Karnataka High Court
Smt. Yashodabai vs Smt. Gangawwa And Others on 7 August, 1998
Equivalent citations: ILR1998KAR3501, 1998(6)KARLJ330, 1999 A I H C 381, (1999) 2 CIVILCOURTC 79, (1998) 6 KANT LJ 330, (1999) 1 CIVLJ 11, (1999) 2 CURCC 404
Author: M.B.Vishwanath
Bench: M.B.Vishwanath
JUDGMENT
1. In this revision petition, the order dated 27-2-1991 passed in H.R.C. Revision Petition No. 32 of 1590 on the file of the II Additional District Judge, Belgaum, dismissing the revision petition has been challenged.
2. In this revision petition, the petitioner is the tenant. The respondent is the landlord.
3. The landlord filed H.R.C. No. 262 of 1986 before the Principal Munsiff, Belgaum, praying that the tenant should be evicted.
4. The H.R.C. Court passed an ex parte order of eviction on 21-3-1987. The landlord filed Execution Petition No. 191 of 1987 before the Principal Munsiff, Belgaum, to take possession of the property in pursuance of the exparte order of eviction.
5. After coming to know of the ex parte order of eviction, the tenant (present revision petitioner) filed Miscellaneous Case No. 42 of 1987 before the Principal Munsiff, Belgaum, praying that the ex parte order should be set aside, which was dismissed on 23-2-1989.
6. The tenant filed revision petition before the learned II Additional District Judge, Belgaum, challenging the order passed by the Principal Munsiff, Beigaum, on 23-2-1989 dismissing the Miscellaneous Case filed by the tenant.
7. The learned District Judge dismissed the revision petition filed by the tenant and confirmed the order passed by the learned Munsiff on 23-2-1989.
8. In the present H.R.C. revision petition, the tenant has challenged the order passed by the learned District Judge who confirmed the order passed by the learned Munsiff.
9. The learned Munsiff has come to the conclusion that the tenant was aware that the eviction petition "might be filed within some time". He has accepted the evidence of the process server D.W. 2 as if the process server was an apostle of truth. It is curious to note that the learned Munsiff has observed that the evidence of the process server D.W. 2 is confusing. Even so he has accepted the evidence of the process server. This is really unfortunate.
10. The order passed by the learned Munsiff rejecting the Miscellaneous Case filed under Order 9, Rule 13 of the CPC has been confirmed by the learned District Judge, Belgaum, by his order dated 27-2-1991 as has already been stated.
11. Ex. D-5 is the notice of eviction petition issued to the tenant. Ex. D-5(b) is the alleged signature of petitioner-Yashoda. It must be very clearly borne in mind that the purported signature of the tenant is in English. It is not disputed that the tenant does not know how to put her signature in English. It is obvious from the material on record that the landlord has committed fraud to obtain an ex parte order of eviction against the poor tenant, a lady. The order sheet dated 15-12-1986 passed in H.R.C. No. 262 of 1996 says:
"Opp. called out. Absent. She is served in time. Hence placed ex parte. Ex parte evi. by 8-1-1987."
The H.R.C. Court has committed a grievous mistake in holding that the tenant was served in time and in placing her ex parte. I hold that the tenant has satisfied that the eviction petition notice was not duly served and that she was prevented by sufficient cause from appearing when the eviction petition was called on for hearing and that she had no knowledge of the eviction petition. The two Courts below counted the trees. They have not seen the wood. Both the Courts below have glossed over the fraud committed by the landlord.
12. For the aforesaid reasons, the order passed by the learned District Judge dated 27-2-1991 in H.R.C. Revision Petition No. 32 of 1990 confirming the order passed by the learned Munsiff in Miscellaneous Case No. 42 of 1987 is set aside. Accordingly the eviction order passed in H.R.C. No. 262 of 1986 is set aside and it is restored to file. The revision petitioner-tenant shall be given opportunity to contest the case. It is open to the tenant to file an application for restitution and obtain appropriate order.
The revision petition is allowed as stated herein.