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2001 DIGILAW 286 (KAR)

NEELAWA v. BABURAO

2001-03-27

R.GURURAJAN

body2001
R. GURURAJAN, J. ( 1 ) THIS petition is filed by the landlord challenging the order dated 9-9-1997 passed in Rent Revision No. 107 of 1995. ( 2 ) TENANT filed a petition under Section 43 (1) of the Karnataka Rent control Act seeking for orders before the First Additional Munsiff, Dharwad in hrc No. 20 of 1992. In the petition it has been stated that the petition premises is situated near Gandhi Chowk, Dattatreya Temple, dharwad, and the petitioner is running a tailoring class in the said premises and he is paying a monthly rental of Rs. 35/ -. In the portion of the petition schedule premises i. e. , in verandah there are three holes and the verandah is in dilapidated condition. Petitioner filed a petition in HRC No. 88 of 1988 seeking for an order to repair the said verandah. A Court Commissioner was appointed and he submitted his report. The hdmc issued a notice in this regard, which was subsequently cancelled by an order of the High Court. The landlady with the help of her husband demolished the verandah in the month of September 1989. In view of the demolition the petitioner has no way to reach the premises. Respondent entered appearance and contended that HRC No. 11 of 1985 was filed under Section 21 (l) (k) of the Act. It is also stated that the said wall has not yet been demolished. The Trial Judge framed three points and answered the first two points in negative. In conclusion he dismissed the petition. ( 3 ) THE tenant filed a revision to the District Judge. The learned District judge in the impugned order has allowed the revision thereby setting aside the order of the learned Munsiff in HRC No. 20 of 1992. He has further directed the landlady to restore the facility of verandah within three months from the date of his order. This order is challenged before me. ( 4 ) I have heard the learned Counsels on either side. Admittedly, this petition is filed under Section 43 of the KRC Act. The said proviso provides that the landlord shall not cut off or withhold essential supply or service. Admittedly, in the case on hand the verandah is in a dilapidated condition and it requires immediate demolition. Petitioner has filed Commissioner's report, hand sketch, photocopy of the property, negative, photo etc. The said proviso provides that the landlord shall not cut off or withhold essential supply or service. Admittedly, in the case on hand the verandah is in a dilapidated condition and it requires immediate demolition. Petitioner has filed Commissioner's report, hand sketch, photocopy of the property, negative, photo etc. The Trial Judge after noticing the Commissioner's report and the photographs (marked as Exs. P. 8 and P. 9) has come to a conclusion that the landlady has not done anything affecting the services to the petitioner. In fact the learned Judge has ruled that there is a way to reach the petition schedule premises. When this order was chailenged the revisional Judge in the impugned order has ordered entitlement to get the facility of verandah restored to the tenant till he is in occupation of the premises let out to him. He holds that the question as to whether the building is in a dilapidated condition or whether the local authority has asked the landlord to pull it down or whether the landlord required the petition premises for personal use and occupation are secondary questions. This finding in my view requires my interference. ( 5 ) WHEN the verandah is in such a bad position requiring an immediate pulling down it is not open to the Revisional Judge to order restoration of the said verandah to the tenant. The learned Judge without properly appreciating the material on record has ordered restoration of the facility of verandah without considering as to whether the said verandah can be made use of by the parties. When parties admit that the same is in a dilapidated condition the Revisional Judge ought not to have ordered restoration of the facility of the verandah to the detriment of the tenant himself. After all, the object of Section 43 of the Act is to see that the tenant does not suffer any handicap on account of denial of services to which he is entitled to under the Act.- If the very service affects his very possession arid occupation such service cannot be ordered to be restored and any such order in my opinion would be contrary to the very object of Section 43 of the Act. The Trial Judge after noticing the material facts has rightly rejected the petition. He has also noticed that there is a way to reach the petition premises. The Trial Judge after noticing the material facts has rightly rejected the petition. He has also noticed that there is a way to reach the petition premises. In the circumstances, the order of the learned Revisional Judge ordering restoration of the verandah to the tenant without properly appreciating the object of Section 43 and without proper appreciation of the building condition requires to be set aside and I do so in the case on hand. ( 6 ) IN the result, this petition is allowed, the order of the Revisional judge is set aside and the order of the Trial Judge is restored. However, it is made clear that if there is any difficulty in reaching the petition schedule premises the respondent is at liberty to file appropriate applications in the Court if so advised and if there is a need in accordance with law. --- *** --- .