Sri K. Krishna Murthy vs Sri Ladulal

K. Ramanna, J.—Though the matter is listed for admission, with consent of learned Counsel for the petitioner and Sri Moinuddin for Sri Aravind Kumar for the respondent, the same is taken up final hearing and is being disposed of.

This revision petition is filed u/s 46(1) of the K.R. Act challenging the allowing of I.A. NO. 4 filed by the respondent u/s 42 (6)(b) of the Act seeking leave of the Court to contest the eviction petition filed by the revision petitioner-landlord in HRC. No. 447/2005 dated 6.9.2006.

The case of the revision petitioner-landlord, in brief, is that, he has filed an eviction petition against the respondent u/s 31 r/w. Section 27(2) (r) of the K.R. Act. With great difficulty notice came to be served on the respondent by affixture. The case was posted on 1.7.06. The respondent appeared through Counsel but not filed any application seeking leave of the Court to contest the matter. The matter was adjourned to 21.7.06 to file objections. On that day also he has not filed any objections or application seeking leave of the Court. Again when the matter was listed on 18.8.06 for arguments on the ground that the respondent has not filed an application seeking leave of the court to contest the matter but the same was posted to 19.8.06. On that day an application cams to be filed i.e. I.A. No. 4 seeking permission to file objection to the main petition. The revision petitioner herein has filed objections to IA. NO. 4. The trial court after hearing both the parties, allowed IA.No. 4 granting leave to the respondent to contest the matter. Against the said order, the revision petitioner-landlord has come up with this revision petition.

It is argued by the learned Counsel for the revision petitioner that since the respondent appeared before the court, he has to seek leave of the court to contest the matter on all counts. In the instant case, such application ought to have been filed on 1.7.06. Subsequently also, ha has not filed objections to the main petition nor any application u/s 42 (6) (b) of the K.R. Act and on 19.8.2006 when the matter was listed for arguments on main petition, the respondent filed an application i.e. I.A. No. IV seeking leave of the Court to contest the matter which to not maintainable. It is further argued that when an eviction petition is filed u/s 31(c) of the K.R. Act, it is mandatory on the part of the respondent-tenant to seek leave of the Court to contest the matter as par Section 42 (6)(b). When such application has not been filed, subsequent filing of the application after two-and-half months is not maintainable. Since he has not filed such an application on 1.7.06 or on the subsequent date, filing application after two-and-half months is not at all maintainable and the trial Court has grossly erred in allowing the application. In support of his contention, learned Counsel for the revision petitioner has relied on a decision reported in P.J. Surendranath Vs. S.P. Pandurangan, Wherein it has been held as follows:

Present petition is filed u/s 27(2)(r) and Section 31(C) of the Act and therefore the procedure prescribed under Sub-section 6 of Section 42 is necessarily attracted - Therefore it is mandatory for the respondent/tenant to obtain leave to contest or defend the proceedings as per Clause (b) to Sub-section 6 of Section 42.

Since he has not obtained the permission, subsequent filing of the application seeking permission is not maintainable. That apart, the learned Counsel for the petitioner relied on another decision rendered by the Division Bench of this Court in the case of Smt. Lakshamma and Others Vs. B.P. Thirumala Setty and Others, wherein it has been held as follows:

The persons falling under the special category should not be at the mercy of procedural delay. Provisions of Section 28 to 31 of the Act, is a beneficial legislation conferring right of immediate possession on certain group of persons in recognition of the peculiar situation they are placed in.

Further it is held as follows-

Unless the tenant makes out a substantial defence in the affidavit seeking leave of the court to contest the matter, such leave should not be granted. By virtue of such special nature of the benefit, the right created for the landlord narrows the scope of defence by the tenant. Unless, the tenant seeks leave to contest the matter with substantial defence, the presumption that would arise in favour of the landlord falling under the special group of parsons would automatically require the Court to allow the eviction petition. The seeking of leave of the Court to contest the application in such circumstance is nothing but mandatory.

