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1992 DIGILAW 276 (KAR)

J. LAXNIAN BHAT v. NARAYANA NAYAK

1992-08-26

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B. J. HEGDE, J. ( 1 ) THE. Petitioner is common in all these revision petitions and he has challenged the three orders passed on 15-4-1987 in the three execution petitions filed by him, holding that the execution petitions were barred by limitation. ( 2 ) THE petitioner filed eviction petitions under Section 21 (1) (j) of the Karnataka Rent Control Act against the tenants who are respondents in these three revision petitions. The revision petitions filed against those orders were also dismissed. But, in c. r. p. nos. 1841/1970,2417/1971 and 2422/1971, this court allowed the eviction petitions filed by the petitioner selling aside the orders passed by both the courtsbelow and directing the eviction of the tenants under Section 21 (1) (j) of the karnalaka Rent Control Act. The orders of eviction were subject to the condition that the petitioner-landlord obtains a licence from the municipality for the purpose of demolition and reconslruction of the building. It was clarified that until the licence for demolition and reconstruction is obtained, the landlord will not be entitled to obtain actual possession of the premises in question and only after tbe licence is produced in the court, tlie petitioner will be entitled to be put in possession of the premises, and the petitioner was required to start demolition and reconstruction of the building within one month from that date. ( 3 ) THE order in c. r. p. No. 1841/1970, dated 5-8-1971 was sought to be executedin execution case No. 25/1987, the order in c. r. p. No. 2417/1971, dated 28-2-1972 was sought to be executed in execution case No. 23/1987 and the order passed in c. r. p. No. 2422/1971, dated 28-2-1972 was sought to be executed in execution case No. 24/1987. ( 4 ) IT was contended before the learned munsiff that the execution petitions were barred by limitation on the ground that they were filed beyond 12 years from the date of the final orders passed in the aforesaid c. r. ps. It was contended before the executing court by (he petitioner tb at he obtained building licence from the Manglore city corporation on 22-10-1986 and that the limitation would run from that date. It was contended before the executing court by (he petitioner tb at he obtained building licence from the Manglore city corporation on 22-10-1986 and that the limitation would run from that date. The learned munsiff accepted the contention that the case of the petitioner would come under Article 136 of the Limitation Act and that he would be entitled to a period of 12 years from the date when the decree or order became enforceable. He also came to the conclusion that the period actually taken by the petitioner for obtaining the licence will have to be excluded from the total period between the date of the passing of the order and the filing of the eviction petitions. However, he found that there were no materials to show on which date tbe petitioner applied for building licence in all these three petitions. The learned munsiff, therefore, rejected the execution petitions on the sole ground that the petitions were barred by limitation. ( 5 ) SRI Narayana Rao, learned senior counsel appearing for the petitioner in all these three revision petitions, contends that the petitioner could not have applied for licence during the period, from 1971 upto the filing of the execution petitions in the year 1983 and, therefore, the period uplo 1983 has to be excluded. It is stated by him that the government had notified under Section 3 of the Mysore slum areas (improvement and clearance) Act, 1958 (hereinafter referred to as 'the Mysore act') declaring the area in which the premises situate as a slum area on 17-11-1960, followed by two other notifications under the same act on 20-4-1961 and 20-12-1962. The petitioner had challenged the validity of all these notifications and also sections 3,9 and 12 of the Mysore Act, by virtue of which these three notifications have been issued in writ petitions and the high court by an order passed in 1967 allowed these writ petitions quashing all the three notifications. The slate filed civil appeals before ihe Supreme Court of India and that order was confirmed by the Supreme Court in c. a. No. 1736 to 1740/1967 on 14-10-1974 reported in AIR 1975 SC 596 , Government of Mysore v J. V. Bhat. The slate filed civil appeals before ihe Supreme Court of India and that order was confirmed by the Supreme Court in c. a. No. 1736 to 1740/1967 on 14-10-1974 reported in AIR 1975 SC 596 , Government of Mysore v J. V. Bhat. Thereafter, it appears, the state government enacted a fresh act known as the Karnataka slum clearance Act, 1974, repealing the earlier Mysore act of 1958 and issued a notification declaring the area as slum area. The petitioner and his brother, it appears, filed two writ petition nos. 106 and 107/1978 challenging the said notifications and the high court disposed of those two writ petitions on 5-8-1983 quashing the said notification declaring the area in which the premises situate as slum area. These materials are pressed into service for the first time before this court by Sri Narayana Rao to contend that the petitioner was not in a position to obtain the licence during that period and that this period should be excluded while computing the period of limitation. It is his further contention that these materials could be easily verified by referring to the files pertaining to writ petition nos. 106 and 107/1978 available in this court and also to the decision reported in AIR 1975 SC 596 . But, the question is whether these materials can be taken into account while disposing of these revision petitions when these materials have not been placed before the executing court. The only contention that was raised before the executing court was that the licence was obtained by the petitioner on 22-10-1986 and the period upto that date will have to be excluded. ( 6 ) IN a revision petition under Section 115, CPC, the duty of the high court is to correct the juris diet ional errors committed by the subordinate courts. In the instant case, it is clear that the petitioner has not contended before the executing court anything more than that was referred to by the executing court in the orders now impugned in these revision petitions. ( 7 ) NEW plea based on facts not raised or argued in the lower court cannot be raised in revision as laid down in the case of Shailendranath Neogi v Purnendu Sen, AIR 1971 Calcutta 169. The same view has been expressed in the case of Prithviraj Mahar Chand v Hansraj gurdhta mal, AIR 1969 punjab 256. ( 7 ) NEW plea based on facts not raised or argued in the lower court cannot be raised in revision as laid down in the case of Shailendranath Neogi v Purnendu Sen, AIR 1971 Calcutta 169. The same view has been expressed in the case of Prithviraj Mahar Chand v Hansraj gurdhta mal, AIR 1969 punjab 256. Simply because a decision has been reported in a journal, a court is not expected to take notice of the fact that in that reported decision, the petitioner before it was a party, unless it is brought to its notice. Such an attempt has not been made in this case. ( 8 ) THE decision of the Supreme Court is cited before me not as a binding authority, but to evidence the fact that the petitioner had some obstacles to file the execution petitions earlier. How could the executing court hold that the petitioner before it was a party in that decision unless it is contended so before it? The high court in revision cannot say that a subordinate court committed an error when the matter was not placed before that court, i, therefore, find no reason to interfere with the impugned order. ( 9 ) THE petitions are, therefore, dismissed. No costs. --- *** --- .