Karnataka High Court
Ashok Kumar S/O Late Lakshmi Chand vs Sri Ananda Vadivellu (Raju) S/O Late M. ... on 5 September, 2007
Equivalent citations: 2007(6)KARLJ125
Author: N.K. Patil
Bench: N.K. Patil
ORDER N.K. Patil, J.
Page 1946
1. The petitioner, being aggrieved by the order dated 11th June 2007 passed on I.A. No. V in H.R.C. No. 298/2006 on the file of the Additional Judge, Page 1947 Court of Small Causes, (SCCH-9) Bangalore, has presented the instant House Rent Revision Petition.
2. The grievance of the petitioner in this petition is that, petitioner has filed an application under Section 43 of the Karnataka Rent Act, 1999 before the Trial Court, in H.R.C. No. 298/2006, seeking appropriate relief to stop all further proceedings and to direct the petitioners therein to approach the competent Court of Civil jurisdiction for declaration of their rights, on the ground that, he is disputing the jural relationship of landlord and tenant. The said application filed by petitioner had come up for consideration before the Trial Court on 11.6.2007. The Trial Court after hearing both sides, has rejected the I.A. No. V filed by petitioner in HRC No. 298/2006 holding that, respondents herein have prima facie produced documents to show that schedule property is transferred in their names and respondents therein have got opportunity to rebut the presumption and this is a mixed question of law and fact which requires the evidence and opined that the said application filed by petitioner is not maintainable, when the matter is at the stage of recording the evidence of parties. Assailing the correctness of the order passed by the Trial Court as referred above, petitioner herein felt necessitated to present the instant House Rent Revision petition.
3. I have heard learned Counsel appearing for petitioner and learned Counsel appearing for respondents.
4. After careful perusal of the impugned order passed by the Trial Court on I.A. it is manifest on the face of the order that, the Trial Court has committed a grave error and material irregularity in passing the said order, without assigning any valid reasons for rejecting the application filed by petitioner herein, except making a reference that, prima-facie respondents herein have produced the documents to show that the schedule property is transferred in their favour and the petitioner herein has got opportunity to rebut the presumption and the said application is not maintainable at the stage when the matter is posted for recording the evidence. The said reasoning given by the Trial Court for rejecting the application filed by petitioner cannot be sustained, in view of non following the ingredients of Section 43 of the Karnataka Rent Act, 1999. The Trial Court has not appreciated the stand taken by petitioner as well as the respondents in their written statements filed and in view of the well settle preposition of law laid down by this Court that, if once the relationship has been disputed by the tenant and denied the existence of relationship of land lord and tenant between the parties, it is duty of the Court below to follow the mandatory provisions of the Rent Act, and after considering the stand taken by both the parties and after appreciation of relevant materials available on file and then proceed with the matter in strict compliance of the relevant provisions of the Act. But in the instant case, the Court below has not strictly followed Section 43 and it has proceeded to dismiss the application without testifying the objections raised by petitioner in their application. The impugned order passed by Court below Page 1948 cannot be sustained, in view of non consideration of the mandatory provisions of the Rent Act.
5. For yet another reason, the impugned order passed by Court below cannot be sustained, is in view of the judgment passed by this Court in the case of K. Chandrashekara v. Sri. S. Ganesha and Ors. , wherein this Court has considered the scope of Section- 43 and held thus:
10. Therefore just because Section 43 does not speak of the enquiry, the requirement of holding the enquiry cannot be dispensed with. Any order, visiting the parties will serious consequences, cannot be passed without holding the enquiry. The compliance with the provisions contained in Section 42(1) of Karnataka Rent Act, 1999 and sacrosanct principles of natural justice require that an application under Section 43 of the said Act be disposed of only after holding an enquiry. Section 42(1) of the said Act requires the Court to give a reasonable opportunity of showing cause to a party against the order, proposed to be passed which may prejudicially affect him. An opportunity has to be given to him to file his objections and to produce evidence in his favour. Further he is also entitled to the consideration of his objections and evidence.
If the ratio of the above law laid down by this Court is taken into consideration, it will squarely applicable to the facts and circumstances of the case in hand. In the said decision, this Court has specifically clarified that, Section-43 does not speak of the enquiry, the requirement of holding an enquiry cannot be dispensed with and any order visiting the parties with serious consequences cannot be passed without holding enquiry. The compliance of provisions contained under Section 42(1) of the Rent Act and the principles of natural justice require that an application under Section 43 of the said Act, be disposed of only after holding an enquiry and Section 42(1) of the said Act requires the Court to give reasonable opportunity of showing cause to a party against the order. But in the instant case, it emerges from the materials available on record that, in fact, petitioner has taken a stand in Para No. 4 of his objections, at initial stage itself contending that, once there is no relationship of landlord and tenant exists, the question of paying the rent or arrears of rent would not arises for consideration. Thereafter, petitioner has filed statutory application as provided under statute. If that is so, the Court below is bound to consider the said application and to decide the same in strict compliance of the relevant provisions of the Rent Act. But in the instant case, the Trial Court has failed to assign any valid reasons for rejecting the application filed by petitioner. Therefore, I am of the considered view that, the impugned order passed by the Trial Court cannot be sustained and it is liable to be set aside.
Page 1949
6. Having regard to the facts and circumstances of the case as stated above, the instant House Rent Revision Petition filed by petitioner is allowed in part.
The order dated 11th June 2007 passed by Additional Judge, Court of Small Causes, Bangalore, on I.A. No. V filed by petitioner, in HRC No. 298/2006 is hereby set aside.
The matter stands remitted back to the Trial Court for reconsideration of the application filed by petitioner, with a direction to pass appropriate orders, in strict compliance of the mandatory provisions of the Karnataka Rent Act and also with reference to the law laid down by this Court in the above referred case and dispose of the same, after affording opportunity to both the parties, expeditiously, at any rate within two months from the date of receipt of a copy of this order and thereafter, proceed further in the matter, in accordance with law.
With these observations, the instant House Rent Revision Petition filed by petitioner stands disposed of.