ORDER
1. This is a landlord’s revision petition filed under Section 115 of the Civil Procedure Code and it is directed against the order dated 29-8-1994 in H.R.C.R. No. 16 of 1989 on the file of the
learned Principal District and Sessions Judge, Bellary, confirming the order dated 17-12-1988 passed in H.R.C. No. 8 of 1986 on the file of the learned Principal Munsiff, Hospet.
2. The petitioner instituted eviction petition under Section 21(1)(h) and (j) of the Karnataka Rent Control Act (hereinafter referred to as the ‘Act’) claiming possession of the petition schedule premises which is admittedly in possession of the respondent as a tenant. The case of the petitioner was that his father filed H.R.C. No. 3 of 1984, before the same Court seeking eviction of the respondent herein on the same ground as mentioned in this petition. The father of the petitioner died during the pendency of the said HRC petition. A memo was filed by the Counsel appearing for his father after the death of his father before the Trial Court, seeking permission of the Trial Court to withdraw the petition with permission to institute a fresh petition. The Counsel appearing for the respondent herein endorsed the said memo and wrote that he has no objection for the same and the said Court dismissed the eviction petition H.R.C. No. 3 of 1984 as not pressed on 29-10-1985 on the same date when the memo was filed.
3. In the year 1986, the petitioner instituted the present eviction petition H.R.C. No. 8 of 1986 against the respondent, praying for an order of eviction under Section 21(1)(h) and (j) of the Act, on the ground that the schedule premises is very old and it is in a dilapidated condition and the adjacent premises had already fallen down and therefore, he requires the petition schedule premises for the immediate purpose of demolition and reconstruction. The petitioner further stated that his children and the other children of his joint family have to go to Hospet for their schools and colleges. They have to travel from Naganahalli to Hospet which is about 4 to 5 kms. There is no higher education facility in the village. It is also stated by the petitioner that he will be making one of his brothers to stay in the petition schedule premises at Hospet to bring back the children and make them stay in the petition schedule premises and they will be looked after by his brother so as to enable the children to easily attend the schools and colleges at Hospet.
4. The respondent admitted the relationship between the parties as that of landlord and tenant. The respondent did not dispute about the identity of the schedule premises. However, while denying the requirement sought for by the petitioner, the
respondent raised a contention that the dismissal of H.R.C. No. 3 of 1984 on 29-10-1985 would constitute a bar to the present petition and the order dated 29-10-1985 passed by the Trial Court would also amount to res judicata and therefore, the present eviction petition was not maintainable.
5. During the course of trial, 3 witnesses were examined on behalf of the petitioner and two witnesses were examined on behalf of the respondent. Nine documents were marked on behalf of the petitioner and five documents were marked on behalf of the respondent.
6. After the evidence of the parties were concluded, arguments were addressed on behalf of both the parties and the Trial Court after considering the evidence on record and also the documentary evidence came to the conclusion that the petitioner has proved that he reasonably and bona fide requires the petition schedule premises for his own use and occupation. The Trial Court further held that comparative hardship is in favour of the petitioner. Even on the question under Section 21(1)(j) of the Act, the Trial Court held the same in favour of the petitioner/landlord. On the question of law addressed before him, the trial court held that since the earlier eviction petition was permitted to be withdrawn and dismissed as not pressed, the order passed in the said petition will not amount to res judicata. However, the Trial Court held that since in the earlier eviction petition no application has been filed by the petitioner for setting aside the abatement in view of the death of his father and no application has been filed for bringing the legal representatives of his father on record, the said eviction petition has abated. Once the said petition has abated, the Court below has held that/under Order 22, Rule 9 of the CPC, no fresh suit can be brought on the same cause of action by the legal representatives of the petitioner in the earlier suit.
7. Against the order passed by the Trial Court, the petitioner preferred revision petition under Section 50(2) of the Karnataka Rent Control Act. The respondent did not address any arguments as regards the merits of the case. It should, therefore, be understood that the respondent has accepted the finding given by the Trial Court on the merits of the case as regards the bona fides of the petitioner in seeking possession of the petition schedule premises for his own use and occupation and also the finding of the Trial Court about the petitioner proving his case
under Section 21(1)(j) of the Act and also the finding in favour of the petitioner as regards the comparative hardship. The only point addressed before the Revisional Court by both the parties is about the maintainability of the present eviction petition in view of Order 22, Rule 9 of the CPC.
8. This is a petition filed under Section 115 of the CPC. Both the learned Counsels rightly did not address any arguments as regards the merits of the finding given by the two Courts below on the question of fact involved before them. It has to be observed that there is a concluded finding by the Trial Court that the petitioner has proved his requirement under Section 21(1)(j) and 21(1)(h) of the Act and that comparative hardship is in favour of the petitioner.
9. The only point on which arguments were addressed and which have to be considered by this Court is whether the eviction petition filed by the petitioner before the Trial Court after dismissal of the previous HRC Petition No. 3 of 1984 is maintainable, in view of the abatement of the said petition under Order 22, Rule 9(1) of the CPC. In other words, whether the petitioner was barred from filing the present eviction petition after the dismissal of the earlier petition and on his failure to get the abatement in HRC. No. 3 of 1984 set aside.
10. In HRC. No. 3 of 1984, a memo was filed by the Counsel appearing for the father of the petitioner, after the death of the father of the petitioner, seeking leave of the Court to withdraw the petition in order to file a fresh petition which was not opposed by the respondent. The Trial Court has held that the said order has to be construed as one passed under Order 23, Rule 1(3) of the CPC, reserving the right of the petitioner to file a fresh petition. In my view, this conclusion arrived by the Courts below are quite in confirmity with the evidence on record and also in accordance with law and therefore, it has to be held that in the earlier proceeding the Counsel appearing for the father of the petitioner had made an application for withdrawing the petition with permission to institute a fresh petition.
11. Rule 35 of the Karnataka Rent Control Rules, 1961 (hereinafter referred to as the ‘Rules’) provide that: “In deciding any question relating to procedure not specifically provide for by these rules, the Court shall as far as possible to be guided by the
provisions contained in the Code of Civil Procedure, 1908”. Section 45 of the Act reads as follows :
“Decisions which have become final not to be reopened.–The Court or the Controller shall summarily reject any application under this Act which raises, between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided in a former proceedings under this Act or under any of the enactments repealed by Section 62”.
This section has been interpreted to mean that a decision to be final within the meaning of Section 45 of the Act, as to be a decision on merits after contest and adjudication. Many of the grounds on which the landlord can file a petition for eviction of the tenant give a cause of recurring nature and therefore, even in a case decided on merits earlier, great care has to be taken in order to see whether issue arising in the subsequent petition is substantially the same issue. Section 45 of the Act operates in a different field and meets different situations and it only bars a subsequent proceeding being taken with regard to the matter which was finally decided in the earlier proceedings. That means, the Act does not bar a second petition filed by the landlord after the dismissal of an earlier petition on any ground.
12. This Court in Papinayakanahalli Venkanna and Others v Janadri Venkanna Setty and Others, had held that under Order 23, Rule 1(4) precludes a party from instituting a fresh suit in respect of same subject-matter or part of the claim unless permission of the Court is obtained when the earlier petition was being disposed of. In the present proceeding that obstacle may not arise since it is held by the Trial Court and it is not contested before the Revisional Court or this Court that the previous eviction petition was dismissed by granting permission to the landlord to institute a fresh eviction petition.
13. This Court in Dongrichand Hanjrimal Jain v Shah Trilokchand Rameshkumar Oswal Firm and Others, has held that the Division Bench Judgement of this Court in P. Venkanna’s case, supra, has been impliedly overruled by the judgement of the Hon’ble Supreme Court in Surajmal v Radheshyam. The Hon’ble Supreme Court in the above
mentioned judgment has observed in Para 8 of its judgment as follows:
“8. The learned Counsel for the appellant Sunderbai, contended that in substance the case of the plaintiff-respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. The High Court in Paragraph 4 of its judgment pointed out that the nature of requirement pleaded in the earlier suit was different from that in the present suit. The First Appellate Court while deciding the issue against the defendant observed that the bona fide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plantiff it has to be assumed that he will not have a bona fide and genuine necessity ever in future. We are in agreement with the views as expressed by the two Courts”.
14. It could, therefore, be seen that the principle of law which has to be kept in mind while dealing with an eviction petition is that the bona fide need of the landlord must be considered with reference to the time when a petition for eviction is filed and it cannot be assumed that once the question of necessity is decided against the petitioner, it has to be assumed that he will not have a bona fide and genuine necessity ever in future. The Act is beneficial Act both to the landlord and to the tenant. Section 45 has been incorporated under the Act by the legislature with a purpose. The legislature in its wisdom has foreseen that situations will arise for filing eviction petitions again and again and in order to prevent the same, Section 45 has been incorporated and under Section 45 of the Act only such applications which constitute res judicata has to be rejected by the Court and not other petitions which have to be considered on merits. There may be different circumstances as to why the landlord has to file eviction petitions on the same ground as the one which had been disposed of earlier. But, while dealing with the matter, the Court has to consider the bona fides of the landlord not only in seeking eviction but, also in filing a petition after the disposal of the previous matter.
15. The Hon’ble Supreme Court in Sital Prasad Saxena (dead) by L.Rs v Union of India and Others, has observed while dealing with the question of condonation of delay in setting aside abatement:
“Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties”.
