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1979 DIGILAW 79 (KAR)

NAGAMMA v. S. V. VENKATARAMU

1979-03-19

M.RAMA JOIS

body1979
( 1 ) THESE three revision petitions are presented by the, tenants against whom an order of eviction has been passed by the Court of the Civil judge, Bangalore on petitions presented by the respondent under S. 21 (1) (a) and (h) of the Karnataka Rent Control Act (hereinafter referred to as 'the Act' ). As the respondent is common and common questions arise for consideration, they are being disposed of by this common order. ( 2 ) WHEN these three petitions were posted for objections before the court below, the petitioners-tenants remained absent though notices had been served. In the two petitions, out of which CRP No. 593 and 605 of 1979 arise, the learned Civil Judge passed an ex-parte order of eviction relying on sub-rule (2) of R. 5 of Or. 8 of the Code of Civil Procedure. The order made in HRC No. 938/78 out of which CRP No. 605 of 1979 arises, reads as follows: -"objections not filed Respondent placed ex-parte. In view of o. 8, R. (5) CPC. petition allowed as prayed for. Respondent gramed one year's time to vacate. "similar order was made in HRC No. 895 /78 out of which CRP No. 593/79 arises. In HRC No. 502/78 out of which CRP No. 632 79 arises, however, the learned Judge, after considering the plea set out in the petition and the affidavit filed by the respondent, recorded a finding that the requirement of the respondent was reasonable and bona, fide and further that it no eviction order was granted, the respondent would be, put to greater hardship than the petitioner. ( 3 ) IN my opinion, orders made in HRC No. 895/78 and HRC No. 938/78 against which CRP Nos. 593 and 605 of 1979, respectively have been r. 42 presented, cannot be sustained,. Under S. 21 of the Act, an order of eviction can be made against a tenant only on any one of the grounds mentioned in Clauses (a) to (p) of that section. The existence of one or more of the grounds and also other conditions subject to which alone an order of eviction can be made in favour of the landlord constitutes the foundation for the exercise of the power. The existence of one or more of the grounds and also other conditions subject to which alone an order of eviction can be made in favour of the landlord constitutes the foundation for the exercise of the power. Therefore, even if the respondent-tenant remained absent, it was the duty of the court below to consider the merits of the case of the landlord, and to have recorded a finding as to whether the ground, on the basis of which eviction was sought for existed and it falls under anyone of the clauses under S. 21 of the Act. ( 4 ) FURTHER, it was also necessary for the court below to have recorded a finding on the question whether by passing or not passing an order of eviction greater hardship would be caused to the tenant or Jandlord, respectively, which is another requirement to be considered before passing an order of eviction on the ground of bona fide use and occupation, as is clear from sub. sec. (4) of S. 21 of the Act. ( 5 ) THE provisions of the Code of Civil Procedure are made applicable to the proceedings under the Act by virtue of E. 35 of the Karnataka rent Control Rules. Or. 8 R. 5 (2) of the Code of Civil Procedure which provides far passing an ex-parte order against a defendant reads as follows:-"viii. 5. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under disability, but the Court may in its discretion, require any such fact to be proved. "even applying the above provision, it was obligatory for the Court below to have examined the plea and the facts set out in the petitions and to find out as to whether the landlord has made out a case for passing an order of eviction. ( 6 ) AS in these petitions, the landlord had filed petitions under S. 21 (1) (h) of the Act, it was obligatory for the Court below to have recorde finding on the question of bona fide requirement of the landlord as also on the question of comparative hardship. As the two orders, have been mad without recording findings on the two issues, the orders are liable to be set aside. As the two orders, have been mad without recording findings on the two issues, the orders are liable to be set aside. ( 7 ) AS far as CRP No. 632/79 is concerned, the learned Civil judge after considering the petition, has recorded a finding on both the issues, namely, bona fide requirements of the landlord and also on the question of comparative hardship. At this stage, the learned counsel for the petitioner submitted that the petitioner desires to file an application under Or. 9 13 of the Code of Civil Procedure read with R. 29 of the Karnataka Rent control Rules before the learned Civil Judge and prayed that it may be dismissed with liberty to file such an application before the court below ( 8 ) IN the circumstances, I make the following orders. (1) CRP Nos. 593 and 605 of 1979 are allowed. (2) Orders dated 30-9-1978 and 27-10-1978 in HRC No. 895 and HRC no. 938 of 1978, respectively, sre set aside and the cases are remanded to the Court of Civil Judge for fresh disposal in accordance with law. (3) CRP No. 632 of 1979 is dismissed leaving liberty for the petitioner to file an application under R. 29 of the Karnataka Rent Control Rules without prejudice to the right of the respondent to object to the application both on merits and on the ground of limitation. --- *** --- .