Supreme Court Of India

Shantha Bai (D) by Lrs V. S.S. Nateshan (Dead) by Lrs

Civil Appeal No. 3712 Of 1999. 29-04-2004

JUDGMENT

1. This appeal is by the legal representatives of the original landlady questioning the validity and correctness of the impugned order made by the High Court in exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure ("CPC" for short). The original landlady filed a petition under Section 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961 (for brevity, 'the Act') against the original tenant. The respondents in this appeal are his legal representatives. The trial court did not accept the case of the landlady as regards bonafide requirement pleaded under Section 21(1)(h). However, the petition was allowed under Section 21(1)(a) accepting that the tenant was in arrears of rent, having not paid the arrears in spite of the notice served on him. In that view, the order of eviction was passed against the tenant. The tenant filed a revision petition before the District Judge under Section 50 (1) of the Act. The learned District Judge did not find any good ground to differ from the conclusion arrived at by the trial court. Consequently, the revision petition was also dismissed. The tenant filed a second revision under Section 115 of the CPC, questioning the validity and correctness of the order made by the learned District Judge. The High Court allowed the revision petition and set aside the concurrent finding recorded on the question of default committed by the tenant only on the ground that the advance amount was lying with the landlady and the arrears of rent could have been adjusted out of that advance amount. The High Court did not go into other questions which the parties contested before the trial court as well as before the District Judge. Hence, this appeal by the legal representatives of the landlady aggrieved by the order made by the High Court.

2. The learned counsel for the appellant contended that the High Court committed a serious error in allowing the second revision petition filed by the respondents under Section 115 of the CPC merely on the ground that the arrears of rent could have been adjusted in advance amount. He pointed out that the respondents never pleaded the case of advance and adjustment of arrears of rent out of the advance amount. They went to the extent of denying the receipt of the very notice demanding the arrears of payment of rent. He also pointed out that the tenant did not even enter into the witness box to deny the averments made by the landlady. According to the learned counsel, the High Court was not right and justified in exercising the revisional jurisdiction under Section 115 of the CPC, that too to set aside the concurrent findings of fact recorded by the two courts below.

3. On the other hand, the learned counsel for the respondents tried to support the impugned order contending that the arrears of rent could have been adjusted in the advance amount, as held by the High Court.

4. It is not disputed that the adjustment of arrears of rent out of the advance amount was neither pleaded nor urged before the trial court or the first revisional court, i.e., the district court. When the trial court and the district court, on facts, recorded concurrent findings that the tenant was in arrears of rent and order of eviction was passed on that basis, the High Court was not right in interfering with the concurrent findings. The High Court was also not right in allowing the revision petition filed by the tenant merely on the ground that the arrears of rent could have adjusted out of the advance amount. It was not shown whether the arrears of rent could be adjusted out of the advance amount. At any rate, no case was pleaded, as already noticed above, by the tenant that the arrears of rent could have been adjusted in the advance amount. This apart, the tenant went to the extent of denying the very receipt of the notice demanding arrears of payment of rent. The trial court found that the tenant did receive such a notice and had not paid the arrears of rent. The learned district judge also affirmed this finding. Further, the tenant even did not enter the witnesses box to substantiate his plea.

5. Under the circumstances, we have no hesitation in holding that the High Court committed a serious error in passing the impugned order, setting aside the concurrent finding, that too exercising the revisional jurisdiction under Section 115 of the CPC. In this view, the appeal is entitled to succeed.

6. Accordingly, it is allowed, the impugned order is set aside and the order passed by the District Judge, affirming the order made by that of the Munsif Court is restored.No costs.

Copyright 2020 by LegitQuest. All rights reserved
*