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Jagadeeshmitra Suri Vs. Anant Shankar Limaye and T.Y. Habib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1117 of 1982
Judge
Reported inILR1985KAR2889
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 6, Rule 17 - Order 7; Karnataka Control Act, 1961 - Sections 50(2)
AppellantJagadeeshmitra Suri
RespondentAnant Shankar Limaye and T.Y. Habib
Appellant AdvocateV. Tarakaram, Adv.
Respondent AdvocateR.S. Chakrabhavi, Adv. for R-1
Excerpt:
.....tenants did not lead any evidence in rebuttal. having formulated a point for consideration, learned munsiff negatived the claim solely on the ground of absence of pleading in petition regarding sub-letting and that by the allowing of amendment application, only cause title stood amended without any change in the body of the petition. in revision, learned district judge reversed the finding on this ground. in revision:;the emphasis is on whether any prejudice was caused to the opposite party and not on the mere irregularity complained of in the matter of pleading.;the opportunity to lead evidence was there particularly when the landlord had discharged his burden for whatever it was worth. if tenants did not choose to lead independent evidence but were content with the..........even on the question of sub-letting. on the said facts of the case as pleaded, the learned munsiff formulated the points for consideration including the point whether the tenant had sub-let as contended entitling him to an order of eviction. but while dealing with that point, he conveniently negatived the claim of the landlord on the sole ground that the petition lacked pleading in regard to the question of sub-letting as by allowing i.a.v. what resulted was only change in the cause title and no change in the body of the pleading i.e., the petition. therefore, he came to the conclusion that the landlord was not entitled to the relief for which he had not pleaded. in the result, on all the points formulated, he held against the landlord and rejected the eviction.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. This is a tenant's Revision Petition under Section 115 of the C.P.C. It is directed against the order dated 5-1-1982 of the I Additional District Judge, Dharwar, made in CRP. No. 65/1980 on his file.

2. The facts of the case may be briefly stated and they are as follows : The respondent-landlord is the owner of the petition schedule premises situate in Neeli Gin Galli of Hubli. The petitioner is the tenant carrying on in the said premises his occupation as dealer in automobile spares. The landlord presented a petition for eviction under the provisions of the Karnataka Rent Control Act, 1961,(hereinafter referred to as the Act) in HRC. No 139/1976 in the Court of the Principal Munsiff, Hubli, inter alia contending that the tenant was liable for eviction on the grounds of non payment of arrears of rent; that he had erected somepermanent structure without the consent of the landlord; that it was required for demolition and reconstruction and also for his own bonafide requirement to be used by himself for his business after reconstruction. The tenant resisted the petition by filing objections. Before the matter went to trial before the Munsiff, the landlord-petitioner moved with an application under Order 6 Rule 17 of the C.P.C. which was numbered as I.A.V in the case. In that he prayed that one T.Y. Habib may be added as 2nd respondent for the reasons stated in the supporting affidavit. In the supporting affidavit, he averred that the 1st respondent had sub-let the premises to T.Y. Habib who was carrying on the business of retreading full circle tyres of automobiles in the petition premises and therefore the landlord may be permitted to urge the additional ground of sub letting as a ground for eviction. The application came to be allowed and the cause title was amended and 2nd respondent was included as a party and notice directed. The 2nd respondent entered appearance through Counsel, but he did not file anyobjections. However, evidence was received on behalf of the landlord in respect of the question of sub-letting. The important documents in that behalf in addition to oral testimony of P.Ws. 1 and 2, were Exhibits P1 to P11. There was no independent evidence rebutting the evidence of the landlord by respondents 1 and 2 who contented themselves by subjecting P.Ws. 1 and 2 to cross-examination even on the question of sub-letting. On the said facts of the case as pleaded, the learned Munsiff formulated the points for consideration including the point whether the tenant had sub-let as contended entitling him to an order of eviction. But while dealing with that point, he conveniently negatived the claim of the landlord on the sole ground that the petition lacked pleading in regard to the question of sub-letting as by allowing I.A.V. what resulted was only change in the cause title and no change in the body of the pleading i.e., the petition. Therefore, he came to the conclusion that the landlord was not entitled to the relief for which he had not pleaded. In the result, on all the points formulated, he held against the landlord and rejected the eviction petition.Aggrieved by the same, the landlord preferred revision before the District Judge under sub-section (2) of Section 50 of the Act. In revision, the learned District Judge has taken the view that the Learned Munsiff was in error in brushing aside the question on the ground of sub-letting on the reasoning that there was no pleading. The District Judge, on the other hand, took the view relying upon the decision of the Supreme Court in the case of Nagubai Animal and Others v. B. Shama Rao and Others, : [1956]1SCR451 in which the Supreme Court had held :

