Karnataka High Court
Smt Sunanda vs Sri Babu Rao on 15 March, 2011
Author: Jawad Rahim
Bench: Jawad Rahim
5 E\.) E 5%. SR1 S A DAMODHAR S/O LATE ADI RAMAEAH SHETTY AGED ABOUT 55 YEARS R/A N039, ANCHEPETE BASAVAN NA TEMPLE STREET BANGALORE-560053.
... .RE"S..é>ONj_D ENTS (BY SRI ADINARAYAN & SRI.D.NAI'C§ARA3',I.ADvs EORL'R4;T7' R1- R3 SERVICE AWAITE D) HRRP FILED UNDER SEC. 461(1) OEK.R.ACT;f:RR;{w.I,1\Ig:..3TD CALL FOR RECORDS IN THE SAID"t'H»E_x.NO.1825/20:0 PENDING DISPOSAL ON THE FILE OE... _sMAL_L CAuS.ES_.' JUDGE (S.C.H.NO.12), BANGALORE, THIS HRRP COMING_V_Qvi\1i.SVF(i}'AR:OR'DvEF{S;.7fHIS DAY, THE COURT MADE THE EO'L.LOw;NC:'V. _ - * I This is Aiiex/i.SiVon Section 46 of the Karnataka Rent Act the order dated 01.03.2011 V in Exe;'u't§on Droc_eed'ind"S l§io.1825/10 on the file of Judge, SV:n'.;II_IE"(3aiISesA',Brangalore. A ".i'Ahf.=,V..H1'Vpetition is posted after notice to 'Vr_eSpond~.eVn't_S.V Heard. Petition is admitted and taken up for '*f_i'i*.»a!V disposal by COFISERL s5'
4. It is further seen from the grounds"that-fiihe-.. order passed in H.R.C.382/2007 dated O1.04.20€i:9 M to execution in E.P.No.1825/2010 in'"vvri'i4:h 'ltheiilltriei :ou.Vrtx"-; ordered notice. In response to Smt.Sunanda Bai did not appear:a'ngd appears's_he";vtiled'V:an application under OrderI><,_Rulei"7 ii«5'i'~ofV§CPC to set aside the order placing :9 give her an opportunity to That application «the trial Court but warrant [was fciielliverfof"possession in terms of the orderlunder'eV§{ec.u'tiVo'na,:séssaihling the same, this revision is filed.e_ it t it _:"'.l:AgAsse_rtively, it is urged by learned counsel that after'-l'pValssii4ng.,x_theorder of eviction, the petitioner had filed an ai5.l3lica'tion':""under Section 64 of the Act before the trial for"review of the impugned order under execution itrur'gin'g"iseveral grounds amongst which it is urged that the T -:'_.:'tr'i*ai Court while passing the order of eviction failed to notice it it it the conferment of right upon the legal heirs of Narayanappa by Section 9 of the Transfer of Property Act and the right under that provision. It is further urged that the trial Court N' 5?' it -7- Provided that the successor has ordinarily been living:"'*.g or carrying on business in the premises with deceased tenant as a member of his family upto 'I' date of his death and was dependent='*ro:n}..,the deceased tenant:
Provided further that a righttto terranc;/_sihaA;£t_;'i7~o.t devolve upon a successor in case such successoi: or his spouse or any of h__is»_dep'endent son or daughter is owning or occupying a.r.preimises_.giri~ .'the';local area in reiation to the'p_remises'!et.
(2) If' a peiltson; being a"*successor mentioned in sub--section.;l), 'Was 'o~rdinarily"'ii§/ing in or carrying on busin'ess~ iriffth'e»r, V4prei'nises with the deceased tenant but was not"dep:en_dent on him on the date of his .death,4"o.r he or his spouse or any of his son or"o'aughter is owning or occupying a ' premises~iin._the local area in relation to the premises i_e't'.__to V"'ié}iiiicti'V.i':;'t'iiis Act applies, such successor shall acquirer-a right to continue in possession as a tenant for a" limited period of one year from the date of 2 death of the tenant; and, on the expiry of that 7pe'riod, or on his death, whichever is earlier, the 4 right of such successor to continue in possession of the premises shall become extinguished.
