ORDER
K. Ramanna, J.
Page 0415
1. Though the matters are listed for preliminary hearing in “B” group, by consent of both the learned Counsel heard and disposed of finally by this common order.
2. The petitioner in both the writ petitions are the tenants before the II Additional Small Causes Judge, at Bangalore in HRC No. 463/ 2003. The petitioners in both the cases filed Application I.A. 4 under Section 43 of the Karnataka Rent Act 1999, to stay all further proceedings and direct the parties to approach the competent Court of civil jurisdiction to declare that their respective rights. Whereas I.A. No. VII is filed under Section 151 of C.P.C praying to recall the order dated 22/11/2005 and permit him to cross-examine P.W.1.
3. Brief facts leading to these cases are that the respondent in both the cases is none other than the daughter of Sri S. Chandrashekar, who is the owner of the petition schedule premises. The respondent was in occupation of the entire first floor measuring 55 x 24 feet and she purchased the southern side half portion in the first floor. The petitioner herein entered into an agreement with the father of respondent Chandrashekar on 25/6/2001. Consequently, Chandrashekar father of the respondent sold the said property in favour of respondent under registered sale deed dated 23/7/2001. Therefore, respondent herein filed H.R.C. No. 463/03 under Section 27(r) of the Karnataka Rent Act 1999 with a prayer to direct the respondent to vacate and hand over vacant portion of the schedule premises bearing No. 53 New. 53 (3) 1st floor 2nd main New Tharagupet, Bangalore, and the petitioner herein being the respondent has resisted the said H.R.C. During the pendency of the said H.R.C petition, the petitioner herein filed an application under Section 43 of K.R. Act, 1999 to stay all further proceedings mainly on the ground that the respondent Smt. C. Manjula is not entitled to get any relief and there is no relationship of landlord and tenant. At no point of time, he has paid any rents to the petitioner nor had he entered into any lease deed or agreement with the respondent and she is totally a stranger to him. But the respondent resisted the said application and after hearing both the parties the trial Court has come to the conclusion that the petitioner was a tenant under her father the vendor of petition schedule premises and lease agreement was entered into between the petitioner and earlier owner Chandrashekar. Therefore, Sub-section (1) of Section 43 of the K.R. Act the lease agreement entered into between the parties and if the tenants once admit that he was a tenant under vendor of the purchaser of the petitioner, then it would be treated as tenant. There is jural relationship of landlord and tenant. Therefore, on that ground the trial Court has rightly dismissed the I.A. No. 4. As against this order she has come up with this writ petition No. 1104/ 06.
4. The petitioner who is arrayed as respondent- tenant in H.R.C. No. 463 challenges the order of rejection of I.A.7 for recalling the petitioner and Page 0416 permit him to cross-examine P.W.1. But the trial Court, after hearing both the parties held that five adjournments were granted in favour of the petitioner to cross-examine P.W.1 and recall applications were also allowed on payment of cost. Since the petitioner failed to cross-examine P.W.1 and the trial court dismissed the I.A.7 filed by the petitioner. There is no good ground to show that he had bonafide reason in not cross-examining P.W.1 and adducing evidence. Against the said order dated 12/1/06 he has come up with this writ petition No. 1105/2006.
5. Heard the arguments of learned Counsel for the petitioner and learned advocate for respondent in both the cases.
6. During the course of argument, Sri H.P. Leeladhar, learned Counsel for the petitioner submits regarding maintainability of the writ petition. It is contended that there is no bar as such in filing writ petition on the basis of the order passed on I.As. So under Section 109 of T.P. Act, the respondent being the daughter of late Chandrashekar automatically gets the ownership of the property in her favour. It is contended that in order to harass and evict the petitioner, the sale deed has been executed by Chandrashekar in favour of the respondent and his another daughter. There is no jural relationship of landlord and tenant between the parties. No notice was issued informing that late Chandrashekar sold property in favour of respondent and in view of this fact the petitioner should pay the rents to the respondent. When the petitioner himself disputes about the relationship of landlady and tenant, the trial Court ought to have stopped all further proceedings. There is no jural relationship between the parties. Therefore, the impugned order passed by the trial Court is liable to be quashed.
7. Further learned Counsel for the petitioner submits that the order passed by the trial court is in accordance with law, therefore, the petitioner may be given the liberty to approach this Court under Section 46 seeking alternative remedy available for him. Further it is submitted that the W.P.No. 1105/06 filed after recording the evidence of the respondent Smt. Manjula the owner and the petitioner could not cross-examine her on the ground on that day his advocate was engaged in Sessions Case at Kolar. Further it is argued that since the petitioner has undergone cataract operation, he could not instruct his counsel to cross-examine P.W.1. Therefore, under those circumstances, the application came to be filed ought to have been allowed as the petitioner had shown the proper reason has been shown by filing an application to recall the order and to permit the petitioner to cross-examine P.W.1. But the trial Court wrongly dismissed the I.As filed by the petitioner which is incorrect and illegal. Therefore, he prays for quashing the order dated 12/1/2006. Further, it is submitted that since HRC filed by the respondent and her sister are pending in the court, therefore the petitioner may be permitted to cross-examine the witness i.e., respondent P.W.1 and dispose of both the cases in accordance with law.
