Ravi Shetty vs Sanjeeva K. Poojary and Shankar K. Poojary

Ram Mohan Reddy, J.—Respondent in RCA No. 7/10 on the file of the Civil Judge and JMFC, Udupi aggrieved by the order dated 17.4.2013 rejecting IA-5 under Order 6 Rule 17 CPC has presented this petition. Respondent herein instituted RCA 7/2010 u/s 27(2)(a) and (d) of the Karnataka Rent Act, 1999, for short ''KRC Act'', arraigning the petitioner as respondent for eviction of the petitioner from the non residential premises bearing city municipal No. 6-79B3 measuring 100 sq. ft. That petition was opposed by filing a counter statement inter alia alleging that the respondents were not the owners of the non residential premises being ''schedule premises'' and not being landlords had not let out the ''schedule premises'' much less is not liable to pay rent of Rs. 500/- per month. In addition it was contended that the petition deserves to be rejected for non-joinder of necessary parties since legal heirs of Narasi Poojarthi were not parties. It was further contended that the petitioner is not in occupation of the petitions schedule property while he is in possession of the shop premises No. 6/79-B4, on licence, from Narasi poojarthi for more than 25 years.

During the course of proceeding, petitioner is said to have filed an application u/s 4 and also another application u/s 45 of the KRC Act which was dismissed, thereafter petitioner filed an application under Order 26 Rule 9 CPC to appoint a Commissioner which too was dismissed. These orders were not challenged and thus is final and binding on the petitioner.

Petitioner, at the stage of cross examination filed IA-5 under Order 6 Rule 17 CPC to amend the counter statement at paragraph 5 and introduce paragraph 5(a) stating that the petition schedule property measures more than 1.25 sq. ft (14 sq.mtrs) and therefore, u/s 2(3)(g) of the Act, petition is not maintainable and a clear bar for the Small Causes Court to entertain the petition. In the affidavit accompanying the application it was stated that the petitioner is carrying on business in the name of ''Shakthi Electricals'' in Municipal No. 6-79(3A) which measures more than 125 sq. ft. In addition it was stated that the deponent had measured the petition schedule shop very recently which disclosed that the measurement was more than 14 sq.mtrs. That application was opposed by filing counter statement inter alia denying the allegations set out in the affidavit to the IA and reasserted that the petition schedule property measured only 100 sq. ft as described in the petition schedule. In addition petitioner pointed out that the application for appointment of a Court Commissioner to measure the petition schedule room when filed by the petitioner was rejected. In addition, it was pointed out that the property tax register pertaining to the petition schedule premises disclosed that it measured 100 sq. ft and in the absence of any documentary evidence to establish to the contrary that the petition schedule premises, in fact, measured more than 125 sq. ft sought rejection of the application. Lastly it was contended that the application filed at a belated stage of proceedings in the application, more appropriately at the stage of cross examination of the petitioner, in the absence of satisfactory explanation, the proviso to Order 6 Rule 17 CPC is fully applicable disentitling the petitioner to the relief. The lower court having regard to the material averments made out in the affidavit accompanying the application and the counter affidavit noticed that the petitioner in the counter statement did not deny the fact that the petition schedule premises was 100 sq. ft and that the applications filed earlier u/s 4 and Section 45 of the KRC Act were rejected while one another application under Order 26 Rule 9 CPC for appointment of a Court Commissioner to measure the petition schedule property was rejected. In addition, the trial court noticed that IA-5 was filed much later at the stage of cross examination of the petitioner and no explanation was forthcoming as to why the application was not filed before commencement of the trial. In the light of the proviso to Order 6 Rule 17 CPC rejected the application by the order impugned. Having heard Sri. Madhava Reddy, learned Counsel for the petitioner, perused the pleadings and examined the orders impugned, in my considered opinion no exception can be taken to the reasons, findings and conclusions arrived at by the lower court, hence the order does not call for interference-in exercise of jurisdiction under Article 227 of the Constitution of India.

Petition stands rejected.