IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR HRRP No. 46 OF 2018 BETWEEN 1. Smt. Vishalakshi, D/o. Late Anantha, Aged about 53 years, R/o. Door No.23-11-952/A Near Chandrakavi Mutt Mangaladevi Road, Pandewshwara Post, Mangaluru-575991.
2. Smt. Kasturi, D/o. Late Sesappa, Aged about 58 years, R/o. Door No.23-11-952/2 Near Chandrakavi Mutt Mangaladevi Road, Pandewshwara Post, Mangaluru-575991.
3. Smt. Ravikala, D/o. Late Anantha, W/o. Sanjeeva, Aged about 59 years, R/o. Door No.23-11-952 Near Chandrakavi Mutt Mangaladevi Road, Pandewshwara Post, Mangaluru-575991.
4. Sri. Lokanath, S/o. Late Anantha, Aged about 53 years, R/o. Door No.23-11-952/A Near Chandrakavi Mutt Mangaladevi Road, Pandewshwara Post, Mangaluru-575991.
(By Sri. Showri H.R., Advocate) AND 1. Smt. Rasika H Rai, Aged about 63 years, W/o. A Harsha V Rai, 2. Smt. Ramya H Shetty, Aged about 38 years, D/o. A Harsha V Rai, 3. Sri. A Parikshith Rai, Aged about 34 years, D/o. A Harsha V Rai, 4. Sri. A Santhosh V Rai, Aged about 67 years, S/o. Late B L N Rai and Smt. Ramamba L N Rai All are Residing at Mangaladevi Road, Mangaluru-575001.
…Petitioners …Respondents (By Sri. Pundikai Ishwara Bhat, Advocate for R1 to R4) This HRRP is filed under Section 115 of CPC against the order dated 22.06.2018 passed in RRP No.2/2018 on the file of the Principal District Judge, D.K., Mangaluru, partly allowing the revision petition filed against the order dated 29.08.2013 passed in HRC No.9/2013 on the file of the II Additional Civil Judge and JMFC, Mangaluru D.K., allowing the petition filed under Section 27(2)(p)(r) read with Section 31 and Section 42(6) of Karnataka Rent Act.
This HRRP coming on for final hearing, this day, the Court made the following :
ORDER This is a revision petition under section 115 of the Code of Civil Procedure assailing the order of the Principal District Judge, D.K, Mangaluru, in Rent Revision Petition 2/2018. Heard the learned counsel for the petitioners and the respondents. For the sake of convenience, the parties are referred to as per their ranking in the trial court. Briefly stated the facts are as follows : -
2. The petitioners initiated eviction proceedings against the respondents invoking section 27 (2) (p) (r) read with section 31 and 42 (6) of the Karnataka Rent Act. The petitioners claimed to be the landlords of three houses situated in T.S.No.130/P1 and 131 of Attavara Village. They stated that the respondents are their tenants on an annual rent of Rs.25/-. The houses are very old and in a dilapidated condition. They stated further that the respondents have overstayed in those houses unauthorisedly even after the death of the original tenant. They failed to pay the rent also. The petitioners own a convention hall known as Sri Rama Lakshminarayana Convention Hall. Since this Convention Hall does not have suitable parking area, they want to use the land in T.S.No.130/P1, 131 and 133 as parking area. They got issued legal notice to respondents on 8.12.2012 demanding of them to vacate the houses. Although they received the notice they did not respond to it and they failed to vacate the houses. Therefore, they initiated eviction proceedings.
3. Respondents did not appear before the trial court in spite of service of notice on them and therefore the trial court after recording evidence from the petitioners side proceeded to pass an order of eviction against the respondents.
4. Respondents approached the District Court by filing Rent Revision Petition 2/2018. In the Rent Revision Petition they contended that they were not the tenants under the petitioners and they disputed the jural relationship. The learned District Judge allowed the Revision Petition in part and held that the trial court had not committed any illegality in passing an order of eviction against the respondents under section 27 (2) (r) of the Karnataka Rent Act. Therefore, this revision petition under section 115 of CPC.
