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2003 DIGILAW 869 (KAR)

K. v. K. AMARNATH VS LAKSHMIDEVAMMA

2003-10-20

body2003
SRINIVASA REDDY, J. ( 1 ) BEING aggrieved by the order passed by the court-below rejecting the objections filed by him as barred by limitation, the petitioner tenant has filed the present revision petition challenging the correctness and legality of the impugned order. ( 2 ) THE petitioner-tenant was served with court notice of the eviction petition filed by the respondent-landlord against him on 12-10-2002. On receipt of notice of the petition, the petitioner appeared through his counsel on 21-10-2002 and thereafter filed his objection statement on 10-2-2003. On presentation of the objection, the Court below took exception to the filing of the objection statement beyond the outer period prescribed in the Civil Procedure Code and rejected it. After rejection of the objection statement the court proceeded to record the evidence of the respondent-landlord. The present petition is preferred by the petitioner being aggrieved by the impugned order dated 26-6-2003. ( 3 ) I have heard the learned counsel on both sides. ( 4 ) THE only point that arises for my consideration in the present revision is: is it legal and proper for the Court below to have rejected the objection statement filed by the petitioner tenant? ( 5 ) THE proceedings before the court-below are proceedings under the Karnataka Rent Act, 1999 (hereinafter referred to as the Act) which is a special statute. Rules have been framed to regulate the procedure to be followed by the court while conducting the proceedings under the Act. The said rules are called the Karnataka Rent Rules, 2001 (the Rules for short ). Rule 33 of the said Rules stipulates that questions relating to procedure not specifically provided for in the Act or the rules, shall be guided by the provisions contained in the C. P. C. Rule 33 reads:the provisions of the Civil Procedure Code to be generally followed.- In deciding any question relating to procedure not specifically provided for in the Act or by these rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908. The court-below on noticing that the statement of objections filed by the petitioner-tenant on 5-3-2003 was beyond the 90 days time prescribed in C. P. C, rejected the statement of objections. The court below, in so doing, relied on the decision reported in 2002 SAR (Civil) 747 in Dr. The court-below on noticing that the statement of objections filed by the petitioner-tenant on 5-3-2003 was beyond the 90 days time prescribed in C. P. C, rejected the statement of objections. The court below, in so doing, relied on the decision reported in 2002 SAR (Civil) 747 in Dr. J. J. MERCHANT AND OTHERS vs. SHRINATH CHATURVEDI to the effect that if the legislative intent was to give only 90 days time to file the written statement the courts should strictly adhere to the said mandate. Following the ratio of the decision in the case referred to supra and the relevant provision of C. P. C the impugned order came to be passed. ( 6 ) THE opening part of Rule 33 of the Rules clearly stipulates that it is only regards matters of procedure for which no provision is made in the Act that the court should be guided by the provisions of C. P. C. Before being guided by provisions contained in the Code of Civil Procedure the court-below ought to have made sure that-there was no provision made either in the Act or under the Rules touching the matter which arose for its determination. The Karnataka Rent Act, 1999 is a special statute and it is a well-settled principle of law that if any dispute arises in respect of matters governed by a special statute, the same will have to be resolved only with reference to those provisions contained in the statute and not with reference to general law as the provisions of special statute will prevail over general law in respect of matters governed by the statute. Sec. 42 of the Act prescribes in general what course the court should follow while conducting proceedings under the Act. The said provision reads:procedure to be followed by the Court.- (l) 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 objections, if any, and any evidence , he may produce in support of the same have been considered by the Court. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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. The learned Judge has totally lost sight of these two provisions at the time of passing the impugned order, which he was bound to take note of and follow as he was determining a question regarding procedure which was governed exclusively by Sec. 42. Sub. sec. (l) of Sec 42 stipulates that no order shall be made against any person under the Act without giving an opportunity of showing cause against the order proposed. What the provision means by the phrase giving him a reasonable opportunity of showing cause is clarified in the latter portion wherein it is stated that the order shall not be passed until his objections, if any, and any evidence he may produce in support of the same have been considered by the Court. Sub. Sec. 3 of Sec. 42 states that the Court shall not ordinarily allow more than three adjournments at the request of the party throughout the proceedings and in case it decides otherwise it shall record its reason therefor and order to pay the other party reasonable cost of adjournment. Now let me examine if the impugned order conforms to the mandate of Sec. 42 of the Act. ( 7 ) NOTICE of the petition was served on the respondent on 12-10- 2002 and the respondent appeared through his advocate on 21-10 - 2002. On 18-11-2002 the counsel for the petitioner filed the affidavit in terms of Sec. 42 (6) (b) of the Act seeking leave of the court to contest the petition. The court granted permission to contest the petition on 18-11-2002 itself and adjourned the case to 13-12-2002 for furnishing a copy of the petition by the respondent-landlord on the petitioner-tenant. The copy was not served on 13-12-2002 and the matter was posted to 9-1-2003 for the same purpose. It was only on 9-1-2003 that the copy of the petition was served on the petitioner-tenant and the case was adjourned to 10-2-2003 for objections by tenant. The copy was not served on 13-12-2002 and the matter was posted to 9-1-2003 for the same purpose. It was only on 9-1-2003 that the copy of the petition was served on the petitioner-tenant and the case was adjourned to 10-2-2003 for objections by tenant. On 10-2-2003 the Presiding Officer was on leave and the matter was posted to 5-3-2003. On 5-3-2003 the petitioner duly filed the statement of objections. As could be gathered from the order sheet the copy of petition