAVADE,
AGE: 12 YERS, OCC: STUDENT-MINOR,
R/O. VITTAL BHAVAN TABIB LAND,
MANTOOR ROAD, HUBLI.
RESPONDENTS NO.2(b) AND 2(c) ARE MINORS
REPRESENTED BY THEIR GUARDIAN
MOTHER RESPONDENT NO.2(a)
... RESPONDENTS
(BY SRI. N.S. BHAT, ADVOCATE FOR CAVEATORS R1, R2(c);
SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE FOR R2 (A))
THIS HRRP IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER AND DECREE
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
DATED 14.12.2012 IN H R C REVISION PETITION NO.9/2008
PASSED ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD SITTING AT HUBLI, PARTLY
ALLOWING THE REVISION PETITION FILED AGAINST THE ORDER
AND DECREE DATED 02.04.2008 IN HRC PETITITON NO.41/2004
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT HUBLI,
ALLOWING THE PETITION FILED UNDER SECTION 27(2), (b) (f),
(p) R/W. SEC. 27(4), 32 AND 33 OF KARNATAKA RENT ACT
1999.
IN HRRP NO.100012/2014:
BETWEEN:
1. VINOD S/O. KESHVRAO MALVADE,
AGE: 50 YRS, OCC: PVT. SERVICE,
F/O. VITHAL BHAVAN, TABIBLAND,
MANTUR ROAD, HUBLI.
2. RAMKRISHNA KESHAV RAO MALVADE
SINCE DECEASED BY HIS LRS
2(a) SMT. RAJASHREE W/O. RAMKRISHNA MALVADE,
AGE: 54 YRS, OCC: HOUSE HOLD,
R/O. VITHAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
2(b) KUM. AKSHAY S/O. RAMKRISHNA MALVADE,
AGE: 19 YEARS, OCC: STUDENT,
R/O. VITHAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
2(c) KUM. TEJAS S/O. RAMKRISHNA MALVADE,
AGE: 16 YERS, OCC: STUDENT,
R/O. VITTAL BHAVAN, TABIBLAND,
MANTOOR ROAD, HUBLI.
THE PETITIONERS NO.2 (c) IS
MINORS R/BY THEIR GUARDIAN
MOTHER PETITIONER NO.2(a)
... PETITIONERS
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
(BY SRI. SAGAR HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
AND:
1. MOHAMMEDZAFAR S/O. ALISAB MIRJI,
AGE: 54 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
2. ANWAR S/O. ALISAB MIRJI,
AGE: 47 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BUILDING, AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
3. AKBAR S/O. ALISAB MIRJI,
AGE: 40 YEARS, OCC: KIRANI MERCHANT,
R/O. MALVADE BLDG. AKKIHONDA,
SHIMPI GALLI CROSS, HUBLI-20.
... RESPONDENTS
(BY SRI. M.R. MULLA, ADVOCATE)
THIS HRRP IS FILED UNDER SECTION 46 OF THE
KARNATAKA RENT ACT, AGAINST THE JUDGMENT AND DECREE
DATED 13.12.2012 PASSED IN R.R. NO.8/2008, ON THE FILE OF
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, SITTING AT HUBBALLI, PARTLY ALLOWING THE
PETITION AND SETTING ASIDE THE JUDGMENT AND ORDER
DATED 02.04.2008 PASSED IN R.C.A.NO.42/2004, ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AT HUBBALLI,
ALLWOING THE RCA FILED UNDER SECTION 27(2), (b) (f), (p)
R/W. SEC. 27(4), 32 AND 33 OF KARNATAKA RENT ACT 1999.
THESE PETITIONS COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:14865
HRRP No.100013 of 2014
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
& HRRP No.100012 of 2014
ORDER
1. All the petitions are arising out of R.C.A.
Nos.41/2004 & 42/2004 and R.R. No.8/2008 & 9/2010.
