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2005 DIGILAW 859 (KAR)

B. S. Sanjeeva Murthy v. K. Vagdevi

2005-12-20

K.BHAKTHAVATSALA

body2005
ORDER K. Bhakthavatsala, J.—This is tenant's revision petition filed under Section 46(1) of the Karnataka Rent Act, 1999, challenging the order dated 2-8-2005 made on I.A. No in filed in H.R.C. No. 680 of 2003 on the file of the 2nd Additional Small Causes Judge, Bangalore. 2. The petitioner/tenant is represented by Sri V. Srinivas. The respondent/landlady is represented by M/s. Rumar and Kumar. 3. The lower Court records were called for and they are before me. 4. Heard arguments. 5. The brief facts of the case leading to the filing of the revision petition may be stated as under: The respondent/landlady filed eviction petition in H.R.C. No. 680 of 2003 on the file of Court of Small Causes at Bangalore City against the petitioner/tenant under Section 27(2)(j) and (r) read with Section 31(1)(c) of the Karnataka Rent Act, 1999 (in short, 'the Rent Act 5). The tenant entered appearance through his Counsel on 29-3-2004, and the case was adjourned for filing objections to main petition. On 26-6-2004 the tenant filed objections to main petition. On 28-3-2005 the petitioner filed I.A. No. III under Section 42(6)(b) of the Rent Act (seeking leave of the Court to contest the case). The landlady filed objections. The Court below heard arguments and passed the impugned order rejecting the application. This is impugned in this revision petition. 6. The petitioner/tenant has urged the following grounds: (i) that the Court below failed to appreciate that the landlady had not produced any material to establish that he was senior citizen at the time of filing the petition; (ii) that when the petitioner/tenant raised a question regarding the age of the landlady while arguing I.A. No. in, the landlady had produced xerox copy of ration card and pension payment order and they have not been admitted in evidence, and therefore, those documents cannot be relied upon; (iii) that the Trial Court failed to note that since statement of objection filed by the petitioner/tenant was taken on record, leave to contest the case was deemed to be granted. 7. The learned Counsel appearing for the petitioner/tenant argued the case as urged in the revision petition. 8. On the other hand, the learned Counsel appearing for the respondent/landlady has cited a decision in P.J. Surendranath Vs. 7. The learned Counsel appearing for the petitioner/tenant argued the case as urged in the revision petition. 8. On the other hand, the learned Counsel appearing for the respondent/landlady has cited a decision in P.J. Surendranath Vs. S.P. Pandurangan, ILR (2003) KAR 2965 , on the point that since the tenant has not sought for leave to contest the petition as per Section 42 of the Rent Act, it is implied that the averments of petition are deemed to be admitted by the tenant, and there is no illegality or infirmity in the impugned order. 9. In the light of the arguments addressed by the learned Counsels for the parties, the only point that arises for my consideration is: Whether the Court below was justified in rejecting I.A. No. III filed by the tenant under Section 42(6)(b) of the Rent Act? 10. My answer to the above point is in the negative for the following reasons: Section 42 of the Rent Act reads as under: 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 objections, 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 proceeding 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 therefore and order to pay the other party reasonable cost of adjournment. (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 therefore 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 any premises on the ground specified in Clauses (f), (h) or (n) of Sub-section (2) of Section 27, or under Sections 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. Section 42(6)(b) prescribes the procedure that the tenant, who seeks to contest the application for eviction, has to obtain leave of the Court, failing which 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 of eviction, but it does not prescribe any time-limit. Section 42(6)(c) says that it is mandatory on the part of the Court to grant leave to the tenant to contest the application, if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises. According to Section 42(6)(d), when the tenant is granted leave 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 of the application within 30 days of commencement of such hearing. Failing such commencement of hearing or disposal of the application within such time, the Court shall make a record of its reasons therefor. Failing such commencement of hearing or disposal of the application within such time, the Court shall make a record of its reasons therefor. Clause (e) of Sub-section (6) of Section 42 says that 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. In the instant case, the tenant has filed objections to the main petition. The Apex Court has held that amendment made to Order 8, Rule 1 of the CPC and the time schedule for filing written statement, the power of the Court to extend time for filing written statement beyond the time specified in Order 8, Rule 1 is not completely taken away, vide P.J. Surendranath Vs. S.P. Pandurangan, ILR (2003) KAR 2965 . Since no time-limit is prescribed to seek leave of the! Court for the tenant to contest, there was no impediment for the Trial Court to allow LA. No. III filed by the tenant. In view of the ratio laid down by the Apex Court in the above said Smt. Rani Kusum's case, the decision rendered in Surendranath's case, is of no avail to the case of the respondent/landlord. 11. Therefore, I pass the following order: The revision petition is allowed and the impugned order dated 2-8-2005 made on I.A. No. HI filed in H.R.C. No. 680 of 2003 on the file of the 2nd Additional Small Causes Judge, Bangalore, is set aside, and the application (I.A. No. III) filed by the tenant under Section 42(6)(b) of the Act is allowed permitting the petitioner/tenant to contest the case. 12. No costs.