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2010 DIGILAW 181 (KAR)

Gowdara Shivalingappa v. K. Gajendrappa

2010-02-11

ANAND BYRAREDDY

body2010
Judgment : Heard the Counsel for the appellant and the respondent. 2. It is at the time of admission, that the following substantial questions of law were framed: (i) In the light of clear admission made by the respondent/defendant in the previous proceedings – HRC No. 7 of 2004 that the plinth area of the premises in question is more than 14 sq. mtrs, as such, the provisions of the Karnataka Rent Act, 1999 (for short, the ‘KR Act’) are not applicable to the premises in question, whether the lower Appellate Court is justified in reversing the judgment of the Trial Court decreeing the suit of the appellant/plaintiff on the ground that the plinth area of the premises is less than 14 sq. mtrs., as such, the provisions of the KR Act are applicable to the premises? (ii) Whether the judgment of the lower Appellate Court is perverse being contrary to the principle that a party cannot approbate and re-probate? (iii) Whether the lower Appellate Court is justified in recording a finding that the suit is not maintainable on account of the appellant/plaintiff not having obtained leave of the Court under the KR Act, while withdrawing the eviction petition with liberty to file fresh suit? 3. The appellant was the plaintiff before the Trial Court and had filed the suit for ejectment of the respondent herein. The Trial Court having decreed the suit, the respondent herein had preferred an appeal. The appeal was allowed on two grounds, firstly, that the appellant herein had filed an eviction petition under the Karnataka Rent Act, 1999 (hereinafter referred to as ‘the Act’ for brevity) and had withdrawn the same, on account of a contention having been taken by the respondent that the property in question measured more than 14 square meters and therefore, was not covered under the provisions of the Act. The appellant having withdrawn the said eviction petition had thereafter filed the suit. It was opined by the First Appellate Court that firstly, there was no finding as to the property measuring more than 14 square meters and secondly, the appellant did not seek the leave of the Court to file a suit after withdrawing the eviction petition before the Rent Court and therefore, the suit was not maintainable and it had not been established that the property measured more than 14 square meters. It is on these issues, that the First Appellate Court has dealt at length in proceeding to dismiss the suit of the appellant. The appellant is therefore before this Court. 4. The Counsel for the appellant would submit that it is true that an eviction petition was filed under the Karnataka Rent Act, 1999 and the same was withdrawn since it was contended by the respondent that the property measured more than 14 square meters and hence, the petition was not maintainable. It was well-within the right of the appellant to have withdrawn that eviction petition and to have filed the suit, which has rightly been decreed by the Trial Court. The opinion of the First Appellate Court that the property was not established to be more than 14 square meters was an issue which was not debatable since, it was the respondent’s own case that the property measured more the 14 square meters. The nebulous contention of the respondent that he was in occupation of an area measuring 12.75 x 8.75 feet and was paying rent only for that extent, whereas he was in actual occupation of an area, which may be more than 14 square meters, is not a contention that can be accepted, since, if the respondent is to be evicted, he would not continue in possession of the area claimed by him, as actually has been leased to the respondent. The stand is apparently to overcome the suit and to deny the relief to the appellant. In any event, though there was an error in the plaint schedule in indicating the property as measuring 12.75x8.75 feet, the same ha been corrected by recourse to an amendment application, which has been allowed after contest and therefore, there is no inconsistency insofar as the property in question being more than 14 square meters. And this was not the case of the respondent in the eviction proceedings insofar as his claim that it is less than 14 square metres. And this was not the case of the respondent in the eviction proceedings insofar as his claim that it is less than 14 square metres. Hence, the First Appellate Court in holding that leave of the Court ought to have been obtained is again erroneous, since the eviction petition under the Karnataka Rent Act, 1999 was not a formal civil suit, but a summary proceeding invoking the provisions of that Act and it was not necessary for the appellant to seek permission of the Court to file a suit while withdrawing the petition and hence, he would submit that the questions of law would have to be answered in favour of the appellant and the appeal be dismissed. 5. While the Counsel for the respondent would seek to assert that as rightly pointed out by the First Appellate Court, notwithstanding the statement of objections in the eviction proceedings, where the present respondent has contended that the suit property measured more than 14 square metres, it was with the qualification that the respondent was in occupation of a leaser area and was paying rent only for that area, though he was in occupation of a larger area measuring more than 14 square metres. This has been misconstrued and it could have been properly explained at the time of tendering evidence in the eviction proceedings and since, the petitioner was withdrawn without formal adjudication by the Rent Court, that the statement that the property measured 14 square metres would be binding on the respondent, is an incorrect statement. This has been clarified in the written statement which has been appreciated by the First Appellate Court and in the absence of any proof of the property actually measuring more than 14 square metres, the Trial Court was not justified in holding that the property was not covered under the Rent Act and hence, the finding of the First Appellate Court that the suit was not maintainable in the absence of proof as to the measurement of the suit property cannot be faulted. And the contention that the leave of the Court for withdrawing the eviction petition in order to file a civil suit has rightly been taken by the First Appellate Court, since, it should be known as to the reason for withdrawal of the eviction petition and the filing of the civil suit without a preamble is further indicative of the lapse on the part of the appellant in not having taken the Courts into confidence in this regard and therefore, the First Appellate Court has rightly rejected the suit and would submit that the appeal be dismissed. 6. In the above facts and circumstances, the question whether the suit premises measured more than 14 square metres, could not have been made an issue in view of the admission by the respondent in the objection statement, which is a formal document filed before a Court of law and the tenor of Order 12, Rule 6 of the Code of Civil Procedure, 1908, which indicates that, where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, makes such order or give such judgment as it may think fit, having regard to such admissions, would apply insofar as the admission that the suit property measured more than 14 square metres and therefore, the First Appellate Court was not justified in opening up an avenue which was closed to the respondent and hence the First Appellate Court was not justified in doing so. Further, the observation of the First Appellate Court that leave ought to have been obtained in the eviction petition while withdrawing the same, in order to file a fresh suit, was also not tenable. The same was not a civil suit in which the appellant was obliged to seek such permission. There was no bar in withdrawing the said eviction petition, since the appellant apparently realised that since the property was admittedly more than 14 square metres, the provisions of the Act did not apply and the eviction proceedings were a futile exercise. The same was not a civil suit in which the appellant was obliged to seek such permission. There was no bar in withdrawing the said eviction petition, since the appellant apparently realised that since the property was admittedly more than 14 square metres, the provisions of the Act did not apply and the eviction proceedings were a futile exercise. Hence, the findings of the First Appellate Court that the property measured more than 14 square metres, on the footing that the appellant had not established the same is incorrect. Therefore, the substantial questions of law framed are answered in favour of the appellant. The appeal is allowed. The judgment and decree of the First Appellate Court is set aside ad the suit for ejectment is decreed in favour of the appellant. However, in the interest of justice, the respondent is granted six months time from today to quit and deliver vacant possession of the premises and deliver such vacant possession of the premises on or before 10th July, 2010 and shall continue to pay damages at the rate of Rs. 750/- per month, which has been determined as mesne profits by the Courts below, till such time that he quits and delivers vacant possession of the premises. In the event of failure on the part of the respondent to pay mesne profits so determined and the damages that are payable till 10th July, 2010, the appellant shall be at liberty to execute the judgment and decree of the Trial Court.