Karnataka High Court
T.H. Lakshmanprasad vs Md. Iqbal Since Deceased By Lr'S And Ors. on 24 February, 2003
Equivalent citations: ILR2003KAR1551, 2003(5)KARLJ116, 2003 AIR - KANT. H. C. R. 1226, 2003 AIHC 2139, (2003) 5 KANT LJ 116, (2003) 2 KCCR 1270, (2003) 2 RENCJ 397
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER 26 RULE 9-EVICTION PETITION UNDER SECTION 21(1)(h)--In the objections filed by the tenant--Measurement of the premises is described as 6'x10'--The Karnataka Rent Control Act, 1961 replaced by the Karnataka Rent Act, 1999--At the stage of evidence respondent tenant filed a memo praying for dismissal of the Petition in the light of the provisions of Section 2(3)(g) of the Rent Act, 1999--Tenant also filed application under Order 26 Rule 9--Trial Court allowed the application and directed appointment of a Commissioner to inspect the spot to measure the same and report the same to the Court--Land Lord filed revision Petition under Section 46(1) of the Rent Act--Revision Petition allowed. Question for consideration is whether the order passed by the Trial Court on the application filed by the tenant under Order 26 Rule 9 of CPC is sustainable in Law? Dismissing the application filed by the tenant under Order 26 Rule 9, the Court, Held : There was absolutely no scope for the Trial Court to have entertained the application under Order 26 Rule 9 CPC. The controversy did not arise in the context of the pleadings. A perusal of the memo and the affidavit supporting the application for appointment of a Commission does not indicate that there existed a dispute and that the earlier pleadings of the Respondent tenant in his objection statement to the effect that the petition schedule premises measuring hardly 6'x10' was only with reference to the carpet area of the premises and not with reference to the plinth area. Parties cannot be permitted to plead inconsistent pleading as and when it is convenient to them particularly in the light of a new provision that had come into operation with the change of law. ORDER Shylendra Kumar, J.
1. This Revision Petition though coming up for admission, with the consent of learned Counsel for the parties the same is taken up for final disposal.
2. The Revision Petition is directed against the interim order passed by the Trial Court in a pending HRC 494/1997.
3. Petitioner landlord in the eviction petition is aggrieved by the order dated 3.8.2002 whereby the Trial Court allowed IA 13 which was an application that had been filed by the respondent tenant therein under the provisions of Order 26 Rule 9 CPC praying for appointment of a Commissioner for taking measurement of the petition schedule premises.
4.The application in itself had been filed following a memo that had been filed by the respondent tenant as on 16.3.2002 praying for dismissal of the HRC case on the premise that the schedule premises is one which measures an area in excess of 150 sq.ft. being of the measurement 25' x 14' and the plinth area being beyond 150 sq. meters provisions of the Karnataka Rent Act, 1999 is not applicable to the petition schedule premises as the same is a commercial premises.
5. This application had been opposed by the petitioner landlord by filing a detailed objections vide counter affidavit dated 20.3.2002.
6. Eviction petition had been filed under the Karnataka Rent Control Act, 1961 inter alia under Section 21(1)(h) for the bona fide use and occupation of the premises etc. In the objection the schedule premises had been described as one measuring 6.5' x 18.5'. The respondent tenant had filed objections to the petition in great detail. In the statement of objections filed by the respondent tenant he had specifically averred that the schedule shop was a very small one and was hardly measuring 6'x10' and the petitioner need not acquire such a small area for his use and occupation when he is the owner of a large building measuring 120' x 50'. The assertion that the petition shop measures hardly 6'x10' has been made in the statement of objection at more than that one place and by pleading such a defence the respondent tenant sought for dismissal of the eviction petition.
7. The Karnataka Rent Control Act, 1961 is now replaced by the Karnataka Rent Act, 1999 which has come into force with effect from 31.12.2001. As on this date the eviction petition had reached the stage of recording of evidence of the parties. It is in the light of the provisions of Section 2(3)(g) that the respondent tenant in the eviction petition had come up with a memo praying for dismissal of the petitioner on the premise that the schedule premises exceeded the permitted limit mentioned in Section 2(3)(G) of the Karnataka Rent Act, 1999. It was as a follow up action to this memo that the tenant had come up with an application under Order 26 Rule 9. The Trial Court having ordered this application and directed appointment of a commissioner to make an inspection of the spot, measure it and report the same to the Court. The aggrieved landlord is in revision before this Court.
8. I have heard learned Counsel for the respective parties. In the light of the admitted pleadings between the parties there was absolutely no scope for the Trial Court to have entertained the application under Order 26 Rule 9 CPC or to have allowed the same directing a spot inspection by the Commissioner and report the same to the Court. The controversy did not arise in the context of the pleadings. The respondent tenant if at all had disputed even the measurement that had been indicated in the main petition only to plead that it is smaller than what had been described in the petition and not bigger. A memo had been filed subsequent to the Karnataka Rent Act, 1999 had come into force and for the purpose of Section 2(3)(g) of the Act. Even for filing a memo of this nature there should be bona fide with regard to the existing dispute between the parties on the available pleadings. There did not exist any dispute of this aspect of the matter for entertaining a memo under Section 2(3)(g) of the Karnataka Rent Act, 1999.
9. However, Sri S.A. Rasheed, learned Counsel appearing for the respondent tenant submits that the petition averments and the objections that had been filed were in the context of the carpet area occupied by the respondent tenant and it did not indicate the plinth area and for the purpose of Section 2(3)(g) of the Karnataka Rent Act, 1999, it is such plinth area which is to be looked into and as such it cannot be said that there was no dispute in this context. A perusal of the memo and the affidavit supporting the same as also the affidavit supporting the application for appointment of a commissioner does not indicate that there existed a dispute and that the earlier pleadings of the respondent tenant in his objection statement to the effect that the petition schedule premises measuring hardly 6' x 10' was only with reference to the carpet area of the premises and not with reference to the plinth area. Parties cannot be permitted to plead inconsistent pleadings as and when it is convenient to them particularly in the light of a new provision that had come into operation with the change of law. There is absolutely no justification for making an application under Order 26 Rule 9 CPC and for the Trial Court passing orders in a mechanical manner even without mentioning as to the need for allowing such an application or as to whether the circumstances of the case justified the same. The order is clearly not sustainable in law.
10. Accordingly the revision petition is allowed. The impugned order is set aside and the application filed under Order 26 Rule 9 is dismissed. Parties to bear their own costs.