2. HRRP.No.100012/2014 is preferred by the
landlord - Vinod S/o.Keshav Rao Malvade and others and
HRRP.No.505/2013 is preferred by the tenant -
Mohammedzafar S/o.Alisab Mirji and others. The said
revision petitions arise out of R.C.A. No.42/2004 preferred
by the landlord seeking eviction under Section 27(2), (f) &
(p) read with Section 5 of the Karnataka Rent Act, 1999 (for
short "the Act"). The trial Court allowed the petition filed
under Section 27(2)(f) & (p) and rejected the petitioner
filed under Section 5 of the Act. Feeling aggrieved tenant -
Mohammedzafar preferred R.R. No.8/2008 against allowing
of petition under Section 27(2)(f) & (p) of the Act. The
appellate Court confirmed the possession under Section
27(2)(f) providing liberty and right of entry to the
respondent - tenant as allowed under law. Aggrieved by
the modification to the extent of providing liberty to right of
NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
re-entry to the respondents-tenants and rejection under
Section 27(2)(p) of the Act, HRRP No.100012/2014 is by
the landlord and confirming the ejectment under Section
27(2)(f) of the Act in HRRP No.505/2013 by the tenant.
3. HRRP No.100013/2014 is filed by the landlords-
Vinod and others and HRRP.No.506/2013 is by the tenants-
Suma and others against R.C.A.No.41/2004, whereby, the
petition under Section 27(2)(b), (f) & (p) read with Section
27(4), 32 & 33 of the Act was allowed and R.R. No.9/2008
preferred by the tenant was allowed in part granting
eviction with modification under Section 27(2)(f) of the Act
with liberty to right of re-entry to the extent provided under
law and rejected the eviction sought under Section
27(2)(b), (p), 27(4), 32 & 33 of the Act. HRRP No.506/2013
by the tenant against allowing of Section 27(2)(f) and
HRRP.No.100013/2014 against the rejection of the other
prayers of the landlord for eviction and allowing of Section
27(2)(f) of the Act with liberty and right of re-entry.
- 10 -
NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
4. The parties herein are referred to as "the
landlord" and "the tenant", for the sake of convenience.
5. The petition was initiated against two tenements
in R.C.A. Nos.41/2004 & 42/2004 against Mudkappa and
others and Mohammedzafar S/o. Alisab Mirji and others by
the landlord viz., Vinod and others.
6. RCA No.41/2004 filed under Section 27(2)(b), (f)
& (p) read with Section 27(4), 32 & 33 of the Act and the
petition avers that respondent No.1 - Mohammedzafar, the
original tenant without the consent of the landlord has
sublet the property to respondent No.2 and as such he has
invariably inducted the subtenant and respondent No.2, is
not the bonafide tenant and liable for eviction under
subletting ground under Section 27(2)(b) of the Act.
Further, it is averred that the Municipal Authorities have
issued a demolition notice to the petitioner and though the
said notice was brought to the notice of the tenant and the
risk involved in the property, the recovery of petition
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
property for demolition purpose only under Section 27(2)(f)
of the Act.
7. R.C.A.No.42/2004 for eviction under 27(2)(f) &
(p) read with Section 5 of the Act contending that the
respondents are not bona fide tenants and they are illegally
continuing the limited rights after the lapse of statutory
period under the Act, after the death of the original tenant
and they are liable for eviction under Section 27(2)(p) of
the Act. Further, the petition premises is required for
demolition purposes under Section 27(2)(f) of the Act and
sought for eviction of the premises.
8. Objections were filed by the tenants inter alia
contending that:
(i) the description of the property is not
correct;
(ii) the original tenant has not sub-let the
premises;
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
(iii) after vacating of the premises, respondent
No.2 has taken the premises on lease from
the petitioners;
(iv) the building is in a very good condition and
the petitioners have intention to construct
a commercial complex having demolished
the first floor and the second floor very
recently and it is in a very good condition
and illegally an attempt to demolish the
petition property;
(v) the petitioners in collusion with the officials
of the HDMC have managed to pass the
demolition order behind the back of the
respondents;
(vi) the contention of the tenants in both the
revision petitions for eviction is one and the
same apart from one additional contention
in RCA.No.42/2004; that the respondents
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
are the bona fide tenants and their eviction
beyond the statutory period under Section
27(2)(p) of the Act is illegal and
unsustainable.
