KRISHNA MURTHY SETTY v. KARNATAKA HOUSING BOARD — 1989 DIGILAW 293 (KAR)

K. A. SWAMI, J. ( 1 ) IN view of the fact that the appeal involved a very short question of law, on 1-8-1989 it was directed to be brought up in the category of orders, with a further direction that it would be heard for final disposal. Accordingly, the appeal is brought up today in the category of orders. The records of the appeal are also received. The first respondent has entered appearance. Therefore, in the light of the order dated 1-8-1989 the appeal is heard for final disposal. ( 2 ) THE lower Appellate Court dismissed the appeal and confirmed the Judgment and decree of the trial Court on the ground that the suit filed by the appellant-plaintiff was not maintainable as it was filed against the first defendant-first respondent without issuing statutory notice as required by Section 72 of the Karnataka Housing Board Act 1962 (hereinafter referred to as the act ). The trial Court dismissed the suit on three counts - that the suit was not cognizable by a civil Court, that the notice under Section 80 of the CPC ought to have been issued to the second defendant, that notice under Section 72 of the Act ought to have been, issued to the first defendant. ( 3 ) HOWEVER, in the appeal, the lower Appellate Court has reversed the findings of the trial Court on the first two grounds and has held that no notice under Section 80 of the CPC was required to be issued to the second defendant that the suit was cognizable by a Civil Court. However, it affirmed the decree of the trial Court on the ground that the suit was not maintainable as it was filed without serving notice on the first defendant under Section 72 of the Act. ( 4 ) THEREFORE, the point for consideration is, whether the lower Appellate Court was justified in law in holding that the suit was not maintainable as it was filed without serving notice on the defendants under Section 72 of the Act? ( 5 ) ADMITTEDLY, the suit properties are the shops bearing Nos. 1, 2, and constructed by the first defendant in the I Phase Labour Housing Colony in 'j' Division Harihar Town. The suit shops were let out to the plaintiff. ( 5 ) ADMITTEDLY, the suit properties are the shops bearing Nos. 1, 2, and constructed by the first defendant in the I Phase Labour Housing Colony in 'j' Division Harihar Town. The suit shops were let out to the plaintiff. The plaintiff has sought for the following reliefs: "i) declaring that the plaintiff is entitled to occupy the suit schedule shops as tenant; and ii) that the plaintiff is entitled for renewal of lease every eleven months. That the defendant is not authorised to evict the plaintiff except in due course of law; iii) granting costs of this suit, and such other reliefs as may be thought fit in the circumstances of the case. " ( 6 ) IN the plaint it was averred by the plaintiff that the shops were let out to the plaintiff and he was entitled to be continued as a lessee; that defendants had not renewed the lease, and that the plaintiff had not been informed of the correct amount of the rent due from him; that the plaintiff all through requested the second defendant to verify and furnish the details of the rent due; that on 4-3-1982, the second defendant served a notice on the plaintiff demanding a sum of Rs. 2,369/- being the arrears of rent payable up to 31-8-1982. The plaint also further averred that the plaintiff requested the second defendant to furnish particulars which was not complied with. It was further averred that the second defendant demanded vacant possession of the suit shops. ( 7 ) IT is relevant to notice and it is not in dispute that the suit shops were constructed by the first defendant under the Housing Scheme. Section 18 of the Act enables the first defendant to provide all or any of the matters provided therein. One of the matters relate to sale, letting or exchange of any property comprised in the scheme. In the instant case, the suit shops were constructed for the purpose of letting out under the Scheme. Accordingly, they were let out to the plaintiff. ( 8 ) SECTION 45 of the Act specifically empowers the competent Authority of the Board to have the premises let out vacated in accordance with the procedure provided therein. In the instant case, the suit shops were constructed for the purpose of letting out under the Scheme. Accordingly, they were let out to the plaintiff. ( 8 ) SECTION 45 of the Act specifically empowers the competent Authority of the Board to have the premises let out vacated in accordance with the procedure provided therein. One of the grounds for obtaining the premises vacated by the occupant who is a tenant is the default committed by the tenant in payment of rent for more than two months. Thus it is clear, in the instant case, that the suit shops were let out to the plaintiff under the provisions of the Act. Action to evict him was initiated under the provisions of the Act. Thus the suit related to the action taken by the defendant under the provisions of the Act. As such the provisions of Section 72 of the Act were attracted. It was necessary for the plaintiff to issue a notice. As no notice was issued, the suit was not maintainable. The provisions of Section 72 of the Act are mandatory, Non compliance with the same affects the maintainability of the suit. Hence, the lower Appellate Court was right in holding that the suit was not maintainable in the absence of notice issued under Section 72 of the act. Accordingly, the point raised for determination is answered against the appellant. The result is that the appeal has to fail. It is accordingly dismissed. In the facts and circumstances of the case there will be no order as to costs.