A M MALLEGOWDA Vs. KARIYAPPA GOWDA

JUDGEMENT

(1.) THIS is a writ petition filed by the petitioner under Articles 226 and 227 of the Constitution of india praying to issue a writ of certiorari to quash the order dated 28. 2. 2004 passed in R. R. No. 72/1999 on the file of the II Addl, District Judge, Mysore which order has arisen out of the order dated 27. 1. 1999 passed in H. R. C. No. 170/1993 on the file of the IV Addl. I Civil Judge (Jr. Dn), mysore as per Annexure-B.

(2.) THE case of the petitioner in brief is that the respondent herein is the owner of the premises namely, Door No. 120, 6th Min, Jayalakshmipuram, Mysore. The writ petitioner herein is a tenant under the respondent. Therefore, the respondent-owner has filed an eviction petition under section 21 (1) (h) and (p) of the Karnataka Rent Act, 1999 on the ground of personal use and occupation for himself and his son. The said premises was let out on a monthly rent of Rs. 800/commencing from the first of each calendar month. It is the case of respondent-landlord that the writ petitioner has filed HRC. No. 23/1982 against his tenant Sri T. Sathyanarayana for eviction in respect of the premises bearing No. 32, Nazarbad, Mysore, which came to be allowed evicting his tenant Sri Sathyanarayana. The said Sathyanarayana has preferred R. R. P. No. 64/1998 before the II Addl. District Judge, Mysore, and the said premises was vacant as on the data of filing of hrc. No. 170/1993 by the respondent. The petitioner herein who happens to be a tenant has taken a contention that he had entered into an agreement of sale with the respondent on 23. 3. 1979 for a total consideration of Rs. 1,15,000/- out of which he had paid Rs. 50,000/- as advance. At the time of transaction, the petition schedule premises was the subject-matter of mortgage in favour of M/s. vani vilas Mohalla House Building society to the tune of Rs. 24,705-10ps and the landlord undertook that he will discharge the said loan and he agreed to hand over all the original documents in his favour. So, on the basis of the oral and documentary evidence placed on record, the 4th Addl. I Civil Judge (Jr. Dn), Mysore, found that the eviction petition filed by the landlord-respondent herein under Section 21 (1) (h) and (p) was allowed and the petitioner-tenant namely the present writ petitioner was directed to deliver the vacant possession of the premises No. 120 to the respondent within three months, which order has been challenged by the very petitioner before the District Judge and the District Judge held that the revision petition is not maintainable and Rent Revision Petition was dismissed by the District judge. AS against the said order of dismissal, the petitioner has come up with this writ petition.

(3.) HEARD the arguments of the learned Counsel Sri O. Shivaram Bhat for the petitioner and Sri s. N. Bhat for the respondent. During the course of arguments, the respondent herein produced the copy of the plaint in O. S. No. 827/2005 which was pending on the file of the 4th Addl. civil judge, Mysore and the written statement filed by the defendant-writ petitioner and also the certified copy of the judgment passed on 31. 3. 2006. During the course of arguments, learned counsel for the petitioner contended that there is no relationship of landlord and tenant. Both the trial Court as well as the learned District Judge have not determined the rent payable to the respondent-landlord, if any. Therefore, the learned District judge who has dismissed the revision petition as not maintainable is not correct and, in fact, the trial Court has not at all determined the rent payable by the present petitioner. It is further contended that under Section 43 of the karnataka Rent Act the rent is to be determined by the Court. Therefore, the respondent herein took up a contention that the trial Court ought to have determined the rent payable including the arrears of rent. The writ petitioner was put in possession of the petition schedule premises only on the basis of the agreement of sale. It is submitted that the first revisional Court dismissed the revision petition holding that the revision petition is not maintainable but not on merits and also without considering the orders of the trial court. The order of the trial court for eviction was passed only under Section 21 (1) (h) (p) and no order has been passed under Section 21 (1) (a) of the K. R. C. Act. Therefore, the order of dismissal passed by the District Judge on technical grounds but not on merits. It is further submitted that the District Judge in paragraph 8 of the judgment has clearly mentioned that no application has been filed under Section 21 (1) (a) of the k. R. C. Act and rent has not been determined, and therefore there cannot be any order of eviction unless rent is determined. Therefore, the impugned order passed by the learned District Judge when the New Act came into force is incorrect.