9. In order to substantiate their claim, the
petitioner-landlord in RCA.No.41/2004 examined himself as
PW.1 and got marked documents at Exs.P.1 to P.25. On the
other hand, the special power of attorney holder of the legal
representatives of respondent No.2 in RCA.No.41/2004
examined himself as RW.1 and got marked documents at
Exs.R.1 to R.5.
10. The trial Court on the basis of the pleadings in
RCA.No.41/2004, framed the following points for
consideration:
1. Whether petitioners are entitled for an order of
eviction as against the respondents U/s.27(2),
(b), (p) of Karnataka Rent Act 1999?
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
2. Whether petitioners are entitled for an order of
eviction as against the respondents U/s.27(2),
(f) of Karnataka Rent Act 1999?
3. Whether petitioners are entitled for an order of
eviction as against the respondents U/s.27(4),
32 and 33 of Karnataka Rent Act, 1999?
11. The Trial Court in RCA No.42/2004, in order to
substantiate their claim, the petitioner-landlord got himself
as PW.1 and got marked documents at Exs.P-1 to P-12 and
respondent No.1 got examined himself as RW.1 and got
marked documents at Exs.R.1 to R.4.
12. The trial Court on the basis of the pleadings in
RCA.No.42/2004, framed the following points for
consideration:
1. Whether petitioners are entitled for an order of
eviction as against the respondents U/s.27(2),
(f), (p) of Karnataka Rent Act 1999?
2. Whether petitioners are entitled for an order of
eviction as against the respondents U/s.5 of
Karnataka Rent Act 1999?
- 15 -
NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
13. The Trial Court in RCA No.41/2004 granted
eviction under Section 27(2)(b)(f)(p) read with Section
27(4) 32 and 33 of the Act was allowed and directed the
legal representatives of respondent Nos.1 and 2 to
handover possession of the petition property within three
months.
14. RCA No.42/2004 filed under Section 5 of the Act,
Section 27(2), (f) and (p) of the Act was allowed and
petition filed under Section 5 of the Act was rejected.
15. Aggrieved by the same, the tenants in both
RCA.Nos.41/2004 and RCA.No.42/2004 namely Smt.Suma
and others preferred R.A.No.9/2008 and Mohammedzafar
filed Revision Petition No.8/2008. The First Appellate Court
ordered eviction on the ground of Section 27(2)(f) of the
Act with liberty and right reserved for re-entry. Rejection of
Section 27(2)(p) and allowing of 27(2)(f) of the Act, the
landlords and tenants are before this Court.
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
16. Heard learned counsel Sri Sagar Hegde for Sri
S.R.Hegde, appearing for the petitioners and Sri M.R.Mulla,
learned counsel appearing for respondents.
17. Learned counsel for the landlord-petitioner would
submit that the petitioners have proved the eviction under
Section 27(2)(f) of the Act and the notice issued by the
HDMC at Ex.P.10 for immediate demolition of the building
as the same is in dilapidated condition and also the letter
given by the surrounding occupants of the petition premises
and the photographs of the petition premises at Exs.P-15 to
20 would prove the contention of the petitioner that the
eviction under Section 27(2)(f) of the Act is inevitable.
Learned counsel would contend that, in order to prove his
eviction under Section 27(2)(p) of the Act, the petitioners
have produced the plaint copy in O.S.No.277/2000 filed by
the original tenants respondent No.1 against the
petitioners. The respondents are in possession of the
petition premises as a tenant seven years prior to the filing
of the suit and the respondents are not the bona fide
- 17 -
NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
tenants as they have not produced any material to that
effect about induction of them in the suit schedule property
by the petitioner-landlord. Learned counsel for the
petitioner would contend that the petitioner-landlord has
proved the eviction sought under Section 27(2)(p) and
section 5 of the Act which is totally overlooked by the Fist
Appellate Court.
