Skip to content


Papinayakanahalli Venkanna and ors. Vs. Janadri Venkanna Setty (by Lrs.) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 331 of 1975
Judge
Reported inAIR1985Kant166; ILR1984KAR193; 1984(2)KarLJ35
ActsKarnataka Rent Control Act, 1961 - Sections 59; Karnataka Rent Control Rules, 1961 - Rule 35; Code of Civil Procedure (CPC), 1908 - Sections 141 - Order 23 Rule 1 and 1(4)
AppellantPapinayakanahalli Venkanna and ors.
RespondentJanadri Venkanna Setty (by Lrs.)
Appellant AdvocateSuresh S. Joshi, Adv.
Respondent AdvocateB.P. Holla, Adv.
Excerpt:
.....the claimant was awarded rs.1,22,300/- towards medical expenses and further a sum of rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation - (3) where the court is satisfied -(a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. in those circumstances, the court came to the conclusion that..........formal defect, or(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.(4) where the plaintiff - -(a) abandons any suit or part of a claim under sub-rule (1), or(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim'.6. sri joshi made the following.....
Judgment:

Murlidhar Rao, J.

1. This revision petition is directed against the order of the District Judge, Bellary, in H.R.C. Appeal No. 6 of 1973, filed against the order dated 29-1-1973. The brief facts of the case are, that the petitioner-Papinayakanahalli Jadiyappa filed a petition for eviction under Section 21(l)(h) and (j) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act), in respect of Door No. 297, ward No. 10 situated at Hospet, Bellary District. His case was, that he had purchased the property, under a registered sale deed, dated 14-6-1966, from its original owner Veerabasamma and that since he was carrying on his business of hardware articles, in two small bunks, leased to him, by the City Municipal Council, Hospet, and as the said premises were unsuitable, inadequate and insufficient for his business and further as the rents in respect of the two bunks were being periodically enhanced by the City Municipal Council, Hospet, he required the premises to carry on his hardware business. He also pleaded that the premises in question were in a dilapidated condition needing extensive repairs and re-roofing. It is averred in the petition, that the petitioner had filed HRCOP No. 5 of 1967 on an earlier occasion and the same was not pressed by filing a memo on 7-1-1969 and it was dismissed on the same day. The present petition is filed on 18-4-1970. Before filing the present petition, he had issued a notice of termination on 10-3-1969 asking the tenant to vacate the premises by 15-12-1969. The tenant gave a reply on 8-12-1969 denying the requirement of the landlord and he also contended that he is not liable to be evicted. In the proceedings the tenant further contended that the present petition namely, H.R.C. Appeal No. 7 of 1970 was barred under Sec. 11 of the Code of Civil Procedure, as also, under O. 23 R. 1(3) C. P.C. and therefore the petition is liable to be rejected. On these pleadings, the learned Munsiff raised the following issues :-

'1. Whether there has been a valid termination of tenancy?

2. Whether the petitioner's claim for eviction of the opponent tenant, is hit by Section 45 of the Mysore Rent Control Act?

3. Whether the petitioner's claim is barred under the provisions of Order 23 Rule 1(3) C.P.C.?

4. Whether the petitioner proves that his requirement of the petition schedule property, for his personal use and occupation, is bona fide and reasonable?

5. Whether he further, proves that his requirement of the petition schedule property for purpose of immediate demolition and erection of a new building, is bona fide and reasonable?