8. On the other hand, Sri Prabhakar learned Counsel for Respondent in both the cases submits that the petitioner in both the cases has not approached Page 0417 this Court with clean hands. In fact, the present writ petition filed by him is not at all maintainable when once the petitioner admits jural relationship as landlord and tenant, the application filed before the trial Court under Section 43(1) to stay further proceedings has been rightly dismissed.
In this behalf, learned Counsel for the petitioner drew the attention of this Court to the impugned order dated 9/8/2005 passed by the court below at para 10. According to the respondent he has purchased the petition schedule premises under registered sale deed dated 23/7/2001 and the petitioner was a tenant. Before the trial Court he admitted that he was a tenant under erstwhile vendor of the petitioner ie., Chandrashekar and automatically becomes the tenant under respondent under Section 109 of T.P. Act. The trial Court by relying on a latest decision of this Court reported in ILR 2004 Kar. 4782 in Silva Uddin v. Nagtaraj held that there is jural relationship between the petitioner and respondent as a tenant and landlord. According to the petitioner there was an agreement entered into between him and erstwhile owner of the property i.e., Chandrashekar the vendor of the petition schedule property. When once he admits his relationship with the previous owner, that itself is sufficient to come to a conclusion that there is relationship of landlord and tenant. The petitioner in order to protract the proceedings has filed an application under Section 43(1) to stay all further proceedings. Therefore, I do not find any good reason to interfere with the order under challenge at Annexure-A passed by the trial court i.e., II additional Small Causes Judge, at Bangalore in H.R.C. No. 463/2003.
9. As far as writ petition No. 1105/2006 is concerned, the application I.A.7 is filed by the petitioner under Section 151 of C.P.C, to recall the order dated 22/11/2005 permitting him to cross-examine P.W.1. It is seen that the eviction petition is filed by the respondent-landlady under Section 27(2)(r) of the Karnataka Rent Act, 1999 in 2003. The evidence of respondent herein (P.W.1) was recorded by the trial Court on 16/2/2004 and thereafter the petition was posted for cross-examination of P.W.1 on 23/2/2004 and on 15/3/2004. Accordingly at the request of the petitioner-tenant case which was posted for cross-examination of P.W. 1 was adjourned from time to time. A similar application came to be filed on 26/6/2004 i.e., I.A.I to recall P.W.1. The said application came to be allowed on payment of cost of Rs. 100/- and when the case stood posted for cross-examination of P.W.1 on 17/7/2004 but adjourned to 19/8/2004 and 23/9/2004 for cross-examination of P.W.1. Since the petitioner failed to cross-examine, the trial Court has allowed and listed the case for recording the further evidence of P.W.1 and cross-examine. Again I.A. II which came to be filed by the petitioner was allowed on payment of cost of Rs. 250/- but failed to cross-examine P.W.1. Likewise, petitioner filed in all five applications to recall P.W.1 for cross-examination. The intention of the petitioner is to protract the proceedings by filing applications to protract the proceedings and pray for further more Page 0418 time and finally the application I.A.7 filed by the petitioner to recall the order dated 22/11/2005 which was dismissed. The said application was filed on the ground that his counsel was engaged in attending a Sessions case in case No. 55/05 which was set down for trial on 22/11/2005. But he has not produced the medical certificate to show that the petitioner has undergone an operation of cataract and that, therefore he could not instruct his advocate to take time for cross-examination of P.W.1. Considering all these materials, the trial Court has rejected the application I.A.7 filed the petitioner. In view of the facts and circumstances of the case though the petitioner failed to cross-examine P.W.1, however, in the interest of justice and fair trail of H.R.C. petition, it is just and proper to dispose of the writ petitions with a direction to allow the writ petitioner on payment of cost of Rs. 2,000/- to cross-examine P.W.1.
Hence, writ petition No. 1105/2006 is disposed of. However, the trial Court is directed to permit the petitioner to cross-examine P.W.1 on payment of cost of Rs. 2,000/-. But the writ petition No. 1104/2006 is hereby dismissed as devoid of any merits.
It is brought to the notice of this Court that the trial Court has listed the case on 13/3/2006. Therefore, the petitioner and respondent are directed to appear before the trial Court on 13/3/2006 and on payment of cost the petitioner is permitted to cross-examine P.W.1 without further excuse and the trial Court is directed to dispose of the case on or before 31/7/2006.