Sri.Joharilal Jain vs Smt.R.D.Sarvathra
2023 Latest Caselaw 3784 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF JUNE, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          HOUSE RENT REV. PETITION NO.25/2020

BETWEEN:

1.     SRI JOHARILAL JAIN
       S/O. OAKCHAND
       AGED ABOUT 68 YEARS,
       SHOP NO.5, OLD NO.7,
       1ST FLOOR, PROPERTY NO.11/1,
       RAJACHALLANNA MARKET
       T.N.SHETTY LANE
       AVENUE ROAD CROSS,
       BENGALURU-560 053.                    ... PETITIONER

              (BY SRI H. J. SANGHVI, ADVOCATE)
AND:

1.     SMT. R. D. SARVATHRA
       W/O. LATE R.V. DEVRAJ
       AGED ABOUT 65 YEARS,
       R/AT NO.46, 1ST FLOOR,
       6TH CROSS, 6TH MAIN ROAD,
       AVALAHALLI, BDA LAYOUT
       GIRINAGAR, BSK 3RD STAGE,
       BENGALURU-560 085.                   ... RESPONDENT

       (BY SRI M.B.CHANDRACHOODA, ADVOCATE FOR C/R)

    THIS HRRP IS FILED UNDER SECTION 46(1) OF THE
KARNATAKA RENT ACT 1999 AGAINST THE ORDER DATED
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23.06.2020 PASSED IN H.R.C.NO.17/2018 ON THE FILE OF THE
CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU,
ALLOWING THE PETITION FILED UNDER SECTION 27(2) (a) OF
THE KARNATAKA RENT ACT TO PAY ARREARS OF RENT.

     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
                       ORDER

Though this matter is heard together, since the Trial Court

has considered the matters independently, independent order

has been passed.

2. This revision petition is filed challenging the order

dated 23.06.2020 passed in H.R.C.No.17/2018 on the file of the

Chief Judge, Court of Small Causes, Bengaluru which was filed in

respect of shop No.5.

3. The petitioner-landlady would contend that the

tenant was inducted in respect of the petition schedule premises

vide lease deed dated 01.05.1992 on monthly rent of Rs.151/-,

exclusive of water and electricity charges and the tenancy was

as per calendar month and the lease was for a period of 11

months from 01.05.1992, subject to renewal by mutual consent.

On mutual consent, the respondent was continued as a tenant

without there being any further agreement. The respondent-

tenant is a chronic defaulter in the matter of payment of rents

and has not paid rent from 01.01.2009 to 31.12.2017,

amounting to Rs.16,308/- even after several demands. The

petitioner-landlady got issued a legal notice on 11.12.2017

calling upon the respondent to pay arrears of rents within two

months from the date of service of notice but, inspite of service

of legal notice on 13.12.2017, the respondent has neither paid

the arrears of rents nor vacated the schedule premises.

4. It is also the contention of the petitioner-landlady

that she is a widow, as her husband died on 07.11.1998. Her

son is an unemployed person and he is intending to set up a

textile business in the schedule premises and hence, the

schedule premises is required for her bonafide use and

occupation.

5. The respondent-tenant appeared and filed the

written statement denying the averments and contend that shop

Nos.1 and 5 are common premises and the tenancy is a single

tenancy and he is jointly paying rent of Rs.201/- and Rs.151/-,

in all Rs.352/- and both the shop premises No.1 and 5 measures

160 sq.ft. i.e., it measures more than 14 sq. mtrs. and the

petition is not maintainable. It is also contended that, earlier,

the petitioner-landlady has filed the suit in S.C.No.1868/2012

and the same was dismissed and hence, the petition is hit by

principles of res-judicata and Section 61 of the Karnataka Rent

Act, 1999. Even though the petitioner is in occupation of the

entire ground, first, second and third floors, she is not doing any

business. Hence, the requirement of the schedule premises by

the petitioner for her son is false, frivolous and allegation that

rent has not been paid is denied and contend that frivolous

notice was issued and it is also contended that, since the

petitioner-landlady failed to refund the additional sum of

Rs.45,000/- with interest at 18% per annum after 5 years, she

has permitted the respondent to enjoy the schedule premises

without any disturbance. It is further contended that additional

amount is paid to clear the loan availed by the petitioner-

landlady from Sree Thyagaraja Co-operative Bank Limited, when

the petitioner had received a notice from the said bank.