6. In whose favour would lie the balance of convenience?

7. Whether the petitioner is entitled for possession of the petition schedule property?

8. What order?'

2. The learned Munsiff answered issue No. 1 in favour of the landlord and held that the claim was not barred in view of the provisions contained under O. 23, R. 1(3); and since the requirement of the landlord was bona fide and reasonable, and it was a recurring right, he decreed the suit, granting two months time to the tenant to vacate the premises. The said order is passed on 29-1-1973. Against the said eviction decree, the tenant filed H.R.C. Appeal No. 6 of 1973 before the District Judge, Bellary. During the pendency of the appeal, the original landlord Jadiyappa expired and his legal representatives were brought on record. In the appeal, the learned District Judge set down the aforestated points for consideration. He concurred with the trial Court on all the issues excepting on issue No. 3, which dealt with the bar contained in O. 23 R. 1(3) C.P.C. The learned District Judge held that in view of the dismissal of HRC OP No. 5 of 1967, the present petition, which was founded on similar grounds, was barred under the said provision. In view of this finding, the learned District Judge allowed HRC Appeal No. 6 of 1973 and dismissed the eviction petition. Against the said order, the legal representatives of the original landlord, have filed this civil revision petition. The civil revision petition was posted before a single Judge of this Court and in view of the question regarding the issue of 'notice prior to termination of tenancy' was involved in the case, the learned single Judge referred the matter to a Division Bench, by his order dated 19-1-1979. A similar question had been referred to Full Bench in C.R.P. No. 1505 of 1976, the Division Bench which heard this C.R.P. referred the same to the Full Bench by its order dated 11-7-1979 and directed that C.R.P. No. 331 of 1975 be heard along with C.R.P. No. 1505 of 1976. On 6-2-1980, the Full Bench heard C.R.P. No. 1505 of 1976, and held, that no notice was necessary to terminate the tenancy, before initiating eviction proceedings under the Act. Since the said question was answered by the Full Bench, the said question does not survive. Meanwhile the original tenant died and his legal representatives have been brought on record in this civil revision petition. After the decision of the Full Bench, the papers are posted before us as per the original reference made by the single Judge dated 19-1-1979, for deciding the C.R.P. on other points.

3. On the question of bona fide requirement and comparative hardship, findings of the Courts below are concurrent and are in favour of the landlord, the same are not questioned by Sri Joshi and rightly so. The only question that falls for determination is the finding of the learned District Judge, regarding the bar contained in O. 23 R. 1(4) C.P.C. In other words, whether the present petition filed by the landlord in H.R.C. No. 7 of 1970 is barred in view of the dismissal of HRC OP No. 5 of 1967. To appreciate this contention, it is necessary to mention the averments in the petition, as also, the earlier orders passed in H.R.C. OP No. 5 of 1967. In HRC OP No. 5 of 1967, the present landlord pleaded thus :

'V. The petitioner purchased for his own use and occupation for carrying on his business in hardware, paints, etc. He is now carrying on his business in a tiny bunk on rent from the Hospet Municipality, which is quite inadequate, inconvenient for his business. The petitioner has been carrying on his large business in a much bigger building adjoining the present building and about 5 years ago, he was evicted as the owner wanted the same for his own use and occupation, and ever since he was obliged to seek temporary shelter in the Municipality Bunk.

VII. The building is to be reconstructed, with new ferroconcrete roofing and other drastic alterations, and the petitioner has also obtained the Municipal license with approved plans which is herewith filed. The petitioner has collected materials, and made other arrangements for reconstruction of the building for his own occupation, and for his business. The petitioner has six major sons, three of whom are in his own business, and he needs the building for his enlarged business, as otherwise, he could sustain heavy loss'.

In HRC OP No. 7 of 1970, the landlord pleaded thus :

'The petitioner is now obliged to carry on his business in two small Bunks leased out by the City Municipality which are wholly unsuitable, inadequate and inconvenient for his business, and for storing his goods. There is always the risk of losing the lease on higher bids by others, at the end of one or two years periods. The rent is being enhanced every time and he is obliged to pay rent at Rs. 68/- per month for each Bunk while it was only Rs. 30/- per month originally. The petitioner had a flourishing and expanding business in Hardware in the building very next to the schedule building till he was evicted from the same on Court's orders about 6 or 7 year ago and has almost been thrown out in the streets as it were and hence he was on the look out for a suitable building.