18. In support of his contention learned counsel has
placed reliance on the judgment of this Court in the case of
Taradevi and another Vs. Sakku Bai and others.1
19. Per contra, learned counsel for the respondent-
tenants would contend that:
(i) Section 27(2)(p) should be read with Section
5 of the Act.
(ii) the notice has not been issued by the HDMC
for the demolition, only the first floor is in
dilapidated condition and not the ground
[(2003)3 Kant.L.J. 281
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
floor and the HDMC officer ought to have
been examined to prove the issuance of
notice by the HDMC for demolition;
(iii) illegally, the ground floor is added in the
show-cause notice.
(iv) The father of the respondent died after the
filing of the suit and would contend that the
right of tenancy had accrued to the legal
representatives under the Old Act and
Section 5 has given retrospective effect by
operation of the statutory stipulation
contended in Section 70(2)(b) of the present
Act.
20. The learned counsel has placed reliance on the
judgment in the case of Radhey Shyam Rastogi vs.
Ashish Kumar and another2 to contend that an
application for appointment of an independent advocate or
[(2008)10 SCC 225]
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
engineer /commissioner would be fit and proper for coming
to a proper finding regarding the condition of the building in
order to decide that the building require demolition.
21. Learned counsel placed reliance on the judgment
in the case of Smt.Madhurama since deceased by her
LRs. Sri C.Vasudeva and others Vs. Sri Shashidhar
Sindigi3 and in the case of Mahadeva vs. Vasanth
Kumar4 to contend that if the tenant dies prior to the
coming into force of the Tenancy Act, Section 27(2)(f)(p) is
not applicable.
22. Taking note of the rival contentions urged by the
learned counsel for the parties, the only point that arises for
consideration is, whether the landlord is entitled for eviction
under Section 27(2)(f) & (p) of the Act and whether the
rejection of the petition of the landlord under Section
27(2)(p) of the Act by the First Appellate Court is
justifiable?
ILR 2009 Karnataka 356
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
23. It is not in dispute that the building is a
commercial building in which two tenements have been
occupied as stated in the petition. It is also not in dispute
that the petitioner is the landlord. Ex.P.10-notice in
RCA.No.41/2004 is issued by the HDMC for immediate
demolition of the building as the same is in dilapidated
condition. Notice in RCA.No.42/2004 for immediate
demolition of the building is issued by the HDMC as the
same is in a dilapidated condition along with the letter given
by the surrounding occupations of the petition premises.
Exs.P.15 to 19 are the photographs of the petition building.
Section 27 (2) (f) of the Act reads as under:
"27. Protection of tenants against eviction.-
XXXXXXXX
(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:-
XXXXXXXX
(f) that the premises or any part thereof are
required by the landlord for the purpose of
immediate demolition ordered by the Government or
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
any local authority or the premises are required by
the landlord to carry out any building work at the
instance of the Government or a local authority in
pursuance of any improvement scheme or
development scheme and that such building work
cannot be carried out without the premises being
vacated;
24. A plain reading of the said sections
states/demonstrates that the premises or any part thereof
are:
(i) that the premises part thereof are required
for, by the landlord for the purpose of
immediate demolition ordered by the
Government or local authority;
(ii) that the premises are required by the
landlord to carry out any building work at
the instance of the Government or local
authority in pursuance of any improvement
scheme or development scheme and that
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
such building work cannot be carried out
without their premises being vacated.