6. In order to prove the case, the petitioner-landlady

examined herself as P.W.1 and got marked the documents as

Exs.P1 to P4. The respondent-tenant examined himself as R.W.1

and got marked the documents as Exs.R1 to R7.

7. The Trial Court, having considered both oral and

documentary evidence placed on record, comes to the conclusion

that the tenant was in arrears of rent and having considered the

documents of receipts which have been produced by the

respondent, particularly Exs.R5 to R7, the Trial Court comes to

the conclusion that the respondent has paid the rent in respect

of the schedule premises up to 31.03.2014 at the rate of

Rs.150/- per month and thereafter, not paid the rent. Hence,

the Trial Court comes to the conclusion that the tenant is in

arrears of rent from April 2014 at the rate of Rs.151/- per month

and answered point No.1 as 'affirmative'.

8. The Trial Court, having considered the case of the

petitioner-landlady, formulated the point No.2 whether the

petitioner has proved that she is in need of the schedule

premises for her bonafide use and occupation. It is the

contention of the petitioner-landlady that her son is unemployed

and she is intending to accommodate his son to start a textile

business. The respondent also not disputes that R.D. Prashanth

is the son of the petitioner. Though during the course of cross-

examination of the petitioner, it was suggested that her son is

gainfully employed, the same was denied and no material is

placed before the Court to show that he is gainfully employed.

Hence, answered the point No.2 as 'affirmative' and allowed the

petition. Hence, the present revision petition is filed before this

Court.

9. The main contention of the learned counsel for the

petitioner in this petition is that the Trial Court committed an

error in coming to the conclusion that the petitioner is in arrears

of rent and failed to take note of the documents of Exs.R1 and

R2 for Rs.5,000/- and Ex.R4 which is a receipt of security

deposit for Rs.45,000/- and in terms of Ex-R4, the tenant seek

for an order of eviction and the Trial Court, without going

through the pleadings and statement of objections, passed an

impugned order. It is also contended that, even the respondent

in her cross-examination has stated that her son is doing private

job but, she cannot state where he is working and also does not

know how much income he is getting per month and inspite of

this admission, the Trial Court committed an error. The counsel

also would submit that, there is an admission that shop No.3

was let out to one Kishore Jain on a monthly rent of Rs.1,500/-

and inspite of admission and shop No.3 was let out, the same

was let out again and hence, the Trial Court committed an error.

10. Learned counsel for the respondent-landlady in his

argument would vehemently contend that the tenant has not

disputed the fact that the son of the respondent is unemployed

and even, not cross-examined the witness with regard to the

requirement of the premises and the Trial Court mainly

concentrated with regard to payment of Rs.45,000/- as advance

which was denied and there is no cross-examination for

requirement of the premises for respondent-landlady to

accommodate his son. Hence, the Trial Court has not committed

any error.

11. Having heard the learned counsel for the petitioner

and also the learned counsel of the respondent, the points that

would arise for consideration of this Court are:

(1) Whether the Trial Court has committed an error in passing an order of eviction under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999 and it requires interference of this Court?

(2) What order?

Point No.(1)

12. Having considered the material on record, there is no

dispute with regard to the relationship between the parties and

also premises in question is situated in first floor of shop No.5

and though the tenant contend that there was a common

tenancy in respect of Shop Nos.1 and 5, but no document is

placed before the Court. Admittedly, the document of Ex.R1-

Security Deposit Receipt is for having received the advance

amount of Rs.5,000/- and there is no dispute with regard to the

tenancy since, lease deed is also marked as Ex.P4 and Ex.R3 is

the copy of the same.

