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2016 DIGILAW 143 (KAR)

Leeladhara v. Vivek Mohan Shenoy

2016-02-11

A.S.BOPANNA

body2016
ORDER : A.S. Bopanna, J. 1. The petitioner is before this Court assailing the order dated 18-12-2015 passed in RRP No. 27 of 2015 on the file of the Principal Sessions Judge, Dakshina Kannada, Mangaluru, confirming the order dated 23-11-2015 passed in HRC No. 2 of 2015 as at Annexures-A and B to the petition. The respondent herein has instituted an eviction petition under Section 27(2)(p), 27(2)(r) and 42 of the Karnataka Rent Act, 1999 ('the Act' for short). The petitioner herein has filed objections not only disputing the jural relationship of landlord and tenant between the petitioner and the respondent, but also contending that in that circumstance, an eviction petition of the present nature under the Act would not be maintainable. 2. In that view of the matter, the petitioner herein also filed an application under Section 43 of the Act in HRC No. 2 of 2015 seeking that the further proceedings therein be stayed and the petitioner be directed to approach the Civil Court to establish his title to the petition schedule property. 3. The Court below at the first instance after taking note of the rival contentions has dismissed the application by the order dated 23-11-2015. The petitioner claiming to be aggrieved by the same had preferred a revision petition in RRP No. 27 of 2015. The Revisional Court after detailed consideration has rejected the revision petition by the order dated 18-12-2015. It is in that view, the petitioner is before this Court. 4. Learned Counsel for the petitioner while assailing the orders passed by the Court below would refer to the provision contained in Section 43 of the Act to point out the circumstance under which a person could be considered as a tenant, failing which the parties would have their dispute settled before the Civil Court and only thereafter the proceedings would be maintainable. It is contended that in the instant case except contending that the petitioner is a tenant, no document whatsoever is produced in the petition and therefore in such circumstance, the eviction petition filed under the Act cannot proceed further. 5. Learned Counsel for the petitioner in that regard has relied on the decisions of this Court in the case of Ayesha Begum v. Shahzadi, ILR 2003 Kar. 4255; in the case of Ashok Kumar v. Ananda Vadivellu (Raju) and Another, 2007 (6) Kar. L.J. 125 : AIR 2007 Kant. 5. Learned Counsel for the petitioner in that regard has relied on the decisions of this Court in the case of Ayesha Begum v. Shahzadi, ILR 2003 Kar. 4255; in the case of Ashok Kumar v. Ananda Vadivellu (Raju) and Another, 2007 (6) Kar. L.J. 125 : AIR 2007 Kant. 431 and in the case of Radha Sreenath and Another v. Ananthaswamy (HRRP No. 238 of 2002, dated 7-3-2003) to contend that in the said decisions, this Court in the facts arising therein has arrived at the conclusion that in the absence of there being any document to indicate the jural relationship between the parties, a proceedings under the Act would not be maintainable until the issue is resolved by a Civil Court by way of declaration. 6. Learned Counsel for the respondent would however seek to sustain the order passed by the Court below. It is contended that a detailed consideration has been made by the Court below and in fact, the decision rendered by another learned Judge of this Court in the case of C. Somasundaram v. Smt. S. Rukmini ,2015 (3) Kar. L.J. 432 has been taken note and in that regard, it is contended that this Court has held that a petition would be maintainable even in the absence of the documents when the relationship is pleaded in the petition. 7. In the light of the contentions urged and the position of law referred to and the conclusion as reached in the said decisions, in the facts and circumstances arising in the said cases, there can be absolutely no dispute. However, what is necessary to be taken into consideration is as to whether the decisions as relied on by the learned Counsel for the petitioner could be made applicable to the in the instant case. In that regard, at the outset, a perusal of the facts arising therein are in the circumstance where the landlords therein had contended that the respondents to the eviction petition were their tenants and thereafter proceeded to seek eviction against them. In that regard, at the outset, a perusal of the facts arising therein are in the circumstance where the landlords therein had contended that the respondents to the eviction petition were their tenants and thereafter proceeded to seek eviction against them. As against the case that was put forth therein a perusal of the eviction petition filed in the instant case before the Court of the first instance in HRC No. 2 of 2015 would indicate that the ground on which the petitioner has sought the eviction of the respondent therein viz., the petitioner herein is under Section 27(2)(p) of the Act. The contention therefore is that the petitioner herein is not the bona fide tenant, but is claiming right under the person who had also claimed right to the property under the vendor of the petitioner. 8. Therefore in a circumstance wherein the petition has been instituted under the said provision whereunder the eviction is permissible under the Act and the pleading is to that extent, the evidence that would be tendered for seeking eviction also would be based on such pleading and in a case of the present nature, it would not be correct in law to expect that there should be a document to indicate the jural relationship between the petitioner and the respondent as contended by the learned Counsel for the petitioner. 9. Therefore if this aspect of the matter is kept in view and in that light, the provision contained in Section 43 of the Act as referred to by the learned Counsel for the petitioner is taken into consideration, the stay of the further proceedings in the instant case based on the said provision in any event would not be justified. Hence, the ultimate conclusion reached by the Courts below is not erroneous so as to call for interference in this petition. Having arrived at the above conclusion, the concern expressed by the learned Counsel for the petitioner is also to be noticed. Learned Counsel would point out that in the course of disposing the said application, the Courts below have already expressed certain opinion with regard to the claim as put forth by the petitioner herein. Having arrived at the above conclusion, the concern expressed by the learned Counsel for the petitioner is also to be noticed. Learned Counsel would point out that in the course of disposing the said application, the Courts below have already expressed certain opinion with regard to the claim as put forth by the petitioner herein. On that aspect, it is needless to mention that the observation made in the orders impugned is only for the purpose of disposal of the application and all contentions of the parties in the petition would be considered on its merits without being influenced by any of the observations made in the orders passed by the Courts below or by this Court while disposing of this petition. The petition is accordingly disposed of.