ORDER
A.V. Srinivasa Reddy, J.
1. The petitioner-landlady who has failed in her effort to recover possession of the premises which she claimed for her occupation and the occupation of her daughter is calling in question the legality and correctness of the impugned order dated 10th October, 2001 passed by the Court below in H.R.C. No. 418 of 1998 dismissing the eviction petition.
2. The petitioner sought eviction of the tenant under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 ('the repealed Act' for short) on the ground of personal requirement and for accommodating her married daughter who is residing in the maternal house situate at Koramangala. In the petition it was stated that she being an aged woman, her health condition is deteriorating day by day and she need the constant presence of her daughter beside her. It was also stated in the petition that her daughter Arundathi is not inclined to come and stay in the petition premises unless the portion in occupation of the tenants is vacated for her use and occupation. The petition allegations were denied by the respondents-tenants who took the defence that the petitioner's daughter is conveniently staying in a posh house and she or her family does not require the petition premises for their residence. The Court below held that the petitioner failed to prove her case for self-occupation as set up by her in the petition and, accordingly, dismissed the eviction petition. Being aggrieved the petitioner has presented this revision.
3. I have heard the learned Counsels on both sides.
4. The question that arises for my consideration in this revision is:
Whether the Court below was justified in passing the impugned order, dismissing the eviction petition filed by the petitioner?
5. During the pendency of this revision petition, the Karnataka Rent Control Act, 1961 was repealed in toto and in its place the Karnataka Rent Act, 1999 was enacted ('the Act' for short). The Act brought about substantial changes in the matter of regulating rent and eviction. The present Act contains certain substantive provisions which provide for immediate eviction of tenants of State or Central Government Employees, members of Armed Forces, widows, handicapped persons and persons above the age of 65 years under certain circumstances. Section 70(2)(b) of the Act stipulates that all cases and proceedings pending at the commencement of the Act shall be continued and disposed off by the Court in accordance with the provisions of the present Act. The dispute herein, therefore, will have to be determined in accordance with the provisions of the Act.
6. In the present Act a new substantive provision has been provided under Section 31 of the Act to enable a widow to get immediate possession of the premises if the premises is required for use by her or for any one ordinarily living with her. The provision is so worded that it narrows down the scope for opening the door to any sort of defence against a claim made under the provisions, by employing simple and lucid style words in the making of the provision. The provision reads:
'31. Right to recover immediate possession of premises to accrue to a widow.--(1) Where the landlord is.--
(a) a widow and the premises let out by her, or by her husband;
(b) a handicapped person and the premises let out by him;
(c) a person who is of the age of sixty-five years or more and the premises let out by him,
is required for use by her or him or for her or his family or for any one for ordinarily living with her or him for use, she or he may apply to the Court for recovery of immediate possession of such premises.
(2) Where the landlord referred to in Sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of any one residential and one non-residential premises each chosen by him.
Explanation I.-- For the purposes of this section, 'handicapped person' shall mean a person who is as if being an assessee entitled for the time being to the benefits of deduction under Section 80-U of the Income-tax Act, 1961 (Central Act 48 of 1961).
Explanation II.--The right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use'.
But, Mr. Sathyanarayana, learned Counsel for the respondents, submits that a petition cannot be sustained on the ground available under Section 31 alone as it does not provide an independent cause of action. According to him, the provision is only related to and governs the time that a Court may grant to a widow who has succeeded in establishing her case under Section 27(2)(r) of the Act. It is his contention that if the widow fails in establishing her case under Section 27(2)(r), she is not entitled to the relief of recovery of possession of the tenanted premises under Section 31 of the Act.
7. The provision is coined in a very simple language and is free from ambiguity. There is so much difference in designing the legislative diction of these two provisions that it is impossible to contend that Section 31 is meant only to serve as a subsidiary to Section 27(2)(r) of the Act and does not, on its own, provide an independent cause of action. Each of these provisions provide for two entirely different situations that one can present a petition for eviction independently under any of the grounds provided for in these provisions. It may be that a person could maintain a petition for eviction under both the heads but that does not mean to say that one is dependent on the other or that to avail of the remedy of immediate possession under Section 31 a person has to invariably substantiate his claim under Section 27(2)(r). I find no merit in this contention.