13. I have already pointed that, in terms of Ex.R1, an

advance amount of Rs.5,000/- is received and though the

learned counsel for the tenant would contend that an amount of

Rs.45,000/- was paid, but, on perusal of the document of Ex.R4,

it is seen that, though it is termed as security deposit amount, it

is mentioned therein that the same is payable with interest at

18% per annum and the tenant also categorically admits that, if

any advance amount is paid, the same is payable without

interest and the document also discloses that the same is liable

to be paid after completion of 5 years i.e., 01.04.1999 and in

case of default to refund the said amount with interest, the

lessee is entitled to enjoy the schedule premises without

eviction. The Trial Court having taken note of the said document,

comes to the conclusion that there cannot be any such condition

by referring the judgment of the Apex Court and the same is

contrary to law.

14. Though in the cross-examination of P.W.1,

suggestion was made that advance amount paid was

Rs.45,000/-, the same was denied and the very such document

and also denied. The Trial Court, having taken note of the

documents of Exs.R5 to R7, comes to the conclusion that those

documents which have been produced is for having paid the

rents on different dates. Ex.R5 is the consolidated rent receipt

dated 31.10.1997, Ex.R6 is the consolidated rent receipt from

November, 1997 till 31.03.1999 and Ex.R7 is consolidated rent

receipt from April, 1999 to 31.03.2014 and except these

documents, no other document is placed before the Court for

having paid the rent. Hence, I do not find any error committed

by the Trial Court in allowing the petition filed under Section

27(2)(a) and (r) of the Karnataka Rent Act, 1999.

15. The other contention of the learned counsel for the

petitioner-tenant is that the other premises was also vacant

which was rented out to a tenant and no dispute with regard to

the fact that other premises was rented out to other tenant.

But, the only contention is that the respondent-landlady has not

shown the bonafide requirement.

16. I have already pointed out that there is no dispute

with regard to the fact that the son of the landlady is

unemployed and though it is suggested that he is gainfully

employed, nothing is elicited in the cross-examination and it is

the choice of the landlady as to where his son has to do the

business and the tenant cannot dictate terms to the landlady to

do the business in a particular shop and the premises which was

let out is situated in the first floor and no dispute with regard to

the fact that in the ground, first and second floors, there are

other business. It is rightly pointed out by the learned counsel

for the respondent-landlady that there is no effective cross-

examination with regard to the requirement of the landlady and

the respondent-landlady mainly concentrated on the document

of Ex.R4 with regard to the payment of advance and the Trial

Court also, having taken note of the material on record, rightly

comes to the conclusion that it is the choice of the landlord and

the tenant cannot dictate the terms. The very requirement of

the petitioner is that his son is unemployed and hence, she

intends to accommodate her son in the schedule premises to

start a textile business.

17. Having considered the material on record, the fact

that his son is unemployed is not in dispute. But, the only

contention is that other premises are vacant and in that

premises, he has not started his business and the said

contention also cannot be accepted since, it is the choice of the

landlady to decide which premises is required and the tenant

cannot dictate terms. The Trial Court also taken note of the fact

that, during the pendency of the petition, one of the tenant by

name Naresh Kumar, who was occupying a shop in the second

floor has vacated and the said shop is lying vacant. But, the

Trial Court held that, it is settled position of law that the landlord

is the best judge and has complete freedom to choose the

premises which is more suitable to her purpose and that a

tenant cannot dictate terms to the landlord as to which premises

is suitable for her purpose and that the tenant cannot dictate

terms. It has to be noted that the said premises is in the second

floor and it is the choice of the landlady to choose the premises

which is more suitable for their purpose. Hence, I do not find

any merit in the revision petition and the petitioner-tenant failed

to prove the fact that the Trial Court has committed an error.

Accordingly, I answer point No.1 as 'negative'.

Point No.2

18. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is dismissed. The revision petitioner is given three months time to vacate the premises subject to payment of rent.

(ii) The respondent-landlady is directed to pay the advance amount of Rs.5,000/- to the tenant on vacating the premises.

Sd/-

JUDGE

ST