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2002 DIGILAW 367 (KAR)

PETKAR SHANKAR RAO v. T. PUSHPA

2002-06-12

A.M.FAROOQ

body2002
A. M. FAROOQ, J. ( 1 ) THIS is a revision petition filed by the tenant against the order of eviction passed in H. R. C. No. 10164 of 1992 on the file of the learned small Causes Judge, Mayo Hall, Bangalore directing eviction of the petitioner from the petition schedule premises. ( 2 ) THE brief facts of the case are the respondents filed the eviction petition under Section 21 (l) (h) of the Karnataka Rent Control Act, 1961 seeking possession of the premises in question for their bona fide use and occupation for running a printing press. The petitioner filed objections to the eviction petition. ( 3 ) ON the earlier occasion, by an order dated 30-9-1994 the Trial court dismissed the eviction petition. Aggrieved by the said order, the respondents preferred H. R. R. P. No. 1877 of 1994 before this Court which was allowed on 18-7-2000 and the matter was remanded to the Trial court upholding the bona fides of the petitioners and holding that the landlords require the petition schedule premises for their bona fide use and occupation but the matter was remanded only to find out any feasibility of making a partial eviction. Therefore, the question of considering the other aspects of the matter by the Trial Court did not arise in view of the order passed by this Court in the earlier revision petition. ( 4 ) AFTER the receipt of the records, the Trial Court enquired into the matter and during the course of enquiry, RW-1 was further examined and a rough sketch of the petition schedule premises was marked as Ex. R. 1 and the relevant portion of the premises was marked as Ex. R. 1 (a ). RW-2 was also examined and the case was closed and the Trial Court on appreciation of the materials on record has found that it was not possible to make a partial eviction and directed the petitioner to vacate and handover the vacant possession of the petition schedule premises to the respondent-landlords within 3 months from the date of the order. This order is now challenged before this Court. ( 5 ) SRI Dayananda Kumar, learned Counsel appearing for the revision petitioner made two-fold arguments before me. This order is now challenged before this Court. ( 5 ) SRI Dayananda Kumar, learned Counsel appearing for the revision petitioner made two-fold arguments before me. His first contention is that the eviction petition could not have been continued in view of the provisions of Section 70 (2) coupled with Section 27 (l) (r) of the Karnataka rent Act, 1999 (hereinafter referred to as 'the Act' ). The second contention is that the evidence on record shows that there could have been a partial eviction. On the other hand, Sri B. Puttaiah, learned counsel appearing for the respondents submitted that the question of considering the fact whether the respondent-landlords could continue the petition filed earlier on coming into force of the Act cannot be objected in view of the specific wordings of Section 70 (2) of the Act. He further submitted that the Lower Court has considered all the materials on record and has properly held that it is not a case where partial eviction could be passed. ( 6 ) AFTER hearing the learned Counsels for the parties, I am of the view that there is no substance in either of the contentions raised by Sri dayananda Kumar, learned Counsel appearing for the petitioner. The learned Counsel for the petitioner has relied upon an unreported judgment of this Court in H. R. R. P. No. 1828 of 1998, DD: 12-4-2002. In the said case, a contention was raised before this Court by the tenant (petitioner) that the eviction petition in the said case was filed in the year 1994 within one year of the landlord acquiring the petition schedule premises and therefore the eviction petition itself was not maintainable. This Court upheld the said contention and rejected the revision petition reserving liberty to the landlord to file a fresh petition under the Act. Even though as rightly contended by Sri Kumar, the facts of the said case is just like the present case, I am of the view that in that case, it was not brought to the notice of this Court the exact provisions of Section 70 (2) of the Act. Section 70 deals with repeal and savings. Sub-section (2kb) of the said section reads as follows:"70 (2) Notwithstanding such repeal and subject to the provisions of Section 69. Section 70 deals with repeal and savings. Sub-section (2kb) of the said section reads as follows:"70 (2) Notwithstanding such repeal and subject to the provisions of Section 69. (a) xx xx xx (b) all cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner, court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, court, District Judge or the High Court or other authority in accordance with the provisions of this Act. "the wordings of the said section clearly show that when at the commencement of the new Act, if there is any matter pending before any of the authorities mentioned therein including the Rent Control Court or this Court in respect of the premises to which this Act applies the same shall be continued and disposed off by such Controller, Deputy Commissioner etc. , in accordance with the provisions of this Act. What Sri Kumar, learned Counsel contends is that proviso to Section 27 (4) of the Act provides that no petition for recovery of possession of a premises acquired by the landlord by transfer could be filed before the lapse of one year from the date of acquisition. In my view, the wordings of the said section clearly show that for the Court to have jurisdiction to entertain an eviction petition under the main Act, an eviction petition has to be filed after one year after the landlord or landlady acquires the premises. But when the premises has been acquired long back and the matter in respect of the premises is pending before the Court then the question of acquisition of the premises within one year does not arise at all because once the matter is already pending what sub-section (2) of Section 70 says is that if the Court has got jurisdiction to entertain the petition, it has to be continued. There cannot be any impediment in the Court to continue the proceedings and it cannot be contended that at the time when the petition was filed in the year 1992, the petitioner had acquired title to the property within one year and therefore the Court could not entertain the petition cannot be a ground to not continue the proceedings under the Act when the landlord has come into possession long back. Hence, I cannot agree with the view expressed by the learned judge in the above-mentioned revision petition in view of the fact that the provisions of Section 70 has not been taken into consideration. ( 7 ) AS regards question of partial eviction, the Court below has taken into consideration all the materials on record and I do not find in view of the small portion of the scheduled premises possibility of any partial eviction. In the result, I do not find any merit in this revision and the revision petition is accordingly dismissed. ( 8 ) HOWEVER, considering the fact that the petitioner has been doing business in the said premises for quite some time, the petitioner is granted time till the end of this year subject to condition that the petitioner files an undertaking before this Court by way of affidavit within 2 months from today to vacate and deliver the vacant possession of the petition schedule premises to the respondent-landlords on or before the end of 31-12-2002 and go on paying the monthly rentals regularly. If no such undertaking affidavit is filed within 2 months from today, the landlords are entitled to execute the order. --- *** --- .