8. Coming to the merits of the claim under Section 31 of the Act, this being a new development that has taken place on the coming into force of the present Act, the Court below had no occasion to go into this aspect of the matter and the issue has to be determined by this Court, Section 31 being a substantive provision providing a new remedy to a special class of persons, the Court has to examine whether the petitioner is entitled to the said relief. The conditions to be satisfied by a widow for getting the relief under this provision are: (i) the premises must have been let out by her or her husband; (ii) she must be of the age of sixty-five years or more; and (iii) the premises let out by her is required for her or for any one ordinarily living with her. In the case on hand the premises, even according to the respondents, was let out by the petitioner herself. There is no disputing the fact that she is aged more than 65 years. The need propounded by the petitioner in the petition is that she requires the premises for accommodating her daughter as she needs her support being a widow living all by herself as her son is staying abroad. Thus, the petitioner satisfies all the conditions required to be satisfied for getting the benefit of Section 31 of the Act. Therefore, she is entitled to recover immediate possession of the premises from the respondents-tenants.
9. The relief was sought by the petitioner on the ground of requirement of the premises for self-occupation which was governed by Section 21(1)(h) of the repealed Act and in the present Act it is governed by the corresponding provision Section 27(2)(r). Section 27(2)(r) governs the requirement of the premises by the landlord for her occupation and occupation of any of her family member for whose benefit the premises is sought. The provision reads:
'27. Protection of tenants against eviction.--(1) 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 whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation:
Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition.
Explanation I.--For the purposes of this clause and Sections 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;
(ii) premises let for a particular use may be required by thelandlord for a different use if such use is permissibleunder law.
Explanation II.--For the purposes of this clause and Sections 28 to 31 an occupation by the landlord of any part of a building of which any premises let out by him forms a part shall not disentitle him to recover the possession of such premises'.
Touching the meaning of the word 'requirement' as it finds place in Section 27(2)(r) of the Act, Mr. Sathyanarayana, learned Counsel for the respondents, submitted that the doing away with the words 'bonafide and reasonably' in this provision does not mean to say that whenever a plea is made by the landlord that it must automatically lead to the eviction of the tenant. Drawing attention to Explanation I(i) to Section 27 wherein the Court is called upon to draw a presumption in favour of the landlord that the requirement pleaded by her is real and genuine, he submitted that the said presumption is a rebuttable presumption and it will hold good only so long as it is disproved. It is his submission that the presumption having been successfully rebutted by the respondents herein by adducing convincing evidence in the Court below, the impugned order does not call for any interference.
10. He cited for ray consideration the decision in Sodhi Transport Company v. State of Uttar Pradesh. : [1986]1SCR939 In the said decision the Apex Court has referred to the definition of the words 'may presume', 'shall presume' and 'conclusive proof as occurring in Section 4 of the Indian Evidence Act, 1872 and after a detailed discussion held that a rebuttable presumption is clearly a rule of evidence. The Apex Court in the said decision was dealing with Section 28-B of the Uttar Pradesh Sales Tax Act, 1948, wherein it was provided that when a vehicle coming from any place outside the State and bound for any other place outside the State passes through the State, the driver or other person in-charge of such vehicle shall obtain in the prescribed manner a transit pass from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver it to the officer-in-charge of the check-post or barrier before his exist from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person in-charge of the vehicle. The words 'shall presume' as occurring in Section 28-B were construed by the Apex Court with reference to the definition of the term 'shall presume' as given in Section 4 of the Indian Evidence Act, 1872 for reaching the conclusion that a presumption is not in itself evidence but only makes out a prima facie case for party in whose favour it exists. I would like to quote herein the observations made by the Apex Court in this context which is found at para 14 of the decision. They read:
'A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But, when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established'.
In the light of the submission made by learned Counsel Mr. Sathyanarayana and the reliance placed by him on the ratio decidendi of the decision in M/s. Sodhi Transport Company's case, supra, it remains to be seen whether the respondent-tenant could be allowed the liberty of rebutting the presumption. Such liberty has to be allowed to him if the presumption arising under Explanation I(i) under Clause (r) of Section 27(2) and Sections 28 to 31 of the Act is a rule of evidence and not a rule of law and not otherwise.
