B. Vasanthy Urs vs Shahtajkhan

Vasantha Kumar, J.—Heard both the Counsel on record.

The short question that arises for consideration is whether the application filed by the landlord u/s 29 of the Karnataka Rent Control Act in Miscellaneous proceedings No. 69/93 initiated by the tenant in respect of an ex parte order passed in HRC 967/1992 is maintainable or not.

Few facts briefly stated are as follows: The landlord initiated eviction proceedings under Clauses (a), (b) and (c) and (h) of Proviso to Sub-section (1) of Section 21 of the Karnataka Rent Control Act, the proceedings being numbered as 967/92. The trial Court on 2-2-1993 allowed the relief sought for by the landlord. The tenant inspite of service of notice remained absent and as such the order that has been passed by the trial Court in HRC 967/92 has to be construed as an ex parte order of eviction.

Aggrieved by the ex parte order that has been passed in HRC 967/92, the tenant preferred a miscellaneous proceedings under Order 9 Rule 13 CPC read with Rule 29 of the Rules. Rule 29 of the Karnataka Rent Control Rules reads as follows:

"29. PROCEDURE REGARDING EXPARTE ORDERS:-

(1) Any ex parte orders passed under the Act may be set aside on sufficient cause being shown for non-appearance and the provisions of Order IX of the Code of Civil Procedure, 1908 shall, as far as may be and with necessary modifications, be followed.

(2) An application for setting aside an ex parte order passed under the Act shall be made to the Court or the authority making such order within thirty days from the date of such order:

Provided that in computing the period of thirty days under this sub-rule the time taken to obtain a certified copy of the order shall be excluded."

It is an admitted fact that the tenant has initiated miscellaneous proceedings under Order 9 Rule 13 read with Rule 29 to the Court which passed the eviction order under the provisions of the Rent Control Act. Therefore, the jurisdictional Court is the Rent Control Court, The contention advanced by the tenant is that the application under Order 9 Rule 13 is to be read as an independent provision and that being a substantive application, it would not come within the purview of the Rent Control Act and as such the application filed by the landlord u/s 29 of the Act as being not maintainable. He invited the attention of the Court to the ratio of the cases decided in 1983(1) Kar.L.J. 236 and also 1984 Notes of Cases (Calcutta) Item 247, in support of his contention that the miscellaneous application would not come within the purview of the Rent Control Act.

During the pendency of the proceedings, certain witnesses were examined on behalf of the tenant. Subsequently, an application was filed by the tenant for recalling of the witnesses who had already been examined which was negatived by the Miscellaneous Court. Aggrieved against that order he preferred C.R.P. numbered as 326/1993 and this Court allowed that Revision Petition and directed the Court in the aforesaid miscellaneous proceedings to recall the witnesses who had already been examined. From this material it is to be stated that the petitioner in the miscellaneous proceedings has subjected himself to the jurisdiction of the Rent Control Act and further the nature of the relief sought for by the petitioner in the miscellaneous proceedings is for setting aside of an ex parte order passed u/s 21(1) of the KRC Act. When such is the case, all the provisions of the Act are equally applicable to the proceedings initiated under Order 9 Rule 13 read with Rule 29 of the Karnataka Rent Control Rules. In the instant case, an application filed by the landlord u/s 29 of the Act in Miscellaneous Proceeding is numbered as I.A.No.5. The Miscellaneous Court dismissed I.A. on the ground that the same as not maintainable, which is to be stated is not proper. The order that has been passed by the trial Court on I.A.5 requires to be set aside and the same is set aside.

It is brought to the Court''s notice by the tenant that he has disputed the rate of rent and as well as quantum of arrears of rent. As such it is just and proper that an enquiry has to be held in respect of rate and quantum of arrears of rent. The Miscellaneous Court is directed to permit both the parties on record to adduce evidence in respect of rate of rent and as well as quantum of arrears of rent payable by the tenant in respect of petition schedule premises. After enquiry, the trial Court is directed to quantify the arrears of rent and pass suitable orders on I.A.5 filed in the miscellaneous proceedings.

With the above observations, this Revision Petition is allowed.