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2015 DIGILAW 976 (KAR)

Puttalakshmi v. Nanjundappa

2015-08-21

B.S.PATIL

body2015
ORDER : B.S. Patil, J. Petitioner was the respondent in HRC No. 131 of 2014. An ex parte order directing his eviction from the petition schedule property has been passed on 4-12-2014. By instituting an Execution Case No. 868 of 2015 she has been dispossessed from the petition schedule property. In this background this revision petition is filed challenging the order of eviction dated 4-12-2014 and the proceedings initiated in Execution No. 868 of 2015 culminating in issuance of delivery warrant and consequential dispossession of the petitioner. 2. Eviction petition was filed seeking eviction of the revision petitioner from premises, which is described as under: SCHEDULE The residential house premises bearing No. 137, Khatha Assessment No. 2365, situated at Saneguruvanahalli, Dakale, Kamakshipalya Village, Yeshwanthapura Hobli, Bangalore North Taluk, non at BBMP Ward No. 17-Vrushabhavathi Nagara, Municipal Katha No. 37, PID No. 17-82-37, New PID No. 102-W0078-3 at 1st Cross Road, Sarmakkibayalu, Vrushabhavathinagar, Kamakshipalya, Bangalore measuring East to West 15 feet and North to South consisting of one hall, kitchen, room, toilet and bathroom and bounded as under: East: Property of Sri Nanjundappa West: Property of Sri H.K. Ramalingaiah North: Property of Sri Thimmaiah South: Road However, while filing the eviction petition, in the cause title, name of the petitioner and his address has been described as under: Smt. PUTTALAKSHMI W/o. Late Sri H.K. Jayaram, Aged about 46 years, No. 40, 2nd Cross, Opp. - Thimmegowda Estate, (Behind Shiva P arm) Vrushabhavathinagar, Kamakshipalya, BANGALORE - 560 079. It is apparent from a comparison of the address of the revision petitioner furnished in HRC No. 131 of 2014 and address of the petition schedule property as furnished in the eviction petition that both are different. 3. Case of the respondent herein who claims to be the landlord and alleges that revision petitioner was his tenant is that tenant has been in occupation of the petition schedule property since long and that she committed default in paying rents and therefore he was constrained to file the eviction petition under Section 27(2)(a) of the Karnataka Rent Act, 1989. 4. If that was so, the eviction petitioner/landlord ought to have described the address of the tenant as that of the petition schedule property. It is not his case that tenant was residing in a different premises and the petition schedule premises was altogether different. 5. 4. If that was so, the eviction petitioner/landlord ought to have described the address of the tenant as that of the petition schedule property. It is not his case that tenant was residing in a different premises and the petition schedule premises was altogether different. 5. It can be further noticed from the order sheet maintained by the Small Causes Court that on 11-9-2014 notice to the respondent by RPAD and also through Court was issued fixing the next date as 14-10-2014. On 14-10-2014, the order sheet discloses that Court notice issued had been returned as "served on daughter". The Court found that it was not sufficient notice. It was further noticed that RPAD cover was returned as "not known" and therefore, steps were directed to be taken fixing the next date as 18-10-2014. 6. Subsequently, after couple of adjournments, on 17-11-2014 the noting made in the order sheet discloses that RPAD was returned as "not claimed" and notice issued through Court was returned as "door locked" and therefore, the Court below has proceeded to hold that service of notice should be recorded as sufficient. Hence, after calling out the respondent and noticing his absence, he was ordered to be placed ex parte and matter was posted for evidence of the petitioner on 1-12-2014. Thereafter, evidence has been adduced by the eviction petitioner and an ex parte decree has been obtained. 7. What emerges from the order sheet is that notice issued by RPAD had been returned as "not known" on the first occasion and on the second occasion notice issued by RPAD is returned as "not claimed". The Court proceeds to hold that "not claimed" would tantamount to effective service. As already noticed above, the address given by the eviction petitioner of his own tenant is not that of the petition schedule premises, but of a different premises. Therefore, it cannot be held that notice had been despatched to the address of the revision petitioner-tenant and despite intimation by the postal authorities he did not claim it. Therefore, the approach of the Court below suffers from inherent error. Therefore, it cannot be held that notice had been despatched to the address of the revision petitioner-tenant and despite intimation by the postal authorities he did not claim it. Therefore, the approach of the Court below suffers from inherent error. Though an attempt is made by the learned Counsel for respondent to contend that there has been change in the address of the petition premises, if that was so the same should have been mentioned in the petition filed seeking eviction and also while describing the property in the schedule appended to the petition. Therefore, it is clear that this submission cannot be accepted. 8. Thus, it is clear that landlord has initiated the proceedings against the revision petitioner claiming that he is a tenant under him by showing incorrect address. He has obtained an ex parte order without mentioning correct address of the petition property wherein his own tenant was residing. When a landlord seeks eviction of tenant from the premises, the address of tenant can only be the address of the premises which is the subject-matter of eviction proceedings and not something else unless it is pleaded specifically by the landlord that the tenant has been deliberately residing elsewhere by keeping the tenanted premises under lock or by inducting a third party. Therefore, I am of the view that the order under challenge cannot be sustained. The consequential orders passed in the execution proceedings are also liable to be set aside. 9. Hence, the revision petition is allowed. The impugned eviction order and the proceedings taken in E.P. No. 686 of 2015 are set aside. A direction is issued to the respondent-Nanjundappa, S/o. late Nanjappa to put back the petitioner-Puttalakshmi in possession of the petition schedule property immediately. The matter is remitted to the Court of Chief Judge, Court of Small Causes, Bengaluru, for consideration in accordance with law. Both parties shall appear before the Chief Judge, Court of Small Causes, Bengaluru, on 4-9-2015. The revision petitioner shall be provided an opportunity to file his objections whereupon the matter shall be heard and disposed of as expeditiously as possible at any rate within a period of six months from the next date of hearing. The revision petition is allowed in terms as stated above with costs of Rs. 5,000/- payable to the revision petitioner by the respondent within two weeks.