IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.23957-23958/2018 (HRC) Between:
Ravi Shetty, Aged about 52 years, S/o K. Kutty Shetty, Residing at Bannanje, Udupi – 576 101. … Petitioner (By Sri Sampat Anand Shetty, Advocate) And:
1. Sanjeeva K. Poojary, Aged about 60 years, S/o Late Kalu Poojary, Residing at “Dwaraka”, 76, Badagabettu, Bailur, Udupi – 576 101.
2. Shankar K. Poojary, Aged about 54 years, S/o Late Kalu Poojary, Residing at “Dwaraka”, 76, Badagabettu, Bailur, Udupi – 576 101. … Respondents (By Sri Vinayaka B., Advocate) These Writ Petitions are filed under Article 227 of the Constitution of India, praying to set aside the judgment and order dated 13.03.2018 passed by the Court of the Principal District Judge, Udupi in Rent Revision Petition No.6/2013 vide Annexure-A whereby the learned District Judge illegally and arbitrarily affirmed the judgment and decree dated 23.9.2013 passed by the Court of the Principal Civil Judge and JMFC, Udupi in R.C.A. No.7/2010 vide Annexure-B in so far as it relates to refusal to adjudicate the basic jural relationship between the parties in terms of Section 43 of the Karnataka Rent Act, 1999 as amended and etc.
These Writ Petitions coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner has assailed the order dated 23.09.2013 passed in R.C.A. No.7/2010 by the Principal Civil Judge & JMFC, Udupi as also the order dated 13.03.2018 passed in Rent Revision Petition No.6/2013 by the Principal District Judge, Udupi and has sought for other reliefs including a declaration that the Principal Civil Judge does not have jurisdiction to proceed with the proceedings in R.C.A. No.3/2017 till the jural relationship of the parties is decided in terms of Section 43 of the Karnataka Rent Act, 1999 (‘the Act’ for brevity).
2. The learned counsel for the petitioner states that the landlords, who are respondent Nos.1 and 2 herein have filed R.C.A.No.3/2017 invoking Section 27(2)(r) of the Act seeking delivery of vacant possession.
3. The petitioner states that in the statement of objections filed by him in R.C.A. No.3/2017, a copy of which is produced at Annexure-H, objections have been raised at paras-7 and 10 disputing the landlord and tenant relationship. Hence, it is contended that by virtue of Section 43 of the Act, once the Court takes note of the denial of existence of landlord and tenant relationship, the Court can stop all further proceedings before it and direct the parties to approach the competent civil court for adjudication of their rights. He therefore submits that such defence having been raised, the Court ought to have recorded a finding whether it has jurisdiction to continue the proceedings by virtue of Section 43 of the Act.
4. The learned counsel appearing for the respondents states that this aspect of the matter between the same parties has been decided in the previous proceedings while disposing of I.A.No.2 filed in R.C.A. No.7/2010 vide order dated 10.09.2012 5. The learned counsel for the petitioner, however, states that it is open for the petitioner to raise such contention in the present proceedings and as there is a jurisdictional bar contemplated under Section 43 of the Act, the Court while dealing with R.C.A. No.3/2017 ought to record a finding as regards existence of relationship of landlord and tenant before proceeding further. It is further contended that the finding in the previous proceedings in I.A. No.2 in R.C.A. No.7/2010 does not operate as res judicata and the petitioner herein is not estopped from raising such contention.
6. However, the Principal Civil Judge, Udupi is seized of the matter in R.C.A. No.3/2017 and is required to record a finding as to the existence or otherwise of the bar under Section 43 of the Act before proceeding further in the matter. Both parties agree that such an order would address the grievance of the parties.
7. Accordingly, the contentions of both the parties are kept open and the Court below is at liberty to record a finding on its merits without being influenced by any observations made hereinabove.
Petitions are disposed of, subject to the above observations. There is no necessity to record any finding on the other reliefs sought for.
Sd/- JUDGE VGR