25. Hence, the conditions enumerated are in two
folds:
(i) as ordered by the Government or local
authority, the premises is required for
immediate demolition;
26. In the instant case it is evident at Exs.P.3 and 5
the notice is not at the instance of the landlord but at the
instance HDMC-local authority in light of the building being
in a dilapidated condition. The trial Court and the first
appellate Court have rightly applied their mind with regard
to the requirement under Section 27(2)(f) of the Act and
granted the order of eviction. Taking note of the contents
of Exs.P3 & 5, the requirement of Section 27(2)(f) of the
Act are correct and proper. The premises is in a dilapidated
condition and the notice issued by the local authority
demonstrates the condition of the building and the
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
photographs at Exs.P.15 and 20 state the position of the
building demonstrate the condition of the building and thus
the question of appointing a Commissioner or any
competent to receive the report regarding the status of the
property is not necessary and the decision in the case of
Radhey Shyam Rastogi (stated supra) placed reliance
by the learned counsel for the tenant is not applicable to
the present facts and circumstances of the case. The
decision in the case of Mahadeva (stated supra) placed
reliance by the counsel appearing for the tenant was in the
context of where the notice was issued by the Government
at the instance of the landlord. The said decision is
distinguishable as in the present case, the notice has been
issued by the HDMC authorities themselves and no
materials have been placed by the respondent-tenant to
evidence that the at the instance of the landlord the
authority has issued notice.
27. Thus the landlord has proved the eviction of the
tenant under Section 27(2)(f) of the Act and the liberty
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
granted by the First Appellate Court is not available to the
tenant in the present facts and circumstances of the case.
28. In order to prove eviction under Section 27(2)(p)
of the Act, Section 27(2)(P) needs to be looked into which
reads as under:
"27. Protection of tenants against eviction.-
XXXXXXXX
(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:-
XXXXXXXX
(p) that the person in occupation of the
premises has failed to prove that he is a bonafide
tenant;"
29. Section 27(2)(p) states that, a person in
occupation of the premises has failed to prove that he is a
bona fide tenant. The landlord is entitled for recovery of
possession. In RCA 41/2004, respondent No.1 has inducted
respondent No.2 in the suit schedule property and
respondent No.2 has failed to place any material on record
- 25 -
NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
in regard to the induction by the petitioner-landlord in the
said premises. It is also relevant to note that respondent
No.2 also died and his legal heirs are brought on record
before the Trial Court and they had failed to establish their
entitlement over the property beyond five years as
enumerated under Section 5 of the Act. Thus, the so called
tenants in RCA No.41/2004 have failed to establish that
they are bona fide tenants under Section 27(2)(P) as well
as Section 5 of the Act. In RCA No.42/2004, the original
tenant died after coming into force of the Act, thus section
5 of the Act is applicable and on death of the tenant the
right of tenancy shall devolve for a period of five years from
the date of his death on the said count, the petitioner-
landlord is entitled for eviction against the tenants in
RCA.No.42/2004.
30. The First Appellate Court has gone on an
erroneous finding and has dismissed the petition under
Section 27(2)(p) of the Act. Section 5(1) of the Act reads as
under:
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
5. Inheritability of tenancy.- (1) In the event
of death of a tenant, the right of tenancy shall
devolve for a period of ten 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: 13 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.
31. In light of the same, the First Appellate Court
was not justified in dismissing the petition of the landlord
under Section 27(2)(p) or Section 5 of the Act. The eviction
of the tenant under Section 5 and Section 27(2)(p) needs to
be allowed and to be directed for eviction under the said
provision and the First Appellate Court was not justified in
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NC: 2023:KHC-D:14865
C/w. HRRP No.505 of 2013,
HRRP No.506 of 2013,
reversing the judgment and decree of the Trial Court.
Accordingly, this Court pass the following:
ORDER
(i) The revision petition of the landlord in
HRRP.Nos.100012/2014 and HRRP
No.100013/2014 are hereby allowed.
(ii) HRRP.No.505/2013 and 506/2013 are
hereby dismissed.
(iii) The petition of the landlord under Section
27(2)(p), 27(2)(f) and Section 5 of the Act
are hereby allowed confirming the order of
the Trial Court.
(iv) The respondents-tenants to handover
possession of the petition premises within a
period of three months from the date of
this order.
Sd/-
JUDGE
VNP & EM / CT: UMD