5. Learned counsel for the respondents (petitioners in this revision petition) argues that the petitioners (respondents herein) were able to obtain an ex-parte order of eviction against the respondents. In the legal notice issued by the petitioners, the name of the fourth respondent is wrongly mentioned as Umakanth instead of Lokanath. Respondents were working as servants in the house of the petitioners. They are all illiterates. Their signatures might have been taken on some papers. They were not at all actually aware of any notice being served in connection with eviction case. The houses are actually situated in land bearing Sy. No. 129 which belongs to the respondents. Even today katha of the said land stands in the name of respondents. There is no relationship of landlord and tenant. The respondents were denied of an opportunity to put forth their contentions and therefore he argues that revision petition be allowed and matter remanded to the trial court.
6. Learned counsel for the petitioners (respondents herein) argues that there might be a mistake in mentioning the name of the fourth respondent on the postal cover when legal notice was issued. But, in the eviction petition his name was correctly shown. Notices were sent to the respondents by the trial court. They received the notice. Yet they did not appear. When the respondents chose not to contest the case, the trial court is justified in passing an order of eviction by appreciating the evidence produced by the petitioners. It is not their case before the District Court that notice of eviction proceeding was not served on them. They simply took a stand before the District Court that the property belongs to Government but in this revision petition they state that the property belongs to them actually. This shows their contradictory and inconsistent stand. Their contentions cannot be accepted. When they failed to appear before the trial court, the grounds that the respondents have taken up in this revision petition that they are not the tenants cannot be appreciated at all. When it is not their case that the notice was not served on them, there is no scope for remand. With these points of arguments, the learned counsel submit that the revision petition has to be dismissed.
7. I have perused the records. It is true that on the postal cover the name of the fourth respondent is written as ‘Umakanth’ instead of ‘Lokanath’. But, in the eviction petition the name is correctly written as ‘Lokanath’. The trial court records disclose that notice issued to the respondents were duly served on them; it was the fourth respondent Lokanath who appears to have received the notice on his behalf and also on behalf of other three respondents. Therefore, there was due service of notice. As rightly argued by the counsel for the petitioners, in the revision petition filed before the District Court, the respondents did not take a specific contention that there was no service of notice of the eviction proceeding; all that has been stated in ground No.2 is that the orders passed by the learned lower court are contrary to the provisions of law and principles of natural justice. They say in ground No.5 that the premises in T.S.No.129 of Attavara Village of Mangaluru City is a Government land belonging to Chandrakavi Mutt Temple. Having regard to these grounds urged by them before the District Court, it has to be stated that the District Court is right in coming to the conclusion that this aspect of the matter cannot be appreciated in view of failure on the part of the respondents to appear before the trial court. There is another point to be mentioned here, i.e., that the respondents, in the revision petition filed before the court, state that the lands belong to them or in other words they claimed ownership over the property. They have taken inconsistent stand. All these grounds urged by the respondents cannot be appreciated as they have failed to appear before the trial court. They have not assigned any reason as to what prevented them from appearing before the trial court. Be these aspects as they may, yet in the circumstances pleaded by the respondents, I am of the opinion that the interest of the petitioners will not be affected in any way if an opportunity is given to the respondents to put forth all the contentions and contest the eviction petition. It is true that the petitioners have to appear before the trial court once again, and for that reason costs may be imposed on the respondents to compensate the monetary loss that the petitioners may suffer on account of they being compelled to appear before the trial court once again. Hence, I proceed to pass the following order : -
(a) Revision Petition is allowed.
(b) The order of the trial court in HRC 9/2013 on the file of II Additional Civil Judge & JMFC, Mangalore, D.K and of the Court of Principal District Judge, D.K, Mangaluru, in RRP 2/2018 are set aside.
(c) The matter stands remanded to the trial court.
(d) Respondents (petitioners in this revision) have to pay Rs.10,000/- to the petitioners in the eviction petition. The cost shall be paid before the trial court.
(e) The parties shall appear before the trial court on 11.9.2019.
(f) The trial court shall try to dispose of the case expeditiously within a limit of six months.
(g) The respondents are hereby directed not to seek single adjournment and file their statement of objections on 11.9.2019 positively.
LCR to be sent back.
Sd/- JUDGE Ckl