Karnataka High Court
Smt Sabitha Devi W/O Late A P Shankar vs Smt S K Shreedevi W/O Sri N Murali on 6 July, 2009
Equivalent citations: 2009 (6) AIR KAR R 112
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH comm' 0:: I<ARNA'1'Al(A AT BANGALQRE.
DATED THIS THE 6"' DAY OF JULY, 2009
BEFORE
THE HON' BLE MR. JUSTICE %AN1wD%&i3YR;;:1E;D%:2Y%% H 2 J 7
HOUSE RENT B__EVISI()N PE*r1m_iN 1&1 .01?' L
BETWEEN
1. Smt. Sabitha Devi
W/0 Late A. P. Shanl{:;r_ .
Aged about 62 years 'V L " '
2. Sri Surcsh 3: *
s;o%'La:é%;-a.?}:
A-god, abaui 445" 'A ' -~- ._ '
Bothmsiding at4No*. IE5,
_R.obcrtS'o:1_' pet Road
{Frazer Town' . _____ M .
Ba'riigai'e1j&-560 005. PETITIONERS
( Kumax, Advecatcs)
A1919
A V' 31131: S 1iC"'Shreedevi
_'%£?[Q §3ri N. Mmli
V Egged About 38 years
= __Residing atNo. 97x41, 8"' Cross,
" Wilson Garden
Bangale£e«-560 027 RESPONDENT
(By Shri. Shekar Shetty, Advocate) % This Hesse Rent Revision Petition is filed ssgsslosssstllosk 46 of Karnataka Rent Act, 2999 against the Order sod 25.10.2003 passed in HRc.No.173/2006 on sis sssss cthisfll % hzdge, Court of Small Causes, Baiasgalore.-Q1a§iloiwi§:gl'th§:ss__'pe¥;ition filed under section 27 (2) (r) of the Ksmssska Res; gm, 1s9l99, for eviction. ' V ' V This Petition comihgqon tlay, the Court made the following: l l 'V l petitioners and the responlisnt : V V' 4; 'I2. ,Thel téctjsl ass: nocessary for the disposal of this petition .Aa'rs_,as foElows:~--._ :llt'_"j--W£ss'lloontendcd by the respondent that, she was the ow1lér..oil.théé3etition schedule property having purchased the same Fathima, who in turn said to have purchased the osoperty from one AP, Shankar. AP. Shankar was the husband of the first petitioner and the father of the swond mtitioner. It was contended by the respondent that, she had purchased the property é as aforesaid and that her husband was a tenant in respeet of the very property and was running a wine store therein; thatiegtterithe purchase of the property it transpired that, she had in O.S.No. 3103/1993 on the fiie orree :4F?eide§:iei;a: Cami j Judge, seeking possession of the pre1i*:ises_ on the_-v_gr'o'.mdi 'tiietfhe petitioners were unauthorised oeeiipants. were placed exparte in the saictjjéseiit Court on ieonsideration of the pleadings of the petitiortersaiid Iierieaidence, dismissed the suit withan "that; the'"p*resent petitioners were tenants of the Ijropextyarrd i12_L§ieii;...of the fact that there existed a jural relationship of Ia11dlerd"variic'iii tenant, a suit for possession was not ii "'mAairz-tiain.ahle'; ._It background that, the respondent on the thesis of arrived at in the said suit, fiied an eviction L petition enacts section 27(2)(r) of the Karnataka Rent Act, 1999 i ii Jagasinst the petitioners herein. The petitioners entered appearance ia'.ed"eontested the proceedings on the footing that, they are in " Hoeeepatiion and possession as owners ofthe property and that, were is no jars! reiatioeship of iaediord and tenant and that there is no ,9 agreement, to fiieir knowledge, entered into bet\x*eenVVti§ei"perties namely the respondent herein and A.P. favour. it is the further case of the petitioneafsiithédi was estranged from the 1" petitione:i'.Aanidite .1"
petitioner and he is said to have-soid» the of one Syeda Fathima but Iieve to be in possession of the propertsz not been disturbed from the is reference to the matrimoniai Shankar and the 1"
petifioner Aheving died, the petitioners have continued in ~posses,sio1:_ iofthe property 'ezadistllrbed, and there is " '~ ., go"jiireii"re}atjonslii;5"of landlord and tenant as between petitioners The petitioners have filed a suit in ()3. No. 6zt3«9/1§'96-efestrainisg Syeda Fathima, who is ailcged to be pmfeheser of the property from AP. Shankar, from interfering with ttieir: possession. After having learnt that the respondent having Waillegedly purchased the property from Syeda Fathima, she has been impleaded in the said seit and the same is pending as on 2 today and it is in this way that the petitioners contended that, there is no relationship of landlord and tenant established that a petition for eviction cooid lie. The triai Court, basis of the pleadings and the evidenceeethet held ; in view of the findings in (}.S.No. i after having sold the promrty favour entered into an agrwrnermof tenf5ane§.?j4._had eontiiiued to be in possession of the property ihed also sefiered an order of iii:1~= were brought by Syeda Fathimrielicl died during the pendeney of the execution proeeedi.n,gs§"vtbei present petitioners had continued as
5.-.'elai'ming iesiiiileiigal representatives of AP. Shankar and a finding of relationship of landlord and tenant and"that,_t'he. for eviction had been made out and accordingly, courebeiow had allowed the eviction petition. It is in this i breekground that the present petition is filed.
