K VEERABASAPPA Vs. COURT OF DISTRICT JUDGE AT CHITRADURGA

JUDGEMENT

(1.) On 20-3-1971 the petitioner filed an application under S. 21(1)(h) of the Karnataka Rent Control Act 1961 (hereinafter referred to as 'the 1961 Act') in the Court of the Munsiff, Davanagere, for eviction of respondent No. 3(hereinafter referred to as 'the respondent') who is admittedly in occupation of premises bearing Door No. 591/1 situated in Davanagere City more fully described in the Schedule annexed to the petition, which was resisted by the respondent. In his application, the petitioner principally pleaded that the premises were required to run the business concern of 'Kirwadi Veerabhadrappa & Sons' and 'Kirwadi Anjanappa and Sons' and later amended as 'Kirwadi Anjanappa and Brothers'. In the objections statement filed, the respondent denied the plea of bona fide requirement of the premises pleaded by the petitioner and did not raise any objection as to the maintainability of the application filed by the petitioner. On a consideration of the evidence placed by the parties, the learned Munsiff, by his order dated 10-11-1971, rejected the application of the petitioner inter alia holding that the petitioner could use the upstairs portion of the petition schedule premises and therefore there was no justification to allow the application filed by the petitioner for eviction of the respondent. On an appeal filed by the petitioner, the learned District Judge, by his order dated 12-10-1973, affirmed the order of the learned Munsiff which was challenged by him before this Court in Civil Revn, Petn. No. 621 of 1974. In the said Civil Revision Petition, the petitioner contended that the ground or finding on which the Courts below had refused his claim for eviction of the respondent viz; that the upstairs 1st floor was suitable for his occupation had been arrived at without affording him an opportunity to establish whether it was suitable or unsuitable for his occupation and therefore the same was vitiated. Accepting the said plea of the petitioner Nesargi J; by his order dated 5-12-1974 (Exhibit A), set aside the orders of the Courts below and remitted the case to the learned Munsiff only to ascertain the suitability or unsuitability of the area available in the 1st floor of the petition schedule premises. As the principal contention of the petitioner depends on the terms of the remand order passed by Nesargi J; it is useful to set out the material portions of that order.

(2.) In my considered opinion, a faithful compliance to the remand order of this court required the learned Munsiff to ascertain only the suitability or unsuitability of the area available in the first floor of the schedule premises and if he found that that area was unsuitable, he should have allowed the application of the petitioner and if he found that that area was suitable to dismiss his application for eviction of the respondent. A fortiori the evidence to be placed by the parties and to be recorded should have been confined only to that question and to no other question. But that did not exactly happen before the learned Munsiff. It is now necessary to notice a few developments that took place before the learned Munsiff.

(3.) On 10-11-1975 the respondent filed an application for amendment of his objection statement virtually to add a plea as to the maintainability of the application filed by the petitioner for eviction. In his affidavit in support of the application for amendment, the respondent stated that under a registered partition deed dated 21-7-1971 the schedule premises had fallen to the share of one K. V. Eshwara, one of the sons of the petitioner, and therefore he had no right to maintain his application for eviction against him. This fact was not something that happened after the disposal of the revision petition by this Court, but was in existence even before the disposal of the application by the learned Munsiff on the first occasion and in any event before the revision petition was decided by this Court. Without really comprehending the true scope of the remand order, the learned Munsiff, by his order dated 14-1-1976 allowed I. A. No. 12 filed by the respondent, the result of which was that the learned Munsiff considered himself free to examine the maintainability of the application filed by the petitioner. Another application made by the petitioner for amendment of his application viz, I. A, No. 13 to substitute the words 'Kirwadi Anjanappa and Sons' as 'Kirwadi Anjanappa and Brothers' was also allowed by the learned Munsiff on 5-3-1976. On the evidence placed by the parties in the light of the remand order of this Court and also the amended objection statement of the respondent, the learned Munsiff, by his order dated 28-6-1976 (Exhibit D) found (I) that the application filed by the petitioner was itself not maintainable, (2) that the upstairs portion of the premises was suitable for locating the office and (3) that grater hardship would be caused to the respondent if an order of eviction is passed and in that view rejected the application of the petitioner for eviction. Aggrieved by the said order, the petitioner filed a revision petition in Civil Revision Petition No. 11 of 1976 before the District Judge, Chitradurga, who, by his order dated 7-2-1977 (Exhibit F) has dismissed the same. In revision, the learned District Judge had disagreed with the finding of the learned Munsiff that the upstairs portion of the premises was suitable for use of the petitioner. On a critical examination of the oral and documentary evidence on record, the learned District Judge has found that the upstairs vacant premises was not suitable for carrying on the business of the petitioner. But on the second question viz., on the maintainability of the application of the petitioner, the learned District Judge has agreed with the finding of the learned Munsiff and has therefore maintained his order. In this writ petition under Art. 226(1)(b) and (c) of the Constitution, the petitioner has challenged the orders of the learned District Judge affirming the order of the learned Munsiff. As this writ petition arises out of orders passed by regular Civil courts, their validity can be examined under Art. 227 of the Constitution also.