ORDER
N. Kumar, J.
1. The petitioner has preferred this revision petition against the order passed on I.A. under Section 42 (6) (b) (c) of the Karnataka Rent Act, 1999 refusing to grant leave and consequently, stopping all further proceedings and passing a decree for eviction. For the purpose of convenience, the parties shall hereinafter be referred to as they are referred to in the original proceedings.
2. The petitioner-landlord filed an eviction petition under Section 23 (2) (a) & (r) read with Section 41 (1) (a) (c) of the Karnataka Rent Act, 1999 (for short hereinafter referred to as the “Act”). Notice was ordered to the respondent. He was duly served. He entered appearance on 14-12-2006 through an Advocate who filed power for the respondent. Thereafter, the case was adjourned for objections to the main petition by 2-1-2007. On that day, the Advocate for the respondent filed objections to the main petition as well as an I.A. under Section 42 (6) (b) (c) of the Act seeking leave of the Court to contest the matter. After three adjournments, the petitioner filed objections on 25-1-2007. Thereafter, the said I.A. was taken up for consideration. After hearing both the parties, the Court declined to grant leave sought for, on the ground, that he did not seek leave to defend on the date of first appearance itself and therefore, he cannot be permitted to contest the matter. Consequently, it stopped all further proceedings and also passed an order of eviction. Aggrieved by the same, the respondent-tenant is before this Court.
3. The learned Counsel for the respondent-tenant submits that Sub-section (6) of Section 42 provides for a procedure to be followed in a petition filed under Clauses (f) (h) (r) (n) of Section 27 or under Sections 30, 31 and 37 and no where it is mentioned that an application seeking leave has to be filed on the very first day and if it is not filed, the tenant loses his right to file such application on subsequent hearing date. Therefore, he submits that the impugned order passed by the trial Court is erroneous.
4. Per contra, the learned Counsel for the petitioner-landlord submits that the procedure prescribed under Sub-Section (6) coupled with two decisions which the learned trial Judge has relied on shows that if the leave is not sought on the day he entered appearance in the proceedings, the tenant loses right to contest the matter and the application filed subsequently is not maintainable and the trial Court was justified in rejecting the same.
Therefore, the question for consideration is whether, if the tenant fails to seek leave of the Court to contest the eviction petition on the very day of his appearance before the Court, does he lose the right to seek for such leave on a subsequent hearing date?
5. Section 42 of the Act deals with the procedure to be followed by the Court in so far as the eviction petition filed under Section 27 is concerned. Sub-section (2) of Section 42 makes it clear the procedure to be followed in these eviction proceedings as the practice and procedure of a Court of Small Causes including the recording of evidence. However, Sub-section (6) of Section 42 provides a special summary proceedings in respect of eviction petition filed under Clause (f), (h) or (n) of Sub-section 2 of Section 27 or under Section 30, 31 or 37. Sections 30 and 31 speaks of immediate possession. Section 37 deals with recovery of possession in case of tenancies for limited period, whereas, Clauses (f) deals with the premises required for the purpose of immediate demolition ordered by the Government or any local authority. Clause (h) deals with building required for substantial addition or alteration including construction on the terrace of the premises. Clause (n) refers to the premises which is used in a manner contrary to any conditions imposed by the landlord by the Government or local authority.
6. Behind this special summary procedure there is an object to be achieved. These are instances where immediate possession is required. Otherwise, the very object of filing the eviction petition may be defeated. It is in this context it is necessary to carefully look into the special procedure which is provided in the Sub-section (6) of Section 42, which reads as under:
(6) (a) every application by a landlord for the recovery of possession of any premises on the ground specified in Clauses (f), (h) or (n) of Sub-section (2) of Section 27, or under Sections 30, 31, or 37 shall be dealt with in accordance with the procedure specified in this sub-section.
(b) the tenant on whom the summons is duly served whether in the ordinary way or by registered post in the prescribed form shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave of the Court as hereinafter provided and in default of his appearance in pursuance of the summons or of obtaining such leave, the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(c) the Court shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
(d) where leave is granted the tenant to contest the application, the Court shall ordinarily commence the hearing of the application within seven days of the grant of such leave and shall provide day-to-day hearing and dispose off the application within thirty days of commencement of such hearing. Failing such commencement of hearing or disposal of application within such time, the Court shall make a record of its reasons therefor.
(e) where the leave to contest under Clause (c) is denied to the tenant, he may file an application for review before the Court within ten days such denial and the Court shall endeavour to dispose of such application within seven days of its filing.
A reading of the aforesaid provision makes it clear that when the eviction petition is filed on any one of those grounds, as a rule, the tenant has no right to contest such eviction petition. If he wants to contest the petition, after service of notice on him, he is under an obligation to file an affidavit stating the ground on which he seeks to contest the application for eviction. The Court, only if it is satisfied that the said affidavit discloses, facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises, it shall grant leave to the tenant to contest the matter. Even after grant of such leave, the law mandates that the Court shall ordinarily commence the hearing of the application within 7 days of grant of such leave and shall provide day to day hearing and dispose of the application within 30 days of commencement of such hearing. If the Court is unable to follow this procedure and pass final order within the time stipulated, an obligation is cast on the Court to make an order recording reasons for not scrupulously following the time schedule prescribed under the Statute. If such a leave is not granted by the Court, the tenant is given an opportunity to file a review petition within 10 days there from and if such leave is granted, the petition shall be disposed of within six months from the date of filing of eviction petition. Therefore, under the scheme, it is not provided when exactly this affidavit of the tenant seeking leave of the Court to contest is to be filed. If after service of notice, the tenant appears personally or through Counsel and if he does not seek leave by filing affidavit, it is open to the Court to take the statements made by the landlord in his application for eviction as admitted by the tenant and proceed to pass an older of eviction forthwith. It need not adjourn the case at all. However, if it adjourns the case, nothing prevents the tenant from filing affidavit seeking the leave of the court to contest the eviction petition on adjourned date.
7. In the instant case, after the tenant entered appearance through the Counsel when he did not file the affidavit to seek leave of the Court to contest, the Court instead of passing an order of eviction accepting the statement contained in the eviction petition as being admitted, adjourns the case to the next hearing date, for filing the statement of objections by the respondent. It is not the procedure prescribed under law. It shows total lack of application of mind on the part of the Court to the facts of this case and the petition before it. Having adjourned the case for filing of the objections by the tenant, on the adjourned date when the tenant filed objections with an application seeking leave as contemplated under law, it was not justified in rejecting the said application on the ground that it ought to have been filed on the date of his appearance. No such prescription exist in the entire scheme of the Act. Therefore, it is incumbent on the court to apply its mind to the grounds urged in the eviction petition. After the appearance of the tenant, and depending upon the grounds urged, to act in accordance with the procedure prescribed. In cases of immediate possession, if the special procedure prescribed is not followed, the very provisions would become redundant and the object with which those provisions are introduced would be frustrated. Such a course is to be a voided.
8. In fact, what the tenant is expected to file is only an affidavit and not even an application. Therefore, the impugned order passed by the Court below is contrary to the aforesaid statutory provisions and cannot be sustained. It committed total error in declining to grant leave on the sole ground that leave was not sought for on the very day of his appearance before the Court. It ought to have considered the request for granting leave on merits and should have passed appropriate orders. In that view of the matter, the impugned order cannot be sustained. Hence, I pass the following order:
HRRP is allowed. Impugned order is set aside. The entire matter is remitted back to the trial Court to consider whether the tenant has made out a case for grant of leave to contest the eviction petition as set out in the affidavit filed in support of his application. No costs.