IV. the schedule building is also in need of urgent repairs, reconstruction and re-roofing with Ferro Concrete, for which he had gathered materials and obtained Municipal licence soon after his purchase. The materials became deteriorated owing to the changing and obstinate attitude of the opponent, by putting forward all sorts of false and untenable pleas and excuses with a view to squat in the premises as long as possible.

IX. This petition is filed on the new cause of action after due and proper notice to quit and termination of his tenancy by notice dated 10-3-1969'

4. A comparison of the pleas, put forward by the petitioner, makes it manifest that the averments are substantially same, in the sense, except for the fact that in H.R.C. No. 7 of 1970, the landlord has pleaded that the rent of the premises which he is occupying as a lessee, on behalf of the City Municipal Council, Hospet, is being periodically enhanced and on the date of petition, it was Rs. 68/- per month while it was Rs. 30/- in the previous years. Excepting this narration, no subsequent developments or events are mentioned which would have a bearing on the question of bona fide requirement of the landlord. At this stage, it is necessary to refer to the memo filed by the petitioner in H.R. C. OP No. 5 of 1967. The said memo reads:

'The petitioner herein submits that some of the elders and wellwishers, have undertaken to amicably settle the matter outside Court. Hence, the above petition is not pressed for the present.'

The order of the Court dated 7-1-1969 reads thus :

'7-1-69: Sri M. N. M. filed a memo stating that he does not press the petition. Petition is dismissed without costs.'

5. Order 23 Rule 1(4) C.P.C. reads thus:

'1 Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim;

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied -

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff - -

(a) abandons any suit or part of a claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim'.

6. Sri Joshi made the following submissions :

(i) that the provisions of Order 23 Rule 1 C.P.C. are not applicable; and

(ii) even if they are applicable, the order dated 7-1-1969 must be construed as if, by implication, the permission had been granted by the Court.

Dealing with the first question, Sri Joshi maintained that since the Courts below have held that the present petition is not barred under See. 45 of the Act, the same cannot be dismissed on the grounds contained in O. 23 R. 1 C. P.C. It has to be mentioned, that Sec. 45 of the Act operates in a different field and meets a different situation, and it only bars a subsequent proceeding being taken with regard to the matter which was finally decided in the earlier proceedings. As far as the application of the provisions contained in C.P.C. we are of the view that these provisions are applicable in view of Rule 35 of the Karnataka Rent Control Rules read with Sec. 141 C.P.C. Rule 35 reads thus :

'35. In deciding any question relating to procedure not specifically provided for by these Rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908.'

7. In view of the clear provision contained in Rule 35 and Section 141 of the Code of Civil Procedure, we hold that the provisions of the C.P.C., to the extent they are not specifically provided in the Rent Control Act and Rules, are applicable to the proceedings under the Act. So held, the provisions of O. 23 R. 1 would be applicable.

