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2003 DIGILAW 185 (KAR)

KRISHNAPPA v. H. SRINIVAS RAO

2003-02-21

D.V.SHYLENDRA KUMAR

body2003
D. V SHYLENDRA KUMAR, J. ( 1 ) THIS house rent revision petition filed under Section 46 (1) of the karnataka Rent Act, 1999 is directed against the order dated 11-10- 2002 passed on memo dated 4-2-2002 by the Trial Court in a pending hrc No. 1623 of 1997 on its file. The memo was filed praying for dismissing the eviction petition as not maintainable. ( 2 ) THE Trial Court having dismissed the memo and having declined to dismiss the eviction petition as prayed for, the aggrieved tenant is in revision petition before this Court. ( 3 ) I have heard Sri N. G. Sreedhar, learned Counsel for the petitioner. Learned Counsel submits that the Trial Court should not have dismissed the memo particularly in view of the provisions of Section 27 (2) (r) of the Karnataka Rent Act, 1999 read with Section 70 (2) (b) of this Act. It is the submission of the learned Counsel for the petitioner that the eviction petition which had been filed way back in the year 1997 and which had been actually presented on 25-5-1995 even within a period of one year from the date from which eviction petitioner had purchased the property which had been tenanted as on that day and in favour of the present revision petitioner. Learned Counsel submits that the eviction petition had been filed under the provisions of Section 21 (l) (h) of the predecessor Act and this eviction petition could be continued under the present Act provided the present Act applies to the premises in question and to consider the petition in accordance with the corresponding provisions of the present Act. ( 4 ) LEARNED Counsel submits that it is not in dispute that the provisions of the present Act are attracted to the premises in question, that the provisions of Section 27 (2) (r) is the corresponding provision to Section 21 (l) (h) of the predecessor Act and as such the petition is now required to be disposed of under the provisions of Section 27 (2) (r) of the present Act. In this behalf learned Counsel draws the attention of the court to the proviso to clause (r) to sub-section (2) of Section 27 which reads as under. In this behalf learned Counsel draws the attention of the court to the proviso to clause (r) to sub-section (2) of Section 27 which reads as under. "provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition". Learned Counsel submits with reference to the disqualification that is attached under any one of these provisions and points out that the premises in question having been acquired by way of transfer by the eviction petitioner and the petition having been presented within one year of such acquisition by way of transfer the proviso is necessarily attracted to the present petition and such petition was not tenable and the proviso to Section 27 (2) (r) is applicable to the present petition and the same has to be dismissed. In support of this submission learned counsel relied upon a Division Bench decision of this Court in the case of M/s. Mercury Press and Others v Ameen Shacoor and Others and submits in the light of the above decision the present Act will operate from the date of when it was present and if so by applying proviso to section 27 (2) (r) to the petition as on the day when it was presented it was not tenable and accordingly it is required to be dismissed. ( 5 ) SRI Gangadhara Aithal, learned Counsel for the Caveator-respon- dent on the other hand counters the submission by relying on the decision of this Court in Petkar Shankar Rao v T. Pushpa and Others, holding that the provisions of the present Act are made applicable to pending proceedings so long as the premises in question is covered by the provisions of the Act. ( 6 ) IT is no doubt true the eviction petition which was pending before the Court is now required to be disposed of in accordance with the provisions of the new Act. ( 7 ) PETITION is as of now pending and the Act has come into force with effect from 31-12-2001. The maintainability of the petition has to be examined in the light of the provisions of the Act as on this date. ( 7 ) PETITION is as of now pending and the Act has come into force with effect from 31-12-2001. The maintainability of the petition has to be examined in the light of the provisions of the Act as on this date. It is also significant to notice that there was no corresponding provision to the contents of the proviso to Section 27 (2) (r) in the earlier Act. The disqualification referred to in the proviso to Section 27 (2) (r) of the current Act is introduced for the first time in the current Act. In the light of this provision what is required to be examined is as to whether the said disqualification operates on the petition on the day when the Act has come into force i. e. , as on 31-12-2001. As on 31-12-2001 the petition is not one which is hit by the proviso to Section 27 (2) (r) inasmuch as factually the premises in question though had been acquired by the eviction petitioner had been acquired much prior to one year period within which petition could not have been presented. The period of one year having elapsed much before the date of 31-12-2001 when the proviso to Section 27 (2) (r) of the present Act started operating, it cannot be said that the petition was not tenable and was required to be dismissed as is contended by the revision petitioner. ( 8 ) I do not find any scope for interference with an order of this nature in the exercise of jurisdiction of this Court under Section 46 (1) of the karnataka Rent Act, 1999. This revision petition is accordingly dismissed. --- *** --- .