Govindappa Vs. Premanand - Court Judgment

Excerpt:
civil procedure code, 1908 (central act no. 5 of 1908) - order 21 rule 95 -- auction purchaser entitled to seek possession by filing an application under order 21 rule 95 or by separate suit or both.;plaintiff auction-purchaser sought possession of filing miscellaneous case under order 21 rule 95 which was dismissed as barred by limitation. the suit filed for recovery of possession was decreed by trial court but dismissed by civil judge on the ground, order in miscellaneous case operated as res judicata.in revision :;admittedly the plaintiff is not a decree holder auction-purchaser. therefore, his remedy is either by way of filing an application under order 21 rule 95 of the code of civil procedure or by a separate suit or by resorting to both. - karnataka rent act, 1999.[k.a. no. 34/2001]. section 2(3)(g): [k.ramanna, j] premises used for commercial purpose measuring less than 14 sq. mts - held, in the instant case, the respondent had shown, in his eviction petition, the measurement of the petition schedule premises as 9 x 12 - court commissioner had found the measurement as 6.5x 16. - petition was later amended by the respondent to show the measurement of the petition schedule premises as 6.5 x 16 - neither the commissioner report nor the amendment of the petition was seriously disputed by the petitioner/tenant - undisputed measurement comes to 11.25 sq.mts. only - held, karnataka rent act was applicable to the present case and the petition was maintainable. the eviction order passed by the trial court against the petitioner was confirmed. however, the petitioner was granted time till 31..8.2009 to vacate and to handover the petition schedule premises to the respondent, on paying the rents till then regularly. -- section 27(1)(r): bona fide use and occupation - right of a co-owner - held, a co-owner and who is collecting rents from the tenant, can maintain the eviction petition against the tenant on the ground of his requirement for bona fide use and occupation.orderkulkarni, j.1. this is a plaintiff's revision against the judgment and decree dated 30-9-1980 passed by the civil judge, sirsi in r.a. 45 of 1978, reversing the judgment and decree dated 28-7-1978 passed by the munsiff, haliyal, in o.s. 192 of 1975 decreeing the suit.2. the plaintiff filed the suit alleging that he had purchased the suit property in a court auction sale held in execution case 63 of 1953 for rs. 775/- and a sale certificate was issued in respect of the suit property on 25-10-1972. the suit property is in possession of the defendant and that the defendant refused to deliver possession of the same. the plaintiff filed kirkol misc. no. 4 of 1974 for obtaining possession of the property. the defendant resisted the same on the ground of limitation. the plaintiff's petition was dismissed on the ground that it was barred by time. hence, the plaintiff filed the suit for recovery of possession.3. the defendant resisted the suit.4. the munsiff decreed the suit. the defendant approached the civil judge with an appeal. the civil judge set aside the judgment passed by the munsiff and dismissed the suit. hence, the revision by the plaintiff.5. the fact that the plaintiff purchased the property in a court auction and that the sale certificate was issued to the plaintiff on 25-10-1972, are not in dispute. it is also not in dispute that the plaintiff filed a k. mis. case 4. of 1974 under order 21 rule 95 of the code of civil procedure for obtaining possession of the property. that was dismissed on the ground that it was barred by limitation.6. the trial court held that the dismissal of miscellaneous case 4 of 1974 did not operate as resjudicata and did not bar the suit. however, the civil judge was of the opinion that the dismissal of miscellaneous case operated as res judicata and barred the suit. the learned author sri mulla in his code of civil procedure, 13th edition, page 1206 has stated, as:'it may be observed that a purchaser at a court sale is not bound to apply for possession under this rule. he may at his option bring a regular suit for possession, the period of limitation for the suit being 12 years as stated above. the remedies by way of application and that by way of suit are concurrent. but in the case of a decree holder purchaser, his only remedy is under this rule even if there is a claim for mesne profits. further, the fact that an application has been made under this rule, and it is rejected as beingtime barred, or on any other ground is no bar to a regular suit for possession. the words 'any person' in the concluding portion of the rule have reference to the persons mentioned earlier in the rule, the judgment-debtor or any person in possession on his behalf or claiming under him. it has no application to trespassers, and accordingly proceedings to reject them must be, not in execution, but in a suit.'admittedly the plaintiff is not a decree - holder auction-purchaser. therefore, his remedy is either by way of filing an application under order 21 rule 95 of the code of civil procedure or by a separate suit or by resorting to both. therefore, the view of the lower appellate court that the present suit was barred on account of the dismissal of the miscellaneous case, is not correct.7. therefore, under these circumstances, the judgment and decree passed by the lower appellate court are set aside. the revision is allowed. the judgment and decree passed by the munsiff, decreeing the suit, are restored.

Judgment:
ORDER

Kulkarni, J.

1. This is a plaintiff's revision against the Judgment and decree dated 30-9-1980 passed by the Civil Judge, Sirsi in R.A. 45 of 1978, reversing the Judgment and decree dated 28-7-1978 passed by the Munsiff, Haliyal, in O.S. 192 of 1975 decreeing the suit.

2. The plaintiff filed the suit alleging that he had purchased the suit property in a Court auction sale held in Execution Case 63 of 1953 for Rs. 775/- and a sale certificate was issued in respect of the suit property on 25-10-1972. The suit property is in possession of the defendant and that the defendant refused to deliver possession of the same. The plaintiff filed Kirkol Misc. No. 4 of 1974 for obtaining possession of the property. The defendant resisted the same on the ground of limitation. The plaintiff's petition was dismissed on the ground that it was barred by time. Hence, the plaintiff filed the suit for recovery of possession.

3. The defendant resisted the suit.

4. The Munsiff decreed the suit. The defendant approached the Civil Judge with an appeal. The Civil Judge set aside the judgment passed by the Munsiff and dismissed the suit. Hence, the revision by the plaintiff.

5. The fact that the plaintiff purchased the property in a Court auction and that the sale certificate was issued to the plaintiff on 25-10-1972, are not in dispute. It is also not in dispute that the plaintiff filed a K. Mis. Case 4. of 1974 under Order 21 rule 95 of the Code of Civil Procedure for obtaining possession of the property. That was dismissed on the ground that it was barred by limitation.

6. The Trial Court held that the dismissal of Miscellaneous Case 4 of 1974 did not operate as resjudicata and did not bar the suit. However, the Civil Judge was of the opinion that the dismissal of Miscellaneous Case operated as res judicata and barred the suit. The Learned Author Sri Mulla in his Code of Civil Procedure, 13th Edition, page 1206 has stated, as:

'It may be observed that a purchaser at a Court sale is not bound to apply for possession under this rule. He may at his option bring a regular suit for possession, the period of limitation for the suit being 12 years as stated above. The remedies by way of application and that by way of suit are concurrent. But in the case of a decree holder purchaser, his only remedy is under this rule even if there is a claim for mesne profits. Further, the fact that an application has been made under this rule, and it is rejected as beingtime barred, or on any other ground is no bar to a regular suit for possession. The words 'any person' in the concluding portion of the rule have reference to the persons mentioned earlier in the rule, the judgment-debtor or any person in possession on his behalf or claiming under him. It has no application to trespassers, and accordingly proceedings to reject them must be, not in execution, but in a suit.'

Admittedly the plaintiff is not a decree - holder auction-purchaser. Therefore, his remedy is either by way of filing an application under Order 21 Rule 95 of the Code of Civil Procedure or by a separate suit or by resorting to both. Therefore, the view of the lower Appellate Court that the present suit was barred on account of the dismissal of the Miscellaneous Case, is not correct.

7. Therefore, under these circumstances, the Judgment and decree passed by the lower Appellate Court are set aside. The revision is allowed. The Judgment and decree passed by the Munsiff, decreeing the suit, are restored.