K. CHANDRASHEKARA Vs. S. GANESHA AND OTHERS

JUDGEMENT

(1.) THIS revision is presented under S. 115 of the C.P.C. against the concurrent orders order, 18 -9 -2002 passed by the Principal Civil Judge (Jr. Dn.), Shimoga on I.A. No. 7 in HRC No. 11 of 2000 and the order, dt. 2 -6 -2003 passed by the Court of the Additional District Judge, Shimoga, in R.R.P. No. 14 of 2002.

(2.) THE brief facts of the case are that the petitioner instituted eviction proceedings invoking S. 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961. When the petitioners examination -in -chief was over and when the matter was set down for cross -examination of P.W. 1, the respondent No. 1 made an application under S. 43 of the Karnataka Rent Act, 1999, seeking the stoppage of all the proceedings and for a direction to the parties to approach the Civil Court for the determination of their rights. The trial Court allowed I.A. No. 7. Aggrieved by this order, the petitioner preferred Rent Revision Petition No. 14 of 2002 to the District Court, which by its order, dt. 2 -6 -2003 dismissed the revision -petition.

(3.) PER contra, Sri Ramadas, the learned counsel for the respondents made the following submissions : (a) That the petitioners side is not justified in making the submissions, as if the same are being made in the first appeal. The scope of the revision is extremely limited and more - so, the scope of second revision. When the concurrent orders are passed, ther is little scope for interference under S. 115 of the C.P.C. Sri Ramadas also took me through the relevant portions of the order passed by the District Court. (b) Sri Ramdas further submits that the second respondents -affidavit filed in support of the application u/S. 43 has to be construed as an affidavit on behalf of the respondent No. 1 also; the non -mentioning that he was swearing to the affidavit on behalf of the first respondent is just a technical omission. (c) The respondents were never inducted into the schedule premises as tenants. They forcibly occupied the schedule premises on 25 -12 -1987. It is Ramdass further case that the petitioner had difficulty in evicting his former tenants from the schedule premises. The respondents had paid Rs. 30,000/ - to the former tenants and incurred other incidental expenditure. (d) Section 43 of the Karnataka Rent Act, 1999 does not contemplate the holding of an enquiry. If the tenant disputes the existence of jural relationship and in the absence of lease agreement and rent receipt, the trial Court has no option but to close the proceedings before it by directing the parties to approach the Civil Court for the determination of their rights. He has also relied upon a judgment of this Court in the case of Ayesha Begum v. Shahzadi, reported in 2003 (1) KCCR 385 in this regard. (e) The senior counsel appearing on behalf of the petitioner is not justified in making the allegation of fraud against a brother advocate and that in any case, the fraud requires to be established by leading cogent evidence. (f) Just because the respondents No. 1 and 2 have left the schedule premises, it does not mean that they have no subsisting interest in the schedule premises; as the co -agreement holders they are entitled to their share in the schedule premises. They are jutified in resisting the proceedings not in their capacity as tenants but in their capacity as shareholders. (g) It is not open to the petitioners side to advance the contentions which are not urged in the memorandum of this revision -petition. (h) In 1987 the respondentsfather entered into an agreement of sale with the petitioner in respect of the schedule property by paying an advance sale consideration of Rs. 2,04,000/ -.