Expianation:-- For the removal of doubts, it is hereby declared that, --~
(a) where, by reason of sub--section (2), the ri;(_jh't any successor to continue in possessio/j_y"'of premises becomes extin'gluishe'd;'..' _:. 'sL_;ch~--f} extinguishment shall not affect theérig_ht= °of"an_'y 1.1' successor of the same cate_gory'7.to" contir;ue¢_V_VVin possession of the premises purer there~.is'r:Vo other successor of the same:"category,'theright to contirrue in possession of the on such extinguishment, pass. jfto . 5,1,/i'rz;:l;~ezi °suc:cessor specified in 'jtioweri-.cate'g;ory or':.'t'ate.5jrories, as the case may be; "
(b) oh}.4évefy.:'_'vsuccesVsor, referred to in sub-
section'.é(i.) to Vco'htwihti_.eir-.,in_. possession of the premises shall be "personal._toi._hirfiiand shall not, on the death of such' 'su»t:cessor,,__Vdevol've on any of his heirs. .7. ,_"i7he.:'2:o__ntention of the learned counsel that the petitionerhe-re'i:=h"V had inherited right of tenancy under '.Sectioun.whi4ch was available to her has to be tested only §'i.§:»ndeir'i..t'provision of sub~Section 1. But it needs to be ._j'-'mentioned that in H.R.C. proceedings which was initiated in year 2007, she and other heirs of Narayanappa were brought into party array as legal heirs permissible under x;
Therefore oi! the persoos named in category {o)__;f:'o" _ oot simofisaneousiy acquire the right of "
instant case; meroiy because the wifo 8f":-d Af..§v0'i":."-,3. on record, the sons wouid not _oet.__o rio'i21;' onder the presence of their mother}'igfgife/soo1;._4s;é_'vgf flfloriginal tenant). It is therefore 'Hbofore the trim Court, Suoanda Bai and had an opportunity must further notice whofo vffionts conferment of tenancy :--§%Laa order of eviction. It must be 'no_tfced' of tenants is permissabie undergyarioous ac;-a.o_'se's of section (2) of Section 27 of éoction (1) of Section 27 which reads .. Notwithstanding anything to the n, <:+;>ni:Hz'"ary contaioed in any other law or contract, 'oo order or decree for the recovery of possession of any oremioes shaii be modoby the Court, Diotrict Judge or High Court $1": favour of the ianéiord against a tenant, save as pfovioeo in sooseotion {zfix X,
-17, "Clerical or arithmetical mistakes in order passed by a Court, Controller revisional or appellate or error arising therein from '~ it C. or omission may, at any ti'rn:e;.be.correctVe'd such Court, Cont:*:o!.ler revisional authority l'Va'jpplicafli-p.'ri.'received in this or otherwise. _ "
11.-,_ From '*i't.,=i_t°is_se_en--._error arising in the order from any acciden'tal*slip'ortgomhissiéon could be corrected. This provision e.nables~correction of the order and not a review. I7._Then,cVontenti.on~.,that the scope of Section 5 was not coi=.sVi'd.e«red7'by_ trial Court and thus the order requires
--revievii', is untenable. Such a proposition cannot be 'i"4"'Va.ccept<edas the nature of Section 64 is restrictive in its Be that as it may. It is a material to note that all f:th'ese grounds were available to the petitioner in H.R.R.P.No.113/2009. The said revision was flied by wife a other heirs of Narayanappa against the order in H.R.C.No,382/200? dated 01.04.2009 under Section eviction has reached finality, it is yet another',_'4awtte'nn'pt too frustrate the said final order by applying' Court to cause destruction of_4_the'*e;{ecutioVn;T..t:'v\?ith'otj't hesitation, it may be described as::rnisus.e'**ofi 'oro.ces.;V"of law for which in the normal.circum.stan'ce4s,E'the peti't'lon"er could have been saddled withéllexlemoplary however, the learned counsel the submit that petitioner's .i:s:.._th_:§at.,__her:._ida_ug'hter is yet to be married the only place where she ekeg,-,her'_ these circumstances in mind, I refraidfrom .imrposirig cost. But the petition has to ,.---be d,i»si'nis_s'ed as "de.y__c_>__i,d of merit. At this juncture, the learned counsel makes further request to grant two years tiame;-to" 4and:'.i.~vacate the schedule premises which is seriously ,.resii.-s't.ed by the learned counsel for the ~respon"clent/landlord. He refers to the facts on record that it lriisyycornmenced 16 years back leading to several orders ..jwhich was tested up to the High Court by the tenants in one forth or the other. The tenant has not left any legal arsenal pfto defeat the action of the landiord. At the same time, the eviction is imperative and the time granted has expired. It r'\ :5 /w;-~o&"\ f i_ ,1 is only on the compassionate ground pleaded by the ieamed counsel for the petitioner, the petitioner is granteVd.44'_"si_>< months time from today to vacate and deliverthe'*£?_acaii's.t_:__'"_ possession of the premises. As" the o'tiie«.rf.h'eirs--AVoft' it Narayanappa have come up, the trial ,Co.urt'reto-..ensure.___ further impediments are 'caused Vthev""i..;ex,ecu_tion proceedings further. However, warrant is suspended for a period today.' If there be any default inthe dieiiverfy the warrant which is kept. :tieV.'Ve'Xecuted soon after expiry ofv__s_iV>v<:V orders of this Court. This is [is is created by the petitioner/tenant.' pertitlloner is directed to file an affidagx/_;it"'inthe Registrylof this Court undertaking to vacate along with other legal heirs of Narayanappa. The filed within two weeks from today. The _tenants s~.h:al'lv"'continue to pay rents regularly failing which benef'i't¢ of extension of time granted by this Court shall ;_st'a_nd 'revo ked.
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