He has also relied on another decision reported in ILR 2006 KAR 2500 (S. Shashidhara Rao. v. M. Vishwanath and Ors.) wherein it has been held as follows:

As the application for leave to contest was rejected on the ground that it is belated one, the Trial Court ought to have passed an order of eviction

On the other hand, learned Counsel Sri Moiudin submitted that a subsequent filing of the Application Basking leave of the court by the tenant is only a formal compliance and it is not mandatory and declaratory. Therefore the trial court granted permission to file an application seeking leave of the Court to contest the matter. Therefore the trial court is right in allowing IA.NO. 4 on payment of costs. Hence he prays for dismissal of the petition. Learned Counsel for the respondent has relied on a decision reported in Liaq Ahmed and Others Vs. Shri Habeeb-Ur-Rehman, while allowing the appeal of the tenants, Hon''ble Apex court held as follows:

From the scheme of the Delhi Rent control Act it is evident that if the tenant discloses the grounds and pleads a cause which prima facie is not baseless, unreal and unfounded, the controller is obliged to grant him leave to defend his case against the eviction sought by the landlord. The inquiry envisaged for the purpose is a summary inquiry to prima facie find out the existence of reasonable grounds in favour of the tenant. If the tenant bring to the notice of the Controller, such facto as would disentitle the landlord from obtaining an order for recovery of possession, the Controller shall give him leave to contest. The law envisages the disclosure of facts and not the proof of the facts.

I have carefully examined the materials placed on record. No doubt the revision petitioner is the landlord. The earlier eviction filed by him came to be dismissed. This revision petition is on a different count. When a person files an eviction petition by invoking the provisions of Section 27(2)(r) and 31(1)(c), the respondent should seek the leave of the Court to contest the matter. No such application came to be filed by the respondent on 1.7.06. On behalf of the respondent when his Advocate filed vakalat on that day. Neither such an application came to be filed nor he filed any objections to the eviction. The order sheet in HRC 447/05 maintained by the Trial Court discloses that such an application I.A.No. IV came to be filed after two-and-a-half months i.e. on 19.8.06 at 3 PM. when the matter was listed for arguments on the ground of not seeking leave of the Court to contest the matter.

The trial Court has passed the order under challenge presuming that if the application is not allowed, the respondent will be put to irreparable loss and prejudice will be caused to him. Regarding Section 31, the trial court has held that Section 31 is applicable not only to the aged widow but it is applicable to the senior citizens also. The trial court failed to consider the fact that the respondent has not filed such an application on the date of his appearance i.e. on 1.7.06 to contest the matter on all grounds and the application is filed only after two-and-a-half months i.e. on 19.8.06 and even no such grounds have been made out in his affidavit in support of his application. Mere filing of an application seeking leave of court to contest the petition stating the grounds on which he seeks to contest the petition for eviction, without whispering anything for the said delay is a ground to not to allow the said application.

To appreciate the contention of the learned Counsel for the parties, it is proper to refer to Section 42(2) of the K.R. Act, 1999 which reads as follows:

Section 42(6)(a):- Every application by a landlord for the recovery of possession of any premises on the ground specified in Clauses (f), (h) or (n) of Sub-section (2) of Section 27, or under Sections 30, 31 or 37 shall be dealt with in accordance with the procedure specified in this Sub-section.

In the instant case, the revision petitioner, though appeared through counsel on 1.7.2006, has not filed such an application seeking permission to contest the matter. Subsequently I.A.NO. IV came to be filed on 19.8.2006 i.e. after two months and eighteen days. No explanation has been offered by the revision petitioner-tenant for the delay. The trial Court itself held that filing of an application is mandatory if the eviction petitioner is filed u/s 31 of the K.R. Act. The trial Court is not right in allowing the application filed by the respondent u/s 42(6)(d) of the Act which is not the proper/correct provision to seek leave of the court. He ought to have filed an application u/s 42(6)(b) of thee Act. He has not filed an application u/s 42(6) of K.R. Act on the date of his appearance i.e. on 1.7.2006. Even then the application IA.No. IV was filed by the respondent on 19.9.1996 and there was no proper explanation for the delay. Since the petitioner is a person belonging to special category, the Division Bench of this Court in the decision reported in Smt. Lakshamma and Others Vs. B.P. Thirumala Setty and Others, held as follows:

Unless the tenant makes out a substantial defense in the affidavit seeking leave of Court to contest the matter, such leave should not be granted. By virtue of such special nature of the benefit, the right created for the landlord narrows the scope of defence by the tenant. Unless, the tenant seeks leave to contest the matter with substantial defence, the presumption that would arise in favour of the landlord falling under the special ground of parsons would automatically require the Court to allow the eviction petition. The seeking of leave of the Court to contest the application in such circumstance is nothing but mandatory.

So obtaining permission from the Court-below by filing an application u/s 42(6) immediately is a mandatory. Therefore, the impugned order under challenge suffers from facts as well as law. Therefore, the revision petition is to be allowed.

Accordingly, the revision petition is allowed. The impugned order passed by the Court-below on I.A.No. IV dated 7.9.2006 is hereby set aside and the application I.A. NO. IV filed by the respondent is hereby dismissed at not maintainable.