11. The Court can determine the true intent of the Legislature by making a purposeful interpretation of the provision and once the intent of the Legislature becomes explicit it becomes the duty of the Court to 'effectuate' the intention and not 'defeat' the purpose for which the provision has been enacted. Where on an overall examination of all the relevant provisions of the Act the intent that could have possibly persuaded the Legislature to make a substantive provision is attributable to the achievement of a definite object and to further ensure its happening the Legislature has appended to the provision an explanation whereby the Court is compelled to draw a presumption as to the existence of a certain fact, whether such presumption is rebuttable or irrebuttable would directly depend on the object that the Legislature sought to achieve while enacting the said provision. One of the objects sought to be achieved by the present Act, as could be gathered from the statement of objects and reasons, is to balance the interests of both landlord and the tenant and also to stimulate future construction. Probably realising that stimulation of future construction would require a legislation which provides comprehensive remedies and which is quick acting so as to ensure operational speed in matters of eviction, the present Act has been passed by the Legislature. Often under the repealed Act the landlord had to falter in his attempt at getting the tenanted premises vacated for his own use and occupation because it was easier for the tenant to establish that the need urged by the landlord lacked reasonableness than for the landlord to establish that his need was bona fide. The landlords found themselves in a real quandary because they could neither hike the rents because such attempts faced stiff resistance from the tenants nor could they evict them because an eviction petition could be easily defeated on the grounds of unreasonableness or lack of bona fides. This situation did not augur well for development of real estate and the Legislature taking a cue from the situation that obtained by virtue of the then existing law, while enacting the present Act has done away with the need for the landlord to establish that his requirement is both bona fide and reasonable when the need propounded is for self-occupation of the premises. Further, in order to provide immediacy in the matter of directing eviction of tenants where the premises are sought for self-requirement of the landlord, the Legislature has thought it fit to incorporate an explanation whereunder the Courts are compelled to draw the presumption as to the existence of the need so that the proceedings would not get dragged on in finding out whether the requirement pleaded is bona fide and reasonable. It must be noted that this presumption is made applicable to only cases where the application is presented by the landlord seeking for self-requirement of the premises and the Legislature has not extended it to applications filed on grounds other than self-requirement. Reading Section 27(2)(r) and Sections 28 to 31 together with the explanation, the special nature of these provisions becomes obvious and since they vest a right in the person who presented the application under those provisions, the presumption cannot be termed as a mere rule of evidence aimed at shifting the burden on to the tenant to disprove the case put forth by the landlord. Despite the presumption in favour of the landlord, a claim made under Section 27(2)(r) could be defeated by the tenant by showing to the Court that the landlord or such other person for whose benefit the premises was sought has other reasonably suitable accommodation. Even assuming for a moment that the submission canvassed by Mr. Sathyanarayana is correct, it would be of no avail to a tenant because, the presumption emerging from the operation of law cannot be rebutted by characterising the reed as not bona fide or reasonable because it is not required of the landlord to prove that his need is bona fide and reasonable. What is required to be established in the present legal scenario is that an element of need is present in the case set up by the petitioner for eviction of the tenant. Therefore, even construing for the sake of argument that the presumption amounts to a rule of evidence and not to a rule of law, the tenant cannot lay claim to any better defence than to show to the Court that the landlord has other reasonably suitable accommodation which is already provided for in Section 27(2)(r) with which we are presently concerned in this revision. It can also be said that the requirement pleaded is totally bereft of the element of need and the Court invariably, even in the absence of such a specific plea, would go into that question. Summing up the discussion on this point, I hold that the presumption arising under Explanation I(i) amounts to a rule of law and, therefore, irrebuttable.
12. Elaborating on this point, Mr. Sathyanarayana contended that if this be the position in law then the Court would be reduced to a mere clerical functionary as the only course open to it would be to pass an order of eviction once a petition is presented to it on these grounds. Nothing can be farther from truth. A cause of action brought before a Court for adjudication may or may not give rise to a triable issue. Wherever a cause of action gives rise to a triable issue, the Court determines it only on satisfying itself about the justness of the cause. If the Court is satisfied about the justness of the case then it proceeds to grant the relief. No legislation, however lop-sided it may be, can take away the prerogative of the Court to consider the case on merits and to determine it conscientiously for purpose of advancing the cause of justice. Despite the Court's compulsion to presume the existence of a fact in favour of the landlord it can still refuse to grant the relief in exercise of its powers if it finds that the facts pleaded in support of the relief are ex facie fallacious, on the ground that granting such relief would lead to miscarriage of justice. The ultimate responsibility to determine the justness of the cause is always on the Court and it can, despite the presumption available in favour of the landlord, refuse to allow the claim on the reasoning that the facts pleaded in support of the relief are baseless. I need not elaborate much on this point as the fads in the present case amply establish the element of need which prompted the petitioner to file the petition and I would advert to this aspect presently
