Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 217 (KAR)

P. J. SURENDRANATH v. S. P. PANDURANGAN

2003-02-27

D.V.SHYLENDRA KUMAR

body2003
SHYLENDRA KUMAR, J, J. ( 1 ) THIS Revision Petition filed by the respondent tenant in HRC No. 10091/2002 on the file of the Court of XV Addl. Small Causes, Judge, mayo Hall Unit, Bangalore is directed against the order dated 23. 10. 2002 whereby the Court below has allowed the petition that had been filed by the landlord under Section 27 (2) (r) and Section 31 (c) of the Karnataka Rent Act, 1999 (for short the Act ) and has directed the respondent tenant to vacate and hand over vacant possession of the premises within 60 days from the date of the order. It is aggrieved by this order respondent tenant in the eviction petition is in revision before this Court. ( 2 ) WHEN the matter had come up for admission before this Court this Court by order dated 27. 12. 2002 ordered issue of emergent notice and had stayed the impugned order for a period of eight weeks. Subsequently learned Counsel for the petitioner had moved the case for further orders in view of the fact that stay order expires. ( 3 ) THIS Revision Petition having not been admitted it was taken up for admission. I have heard Sri P. M. Nawaz, learned Counsel for the petitioner and Sri P. B. Raju, learned Counsel for the respondent on whose behalf notice has been issued. ( 4 ) THE brief facts leading to the above petition are that an eviction petition had been filed by the landlord under the provisions of Section 27 (2) (r) of the Act which is the provision which enables the landlord to seek the premises in occupation of a tenant to be vacated and hand over vacant possession to the landlord if the landlord or any member of his family are in need of such premises and are not in possession of a suitable alternate accommodation to them and under section 31 (c) of the Act which is a special provision in favour of elder citizens particularly for one who is of the age of 65 or more and the premises let out by him is required for use either by himself or herself or for his or her family or for any member ordinarily living with him or her for use, he or she may apply to the Court for recovery of immediate possession of such premises. ( 5 ) EVICTION Petitioner landlord had pleaded that the respondent was a tenant in respect of the premises in question on a monthly rent of Rs. 500/-, that the premises had been let out for a limited period of 11 months from 3. 12. 1989. Even thereafter the tenant had continued to be in possession though the understanding was that the lessee would vacate and hand over vacant possession of the premises to the petitioner for the bona fide use and occupation for himself to start a petty shop along with his daughter who is a widow and who was dependent on the petitioner as the petitioner has the responsibility to look after his widowed daughter also, wanted a source of livelihood and for such purpose decided to open a petty shop in the premises as the petitioner was finding it difficult to support himself and also to take care of his widowed daughter due to his meagre income and not having the capacity to earn income from any other work or avocation as of now being aged 68 years and that he does not have any other suitable alternate premises for such purpose. Until and unless the premises in question is given to the possession of the petitioner, the petitioner will suffer considerable hardship and difficulty and as such prayed for evicting the respondent tenant and to put him in possession of the premises. ( 6 ) THE Court below had issued notice of the eviction petition to the respondent. The respondent had put in appearance through his counsel on 10. 9. 2002. Counsel for the petitioner submits that the trial Court adjourned the case to 27. 9. 2002 for the purpose of the respondent filing his objection. ( 7 ) ON 27. 9. 2002 respondent filed his objection to the eviction petition through his Counsel. However filing of objection was opposed by the learned Counsel for the petitioner, stating that the objections were being filed without taking leave of the Court as required under the provisions of the Act, that the respondent having failed to amply with the mandatory provisions he cannot be permitted to contest matter and in the view of the matter the eviction petitioner was entitled to get an order of eviction. ( 8 ) AT the stage of receipt of the very statement of objection to be filed on behalf of the respondent tenant, the Court directed that the matter to be listed for hearing on the same on 5. 10. 