Dongrichand Hanjrimal JaIn Vs. Shah Trilokchand - Court Judgment

Excerpt:
(a) civil procedure code - order 23 rule 1(4);(b) karnataka rent control act, 1961 (karnataka act no. 22 of 1961) - section 21(1)(h);whether withdrawing of an eviction petition without seeking permission to institute another eviction petition on the same cause of action precludes the landlord from filing a fresh eviction petition;fresh eviction petition could be filed as the claim for possession in rent control matters is a recurring cause of action.;decision of this court in papinayakanahalli venkanna and ors. v. janadri venkanna shetty, 1984(2) klj 35 on this subject is impliedly over ruled by the judgment of the supreme court in surajmal v. radheshyarn, air 1988 sc 1345. - mysore (religious and charitable) inams abolition act, (act no. 80/1955) sections 6-a & 9: [subhash b. adi, j] grant of occupancy right in respect of religious and charitable inam land vesting in state rival claims for grant of occupancy in respect of tribunal conferring occupancy rights on person claiming to be archak of institution, on basis of application made by his brother, and rejecting rivals claim as tenant of land without recording its finding on issues relevant for decision - held, order is not sustainable. matter was remanded to tribunal for fresh decision after recording its finding whether person on whom occupancy right has been confirmed was really serving institution as archak and whether he was personally cultivating land for continuous period of not less than three years prior to date of vesting of land in state (i.e., 1.7.1970) to be eligible for grant of occupancy. - 2 was well aware of the purchase and the bonafide requirement of the petitioner. 7. it is contended on behalf of the landlord that both the courts below have failed to exercise jurisdiction vested in them by not passing an order of eviction on the ground that the eviction filed by the petitioner is barred under order 23 rule 1(4) of cpc. immediately, after purchase by pw-1 and pw-3 entries demarcating the properties of pw-1 as well as pw-3 abhaya kumar have been made. the materials on record clearly show that the petitioner has purchased the eastern half portion of the property and he has become the owner and landlord of that portion of the property. the revisional court has not taken into consideration the fact that the landlord as well as the other co-owner pw-3 have deposed before the court and have accepted the ownership and land lordship of the petitioner in respect of the petition schedule premises.orderfarooq, j.1. petitioner in both these revision petitions are one and the same and he is the landlord in respect of the petition schedule premises. the respondents in h.r.r.p. 4199/90 are the legal representatives of the first respondent and the respondent in the connected revision petition is the second respondent before the trial court.2. the petitioner initiated the eviction proceedings against the respondents stating, that cts no. 790 and 791 consisting of three shops situated in kirans bazaar, facing south, originally belonged to one darbar family and in a family partition, it was allotted to the share of one bansilai darbar from whom the petitioner purchased that part of the petition schedule premises towards east with specific boundaries and the remaining half was purchased by one abhaya kumar shah under registered sale deeds. it is stated by the landlord that out of the shop portions purchased by him, petition shop to the eastern adjoining ganeshmal shop building occupied by pratap chand and company has fallen within the portion purchased by the petitioner and the petitioner was carrying on his business in a rented shop and he does not own any other shop building at bijapur, and that the owner of the shop was pressing him to vacate the same. it is stated that the petitioner bonafide and reasonably required the petition schedule premises for personal use and occupation of himself and his joint brothers. it is stated that the first respondent, who was a tenant under his vendor had put the second respondent in possession of a portion of the petition schedule premises and that the respondent no. 2 was well aware of the purchase and the bonafide requirement of the petitioner. he has also stated that he had earlier filed h.r.c.67/77 against the respondents and others, but since the address furnished by him was not correct and the postal acknowledgment was misplaced, petitioner was forced to withdraw the same on or about 6.3.1977 and after one year after the said petition was withdrawn, he has issued a fresh notice terminating the tenancy and calling upon the respondents to vacate and give up possession and thereafter he has filed the petition. he also sought for possession on the ground of arrears of rent.3. both the respondents appeared in response to the notice issued to them and filed separate objections denying the requirement shown by the landlord. they also denied the relationship of landlord and tenant between them and both of them contended that the eviction petition filed against them was not maintainable in view of the earlier eviction petition being withdrawn without permission to institute a fresh petition.4. the trial court during the course of the enquiry, examined the landlord as pw-1 and his vendor as pw-2 and abhaya kumar, who has jointly purchased the property alongwith the petitioner as pw-3 and ex.p1 to p10 were marked. on behalf of the respondents, respondent 1(b) was examined as rw-1 and the second respondent trilokchand was examined as rw-2 and the respondents got marked ex.r1 to r6.5. the trial court on appreciation of the evidence on record held that the petitioner is the landlord and the respondents are his tenants. it further held that the landlord-petitioner reasonably and bonafide required the petition schedule premises for his own use and occupation. it also held that the petitioner-landlord will be put to greater hardship if an order of eviction is refused. further, it dismissed the