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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
N.S.SANJAY GOWDA, J.
Parashuram S/o. Laxman Sugandhi - Appellant
Versus
Girish Ramayya @ Rameshi Hiremath - Respondents
W.P.No.85512/2013 (GMCPC)
Decided on : 26-02-2021
Karnataka Rent Control Act, 1961 – Civil Procedure Code, 1908 - Order 7 Rule 3, Sections 151 and 152 – Transfer of Property Act - Tenant - Eviction - Petitioner filed HRC seeking for eviction but same was dismissed on ground that suit premises was a non-residential premises and rent being more than Rs.500/, petition under provisions of then Act, 1961 was not maintainable - Petitioner thereafter issued a quit notice calling upon tenant to vacate - In this quit notice, it was sated that the agreed rent and that property - Whether parties to lis could contend that error in description of property in plaint and as a consequence in decree could be corrected after decree had been passed - Held, Court view that decision of trial Court in refusing to amend judgment and decree is incorrect and same requires to be set aside - Assuming that power under Section 152 of CPC was not available or assuming that invocation of Section 152 was improper, trial Court should have nevertheless invoked its power under Section 151 of CPC and ought to have passed orders and corrected decree to effect that it pertained to CTS in order to prevent miscarriage of justice - Court view that this is a case were Section 151 of CPC would have to be invoked and inherent powers available to this Court will have to be exercised - Impugned order is set aside and it is hereby held that decree obtained by plaintiff is in relation to property - Petition disposed of.
ORDER :
1. The petitioners are the landlords and the respondents are the tenants.
2. In the year 1978, proceedings were initiated to evict the original respondent–Gurupadayya Hiremath (hereinafter referred to as “tenant”) in HRC No.12/1978. The said petition was allowed. Against the said order, a revision was filed in HRC Rev No.2/1981, which was allowed and against the said order a revision was filed before this Court. This revision was however dismissed
3. The petitioner filed HRC 3/1996 seeking for eviction but the same was dismissed on the ground that the suit premises was a non-residential premises and the rent being more than Rs.500/, the petition under the provisions of the then Karnataka Rent Control Act, 1961 was not maintainable.
4. The petitioner thereafter issued a quit notice calling upon the tenant to vacate. In this quit notice, it was sated that the agreed rent was Rs.200/p.a. and that the property was measuring 10 ft. by 5 ft. It had been stated in the notice that in respect this premises, proceedings had been initiated earlier in HRC No.12/1978 and in HRC No.3/1996, which were both ultimately dismissed on technical grounds. It was stated that the premises was needed by the petitioner constructing a new structure.
5. The ultimate demand in the notice was as follows:
6. As demand made in the quit notice was not complied with, a suit for ejectment in O.S.NO.114/2003 was filed. In the said suit, it was stated in paragraph No.4 that the plaintiff, his mother Smt. Krishnabai and her four sisters were occupying the premises adjacent to the suit schedule property bearing CTS No.1704 and CTS No.1702B and that the southern portion bearing CTS No.1702B and eastern portion bearing CTS No.1704 were both residential premises and that a part of CTS No.1704 to the northern side was utilized by the plaintiff and his family members.
7. It was also stated that the plaintiff required the suit premises in question as he was intending to demolish the building namely CTS No.1703, 1702B and 1704 with an intention to reconstruct the building. An averment was also made regarding the earlier proceedings in HRC Nos.12/1978 and 3/1996.
8. The plaintiff, however, in description of the suit properties, described the properties as CTS No.1702B and CTS No.1704, situated at Jamkhandi. The plaint was also accompanied by a hand sketch map, in which, the location of CTS No.1703 was marked by means of striped lines and the sketch also indicated the location of CTS Nos.1702/A, 1702B and 1704.
9. This suit was stoutly contested by the tenant. The tenant admitted that he was inducted into the property by the plaintiff’s father on an annual rent of Rs.200/and he also admitted that the plaintiff had succeeded to the properties along with Smt.Kamala and Smt. Shakuntala.
10. The Tenant also admitted that the earlier proceeding for eviction in HRC Nos.12/1978 and 3/1996, but however it was stated that since they were dismissed, the suit was not maintainable and it was barred by the principles of resjudicata. A plea that the tenant had acquired title by adverse possession was also raised.
11. It may be pertinent to state here that during the cross-examination in O.S.No.114/2013, the following suggestions were made by the tenant to the landlord/plaintiff:
12. After the trial, the said suit i.e., O.S.No.114/2003 was dismissed. An appeal was preferred in R.A.No.6/2000. The Appellate Court set aside the dismissal and proceeded to decree the suit by its judgment dated 23.01.2009. This decree of eviction granted by the appellate Court was confirmed in RSA No.5214/2009. Thus, the order of eviction passed against the tenant was confirmed by this Court.
13. Thereafter an application was filed seeking for amendment of the judgment and decree and other documents. By the sai
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