8. The second contention of Sri Joshi cannot be accented. It was maintained, that the words 'for the present' should be construed as seeking permission of the Court for filing a fresh application, by implication, and therefore in the circumstances in which the memo is worded, and order is passed by the Principal Munsiff on 7-1-1969, Sri Joshi argued, it should be held that there was compliance with sub rule (4) of O. 23 R. 1 C.P.C. It is difficult to accept such a contention. The words 'for the present' would only indicate the proximity of time and nothing else. But to read that the petitioner-landlord had sought permission from the Court to bring a fresh action is to re-write the memo. Moreover, the permission that is contemplated under O. 23 R. 1(4) C.P.C. is required to be specifically granted by an order if so requested by the petitioner; it is not possible to hold, that the petitioner had made such a request in the memo and the same was granted by the Court. In this context, Sri Joshi relied on a decision reported in AIR 1926 Patna 256 Ambika Prasad Singh v. Commr For Income-Tax, Bihar. On a plain reading of the facts of that case, it is clear that the petitioner, therein, had made an application to the effect that he would withdraw his suit and made a specific request for permission to institute fresh proceedings. On this application the Court passed an order that the petition be allowed. In the circumstances, it is obvious, that what was requested by the petitioner was a specific permission to institute fresh proceedings which was allowed. In other words, two requests made by the petitioner in that case, namely, to withdraw the suit, as also to permit him to institute fresh proceedings were allowed. In our view, the said ruling is not of any assistance to Sri Joshi. Sri Joshi nextly relied on a case reported in (1922) 67 Ind. Cas. 1002 (Lahore) Banwari Lal v Musammat Kishen Devi, and argued that the permission need not be in express terms and it can be implied. In the said case, the plaintiffs had initiated proceedings for the issue of a probate under a Will. It was held that the provisions of O. 23 R. 1 C.P.C. do not apply to an application for probate. Further, their Lordships held that in the statement made by the plaintiffs on 23-6-1911, plaintiffs had said that they intended to file a regular suit. And asked for permission to withdraw their application. In those circumstances, the Court came to the conclusion that the plaintiffs clearly sought for permission to withdraw with liberty to institute a suit, as required by O. 23 R. 1 C.P.C. The facts and circumstances narrated above clearly make out a case distinct from the present case. Hence, it is not possible to rely on the said decision in support of the contention urged by Sri Joshi.

9. Lastly, it was contended by Sri Joshi, that right of eviction is a recurring right, and therefore the landlord is not precluded from instituting fresh proceedings. In support of this submission, he maintanied, that two

circumstances take the case out of the purview of cl (b) of sub-rule (4) of O. 23 R. 1. According to him, the first circumstance is that his client had issued a fresh notice of termination and the second circumstance is that there was an enhancement of rent, in respect of the premises, occupied by him, as a lessee, on behalf of City Municipal Council, Hospet. In our opinion, both these circumstances have no relevance to apply the bar contained in clause (b) of sub-rule (4) of O. 23 R. 1 C.P.C. The said rule precludes a party from instituting a fresh suit in respect of same subject-matter or part of the claim. The subject-matter or the claim, in this case, is the eviction of tenant, founded on the bona fide requirement of the landlord and that the premises are required for demolition and reconstruction. We have earlier extracted the relevant portions of the pleadings, in HRC OP 5 of 1967 and H.R.C. O.P. No. 7 of 1970, the cause of action, in both these petitions, is founded on the same set of facts. The issue of fresh notice of termination, which is not legally necessary, cannot be considered as relevant for granting the relief, nor can it be construed as 'subject- matter' in the suit. Similarly, the enhancement of rent by the Municipality has little or no bearing on the question of his bona fide requirement and the condition of building, required for demolition and reconstruction. Dealing with O. 23 R. 1 C.P.C., the Supreme Court in the case reported in : [1977]1SCR211 (Vallabh Das v. Dr. Madanlal), observed thus:

'........Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits. As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155 = AIR 1917 Bom 10(l) the expression 'subject-matter' in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words 'subject-matter' means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him .......'

10. Thus, having regard to the test laid down in the above ruling, we have no hesitation to hold that both the circumstances, relied on by Sri Joshi do not form the subject-matter or part of the claim in the context of clause (b) of sub-rule (4) of O. 23 R. 1 C.P.C. Hence we reject this contention. The trial Judge has held that the said provision is not applicable in the case of recurring right; on the facts of this case, the said reasoning is not correct.

11. In the result, we agree with the learned District Judge, and hold that the present civil revision petition is liable to be dismissed.

12. Accordingly, C.R.P. fails and is dismissed. No costs.

Nesargi, J.

13. Immediately after the pronouncement of the order, Sri Suresh S. Joshi, learned counsel for the petitioners prayed for grant of leave to appeal to the Supreme Court. We reject the request as we are convinced that there is no substantial question of law of general importance is involved in this civil revision petition.

14. Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //