ORDER
Huluvadi G. Ramesh, J
1. The petitioner has filed a petition before the trial court under Section 31(1)(c) read with 37(2)(a) of Karnataka Rent Act of 1999 for eviction of the tenants from the premises bearing No. 271, HMT Employees Co-operative House Building Society Ltd. situated at Mathikere layout, Bangalore-54 in Corporation word No. 3.
2. It is the case of the petitioner that he purchased the petition schedule premises under a registered sale deed dated 15.9.1980 from HMT Employees Co-operative House Building Ltd. and he is the absolute owner of the same. Originally the father of the 1st and 2nd respondent and the husband of the 3rd respondent was tenant since 1998 and the rate of rent per month is Rs. 3,250/-. Admittedly the tenancy is month to month commencing from 1st of every calendar month. On the death of original tenant -Muniswamachar, his legal representatives – respondents continued to be in possession of the petition schedule premises. They neither paid the rents nor deposited the same since from March 2002. According to the petitioner, he is a senior citizen and also he is retired from HMT in the year 1991 and his children who are highly educated, running an industry in the name and style called Bangalore Tool Room and his wife and his married children are also residing with him. It is stated that the present accommodation available in his house is not sufficient for their family members. They wanted to shift the family to the petition schedule premises. Hence they are in need of the promises in question. Hence this petition.
3. The petition was contested by the respondents by filing objections without seeking any leave from the Court to take defence as the petition is filed under Section 31 of the Karnataka Rent Act, 1999. It appears in between the same, some LAs are filed by both the parties. I.As 3 and 4 were filed by the respondents seeking for permission to defend the case. No leave was granted. As such, the objections filed by the respondents were not considered and also on I.A. 2 no order is passed at that time.
4. I.A. 2 was filed by the petitioner herein under Section 151 of CPC to dispose of the case in terms of the judgment rendered by this Court (P.J. Surendranath v. S.P. Pandurangan) stating that when the leave has not been granted by the Court to the respondents, then the Court has to pass on order of eviction as per the deemed provision.
5. It seen that I.A.II is not disposed of. But however, the main matter came to be disposed of and after enquiry on behalf of the petitioner, the trial court held that in view of Section 5 of the Karnataka Rent Act, 1999, the petition came to be dismissed.
6. Heard the learned Counsel for the petitioner. None represents the respondents although the notice is served on them.
7. According to the petitioner’s counsel, I.A. 4 filed by the respondent under Section 42 of the K.R. Act was rejected by the trial court on the ground that there is delay in seeking for such permission stating that the petitioner has filed the petition on false and flimsy grounds and the grounds made out are baseless. Accordingly, the trial court dismissed I.A.No. 4. In the decision rendered by this Court it is (sic) on the tenant to obtain leave to contest the proceedings under Section 42(6) of the K.R. Act. I A. 4 was filed seeking for permission to defend the case filed by the respondents and the same was not allowed and as against which, there is no further revision filed and the same has reached the finality. Further according to the learned Counsel for the petitioner (sic) the decision , Section 5 of the Karnataka Rent Act, 1999 cannot be read in isolation but it shall he read in conjunction with other sections. Accordingly, he submitted that in view of the judgment rendered by this Court and also the decision since the trial Court has misconstrued the intendment of Section 5 of the K.R. Act, the impugned order is liable to be set aside and accordingly, he sought to allow this petition.
8. Let me consider whether the trial court has committed any error or irregularity in dismissing the petition on the ground that the petition is hit by Section 5 of the Karnataka Rent Act, 1999 and whether the petition is entitled for the benefit under Section 31(1)(c) of the K.R. Act.
9. In the judgment rendered by this Court (K. Krishna and Anr. v. Venkatagiriyappa since dead by LRS and Ors.) it is made clear that Section 5(1) of the K.R. Act, emphasizes the right of tenancy shall devolve for a period of 5 years from the date of death of the tenant, on his successors. Further it is stated therein in the said judgment that Section 5 of the Karnataka Rent Act cannot be rend in isolation but rather it should be read in conjunction with Sections 27, 28, 30 and 31 of the Rent Act. Section 5 of the Act does not take away or postpone the grounds of eviction given to the landlords under Section 27 and other sections as noted.
10. It is seen as per the averment, the petitioner was aged 69 years at the time of filing the petition. This aspect has not been controverted. As per Section 42(6), the tenant ought to have sought for permission to defend his case. Although such application was filed, the same is shown to haw been rejected on the ground that it is belated one. The same has reached the finality.
11. As per Section 31(1)(c) of the K.R. Act, a person who is senior citizen in entitled to recover the possession of the premises accrued to widow. Now the petitioner is aged more than 65 years and it is also shown that as per the averment made in the petition, the petition schedule premises is required for his family members. Ignoring this fact, the trial court simply on the assumption that the original tenant has died and for a period of five years, the tenancy will devolve on the legal heir, the landlord cannot move for eviction and according has rejected the petition.
12. Section 5 of the K.R. Act has to be read in conjunction with other sections. The petitioner has filed the petition under Section 31(1)(c) of the K.R. Act. No leave was granted to the tenant under Section 42(6) of the K.R. Act to defend the petition. In the circumstances, as it is held in the decision reported in ILR 2003 KAR 2995, that the trial court ought to have passed an order of eviction. Under the circumstance, the impugned order is set aside, the petition filed by the petitioner is allowed, the Respondents shall vacate and hand over vacant possession of the petition schedule premises to the petitioner within six months from today. No costs.