2002. On this date the Court heard learned Counsel on both sides and had proceeded to pass the order now impugned herein. It is aggrieved by this order the respondent tenant is in revision before this Court. ( 9 ) SRI P. M. Nawaz, learned Counsel appearing for the petitioner has made a two fold submission contending that the order passed by the Court below is not a valid order in law and it requires to be set aside and the matter to be remanded to the Court below for affording a proper opportunity to the revision petitioner so that he can putforth his defence in the eviction petition and thereafter the court to pass a considered order on the merits of the case. ( 10 ) LEARNED Counsel for the petitioner submits that in the first instance the Court below was not justified in holding that the objection filed by the respondent tenant could not have been considered or his defence taken note of for want of obtaining leave as contemplated under sub-section (6) of Section 42 of the Act. Submission of the learned Counsel in this regard is that when counsel appeared for the respondent as on 10. 9. 2002 and on such appearance the Court permitted the respondent to file his objection and adjourned the case to 27. 9. 2002 for such purpose and as on 27. 9. 2002 when factually the respondent had filed his objection before the Court through his counsel that indicated that his request was granted and it was at that time Counsel for the eviction petitioner raised certain objections. 9. 2002 for such purpose and as on 27. 9. 2002 when factually the respondent had filed his objection before the Court through his counsel that indicated that his request was granted and it was at that time Counsel for the eviction petitioner raised certain objections. It is the submission of the learned Counsel for the petitioner in this regard though no leave as such had been sought for by the respondent tenant as contemplated under sub-section 6 of Section 42 of the Act particularly as in Clause (b) of this provision that the court having granted time to file objection to the respondent tenant and having received the same on the date fixed for receipt of objection the Court should be deemed to have granted leave to the respondent to file such objection and as a sequel to defend the case. In this view of the situation the submission of the learned counsel is that leave is deemed to have been granted and there was no invalidity in the objection being received and the Court proceeding further in the matter, the Court having not done so but having rejected the objection that had been filed by the respondent tenant has committed a grave irregularity is the submission of the learned Counsel for the petitioner. ( 11 ) THIS aspect apart learned Counsel further submits that the court has not followed the procedure as contemplated under subsection (1) of Section 42 of the Act which is required to be followed by it in all situation while dealing with an application under the Act and particularly when passing an order which could prejudicially affect any person that the Court was required to give reasonable opportunity to him before passing order of eviction and that could have been made only on receipt of objection if any on behalf of the respondent tenant and after allowing respondent tenant to produce such evidence as he could have produced in support of the objection and only after considering such objections pass orders on the merits of the case. ( 12 ) IT will be useful to extract the provision of Section 42 here. 42. Procedure to be followed by the Court. ( 12 ) IT will be useful to extract the provision of Section 42 here. 42. Procedure to be followed by the Court. (1) No order which prejudicially affects any person shall be made by the Court under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objection, if any, and any evidence he may produce in support of the same have been considered by the Court. (2) Subject to any rules that may be made under this Act and the other provisions of this Act, the Court shall, while holding an inquiry in any proceedings before it, follow as far as may be the practice and procedure of a Court of Small Causes, including recording of evidence. (3) The Court shall not ordinarily allow more than three adjournments at the request of a party throughout the proceedings and in case it decides otherwise, it shall record its reasons therefor and order to pay the other party reasonable cost of adjournment. (4) The Court shall, in addition to, and simultaneously with the issue of summons for personal service on the opposite party, also direct the summons to be served by registered post acknowledgment due, addressed to the opposite party or his agent empowered to accept the service at the place where the opposite party or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the opposite party is last known to have resided or carried on business or personally worked for gain. (5) When an acknowledgment purporting to be signed by the opposite party or his agent is received by the Court or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee that the addressee had refused to take delivery of the registered article, the Court may declare that there has been a valid service of summons. (6) (a) every application by a landlord for the recovery of possession of sub-section (2) of Section 27, or under Section 30, 31 or 37 shall be dealt with in accordance with the procedure specified in this sub-section. (6) (a) every application by a landlord for the recovery of possession of sub-section (2) of Section 27, or under Section 30, 31 or 37 shall be dealt with in accordance with the procedure