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Sri Narayan Baburao Sapakal vs Basavaraj S/O Sangappa Guled on 29 October, 2007

Karnataka High Court
Sri Narayan Baburao Sapakal vs Basavaraj S/O Sangappa Guled on 29 October, 2007
Equivalent citations: 2008 (1) KarLJ 93
Author: R Naik
Bench: R Naik


ORDER

R.B. Naik, J.

1. This petition is filed by the landlord challenging the order passed by the I Additional District Judge, Dharwad sitting at Hubli in R.R. No. 26/2006 dated 23-3-2007 where under the order passed by the I Additional Civil Judge, Jr.Dn in RCA No. 30/2005 dated, 2-9-2006 is set aside.

2. The landlord/petitioner sought eviction of the respondent under Section 27(2)(e) & (r) of the Karnataka Rent Act, 1999. The trial Court on appreciation of the material on record held that the landlord is entitled for an order of eviction as against the tenant and directed the tenant to vacate the premises in question within a period of three months from the date of order which order was the subject matter of challenge in Revision No. 26/2006 filed by the tenant. The Revisional Court up set the order of the trial Court and rejected the claim of the landlord on both the counts holding that the landlord is not entitled for an order of eviction either under Section 27(2)(e) or under Section 27(2)(r) of the Act which order is challenged before this Court in the form of a revision under Section 115 of CPC.

3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

4. On perusal of the material on record and the arguments addressed by the advocates for the parties, I find that the Revisional Court fell in error in holding that the petition of the landlord filed under Section 27(2)(r) is not maintainable since he has failed to seek possession under Section 27(2)(e) of the said Act. These two provisions are independent and not interdependent. The landlord would have maintained a petition exclusively under Section 27(2)(r) and in such an event the trial Court and the Revisional Court had to appreciate the fact of the need of the landlord if he would be entitled to possession of the property under Section 27(2)(r) for occupation of himself or any member of his family being the owner thereof or for any person for whose benefit the premises was held and that the landlord or such person has any other reasonably suitable occupation. Explanation (i) to the said provision reads where the landlord in his application supported by an affidavit submits that the premises is required by him for occupation or any other member of the family dependent on him, the Court shall presume that the premises are so required.

5. As regards the finding of the trial Court in respect of eviction sought under Section 27(2)(e) which is based upon the plan and estimate produced by the landlord is an error. The petitioner landlord has failed to produce any authenticated document to establish that the plan and the licence are granted by the competent authorities and as such the finding of the trial Court that the petitioner landlord is also entitled for an eviction under Section 27(2)(e) is an error and thus the Revisional Court was justified in holding that the petitioner landlord is not entitled for an eviction under Section 27(2)(e) of the Karnataka Rent Control Act.

6. In the instant case the right of the landlord under Section 27(2)(r) was rejected on the ground that he has failed to establish his right under Section 27(2)(e) of the said Act and the reason for rejecting the claim under Section 27(2)(e) is that he has not obtained necessary plan and licence sanctioned by the City Municipal Corporation. As the said provisions 27(2)(e) and 27(2)(r) are not interdependent, the Revisional Court ought to have appreciated the claim of the landlord independently pertaining to Section 27(2)(e) and 27(2)(r) of the Karnataka Rent Act, 1999.

7. In the present case the petitioner landlord has filed an application for eviction of the respondent/tenant under Section 27(2)(r) of the Karnataka Rent Act, 1999 and has also filed an application supported by an affidavit stating that the petition premises is required by him as well as his family members and the Court has to draw a presumption that the premises is so required. The said presumption that arises under the Act has not been satisfactorily rebutted by the respondent by oral or documentary evidence. Mere fact that the respondent/tenant has contended that a petition under Section 21(2)(r) would not be maintainable since the petitioner landlord has also sought eviction under Section 27(2)(e) does not hold any water since the said two provisions are not interdependent. This finding of the trial Court that the petitioner is entitled for eviction of the respondent/tenant under Section 27(2)(r) is to be up held. Hence the following:

ORDER

The order of the Revisional Court dated 23-3-2007 in R.R. No. 26/2006 in so far as it relates to the rejection of the claim of the petitioner landlord under Section 27(2)(e) of the Karnataka Rent Act is up held and in so far as it relates to the rejection of the claim of the petitioner landlord under Section 27(2)(r) of the Act is set aside and the order of the Mai Court directing eviction of the respondent tenant under Section 27(2)(r) of the K.R Act is up held and restored. The order of the first Additional Sessions Judge dated 23-3-2007 in R.R. 26/2006 is set aside in so far as it pertains to the rejection of the claim of the petitioner landlord under Section 27(2)(r) of the Act. Further the order in so far as it relates to allowing the revision petition under Section 27(2)(e) refusing eviction to the petitioner landlord is up held and the order dated 2-9-2006 in RCA 30/2005 is modified in the following terms:

The petition of the petitioner landlord under Section 27(2)(r) of the K.R. Act is allowed and the respondent tenant is directed to vacate and hand over vacant possession of the petition schedule premises to the petitioner landlord within 15 months from the date of this order. The respondent tenant shall pay the rents without default. Any successive defaults committed by him would enable the landlord to file execution and seek eviction of the respondent/tenant and the time granted in this order will not enure to the benefit of the respondent/tenant. The respondent/tenant shall file an under taking in four weeks the effect that on the expiry of 15 months he shall voluntarily vacate and deliver vacant possession of the schedule premises to the petitioner/landlord and during the duration of 15 months he shall not create third party right on the property in question. He shall also pay the rents regularly without any default.

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