D V HARIDEV Vs. B NARAYANAMURTHY

JUDGEMENT

(1.) these revision petitions arise out of the order passed by the trial court on an application under Section 28(1)(b) of the Karnataka Rent Control Act, 1961 (the act) directing the landlord to put respondent-1 (hereinafter referred the 'tenant') in possession of the reconstructed shop premises now in the occupation of respondcnt-2 (hereinafter referred as the 'new tenant').

(2.) the brief facts leading to theseproceedings are as follows : d.v. haridev, ihe petitioner in c.r.p. No. 2653 of 1985 is the owner and landlord of the premises bearing No. 6, b.v.k. lyengar road, Bangalore-53. B. Narayanamurthy, respondent-1 in both the petitions (since deceased) was in occupation of the old premises as a tenant under the landlord. The landlord sought for eviction of the tenant on the ground under Section 21(l)(j) of the aet, in h.r.c. No. 1378 of 1976. The landlord's case was that the entire building consisting of three shops including the premises is required for the immediate purpose of demolition and reconstruction of a new building in its place. After contest the learned trial judge by his order dated 17-9-1979 allowed the landlord's claim and directed the tenant to vacate the premises within four months. The trial court had, inter alia, directed that the landlord shall commence the work of demolition within two months from the date he is put in possession of the premises. C.r.p. No. 11 of 1980 challenging the correctness and legality of the trial court's order was rejected by the order of this court dated 24-1-1980 granting the tenant extension of time till 30-4-1980 to deliver possession of the premises. However, the tenant actually delivered possession of the premises to the landlord only on 20-6-1980. On 10-7-1980 demolition of the building was commenced and the new building was completed in or about October 1981. Immediately thereafter the new tenant was inducted into the premises. The original tenant having expired in the mean time, on 17-10-1981 his legal representatives sought for re-entry into the new premises followed by an application under Section 28(l)(b) of the act on 30-10-1981, which was registered as h.r.c. no: 2865 of 1981. The said application was contested by the landlord as well as by the new tenant. By the impugned Order, the learned trial judge has allowed the said application holding that the petitioners therein were entitled to be put in possession of the premises, subject to payment of fair rent. The correctness and legality of this order has been challenged by the landlord and the new tenant in these proceedings.

(3.) Sri santosh hegde, learned counselfor the landlord and Sri g.p. shivaprakash, learned counsel-for the new tenant urged the following contentions viz., that in the absence of a statutory notice as contemplated under Section 27 of the Act, the tenant was not entitled to claim his right of re-entry into the reconstructed premises. That the tenant had waived his right of re-entry for valid consideration viz., after receiving a sum of Rs. 5,000/- from the landlord, and that the trial court had committed an error in law in upholding the tenant's claim that since there was oral notice of his intention to occupy the newly constructed shop premises absence of a written notice, is not fatal to the tenant's claim for re-entry. On the contrary Sri c,v. Subba rao, learned counsel for the tenant contended that no notice in writing under Section 27 of the act was necessary in view of the alleged unequivocal undertaking by the landlord to put the tenant in possession of the newly constructed premises and the election by the tenant to occupy the same. In any event there was waiver of notice by the landlord and as such the notice in writing was merely an empty formality. Even otherwise, the landlord was given notice as per ex. P. 4 dated 15-12-1980 within the prescribed time, which is stated to have been sent under certificate of posting.