16. Under the rules, procedures have been prescribed for dealing with the petitions filed under the Act. Rule 35 of the Karnataka Rent Control Rules specifically provides that if no procedure is prescribed specifically under the Rules, the Court shall as far as possible to be guided by the provisions contained under the Code of Civil Procedure, 1908. Rule 30 of the Rules prescribes the procedure for making applications for bringing the legal representatives of the deceased persons as parties to the proceeding under the Act and under the said rule an application for bringing the legal representatives under Section 51 of the Act has to be made within 15 days from the date of death of the party and for the said purpose, the rule provides for following the provisions of Code of Civil Procedure with the necessary modifications.
17. In view of these provisions and in the light of the judgment of the Hon’ble Supreme Court, I am of the view that Section 45 of the Act permits filing of successive eviction petitions except the ones which is barred under the principle of res judicata. Even under Order 22, Rule 9 of the CPC, the bar contained therein for filing a fresh suit does not extinguish the right of the parties. A right to bring an eviction petition is a genuine right which is incidental to the ownership of the property and the relationship between the parties attracting the provisions of the Act. As held by the Hon’ble Supreme Court in Sital Prasad Saxena’s case, supra, the rules of procedure are prescribed to advance justice and should be so interpreted as not to make them penal statutes for punishing erring parties.
18. The Courts below were wrong in proceeding with the matter by observing that Order 22, Rule 9, CPC enacts a penalty and must be strictly construed. The said basis on which both the
Courts below have proceeded with the matter has resulted in failure of justice.
19. A Full Bench of the Bombay High Court in Rajaram Vithal v Ramchandra Pandu, has held :
“4. Now, the Civil Procedure Code deals with procedure relating to all suits. There is a special law, which deals with rights of mortgagors and mortgagees and that law is to be found in the Transfer of Property Act. Section 60 provides that a mortgagor has the right to redeem the mortgaged property after the principal money has become due, and the mortgagor either pays or tenders the amount due on the mortgage; and the proviso to that section states that this right continues so long as it has not been extinguished either by the act of the parties or by the decree of a Court. Before the Act was amended the expression was “order of a Court” instead of “decree of a Court”. Therefore, Section 60 confers the right to redeem upon the mortgagor, and also provides that right is to continue until one or the other of the two eventualities mentioned in the section takes place : one, the act of the parties and the other, an order or a decree of a Court which extinguishes that right. Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order 22, Rule 9? If the legislature in a piece of special legislation confers a particular right upon a party, it must intend that right should be an enforceable right. Therfore, in our opinion, the general provisions of the Civil Procedure Code as contained in Order 22, Rule 9, are to that extent overridden by the specific provisions of Section 60, Transfer of Property Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course the position with regard to limitation is different, because the Limitation Act expressly provides that the period of limitation for redemption suits is sixty years.
5. This High Court has consistently taken the view that so long as the right to redeem is not extinguished, as provided by Section 60, Transfer of Property Act, the mortgagor can enforce that right in a Court of law.
6. Sir Amberson Marten C.J. and Crump, J, were considering the dismissal of a suit for default, and the consequence following upon it under Order 9, Rule 9 in 1952 Bom. 111. It will be noticed that the consequence is the same as on an abatement of the suit, and that Bench held that the general terms of Order 9, Rule 9 do not override the specific directions of Section 60, Transfer of Property Act, 1882. If the general terms of Order 9, Rule 9 cannot override the specific directions of Section 60, equally so the general terms Order 22, Rule 9 cannot override the specific directions of Section 60 of the Transfer of Property Act. We see no difference in principle between the decision in 1952 Bom. 111 and the case we are considering now; and we are not satisfied by Mr. Shah’s argument that that case was wrongly decided.
11. Therefore, it is clear from this decision that the right of redemption cannot be taken away from the mortgagor, except in the manner and to the extent provided by Section 60, Transfer of Property Act. We are of the opinion that the abatement of the suit is not a decree of the Court, which extinguishes the right of redemption. The procedural effect of Order 22, Rule 9, cannot override the express provisions of Section 60“.
20. In the light of the several decisions referred to above, it has to be held that Order 22, Rule 9 of the CPC, is in general terms, and Civil Procedure Code is made applicable only for the purpose of procedure and the provisions of the Civil Procedure Code cannot override the specific directions contained in the Act especially Sections 21 and 45 of the Act. Right of the landlord to file an eviction petition cannot be taken away just because the earlier eviction petition filed by the landlord is abated. Second petition filed by the landlord can be dismissed summarily only if it is hit by Section 45 of the Act and not otherwise. As held by the Hon’ble Supreme Court in Dongrichand’s case, supra, petition filed under the Rent Control Act for eviction has to be considered with reference to the time when the eviction petition is filed.
21. For the above reasons, this revision petition is allowed and the impugned order passed by the Courts below are set aside and H.R.C. No. 8 of 1986 filed by the petitioner is allowed and there shall be an order of eviction against the respondent both under Section 21(1)(h) and 21(1)(j) of the Act. The respondent is granted time till the end of December, 1997 to vacate and deliver the vacant possession of the petition schedule premises to the petitioner-landlord on condition that he pays the monthly rentals regularly without any default.
