PAPINAYAKANAHALLI VENKANNA Vs. JANADRI VENKANNA SETTY

JUDGEMENT

(1.) This revision petition is directed against the order of the District Judge, Bellary, in H.R.C. Appeal No. 6 of 1973, filed against the order dated 29-1-1973. The brief facts of the case are, that the petitioner-Papinayakanahalli Jadiyappa filed a petition for eviction under Section 21(1)(h) and (j) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act), in respect of Door No. 297, ward No. 10 situated at Hospet, Bellary District. His case was, that he had purchased the property, under a registered sale deed, dated 14-6-1966, from its original owner Veerabasamma and that since he was carrying on his business of hardware articles, in two small bunks, leased to him, by the City Municipal Council, Hospet, and as the said premises were unsuitable, inadequate and insufficient for his business and further as the rents in respect of the two bunks were being periodically enhanced by the City Municipal Council, Hospet, he required the premises to carry on his hardware business. He also pleaded that the premises in question were in a dilapidated condition needing extensive repairs and re-roofing. It is averred in the petition, that the petitioner had filed HRCOP No. 5 of 1967 on an earlier occasion and the same was not pressed by filing a memo on 7-1-1969 and it was dismissed on the same day. The present petition is filed on 18-4-1970. Before filing the present petition, he had issued a notice of termination on 10-3-1969 asking the tenant to vacate the premises by 15-12-1969. The tenant gave a reply on 8-12-1969 denying the requirement of the landlord and he also contended that he is not liable to be evicted. In the proceedings the tenant further contended that the present petition namely, H.R.C. Appeal No. 7 of 1970 was barred under Sec.11 of the Code of Civil Procedure, as also, under O.23, R.1(3), C.P.C. and therefore the petition is liable to be rejected. On these pleadings, the learned Munsiff raised the following issues :- "1. Whether there has been a valid termination of tenancy? 2. Whether the petitioner's claim for eviction of the opponent tenant, is hit by Section 45 of the Mysore Rent Control Act? 3. Whether the petitioner's claim is barred under the provisions of Order 23 Rule 1(3), C.P.C.? 4. Whether the petitioner proves that his requirement of the petition schedule property, for his personal use and occupation, is bona fide and reasonable? 5. Whether he further proves that his requirement of the petition schedule property for purpose of immediate demolition and erection of a new building, is bona fide and reasonable? 6. In whose favour would lie the balance of convenience? 7. Whether the petitioner is entitled for possession of the petition schedule property? 8. What order?"

(2.) The learned Munsiff answered issue No. 1 in favour of the landlord and held that the claim was not barred in view of the provisions contained under O.23, R.1(3); and since the requirement of the landlord was bona fide and reasonable, and it was a recurring right, he decreed the suit, granting two months time to the tenant to vacate the premises. The said order is passed on 29-1-1973. Against the said eviction decree, the tenant filed H.R.C. Appeal No. 6 of 1973 before the District Judge, Bellary. During the pendency of the appeal, the original landlord Jadiyappa expired and his legal representatives were brought on record. In the appeal, the learned District Judge set down the aforestated points for consideration. He concurred with the trial Court on all the issues excepting on issue No. 3, which dealt with the bar contained in O.23, R.1(3), C.P.C. The learned District Judge held that in view of the dismissal of HRC OP No. 5 of 1967, the present petition, which was founded on similar grounds, was barred under the said provision. In view of this finding, the learned District Judge allowed HRC Appeal No. 6 of 1973 and dismissed the eviction petition. Against the said order, the legal representatives of the original landlord, have filed this civil revision petition. The civil revision petition was posted before a single Judge of this Court and in view of the question regarding the issue of "notice prior to termination of tenancy" was involved in the case, the learned single Judge referred the matter to a Division Bench, by his order dated 19-1-1979. A similar question had been referred to Full Bench in C.R.P. No. 1505 of 1976, the Division Bench which heard this C.R.P. referred the same to the Full Bench by its order dated 11-7-1979 and directed that C.R.P. No. 331 of 1975 be heard along with C.R.P. No. 1505 of 1976. On 6-2-1980, the Full Bench heard C.R.P. No. 1505 of 1976, and held, that no notice was necessary to terminate the tenancy, before initiating eviction proceedings under the Act. Since the said question was answered by the Full Bench, the said question does not survive. Meanwhile the original tenant died and his legal representatives have been brought on record in this civil revision petition. After the decision of the Full Bench, the papers are posted before us as per the original reference made by the single Judge dated 19-1-1979, for deciding the C.R.P. on other points.

(3.) On the question of bona fide requirement and comparative hardship, findings of the Courts below are concurrent and are in favour of the landlord, the same are not questioned by Sri Joshi and rightly so. The only question that falls for determination is the finding of the learned District Judge, regarding the bar contained in O.23, R.1(4), C.P.C. In other words, whether the present petition filed by the landlord in H.R.C. No. 7 of 1970 is barred in view of the dismissal of HRC OP No. 5 of 1967. To appreciate this contention, it is necessary to mention the averments in the petition, as also, the earlier orders passed in H.R.C. OP No. 5 of 1967. In HRC OP No. 5 of 1967, the present landlord pleaded thus: "V