eviction petition holding that the claim made by the landlord-petitioner is barred under the provisions of order 23 rule 1(3) of the code of civil procedure.6. two revision petitions were filed against the order passed by the trial court. revision petition no. 37/86 was filed by the petitioner-landlord challenging the order of dismissal of his eviction petition inspite of the trial court deciding all other points in his favour. the rent revision no. 47 of 1986 was filed by the second respondent-tenant shah trilokchand against the findings given by the trial court in favour of the landlord. the revisional court confirming the finding of the trial court holding that the petitioner-landlord required the petition schedule premises for his bonafide personal use and occupation. however, it did not accept the, finding of the trial court as to the existence of relationship of landlord and tenant between the petitioner and the respondents on the ground that the petitioner has jointly purchased the property alongwith p-3 and there is no partition between them and a portion of the property belonging to pw-3 is also the subject matter of the petition, since it is a portion of the schedule premises and ultimately it concurred with the view taken by the trial court in holding that the petition is barred under order 23 rule 1(4) of cpc, and dismissed the revision petition filed by the petitioner. now the landlord has filed these revision petitions under section 115 of cpc.7. it is contended on behalf of the landlord that both the courts below have failed to exercise jurisdiction vested in them by not passing an order of eviction on the ground that the eviction filed by the petitioner is barred under order 23 rule 1(4) of cpc. it is also submitted by the learned counsel appearing for the petitioner-landlord that the revisional court was not correct in holding that the landlord-petitioner can maintain petition even in respect of portion of the petition schedule premises which in occupation of the respondents. on the other, hand, learned counsel appearing for the respondents, supported the order passed by the revisional court dismissing the revision petition and also urged that the finding given by both the courts below holding that the landlord - petitioner has proved that he required the petition schedule premises for his bonafide use and occupation is not supported by the evidence on record.8. i have been taken through the evidence led on behalf of both the parties. on going through the evidence on record, it is clear that the petitioner has purchased the premises in occupation of the respondents from its previous owner and likewise pw-3 has purchased one-half of the property from the previous owner. it is not in dispute that the second respondent-trilokchand is in possession of extreme eastern shop alongwith the room situated behind it and he is carrying on business there and the middle shop and the room situated behind it are in possession of respondent no. 1. pw-1 is the landlord-petitioner. pw-3 is abhaya kumar shah, who has also purchased half portion of the property and both pw-1 and pw-3 purchased half half of one property belonging to pw-2 bansilal darbar. pw-1 the landlord is the tenant in respect of shop purchased by pw-3 abhaya kumar and pw-3 has insisted pw-1 to vacate the said shop so that he can move to his own shop for the purpose of his business, and therefore, pw-1 wanted the shop in possession of the respondents so as to shift his business and his family business to the petition schedule premises. immediately, after purchase by pw-1 and pw-3 entries demarcating the properties of pw-1 as well as pw-3 abhaya kumar have been made. the materials on record clearly show that the petitioner has purchased the eastern half portion of the property and he has become the owner and landlord of that portion of the property. both the courts below are, therefore, correct in holding that the petitioner is the landlord in respect of the petition schedule premises. even though the revisional court has upheld the finding given by the trial court about the petitioner having become the owner of the petition schedule premises, has got itself confused in observing that in so far as one room situated on the eastern side of the property is concerned, petitioner can be held to be the landlord and so far as the other room in occupation of respondent no. 1 is concerned, he cannot be held to be the landlord of the entire shop, since half portion of that shop was owned by pw-3 in view of his sale deed. the revisional court has not taken into consideration the fact that the landlord as well as the other co-owner pw-3 have deposed before the court and have accepted the ownership and land lordship of the petitioner in respect of the petition schedule premises. when that is the case, the revisional court was wrong in holding that there is any confusion about the status of the petitioner being the landlord in respect of the petition schedule premises. therefore, on reconsidering the entire evidence on record, the petitioner-landlord has proved that he is the landlord in respect of the petition schedule premises having purchased the same under registered sale deed from its previous owner. he has also proved that he reasonably and bonafide required the petition schedule premises for the purpose of shifting his business from his rented premises for the purpose of his own necessity and necessity of his family. the petitioner has also proved that he will be put to greater hardship in case an order of eviction is refused.9. the only question now to be considered is whether filing of the previous petition hrc. no. 67/77 by the petitioner and withdrawing the same on 6.3.1977 without permission to institute another eviction petition on the same cause of action precludes the petitioner from filing a fresh petition and whether the present eviction petition h.r.c. 65/78 filed by the petitioner one year after the withdrawal of the earlier h.r.c. petition is maintainable and whether the rent