was served on the petitioner on 9-1-2003 and the statement of objections has been filed on 5-3-2003 which was the next date of hearing. It could not have been filed on 10-2-2003 even if the petitioner-tenant was ready with the statement because on that day the presiding officer was on leave. If the court had sat on 10-2-2003, probably the statement of objections would have been filed on that day itself by the petitioners counsel. The order-sheet discloses that the petitioner tenant had not sought a single adjournment for purpose of filing the statement of objections. The matter was posted for filing of the statement only once on 10-2-2003 and as on that day as the presiding officer was on leave/the case was adjourned to 5-3-2003 on which date the statement of objections was promptly filed by him. The impugned order prejudicially affects the right of the petitioner since he is estopped from meeting the case as pleaded by the respondent in her petition. In the absence of pleadings by the petitioner-tenant the court may well refuse to consider the oral evidence that may be led by him in support of any defence that may be open to him. Before passing such an order the court was duty bound to call upon the petitioner in terms of Sec. 42 ( 1) of the Act to show cause why such an order should not be passed against him. It is quite regrettable that the court-below passed the order when the petitioner-tenant had not even taken a single adjournment for filing the objections. The order is passed overlooking sub Sec. (3) of Sec. 42 which provides that a party is entitled to request and obtain three adjournments throughout the proceedings and the adjournments could be obtained at any stage of the proceedings. The order is passed overlooking sub Sec. (3) of Sec. 42 which provides that a party is entitled to request and obtain three adjournments throughout the proceedings and the adjournments could be obtained at any stage of the proceedings. The order-sheet discloses that even this benefit had not been availed of by the petitioner-tenant for filing the statement as he bad promptly filed it on the very next date of hearing. Passing of the impugned order in the said facts and circumstances of the case was not only most unreasonable but highly regrettable. It smacks of an approach which is injudicious and totally lop-sided. The impugned order betrays a total lack of understanding of the laws of procedure and the manner in which they should be applied to specific instances. The impugned order is, therefore, liable to be set aside. ( 8 ) THE court-below before applying the principle enunciated in MERCHANT AND OTHERS vs. SHRINATH CHATURVEDI, 2002 SAR (Civil) 747 ought to have noticed that there is no legislative mandate in the present Act mandating that the statement of objections is to be filed within 30, 60 or 90 days. On the contrary Sec. 42 (3) speaks of the entitlement of a party to seek for three adjournments in the entire course of the case which could be at any stage of the proceedings. The court-below failed to notice that it was by reason of the fact that such a mandate was there in the Act which was under its consideration, that the Apex Court while interpreting the said provision laid down the said principle. While interpreting the provisions of an Act the court should try and give effect to the object of the Act and in so doing it should be guided by the principles of purposive construction. The court-below misled itself in applying the provision contained in Or. 8, Rule II C. P. C disregarding the fact that the petitioner-tenant could have filed the statement of objections only after the copy of the eviction petition was served on him. In the present case the same was furnished to him only on-the date previous to the date of filing of the statement by the tenant. In fact the provisions of Or. In the present case the same was furnished to him only on-the date previous to the date of filing of the statement by the tenant. In fact the provisions of Or. 8, Rule 11 C. P. C could not have been applied at all to the case on hand as the summons was not accompanied by a copy of the petition as required under Or. 5, Rule 2 C. P. C. Or. 5, Rule 2 C. P. C reads:copy of the plaint annexed to summons.- Every summons shall be accompanied - by a copy of the plaint. The marginal note attached to Order 5, Rule 2 states:general-In view of this rule, the summons shall be deemed to have been duly served only if the summons along with the copy of the plaint is served on the defendant or tendered to him. If only, the summon is tendered or served, it cannot be said to be due service of summons on him. Therefore, after the amendment, a notice served on the defendant without tendering a copy of the plaint along with it is not to be construed as due service. It is only where such furnishing of a copy of the plaint or petition is made mandatory that the provision of Or. 8, Rule 11. C. P. C could be adhered to. As there is no such provision in the Act or in the Rules, making it mandatory on the part of the petitioner to serve a copy of the petition on the defendant along with the notice, Or. 8, Rule 11 C. P. C can have no application at all to a proceedings under the Act. In the instant case the case was adjourned to 10-2-003 for filing objections to the main petition a copy of which was served on him only on 9-1-2003. It has not come on record that the copy of the petition was served on the petitioner along with the notice. Unless that was done, there was no way the petitioner could have filed the statement of objections. The copy of the petition having been served on the petitioner only on 9- 1-2003 and the presiding officer-having not sat on the Bench on 10" 2-2003, the next hearing date, the petitioner-tenant had promptly filed the objection on 5-3-2003 to which date it was adjourned from 10-2-2003. The copy of the petition having been served on the petitioner only on 9- 1-2003 and the presiding officer-having not sat on the Bench on 10" 2-2003, the next hearing date, the petitioner-tenant had promptly filed the objection on 5-3-2003 to which date it was adjourned from 10-2-2003. There was no remiss at all on the part of the petitioner and the court-below grossly erred in passing the impugned order. The order is passed without application of mind and in total disregard of the facts and circumstances of the case as also the provisions governing the procedure that ought to be mandatorily followed under the Act. ( 9 ) IN the result the revision is allowed and the impugned order is set aside. The court below is directed to take, on record the statement of objections filed by the petitioner-tenant and proceed afresh from that stage onwards. --- *** --- .