3. The learned Counsel re: the petitioner would urge that as can be seen from a plain reading ofthe impugned order, there is no € reference to any materiai produced in the course of the to establish that there was relationship of landlofd between the petitioner and respoizdeiif The tzntireifi'ié¢,iing--s«'in"thisf. it regard is with reference to theV.tindingsAiiof 8108/1998. The said judgment ooazi Iiasis thet there was no jurisdicfl'oi1;4_i_"ii' the suit on fiie ground that it did notAA.ha:'ve., findings of fact recorded as the petifioners are concerneii;~ proceeded on the basis that those tiiiidingsiiii would bind the petitioners, is an erroi of lawiiandi 'd:e'.HR{3iiZ'ourt could not have proceeded on those ..¢,fin'diiiig§-.i:,j1ti..thisiiisiiiiiiiisettled principle gr law as laid down in 3 learned Counsel would seek to place reliance on 'the guagtimt in me ease of UPENDRA NATE BOSE -«vs- ;2.A:,L AND OTHERS {AIR 1940 Privy Council 222} wherein on
-i it was found that the Court having found to be without " mgiiirisdiction, any findings arrived at by the said Court would not have any binding force on the parties and Iaid down that 3 Court which deciines jurisdiction cannot bind the parties by its reasons for declining jurisdicticn; such reasons are net decisignisésnd are certainly not decisions by a Court ofccmpetent
4. 1: would indeed be strange if pe.'_'}:iiiiVé'is;iete"ssséstefiiei. jurisdiction of 3 Court to try an issue;.the.ti Couit far i hoisting that it had no jurisdictie5i;"'ecul<i,i. upen..At:l_i_e of ies judicata, decide and binding: paiticis'juii{rn'fl1eiivery'issue which it was incompetent to try and' 'another judgment of privy 'i§ounciiiVi'iitiV '«.S}IA3xiKARJ,iaL PATWARI --vs- HIRALAL MuRAR1<;§ {AIR (37) 1950 Privy Council 30] _ wheyie that suit is net maintainable by reason of ' iieiiiure tc'ccsni5}y_ with Section 80, any findings given on merits are chitin" support a plea of res judicata either in favour of or agaénisi party.
5. Reliance is afse placed on the judgments in c _..,ii4i:¢ii_,VPiANDURANG --vs-- SHANTABAI [AIR 1939 SC 2240} to the same effect and ASHOK LEYLAND LTD --vs- STATE OF 5 TAMIL NADU [AIR 2004 SC 2836] where it is laid the principle of res judicata is a procedural provrsiong:
question if wrongly decided would r;ot'attract'the ofrelsf. judicata. When an order is by invoking the procedural or res judicata. Further it is :i.t_VV.l,'$'n.ow an awed that an order passed by nullity. Any order passed or in furtherance thereof wouldVaisc'he: Ak = 'that the learned Counsel for the petitioneraltw_rruldV leazaphasiae that the material evidence that was '~ _ tenderedrlobefcre Ceurt was a nullity.
V copy of the judgment and decree in O.S.No. 8l 1 993 'at-_.favoer of the landlard, the khatha certificate, tax paid receiptsahd encumbrance certificate and the sale deed executed by A Fathinra and khaza certificate and tax paid receipts in favour l Syeda Fathima were the only magma} on the basis of which the 9 petition was allowed and therefore would submit that there was no other material placed before the Court except the above judgment and decree in O.S.No. 8108/1998 to contend that there'---»was 3 relationship of landlord and tenant as between Syeda Fathima and through her with the would hence submit that the case would of law as laid down by the aboveii's:»u_Vd deeisiioas that the petition be allowed on i_ Siiefiy, learned Counsel for the respondent would seekytol and order impugned herein. A' Ho§=e'e}Jer;'the1*ei.is"nl3...f9I'3e in the submission of Sri Shekar Shetty aiiihe. " The proposition of law as putforth namely, that the eeeeege ereoieeia which had declined jurisdiction to deal with the igsuit eoeld':.not have been relied upon in arriving at a finding as to i relationship of Landlord and tenant or other facts which might to have been independently found by the Court below. If i there was material available; it is not clear as to how the Court could have proeeeded without reference to that material being 3 10 made part of the record. It is unfortunate that the not chosen to produce that materia} and there was no"%efei*e1ioe :the same by the tria! Court. The finding: ofthe ; regard to the findings in Civil Sizgitiiijz jural relationship of 1and3ord"v--;iiiidi tezia1i1t_iwa._§.: e'sttiBli:ihed, is erroneous and cannot sustain ttiieiiiore-t1ieri:'ot7_evictioii. "Accordingly, the petition is allowed and the:_or?ti'et set aside.
9. B§:foi"c.__ :wi_tiI1'~.the'i_eéi.$e_I2owever, it is to be noted that this wouid not ttie"~«iespondent from resorting to an eviction petitioia of Section 27(r) of the Act orsuch otheriground as available.
Sift-2% Fe.&§§