control court could have passed an order of eviction on the said eviction petition.10. sri u.l. narayana rao, learned senior counsel appearing for the respondents and later sri giridhar, learned counsel vehemently contended that both the courts below were right in rejecting the prayer of the landlord on the ground that the landlord is precluded from seeking an eviction on a fresh petition in view of the earlier petition being withdrawn without taking permission from the court for filing a fresh eviction petition. both the learned counsel relied upon judgment of this court in papinayakanahalli venkanna and ors. v. janadri venkanna setty and ors., 1984 (2) klj 35 both the courts below have also relied upon the said decision. in the said ruling, this court has held that order 23 rule 1 cpc, precludes a party from instituting a fresh suit in respect of the same subject matter or part of the claim. in the said case also a similar situation arose. in the said case, it was contended before the division bench on behalf of the petitioners that right of eviction is a recurring right and therefore the landlord was not precluded from instituting, fresh proceedings. but the division bench of this court did not accept the said argument and rejected the same. in my opinion, the said division bench decision of .this court has been impliedly overruled by the judgment of the hon'ble supreme court in surajmal v. radheshyam, : air1988sc1345 , where the hon'ble supreme court has observed in para 8 of its judgment as follows:'8. the learned counsel for the appellant sunderbai contended that in substance the case of the plaintiff-respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. the high court in paragraph 4 of its judgment pointed out that the nature of requirement pleaded in the earlier suit wasdifferent from that in the present suit. the first appellate court white deciding the issue against the defendant observed that the bonafide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plaintiff it has to be assumed that he will not have a bonafide and genuine necessity ever in future. we are in agreement with the views as expressed by the two courts.'the argument which was addressed before this court in the above said judgment of this court was accepted by the hon'ble supreme court in the above judgment.11. it has to be borne in mind that the requirement of the landlord under section 21 of the karnataka rent control act is of recurring in nature. if the landlord's need is negatived at a particular time, it cannot be negatived for all time to come. in seethal prasad saxena v. union of india and ors, : [1985]1scr659 , the hon'ble supreme court has laid down a principle that the rules of procedure are designed to advance justice and such rules of procedure cannot be interpreted so as to make them penal laws for punishing the erring parties.12. in surajmal's case, the hon'ble supreme court was considering the question of res judicata when an earlier suit was dismissed on the same cause of action and it is observed in the said judgment that where a suit for eviction from premises comprising of a shop on the ground of bonafide need was dismissed, the second suit on the same ground would be competent. if the second suit was not competent under order 23 rule 1(4) of cpc., the hon'ble supreme court would have held so in the above judgment. the facts in the present case and the case before the hon'ble supreme court in surajmal's case, are almost the same. in that case, earlier suit was dismissed and the second suit was filed after the dismissal of the earlier suit. in this case, the earlier case was filed by the late landlord and it was withdrawn and the present eviction petition is filed one year after the withdrawal of the earlier eviction petition. therefore, applying the principle laid down by the hon'ble supreme court in surejmal's case, dismissal and withdrawal of the earlier suit even though on the ground of bonafide use and occupation, it cannot be said that the present petition is not competent. moreover, the earlier eviction petition was withdrawn by the landlord on the ground that the acknowledgement of the notices issued demanding arrears of rents under section 21(1)(a) of the rent control act has been misplaced and after getting the eviction petition withdrawn, the landlord sent fresh notice demanding the arrears of rent and filed the eviction petition on the said cause of action. the cause of action for filing the petition for arrears of rent therefore will arise only from the date of issue of the notice demanding the rents. further more, the claim for possession in rent control matter is a recurring cause of action and petition for eviction could be filed at any stage and as held by the hon'ble supreme court in surajmal's case, the eviction petition is to be considered with reference to the time when the petition is filed. in view of the dear reasoning of the hon'ble supreme court in surajmal's case holding that the second petition for eviction after the first petition is dismissed is maintainable, indirectly overrules the division bench decision of this court in papnayakanahalli venkanna's case. i am, therefore, of the view that both the courts below were wrong in rejecting the prayer of the petitioner for eviction of the respondents on the ground of competency of the present petition relying upon the decision of this court in papinayakanahalli venkanna's case, which in my view is impliedly over-ruled by the hon'ble supreme court in surajmal's case.13. in the result, i allow both these petitions and set aside the impugned orders passed by the courts below and consequently allow h.r.c.no.65 of 1978 filed by the petitioner under section 21(1)(h) of the karnataka rent control act. the respondents are directed to vacate and hand-over the vacant possession of the petition schedule premises to the petitioner on or before 31st december, 1997. the respondent shall pay the monthly rentals regularly till they vacate and hand-over the premises to the petitioner.

Judgment:
ORDER

Farooq, J.

1. Petitioner in both these Revision Petitions are one and the same and he is the landlord in respect of the petition schedule premises. The respondents in H.R.R.P. 4199/90 are the legal representatives of the first respondent and the respondent in the connected revision petition is the second respondent before the Trial Court.

2. The petitioner initiated the eviction proceedings against the respondents stating, that CTS No. 790 and 791 consisting of three shops situated in Kirans Bazaar, facing south, originally belonged to one Darbar family and in a family partition, it was allotted to the share of one Bansilai Darbar from whom the petitioner purchased that part of the petition schedule premises towards east with specific boundaries and the remaining half was purchased by one Abhaya Kumar Shah under registered Sale Deeds. It is stated by the landlord that out of the shop portions purchased by him, petition shop to the eastern adjoining Ganeshmal shop building occupied by Pratap Chand and company has fallen within the portion purchased by the petitioner and the petitioner was carrying on his business in a rented shop and he does not own any other shop building at Bijapur, and that the owner of the shop was pressing him to vacate the same. It is stated that the petitioner bonafide and reasonably required the petition schedule premises for personal use and occupation of himself and his joint brothers. It is stated that the first respondent, who was a tenant under his vendor had put the second respondent in possession of a portion of the petition schedule premises and that the respondent No. 2 was well aware of the purchase and the bonafide requirement of the petitioner. He has also stated that he had earlier filed H.R.C.67/77 against the respondents and others, but since the address furnished by him was not correct and the postal acknowledgment was misplaced, petitioner was forced to withdraw the same on or about 6.3.1977 and after one year after the said petition was withdrawn, he has issued a fresh notice terminating the tenancy and calling upon the respondents to vacate and give up possession and thereafter he has filed the petition. He also sought for possession on the ground of arrears of rent.

3. Both the respondents appeared in response to the notice issued to them and filed separate objections denying the requirement shown by the landlord. They also denied the relationship of landlord and tenant between them and both of them contended that the eviction petition filed against them was not maintainable in view of the earlier eviction petition being withdrawn without permission to institute a fresh petition.

4. The Trial Court during the course of the enquiry, examined the landlord as PW-1 and his vendor as PW-2 and Abhaya Kumar, who has jointly purchased the property alongwith the petitioner as PW-3 and Ex.P1 to P10 were marked. On behalf of the respondents, respondent 1(b) was examined as RW-1 and the second respondent Trilokchand was examined as RW-2 and the respondents got marked Ex.R1 to R6.

5. The Trial Court on appreciation of the evidence on record held that the petitioner is the landlord and the respondents are his tenants. It further held that the landlord-petitioner reasonably and bonafide required the petition schedule premises for his own use and occupation. It also held that the petitioner-landlord will be put to greater hardship if an order of eviction is refused. Further, it dismissed the eviction petition holding that the claim made by the landlord-petitioner is barred under the provisions of Order 23 Rule 1(3) of the Code of Civil Procedure.

6. Two Revision Petitions were filed against the order passed by the Trial Court. Revision Petition No. 37/86 was filed by the petitioner-landlord challenging the order of dismissal of his eviction petition inspite of the Trial Court deciding all other points in his favour. The Rent Revision No. 47 of 1986 was filed by the second respondent-tenant Shah Trilokchand against the findings given by the Trial Court in favour of the landlord. The revisional Court confirming the finding of the Trial Court holding that the petitioner-landlord required the petition schedule premises for his bonafide personal use and occupation. However, it did not accept the, finding of the Trial Court as to the existence of relationship of landlord and tenant between the petitioner and the respondents on the ground that the petitioner has jointly purchased the property alongwith P-3 and there is no partition between them and a portion of the property belonging to PW-3 is also the subject matter of the petition, since it is a portion of the schedule premises and ultimately it concurred with the view taken by the Trial Court in holding that the petition is barred under Order 23 Rule 1(4) of CPC, and dismissed the revision petition filed by the petitioner. Now the landlord has filed these revision petitions under Section 115 of CPC.

7. It is contended on behalf of the landlord that both the courts below have failed to exercise jurisdiction vested in them by not passing an order of eviction on the ground that the eviction filed by the petitioner is barred under Order 23 Rule 1(4) of CPC. It is also submitted by the learned Counsel appearing for the petitioner-landlord that the revisional Court was not correct in holding that the landlord-petitioner can maintain petition even in respect of portion of the petition schedule premises which in occupation of the respondents. On the other, hand, learned Counsel appearing for the respondents, supported the order passed by the revisional Court dismissing the revision petition and also urged that the finding given by both the courts below holding that the landlord - petitioner has proved that he required the petition schedule premises for his bonafide use and occupation is not supported by the evidence on record.

8. I have been taken through the evidence led on behalf of both the parties. On going through the evidence on record, it is clear that the petitioner has purchased the premises in occupation of the respondents from its previous owner and likewise PW-3 has purchased one-half of the property from the previous owner. It is not in dispute that the second respondent-Trilokchand is in possession of extreme eastern shop alongwith the room situated behind it and he is carrying on business there and the middle shop and the room situated behind it are in possession of respondent No. 1. PW-1 is the landlord-petitioner. PW-3 is Abhaya kumar Shah, who has also purchased half portion of the property and both PW-1 and PW-3 purchased half half of one property belonging to PW-2 Bansilal Darbar. PW-1 the landlord is the tenant in respect of shop purchased by PW-3 Abhaya kumar and PW-3 has insisted PW-1 to vacate the said shop so that he can move to his own shop for the purpose of his business, and therefore, PW-1 wanted the shop in possession of the respondents so as to shift his business and his family business to the petition schedule premises. Immediately, after purchase by PW-1 and PW-3 entries demarcating the properties of PW-1 as well as PW-3 Abhaya kumar have been made. The materials on record clearly show that the petitioner has purchased the eastern half portion of the property and he has become the owner and landlord of that portion of the property. Both the courts below are, therefore, correct in holding that the petitioner is the landlord in respect of the petition schedule premises. Even though the revisional Court has upheld the finding given by the Trial Court about the petitioner having become the owner of the petition schedule premises, has got itself confused in observing that in so far as one room situated on the eastern side of the property is concerned, petitioner can be held to be the landlord and so far as the other room in occupation of respondent No. 1 is concerned, he cannot be held to be the landlord of the entire shop, since half portion of that shop was owned by PW-3 in view of his Sale Deed. The revisional Court has not taken into consideration the fact that the landlord as well as the other co-owner PW-3 have deposed before the Court and have accepted the ownership and land lordship of the petitioner in respect of the petition schedule premises. When that is the case, the Revisional Court was wrong in holding that there is any confusion about the status of the petitioner being the landlord in respect of the petition schedule premises. Therefore, on reconsidering the entire evidence on record, the petitioner-landlord has proved that he is the landlord in respect of the petition schedule premises having purchased the same under registered Sale Deed from its previous owner. He has also proved that he reasonably and bonafide required the petition schedule premises for the purpose of shifting his business from his rented premises for the purpose of his own necessity and necessity of his family. The petitioner has also proved that he will be put to greater hardship in case an order of eviction is refused.

9. The only question now to be considered is whether filing of the previous petition HRC. No. 67/77 by the petitioner and withdrawing the same on 6.3.1977 without permission to institute another eviction petition on the same cause of action precludes the petitioner from filing a fresh petition and whether the present eviction petition H.R.C. 65/78 filed by the petitioner one year after the withdrawal of the earlier H.R.C. petition is maintainable and whether the rent control Court could have passed an order of eviction on the said eviction petition.

