B K SURESH Vs. ANANTHALAKSHMI

JUDGEMENT

(1.) HEARD the Counsel for the parties.

(2.) THE petitioners are said to be the owners of property bearing No. 445 (old No. 32), OPH Road, Bangalore. The said premises measuring about 8' x 11' was leased to the father of the respondents by the father of the petitioners, on a monthly rent of Rs. 14/- which stood enhanced and was Rs. 40/- at the time of presentation of the petition before the Trial court. The petitioners are brothers and have obtained the subject property as their share at a partition in terms of a compromise decree in a civil suit, os 4327/2003, before the Court of the City Civil Judge, Bangalore. The petitioners had filed the eviction petition under Section 27 (2) (a)and (j) of the Karnataka Rent Act, 1999 (hereinafter referred to as the '1999 act' ). The petitioners had raised a further specific plea that the respondents had continued in occupation of the subject premises after the death of the original tenant, in their capacity as his successors. Hence, in terms of Section 5 of the 1999 Act, their right to such occupation stood extinguished after the expiry of five years from the date of such death of the tenant. Incidentally, the petitioners herein had, along with their elder brother who is no more, preferred an eviction petition earlier in respect of the very premises in case No. HRC 10352/1983 under Section 21 (l) (a), (h) and (p)of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the '1961 Act' ). The same was dismissed on merits by order dated 12. 4. 1989, and was confirmed in a revision petition before this Court in HRRP 4879/ 1989, by an order dated 30. 3. 1995. The respondents had entered appearance before the Trial Court and contested the petition under the 1999 Act. The Trial Court has rejected the petition. The trial Court has opined that the plea insofar as the right of the respondents to continue in occupation of the premises having stood extinguished five years after the death of the original tenant in the year 1987, not having been raised in case No. HRC 3051/1989, the petitioners are deemed to have waived their claim to seek repossession. The trial Court has held that the ground under Section 27 (2) (a) is not established. The trial Court has further opined that the requirement of the premises for the occupation of the petitioners was also not established as the question had attained finality in the earlier petition and stood confirmed by this court in HRRP 4879/1989. And for the very same reason has held that the ground raised under Section 27 (2) (j) was barred by res-judicata in terms of Section 61 of the 1999 Act.

(3.) SHRI Shaker Shetty appearing for the petitioners contends that the right of the petitioners has crystallized in the year 2003, on a partition having been effected, and their legal status and circumstances stood varied pursuant to the same. The finding of the trial Court that they are yet bound by the earlier order of dismissal of the eviction petition brought by the petitioners as members of a joint family is hence erroneous. It is contended that the presumption of requirement contemplated under the provisions of the 1999 Act has been overlooked by the trial Court. The trial Court has committed an error of law in holding that the petitioners are deemed to have waived their right to invoke Section 5 of the 1999 Act as no such plea was raised in the earlier proceedings. As the last of the contentions of Shri Shetty was apparently a circumstance that has not been addressed by the trial Court with reference to the legal position, the matter was heard at length.