Karnataka High Court
Commission And General Agency A Regd ... vs M. Narayana Bhat S/O Balakrishna Bhat on 1 August, 2006
Equivalent citations: ILR2006KAR3582, 2006(6)KARLJ150, 2006 (6) AIR KAR R 8, (2006) 2 RENCJ 192, (2006) 6 KANT LJ 150, (2007) 1 ICC 781
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
ORDER V.G. Sabhahit, J.
Page 0858
1. This writ petition under Articles 226 and 227 of the Constitution of India is filed being aggrieved by the order passed by the court of Civil Judge (Jr.Dn.) Mangalore in HRC. No. 30/95 dated 24.2.2003 holding that the application filed for restitution under Section 144 CPC, pending in execution would abate in view of the provisions of Section 70(2)(c) of the Karnataka Rent Act, 1999 (for short 'the Act').
2. It is the contention of the petitioner that respondent herein filed eviction petition against the petitioner seeking for eviction of the petitioner and possession of the premises under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 in HRC. No. 30/95. The said petition was decreed exparte. Being aggrieved by the same, the petitioner preferred RRP.91/95 and the exparte order of eviction passed in HRC. No. 30/95 was set aside by allowing the application filed for setting aside the exparte order. However, in the meanwhile since the respondent had taken possession of the schedule premises by executing the exparte decree passed in favour of the respondent, application was filed under Section 144 for restitution of the possession of the schedule premises to the petitioner as the order of eviction pursuant to which possession was taken was set aside by the revisional court of District Judge, Dakshina Kannada, by order dated 16.10.1995. During the pendency of the said execution petition for restitution, application for restitution under Section 144 of the Karnataka Act, 1999 came into force and since the extent of schedule premises is more than 14 squares and is non-residential premises, the eviction petition stood abated. In view of the provisions of Section 70(2)(a) of the Act r/w. Section 2(3)(g) of the Act, However, it was also contended that since the eviction petition itself has abated, the application filed under Section 144 CPC, for restitution numbered as Execution No. 175/97 also stood abated and accepting the contention of the respondent, the trial court Court of Prl. Civil Judge, Mangalore has passed impugned order dismissing the execution petition as abated and being aggrieved by the same, the present writ petition is filed.
Page 0859
3. I have heard the learned Counsel appearing for the parties.
4. The learned Counsel appearing for the petitioner submitted that respondent had taken possession of the schedule premises pursuant to an exparte decree for eviction passed in HRC. No. 30/95 dated 22.4.95 and since the said order of eviction has been set aside, application was filed for restitution of possession in favour of the petitioner and the same was numbered as Execution No. 175/97 and the order passed by the trial court holding that Execution petition which is an application filed under Section 144 CPC., for restitution would also abate is clearly without jurisdiction. The learned Counsel submitted that when the eviction order pursuant to which possession had been taken has been set aside in revision, the respondent is not entitled to continue in possession and wherefore application was filed for restitution and the same ought to have been considered on merits independent of the provisions of the Act as the application is filed under Section 144 CPC., In support of his contention, he has relied upon the decision of this Court in V. Babulal v. MKM Shariff 1981(2) KLJ 273 wherein this Court under similar circumstances wherein exparte eviction order against the tenant was set aside and an application was filed under Sections 144 and 151 has held that the application under Section 144 CPC., is maintainable under the provisions of the Code as petitioner is asking for restitution pursuant to seting aside of the exparte order.
5. On the other hand, learned Counsel appearing for the respondent submitted that in view of the provisions of Section 2(3)(g) and Section 70(2)(c) submitted that the dismissal of application for restitution which had been registered as Execution No. 175/97 is justified. In support of his contention he has relied upon the observations made by the Hon'ble Supreme Court in Mahendra Saree Emporium v. G.V. Srinivasa Murthy ILR 2004 KAR. 4171 wherein Hon'ble Supreme Court has observed as follows:
Similarly if the pending proceedings are those in which the tenant has put in issue a decree or order of eviction, he need not be allowed to pursue the same inasmuch as even if he succeeds, it will always be open for the landlord to initiate fresh proceedings of eviction wherein he would be able to secure the same order of eviction with more ease. The scheme of the New legislation and its comparative reading with the provisions of the preceding legislation make such interpretation more reasonable and sensible.
