Heard learned counsel for the parties
Leave granted.
Ist Additional Civil Judge (Junior Division)(Rent Controller) relied on the
provision contained in Explanation (i) appearing below Section 27(2)(r) of the
Karnataka Rent Act, 1999 (for short ‘the Act’) and granted the respondents
prayer for eviction on the ground of bona fide necessity. That order has been
confirmed in revision by the learned Additional District Judge. When the High
Court was moved against the said order, it refused to interfere with the same.
Hence, this appeal by special leave.
Learned counsel for the appellant argued that the impugned orders are
liable to be set aside because the Rent Controller and Additional District Judge
gravely erred by relying on Explanation (i) appearing below Section 27(2)(r),
ignoring the fact that the eviction
...2/-
petition filed by the respondents was not supported by an affidavit. He further
argued that High Court also committed serious error by upholding the order of
eviction on the ground that the verification of the eviction petition was certified by
the Administrative Officer of the Trial Court. Learned counsel emphasized that
presumption envisaged in Explanation (i) appearing below Section 27(2)(r) of the
Act, is required to be raised, only if the petition for eviction is supported by an
affidavit and not otherwise and in the present case no such affidavit had been
filed.
Learned counsel for the respondents supported the order of eviction and
argued that the Courts below rightly relied on Explanation (i) appearing below
Section 27(2)(r) of the Act because the verification of the eviction petition was duly
certified by the Administrative Officer of the trial Court.
We have considered the respective submissions. Section 27(1)(2)(r) and
Explanation (i) appended thereto reads thus:
“27. Protection of tenants against eviction – (i) Notwithstanding
anything to the contrary contained in any other law or contract, no
order or decree for the recovery of possession of any premises shall
be made by the Court, District Judge or High Court in favour of the
landlord against a tenant, save as provided in sub-section (2).
(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, ---
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(r) that the premises let are required, whether in the same form
or after re-construction or re-building, by the landlord for
occupation for himself or for any member of his family if he is the
owner thereof, or for any person for whom benefit the premises are
held and that the landlord or such person has no other reasonably
suitable accommodation.
Explanation I – For the purposes of this clause and Section 28 to 31 –
(i) where the landlord in his application supported by an
affidavit submits that the premises are required by him for
occupation for himself or for any member of his family dependent on
him, the Court shall presume that the premises are so required.”
From a bare reading of the aforesaid provision, we have no difficulty in
accepting the argument of the learned counsel for the appellant that if an
application for eviction of the tenant is filed on the ground enumerated in clause
(r) aforesaid and 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 or for any member
of his family dependent on him for that his need is not bona fide.
In the present case, we find that the eviction petition was not supported by
an affidavit of the landlord. The verification of the plaint, which is said to have
been certified by the Administrative Officer of
the trial Court, cannot be treated as an affidavit. Therefore, no presumption could
have been raised by the Rent Controller that the landlord needed the premises for
occupation for himself or for any member of his family.
A careful scrutiny of the record shows that the parties did lead oral as well
as documentary evidence on the issue of requirement of the landlord, but neither
the Rent Controller nor Additional District Judge considered the same and
recorded a finding that de hors the presumption contemplated in Explanation (i)
appearing below Section 27(2)(r), the landlord has been able to prove his
requirement for the premises in dispute.
In view of the above, it must be held that the order of eviction was passed
by the Rent Controller on an unfounded premise and the same is liable to be set
aside. On the same ground, the orders passed by the Additional District Judge
and the High Court are liable to be set aside.
Accordingly, the appeal is allowed, impugned orders are set aside and the
matter is remitted to the original authority to dispose of the original proceeding in
accordance with law after giving opportunity of hearing to the parties.
No costs.
[G.S. SINGHVI] New Delhi, July 18, 2008.