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S.V. Sreekanthayya Vs. Lakshmi Hardware Stores and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1448 of 1977
Judge
Reported inAIR1978Kant100
ActsKarnataka Rent Control Act, 1961 - Sections 21(1); Code of Civil Procedure (CPC), 1908 - Sections 80 - Order 40, Rule 1
AppellantS.V. Sreekanthayya
RespondentLakshmi Hardware Stores and ors.
Advocates:Gopal L. Bangalore, Adv.
Excerpt:
.....- held, the competent person to record adverse remarks in the confidential record of a district judge is the concerned administrative judge and not the chief justice. on facts, held, the competent person to record adverse remarks in the confidential record of the petitioner was the concerned administrative judge i.e., justice t.n. vallinayagam and not then chief justice. in the instant case, it was then chief justice who had recorded the impugned adverse remarks in the confidential record of the petitioner and the same was without jurisdiction. on this ground, the impugned communication of adverse remarks in the confidential record of the petitioner is liable to be quashed. - 1977. it clearly permits the landlord to file an ejectment petition under section 21 (1) of the karnataka..........is a landlord's revision petition against the order dated 25-6-1977 passed by the iii additional civil judge, bangalore city, in h.r. c. no. 1207 of 1975 on his file holding that the petition of the landlord for eviction of tenants represented by the receiver was not maintainable.2. the landlord instituted a petition for eviction of the tenants under clause (h) of the proviso to section 21(1) of the karnataka rent control act, 1961. in the litigation with regard to the partnership dissolution, a receiver was appointed to the properties of the partnership firm which was running in the said premises, by the high court of bombay. hence, the receiver was also made a party to the suit in addition to the partners and the firm.3. a preliminary objection was raised during the hearing of the.....
Judgment:
ORDER

1. This is a landlord's revision petition against the order dated 25-6-1977 passed by the III Additional Civil Judge, Bangalore City, in H.R. C. No. 1207 of 1975 on his file holding that the petition of the landlord for eviction of tenants represented by the receiver was not maintainable.

2. The landlord instituted a petition for eviction of the tenants under Clause (h) of the proviso to Section 21(1) of the Karnataka Rent Control Act, 1961. In the litigation with regard to the partnership dissolution, a receiver was appointed to the properties of the partnership firm which was running in the said premises, by the High Court of Bombay. Hence, the receiver was also made a party to the suit in addition to the partners and the firm.

3. A preliminary objection was raised during the hearing of the petition. It was contended that the petition was not maintainable on two grounds, viz., that the leave of the High Court of Bombay was not obtained to sue against the receiver and secondly Section 80, C. P. C., notice was not served on the receiver before instituting the suit. The learned Civil Judge upheld both the objections and rejected the petition on the preliminary ground itself. Aggrieved by the said order, the landlord has come up in revision before this Court,

4. The learned counsel appearing for the revision petitioner submitted that the petitioner has now obtained the leave of the Bombay High Court to sue against the receiver for possession. The same is produced before this Court. It is dated 12th Aug. 1977. It clearly permits the landlord to file an ejectment petition under Section 21 (1) of the Karnataka Rent Control Act, Hence, the counsel submitted that the initial defect is cured. In support of the proposition that leave can be obtained even during the pendency of the proceeding, the learned counsel relied on the ruling in Everest Coal Co, v. State of Bihar : [1978]1SCR571 . In that decision, the Supreme Court of India ruled that leave to sue against the receiver can be obtained either before the action is commenced or after the action is instituted. In this case, leave is obtained during the pendency of the proceedings and hence the defect is cured,

5. Adverting to the second point, namely, Section 80 C. P. C., notice was not served on the receiver before commencing the lis, the learned counsel submitted that no such notice was necessary. Section 80 C. P. C., clearly states that notice would be necessary in respect of any act purported to be done by such public officer in his official capacity. There is no act complained against the receiver on the facts of this case. In the case of Bhuban Mohini Debi v. Biraj Mohan : AIR1940Cal1 , it is clearly held that no property is vested in the receiver and when the suit is not against the receiver, for any acts done by him, in his personal capacity, no notice is necessary under Section 80 C.P.C. The term 'act' used in Section 80 C. P. C. was explained by the Supreme Court of India in Amalgamated Electricity Co. v. Ajmer Municipality : [1969]1SCR430 . In that ease, their Lordships have ruled that the term 'act' includes 'illegal omissions' also. There is neither act complained of nor an illegal omission against the receiver discharging his official duties, on the facts of this case. Hence, Section 80 C. P. C. notice is not necessary and the learned Civil Judge was not justified in holding that such a notice is necessary. Moreover, the petition for eviction under the Rent Control Act, before the tribunal, cannot even be designated as a suit. Hence, I hold that the petition for eviction is maintainable,

6. In that view of the matter, I allow the revision petition and set aside the impugned order passed by the learned Civil Judge. The case is now remitted to the Civil Judge with a direction that he shall proceed to hear the petition on merits. Since the case is pending for long, he is further directed to expedite hearing and dispose of the matter early. No costs.

7. Revision allowed,


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