'That although no specific plea-was raised in pleading of the plaintiff and no specific issue was directed to question. The defendants went to trial with full knowledge that the question.......was in issue, had ample opportunity to adduce their evidence thereon and fully availed themselves of the same..... In the circumstances, the absence of specific pleading on the question was a mere irregularity which resulted in no prejudice to them.'

3. In the result, while upholding the findings of the Munsiff on all the other grounds, on the ground of sub-letting, he came to a different conclusion on the evidence and allowed the eviction petition. It is in that circumstance that the tenant 1st respondent has approached this Court.

Mr.V. Tarakaram, learned Counsel for the tenant, has inter alia contended that the learned Munsiff had correctly decided that question of sub-letting by rejecting the same for want of plea and that the learned District Judge was in error in relying upon the decision in Nagubai's case and treating the total lack of plea and total lack of opportunity for the tenant-respondent to meet the case in the absence of plea as a mere technical irregularity which did not cause prejudice to the tenant. He also drew my attention to the case of Bhagwati Prasad v. Chandramaul, : [1966]2SCR286 decided by the Supreme Court. But, in that decision also the Supreme Court more or less reiterated the views expressed in Nagubai's case though no reference was made to Nagubai's case. In disposing of that question, the Supreme Court observed :

'What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it If it appears that the parties did not know that the matter was in issue at the trial, and one of them had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter.'

5. In other words, the emphasis is on whether any prejudice was caused to the opposite party and not on the mere irregularity complained of in the matter of pleading. Similarly in the case of Mohan Lal v. Anandibai, : [1971]3SCR929 the Supreme Court has laid down that:

'When there is no pleading in respect of fraud or antedating of document and no evidence is led to meet such plats, the Court cannot on the basis of the plea raised for the first time during arguments record any finding.'

That proposition as laid down is unquestionably correct. But the question is whether such is the case in the instant case of the tenant.

6. A perusal of the objection filed by the tenant 1st respondent before the Munsiff clearly shows that he was required to face the question of sub-letting. It will be useful to extract the passage relevant which is as follows :

'It is false to state that subsequent to the Petition the opponent has Sub-let the premises to one Y. T. Habib and that said Y.T. Habibdistributed Laxmi Pooja cards and issuing visit cards. Further, it is false to State that the said Y. T. Habib has been using the premises in the name of Krishna Tyres, Full circle tyres retreaders and resoles, Neelgin Road, Hubli.'

7. The above objection clearly indicates that at least the 1st Respondent i.e., the tenant before the Munsiff knew the purpose of I. A. filed. The mere fact that he did not lead independent evidence at the trial to rebut the evidence of P.Ws. 1 and 2 supported by Exhibits P7 toP11 is not enough knowledge is the thrust of the argument. The opportunity to lead evidence was there particularly when the landlord had discharged his burden for whatever it was worth. IfRespondents 1 and 2 before the Munsiff did not choose to lead independent evidence but were content with the crossexamination of the petitioner's witnesses and by assailing the documents produced by the petitioner, it cannot by any stretch of imagination be stated that they did not have an opportunity to lead evidence on that issue.