6. He has also relied upon the Division Bench decision of this Court in Hassanbaba S.P. and Ors. v. Honnappa Venkatappa Naik ILR 2001 Kar, short Note No. 1 wherein it is held that any order passed in execution of the eviction petition is revisable under the provisions of Section 115 of the CPC.
7. I have considered the contention of the learned Counsel appearing for the parties with reference to the material on record.
8. It is clear from the perusal of the material on record that the fact that the respondent had filed eviction petition in HRC. No. 30/95 against the Page 0860 petitioner seeking for possession of the schedule premises on the ground that reasonably and bonafidely required under the provisions of Section 21(1)(h) of Rent Control Act. 1961 and in the said proceeding the petitioner herein who was the respondent in the eviction petition was placed exparte and thereafter an exparte order of eviction was passed on 22.4.1995 is not in dispute. It is also not in dispute that the exparte decree passed against the petitioner has been set aside in RRP. No. 91/95 by order dated 16.10.95. However, since possession of the schedule premises had been taken pursuant to the exparte decree obtained by the respondent against the petitioner application was filed under Section 144 CPC., for restitution of the possession of the schedule premises in favour of the petitioner as the order of eviction was set aside and matter was remitted to the Rent Control Court for disposal of the petition, in accordance with law. There is no dispute that the exparte decree was passed and possession was taken and exparte decree was set aside and application for restitution was filed much before the Act came into effect from 31.12.2001 and wherefore, it is clear that the proceeding for restitution under Section 144 CPC., had already been filed much before the Act come into force and was pending consideration in Execution No. 175/97. It is clear from the decision of this Court in Babulal v. M.K.M. Shariff that when an exparte order of eviction is set aside and tenant makes an application for restitution the same is maintainable under Sections 144 and 151 of CPC., and Section 70 of the Act dealing with repeal and savings provides notwithstanding such repeal and subject to the provisions of Section 69 that transfer of pending cases by proceedings in execution of any decree or order passed under the repeal Act and pending at the commencement of the Act in any court shall continue and dispose of by such court as if such enactment not been repealed and Section 70(2)(b) provides for pending of cases and proceedings other than wherein new Act would not be applicable and Clause (c) of Section 70(2) deals with other cases and proceedings pending in respect of premises to which Act does not apply shall from the date of commencement of the Act shall stand abated, It is clear from the perusal of the said section that in view of Clause (c) of Section 70(2) of the Act, the trial court has rightly held that the eviction petition which was remitted after setting aside the exparte order of eviction abates and the said order is justified. However, so far as the order dismissing the application filed under Section 144 of CPC., as abated is clearly erroneous and without jurisdiction as it would be a proceeding under Clause (a) of Section 70(2) of the Act, Any other interpretation would lead to anamolous result as the very eviction petition which was filed against the petitioner by the respondent has stood abated by virtue of the Act, However, he has taken possession pursuant to the exparte decree passed before coming into force of 1999 Act and the. order of eviction pursuant to which possession had been taken has been set aside and matter was remitted for fresh disposal on merits and wherefore the application is filed under Section 144 r/w, 151 CPC., for restitution which is maintainable as held above, Under the circumstances, it is clear that the application for restitution ought to have Page 0861 been decided independently and the order dismissing the said application for restitution under Section 144 as abated is clearly erroneous and without jurisdiction, Under the circumstances, order impugned in the writ petition is wholly without jurisdiction and cannot be sustained and is liable to be quashed.
Accordingly, the impugned order passed by the court of Prl. Civil Judge (Jr.Dn.) Mangalore, Dakshina Kannada dismissing Execution Petition No. 175/97 as abated is set aside and it is held that the Execution Petition 175/97 does not abate and the Prl. Civil Judge (Jr.Dn.) Mangalore, Dakshina Kannada is directed to dispose of the application on merits, in accordance with law. All the contentions of the parties pertaining to restitution are kept open to be urged before the trial court. Accordingly, the writ petition is disposed of.