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Smt. Zubeida Bi Vs. M. Mohammed Ismail - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 141 of 1972
Judge
Reported inAIR1973Kant16; AIR1973Mys16
ActsMysore Rent Control Act, 1961 - Sections 21(1), 29, 45 and 50
AppellantSmt. Zubeida Bi
RespondentM. Mohammed Ismail
Appellant AdvocateG. Abdul Wazid Khan, Adv.
Respondent AdvocateS.V. Narasimhan, Adv.
DispositionPetition allowed
Excerpt:
.....petition prayer for enhancement of maintenance non-consideration of the salary certificate issued by the college produced by the revision petitioner which discloses total gross salary of the respondent at rs.12,000/- p.m. family court awarded rs.1,500/- for wife and rs.500/- for the daughter - failure of the family court to consider the necessities of the minor daughter expenses towards cost of food, clothing, education, providing conducive atmosphere for the study of minor held, it is the duty of the family court to take pragmatic approach, having regard to the status of the parties and the cost of living in the society. impugned judgment passed by the family court was set aside. award of maintenance is enhanced to rs.2,000/- for the wife and rs.1,500/- to the daughter. - ..........tenant and that she is in possession of the premises in her own right. during the pendency of the eviction proceedings the respondent made an application under section 29 of the act, requesting the court to stop further proceedings and to take an order for summary eviction against the petitioner on the ground that she has not paid the rent for a period of about 60 months. that application was resisted by the petitioner mainly on the ground that unless the court decides in the first instance the issue pertaining to tenancy and holds that the petitioner is a tenant under the respondent, the court is not entitled to make any order on the application filed by the respondent, under section 29 of the act. the learned munsiff, overruled the objections of the petitioner and made an order.....
Judgment:
ORDER

V.S. Malimath, J.

1. The respondent who claims to be a landlord of the suit premises filed an application for eviction against the petitioner under Section 21 (1) (h) of the Mysore Rent Control Act, 1961 (hereinafter referred to as the Act). The petitioner resisted the application on several grounds inter alia contending that she is not a tenant and that she is in possession of the premises in her own right. During the pendency of the eviction proceedings the respondent made an application under Section 29 of the Act, requesting the Court to stop further proceedings and to take an order for summary eviction against the petitioner on the ground that she has not paid the rent for a period of about 60 months. That application was resisted by the petitioner mainly on the ground that unless the Court decides in the first instance the issue pertaining to tenancy and holds that the petitioner is a tenant under the respondent, the Court is not entitled to make any order on the application filed by the respondent, under Section 29 of the Act. The learned Munsiff, overruled the objections of the petitioner and made an order against the petitioner under Section 29 of file Act, directing her to pay the arrears of rent within the prescribed time. It is the said order that is challenged by the petitioner in this revision petition,

2. It was contended by the learned counsel for the petitioner, that the Court below committed en error of law in holding that in view of the finding recorded by the First Additional District Judge, Bangalore, in a previous suit H. R. C. A. No. 243 of 1968 it is unnecessary to decide the question of tenancy afresh in these proceedings. It may be mentioned at this stage that the respondent filed a case in H. R. C. No. 504 of 1965 against the petitioner for eviction under Section 21 (1) (a) and (h) of the Act. In that proceeding the petitioner raised the same contention viz., that she is not the tenant of the premises and that she is in possession of the premises in her own right. That objection of the petitioner was overruled and an order for eviction was passed against her. That order was challenged by the petitioner in H. R. C. A. No. 243 of 1968. The learned 1st Additional District Judge, who heard the said appeal, set aside the order of eviction passed by the Court of 1st instance solely on the ground that the notice of termination of tenancy given by the respondent is not legal and valid. He, however, affirmed the finding recorded by the Court of first instance to She effect that the petitioner is a tenant of the premises under the respondent. The Court below has come to the conclusion in view of the finding recorded in H. R. C. Appeal No. 243 of 1968 that the petitioner is a tenant under the respondent of the suit permises. He has held that the said finding is final and cannot be reopened in view of the provisions contained in Section 45 of the Act. The Said Section reads as follows:--

'The court or the controller shall summarily reject any application under this Act which raises, between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided in a former proceeding under this Act or under any of the enactments repealed by Section 62,'

It is no doubt true, that the previous proceeding was between the same parties. It is also true that there is a finding recorded in the previous proceeding between the parties by the 1st Additional District Judge, that the petitioner is a tenant of the premises under the respondent. But in order to attract the provisions of Section 45 of the Act. It is further required to be shown that the same issue has been finally decided in the former proceeding under the Act or an enactment repealed under Section 62 of the Act.

3. The question for consideration is as to whether it can be said that the same issue pertaining to tenancy has been finally decided in the previous proceedings viz. H. R. C. Appeal No. 243 of 1968. It may be noted, that the said appeal was filed by the petitioner against an order of eviction made by the Court of first instance. But. the petitioner's appeal was allowed and the application for eviction filed against him was dismissed solely on the ground that the notice of termination of tenancy given by the respondent was not legal and valid. As already mentioned the learned District Judge who affirmed the finding of the Court of first instance held that the petitioner is a tenant of the suit permises under the respondent. But as the petitioner succeeded in the said appeal on the ground that the notice of termination is not legal and valid, the petitioner was not entitled to challenge the order passed by the learned District Judge in revision to the High Court under Section 50 of the Act. It is therefore clear, that the petitioner could not have challenged the finding pertaining to tenancy in revision under Section 50 of the Act, as she has succeeded in the appeal before the learned District Judge on another ground. Such being the position it cannot be said that the issue pertaining to tenancy was finally decided in the formal proceeding. The provisions of Section 45 of the Act are analogous to the provisions of Section 11 of the C. P. Code. The same principle also flows from the provisions of Section 11 of the C. P. Code as well. The court below, in my opinion, was wrong in proceeding on the basis that the issue regarding tenancy has been finally decided in the previous case, and that therefore the same cannot be reagitated in the present proceeding.

4. Until the Court below records a finding on the jurisdictional issue regarding tenancy, it will have no jurisdiction to make an order under Section 29 of the Act. The Court below is therefore required to decide the issue pertaining to the tenancy in the first instance as a preliminary issue before dealing with the application filed by the respondent for taking action under Section 29 of the Act.

5. For the reasons stated above, this revision petition is allowed end the order passed by the learned Munsiff set aside and the case is remanded back to him for fresh disposal in accordance with law, No costs.


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