specified in this sub-section. (b) the tenant on whom the summons is duly served whether in the ordinary way or by registered post in the prescribed form shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave of the Court as hereinafter provided and in default of his appearance in pursuance of the summons or of obtaining such leave, the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. (c) the Court shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises. (d) Where leave is granted to the tenant to contest the application, the Court shall ordinarily commence the hearing of the application within seven days of the grant of such leave and shall provide day-to-day hearing and dispose off the application within thirty days of commencement of such hearing. Failing such commencement of hearing or disposal of application within such time, the Court shall make a record of its reasons therefor. (e) Where the leave to contest under clause (c) is denied to the tenant, he may file an application for review before the Court within ten days of such denial and the court shall endeavour to dispose of such application within seven days of its filing. (7) Every application made to the Court shall be heard as expeditiously as possible and endeavour shall be made to conclude the hearing and to dispose off the application within six months of it being filed. Sub-section 6 of Section 42 carves out an exception to the general procedure contemplated under sub-section (1) of Section 42 to be followed by the Court. Sub-section 6 of Section 42 carves out an exception to the general procedure contemplated under sub-section (1) of Section 42 to be followed by the Court. The said procedure is to be applied to situation where the petition for recovery of possession of any premises is presented under the provisions of Section 27 (2) (f), (h) or (n) or under Sections 30, 31 or 37 and in such situations the provisions of clause (b), (c), (d) and (e) of sub-section (6) of Section 42 comes into operation. ( 13 ) IN the instant case the eviction petition was one under Section 27 (2) (r) and Section 31 (c) of the Act. Therefore the provisions of sub-section (6) of Section 42 are necessarily attracted. This procedure being contemplated in such a specific situation it is only this procedure that is required to be followed by the Court and not that the procedure which is required to be followed under sub-section (1) of Section 42 of the Act. ( 14 ) THEREFORE the submission of the learned Counsel that the court had not followed the procedure as contemplated under sub-section (1) of Section 42 and therefore the order is vitiated, does not come to the rescue of the revision petitioner and does not help to set aside or invalidate the impugned order. The provisions of sub-section (6) of Section 42 being in the nature of a special provision definitely over-rides the general provision contemplated in other situations. Therefore it is only the procedure as contemplated in clauses (b), (c) and (d) of sub-section (6) of section 42 that is applicable and not the general procedure under sub-section (1) of section 42 as contended by the learned Counsel for the petitioner. ( 15 ) A mere reading of Clauses (b), (c) (d) and (e) of sub-section (6) of Section 42 indicates that obtaining leave of the Court by the respondent tenant to contest the application for eviction in such a situation indicated therein is a mandatory requirement and that the consequences of the respondent tenant either not appearing before the Court or not obtaining such leave from the Court to defend or contest the proceedings, implies that the contents of the eviction petition are deemed to be admitted by the tenant in an application for eviction and the petition shall be ordered on the grounds specified in the petition. ( 16 ) THOUGH the learned Counsel for the petitioner had sought to submit that the Court having received the objection leave could be deemed to have been granted as indicated earlier, that submission cannot be accepted in as much as the requirement to obtain leave is a mandatory requirement and that should be obtained in the manner indicated in clause (b) itself i. e. , by filing an affidavit along with the prayer for leave to defend or contest the proceedings and the affidavit indicating the grounds on which the respondent tenant seeks leave to contest the application and thereafter if the Court finds that the affidavit so filed by the tenant discloses such facts as would disentitles the landlord from obtaining an order for recovery of the possession of the premises, leave being granted. When granting of leave to contest or defend the proceedings is to be obtained by following this procedure and after the Court prima facie is satisfied about the plausible defence that can be pleaded by the tenant which will disentitle the landlord from seeking eviction and it is only thereafter leave will be granted by the Court, in the absence of such requirement having not been complied the question of presuming deemed permission or leave being granted by the Court for filing of objection cannot be inferred. Further