8. The Learned Munsiff was clearly in error in formulating a point for consideration but rejecting it on the ground of want of plea without considering the evidence led in that behalf. The object of ail proceedings in our system of justice dispensation is to render justice and not to deny it ontechnicalities, if it is demonstrated that the opposite party has not suffered any prejudice by that irregularity. I, therefore, do not see any errorof law or jurisdiction committed by the District Judge in the approach he made.

9. Mr. Tarakaram next contended that there was no evidence at all to establish the act of sub-letting. It is true, the Learned District Judge has himself rejected Exhibits P7 and P8 as not worthy of any credence. But Exhibits P9, P10 and P1l are bills and receipts indicating work of retreading tyres having been carried out by the 2nd respondent and money received in that behaliundisputably in the petition premises though no specific Municipal or Corporation number of the premises is mentioned in the said bills. Those receipts and bills are supported by the oral evidence tendered on oath by P.W.2 who is an independent witness. It is on that evidence that the District Judge has placed reliance to come to the conclusion that sub-letting had been proved. No form of defence has been put forward by the tenant and the sub-tenant except the bare denial in the objection statement to I.A. No.V by the 1st Respondent. In that view of the matter, the matters involving recording a finding of fact cannot be based on the bare denial. If the end result is rather unpalatable to the tenant, he only is to be blamed.

10. The Learned Counsel next made a feeble attempt to draw my attention to the decision of this Court in which late Sabhahit, J., ruled that the District Judge exercising hisjurisdiction of revision under sub-section (2) of Section 50 of the Act ought not to record a finding himself on questions of facts. More so, when the Learned Munsiff had not recorded a finding and in such cases, the proper course would be to remit the matter to the Munsiff for recording a finding and send back the file before he recorded his views on it.I could possibly have the least objection to subscribe to the same view. But this Court also has taken the view in other decisions by several other Learned Single Judges that the District Judge has wider powers than is normally expected of a judge sitting in revisional jurisdiction having regard to thelanguage employed and therefore the freedom to do many things which normally only an Appellate Court should perform. It is not for me to say which is the more accurate and correct view. The fact is, in this case the Munsiff recorded evidence and declined to give any findings on the sole ground that there was no plea to examine that ground and the same evidence in that behalf was before the District Judge. I do not think he committed any error of jurisdiction by recording the finding on fact that evidence by himself. To remand the matter to the Munsiff for merely calling for a finding would have been sheer waste of time which is not contemplated in summary procedure. The summary procedure is meant for expeditious disposal. Whenever the time may be saved at any stage of the proceedings the authority exercising that power should so save the time and curtail the duration of the litigation. If this larger interest underlying the scheme of the Act is borne in mind, error if any, committed by the District Judge is not a serious one calling for interference by this Court under Section 115 of the C.P.C.

11. For the above reasons, there is no merit in this Revision Petition and it is rejected. A plea was made by Mr. Tarakaram learned Counsel for the tenant that having regard to therefusal of the landlord to receive rent, he has already deposited the rent up to the end of November, 1985 in this Court. He, therefore, prays that this Court may extend the timereasonably so that the tenant may make alternative arrangement. Normally, 1 should not grant it because evidence points to the fact that it is not the 1st respondent who is in possession at least of a portion of the premises but the 2nd respondent. The 2nd respondent has not prosecuted any remedy against the order of the District Judge. If anybody is going to be affected by the order of eviction, it is the sub-tenant. But, however, as neither of Courts below has gone into that question as to who actually is in possession of which portion of the shop, by consent of parties, (Mr. Chakrabhavi, learned Counsel for the landlord, who has no objection) respon-dents-1 and 2 before the Munsiff are permitted to give vacant possession of the premises pursuant to the order of eviction on or before the 31st day of December, 1985, subject to payment of rent for the month of December, 1985. No costs.


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