13. Reverting back to the facts of the case, the ground set up by the petitioner is that she requires the premises for accommodating her daughter. The plea raised in support of her case is that, at present her daughter is staying in her monther-in-Iaw's place and her mother-in-law who is presently residing in her second son's house wants to move over to her own house and because of the strained relationship between her daughter and her monther-in-law, her daughter wants to move into the petition premises. The further case pleaded is that since she is staying all alone in the house and she being an old widow, she needs the constant presence of her daughter. These specific pleas do indicate that the element of need is very much present in the case and the requirement based on these pleas cannot be characterised as a mere wish. The Court below has made much of the fact that the petitioner left for America and stayed there for some time. It is not as if the petitioner left Bangalore for good and settled in U.S.A. Since her son is staying there it was but natural for her to have gone there for visiting her son. It has come on record that the daughter of the petitioner owns a car. She would need space for parking the car. The submission that the accommodation available with the petitioner is more than sufficient to accommodate her daughter's family cannot be accepted because the petitioner's son-in-law might prefer to have some privacy. More importantly the petitioner would like to set apart some portion of the premises in her occupation as guest-room to accommodate her son as and when he comes for visiting her at Bangalore. It would be too much to expect petitioner and her daughter to cram themselves in a portion of the premises only because the respondents can continue to stay conveniently in the other portion. It is the case of the respondents that the petitioner's daughter is residing in a specious house in Koramangala. When she is used to living in such accommodation it would be unreasonable to reject the claim of the petitioner for self-occupation of the premises in question on the ground that the portion in the occupation of the petitioner can accommodate the daughter's family also. Herein we are concerned with the requirement of an old lady who is staying all alone and pleads for additional accommodation in the same premises in which she is residing in order to accommodate her daughter staying miles away so that in her old age she could have the emotional and physical support of her daughter whenever she needs them which should be quite often given her old age. How a particular need pleaded should be connoted has been explained by the Apex Court in Raghunath G. Panhale (dead) by L.Rs v. Chaganlal Sundarji and Company, AIR 1999 SC 3864 : (1999)8 SCC 1 : 1999(8) Supreme 658 as follows:
'The word 'reasonable', connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word 'reasonable' means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end'.
The need that is pleaded by the petitioner, without doubt, is so compelling a need that it can never be characterised as a mere fanciful desire. The old lady's need for emotional and physical support given the fact that she is residing all alone in her old age is a requirement which is an absolute necessity and it is a need in present. Therefore, even if the Court is not required to examine the need pleaded from the point of view of its reasonableness under the provisions of the present Act, I find that the need urged in support of her case for eviction of the respondents-tenants would easily qualify as an absolute necessity. Further, Explanation II to Section 27(2)(r) stipulates that the landlord is not disentitled to recover possession of a part of the premises let out to a tenant even though the landlord may be residing in the other portion of the same premises. Explanation II reads:
'For the purposes of this clause and Sections 28 to 31 an occupation by the landlord of any part of a building of which any premises let out by him forms a part shall not disentitle him to recover the possession of such premises'.
Thus, merely because, the petition is filed for occupation of the premises in occupation of the tenants which forms part of a building in possession of the landlord it is no ground to reject the claim of the petitioner.
14. Learned Counsel Mr. Sathyanarayana cited the decision in Phireze Bamanji Desai v. Chandrakant M. Patel, AIR 1974 SC 1059 : (1974)1 SCC 661 in support of the proposition of law that where the lower Court interpreted the word 'requires' to mean that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation and arrived at the finding that the landlord reasonably and bona fide required the premises for his own use and occupation, the finding was a finding of fact and it was not competent for the High Court to interfere with this finding by reappreciating the evidence. There is no disputing this principle. But, the principle will hold good only so long as the tests to be applied by the lower Court and the High Court are one and the same. As the tests to be applied in determining this revision is substantially different from the tests that have been applied by the Court below, it becomes essential to reappreciate the evidence. In fact, the decision itself refers to this aspect of the matter, when it states at para 7;
'If the lower Court had applied a wrong test on a misconstruction of the word 'requires' the finding recorded by it would have been vitiated by an error of law'.
Though, in the present case no fault could be laid on the Court below for the tests applied by it, because of the changed situation in law it becomes all the more necessary for reappreciating the evidence as tests different from the ones applied by the Court below are to be applied in the present legal situation for deciding the revision. On such reappreciation of evidence this Court finds that the petitioner has established the case pleaded by her for self-occupation of the premises and the rejection of her eviction petition by the Court below, therefore, is liable to be set aside.
15. In the result, the revision petition is allowed and the impugned order is set aside. The eviction petition filed by the petitioner is allowed and the respondents are given three months' time to quit and deliver vacant possession of the premises to the petitioner-landlord.