sub-section (6) indicates the procedure to be followed after granting of leave and even then the Court is required to consider the eviction petition by taking up the matter on day to day basis and endeavour disposal of the application within a period of 30 days and in the absence of not so disposing of the application within 30 days the Court is required to record reasons for the same. ( 17 ) ALL these provisions indicate a sense of urgency being instilled on the Court particularly when applications for eviction are filed in situations referred to in clause (a) of sub-section (6) of Section 42 of the Act. In the instant case there is no dispute at all that the provisions of sub-section (6) of Section 42 are attracted for the purpose of considering the eviction petitions filed by the landlord. If that is so, other consequences necessarily follow. In the instant case there is no dispute at all that the provisions of sub-section (6) of Section 42 are attracted for the purpose of considering the eviction petitions filed by the landlord. If that is so, other consequences necessarily follow. ( 18 ) IN this view of the matter the submission of learned Counsel for the petitioner that deemed permission is to be inferred or that rule the procedure as contemplated in sub-section (1) of Section 42 having not been followed by the Court, the order is vitiated cannot be accepted. ( 19 ) I have perused the contents of the objection that was sought to be placed on behalf of the respondent tenant before the Court below. The defence that is sought to be set up was the dispute regarding the existence of jural relationship between the eviction petitioner and the respondent for the reason that the respondent was not the tenant but his father was the tenant and further that the landlord did not require the petition schedule premises for his use as pleaded in the petition. There is no dispute with regard to the request made under the provision of Section 31 (c) of the Act. The court below even if it should have granted leave the eviction petition itself should have been disposed of within a period of one month and even any other application is required to dispose of within 6 months. ( 20 ) I understand that the eviction petition which had been presented as on 17. 7. 2002 has still not provided any relief to the landlord though the Court below did pass orders granting possession to the landlord as per its order dated 23. 10. 2002. More than 6 months have already elapsed from the date of presentation of the petition before the Trial Court. 20. Prima facie the defence sought to be set up by the respondent tenant appears to be routine and not any specific defence totally disentitling the landlord from claiming possession of the premises under the provisions of Section 27 (2) (r) of the Act. If the landlord requires the premises either for himself for the use of any members of his family that in itself is sufficient if that requirement is affirmed on oath. If the landlord requires the premises either for himself for the use of any members of his family that in itself is sufficient if that requirement is affirmed on oath. In the instant case on the other hand a deeming provision operates in favour of the eviction petitioner as the tenant not having obtained leave to contest the proceedings. As a matter of fact the tenant did not seek leave of the Court as contemplated in Clause (b) to sub-section (6) of Section 42. If that is so the contents of the petition are deemed to have been admitted by the tenant in which event question of an enquiry for considering the rival case of the parties does not arise at all. In this view of the matter also I am of the opinion that the requirement of sub-section (1) of Section 42 of the Act cannot be and need not be read into a situation which arises when sub-section (6) of Section 42 is attracted. ( 21 ) IN the result I do not find any invalidity in the order passed by the Court below particularly when the landlord had pleaded his requirement and the Trial Court has passed eviction order on such pleading made under the provisions of Section 27 (2) (r) read with section 31 (c) of the Act. ( 22 ) THE Court below has rightly allowed the petitions and directed the respondent tenant to hand over vacant possession of the petition schedule premises to the eviction petitioner. While passing the order the Trial Court granted 60 days to the respondent to vacate and hand over possession to the petitioner landlord. That period has since expired during the pendency of this revision petition and the eviction order has not been given effect to so far and the petitioner tenant has continued to remain in possession of the premises it is only fair that he should be given some reasonable time to vacate the premises. ( 23 ) THE order of the Trial Court is confirmed. Another sixty days time is granted from today to the tenant to vacate and hand over the vacant possession of the premises to the landlord. This revision petition is dismissed at the admission stage itself without being admitted after hearing counsel for the parties. No costs. --- *** --- .