GOWDARA SHIVALINGAPPA Vs. K GAJENDRAPPA

JUDGEMENT

(1.) Heard the Counsel for the appellant and the respondent.

(2.) It is at the time of admission, that the following substantial questions of law were framed:

(3.) While the Counsel for the respondent would seek to assert that as rightly pointed out by the first appellate Court, notwithstanding the Statement of Objections in the eviction proceedings, where the present respondent has contended that the suit property measured more than 14 square metres, it was with the qualification that the respondent was in occupation of a lesser area and was paying rent only for that area, though he was in occupation of a larger area measuring more than 14 square metres. This has been misconstrued and it could have been properly explained at the time of tendering evidence in the eviction proceedings and since, the petition was withdrawn without formal adjudication by the Rent Court, that the statement that the property measured 14 square metres would be binding on the respondent, is an incorrect statement. This has been clarified in the written statement which has been appreciated by the first appellate Court and in the absence of any proof of the property actually measuring more than 14 square metres, the trial Court was not justified in holding that the property was not covered under the Rent Act and hence, the finding of the first appellate Court that the suit was not maintainable in the absence of proof as to the measurement of the suit property cannot be faulted. And the contention that the leave of the Court in withdrawing the eviction petition in order to file a civil suit has rightly been taken by the first appellate Court, since, it should be known as to the reason for withdrawal of the eviction petition and the filing of the civil suit without a preamble (sic) is further indicative of the lapse on the part of the appellant in not having taken the Courts into confidence in this regard and therefore, the first appellate Court has rightly rejected the suit and would submit that the appeal be dismissed.