10. Sri U.L. Narayana Rao, learned Senior Counsel appearing for the respondents and later Sri Giridhar, learned Counsel vehemently contended that both the courts below were right in rejecting the prayer of the landlord on the ground that the landlord is precluded from seeking an eviction on a fresh petition in view of the earlier petition being withdrawn without taking permission from the Court for filing a fresh eviction petition. Both the learned Counsel relied upon judgment of this Court in PAPINAYAKANAHALLI VENKANNA AND ORS. v. JANADRI VENKANNA SETTY AND ORS., 1984 (2) KLJ 35 Both the Courts below have also relied upon the said decision. In the said ruling, this Court has held that Order 23 Rule 1 CPC, precludes a party from instituting a fresh suit in respect of the same subject matter or part of the claim. In the said case also a similar situation arose. In the said case, it was contended before the Division Bench on behalf of the petitioners that right of eviction is a recurring right and therefore the landlord was not precluded from instituting, fresh proceedings. But the Division Bench of this Court did not accept the said argument and rejected the same. In my opinion, the said Division Bench decision of .this Court has been impliedly overruled by the judgment of the Hon'ble Supreme Court in SURAJMAL v. RADHESHYAM, : AIR1988SC1345 , where the Hon'ble Supreme Court has observed in para 8 of its judgment as follows:

'8. The learned Counsel for the appellant Sunderbai contended that in substance the case of the plaintiff-respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. The High Court in paragraph 4 of its judgment pointed out that the nature of requirement pleaded in the earlier suit wasdifferent from that in the present suit. The first appellate court white deciding the issue against the defendant observed that the bonafide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plaintiff it has to be assumed that he will not have a bonafide and genuine necessity ever in future. We are in agreement with the views as expressed by the two Courts.'

The argument which was addressed before this Court in the above said judgment of this Court was accepted by the Hon'ble Supreme Court in the above judgment.

11. It has to be borne in mind that the requirement of the landlord under Section 21 of the Karnataka Rent Control Act is of recurring in nature. If the landlord's need is negatived at a particular time, it cannot be negatived for all time to come. In SEETHAL PRASAD SAXENA v. UNION OF INDIA AND ORS, : [1985]1SCR659 , the Hon'ble Supreme Court has laid down a principle that the rules of procedure are designed to advance justice and such rules of procedure cannot be interpreted so as to make them penal laws for punishing the erring parties.

12. In Surajmal's case, the Hon'ble Supreme Court was considering the question of res judicata when an earlier suit was dismissed on the same cause of action and it is observed in the said judgment that where a suit for eviction from premises comprising of a shop on the ground of bonafide need was dismissed, the second suit on the same ground would be competent. If the second suit was not competent under Order 23 Rule 1(4) of CPC., the Hon'ble Supreme Court would have held so in the above judgment. The facts in the present case and the case before the Hon'ble Supreme Court in Surajmal's case, are almost the same. In that case, earlier suit was dismissed and the second suit was filed after the dismissal of the earlier suit. In this case, the earlier case was filed by the late landlord and it was withdrawn and the present eviction petition is filed one year after the withdrawal of the earlier eviction petition. Therefore, applying the principle laid down by the Hon'ble Supreme Court in Surejmal's case, dismissal and withdrawal of the earlier suit even though on the ground of bonafide use and occupation, it cannot be said that the present petition is not competent. Moreover, the earlier eviction petition was withdrawn by the landlord on the ground that the acknowledgement of the notices issued demanding arrears of rents under Section 21(1)(a) of the Rent Control Act has been misplaced and after getting the eviction petition withdrawn, the landlord sent fresh notice demanding the arrears of rent and filed the eviction petition on the said cause of action. The cause of action for filing the petition for arrears of rent therefore will arise only from the date of issue of the notice demanding the rents. Further more, the claim for possession in Rent Control matter is a recurring cause of action and petition for eviction could be filed at any stage and as held by the Hon'ble Supreme Court in Surajmal's case, the eviction petition is to be considered with reference to the time when the petition is filed. In view of the dear reasoning of the Hon'ble Supreme Court in Surajmal's case holding that the second petition for eviction after the first petition is dismissed is maintainable, indirectly overrules the Division Bench decision of this Court in Papnayakanahalli Venkanna's case. I am, therefore, of the view that both the courts below were wrong in rejecting the prayer of the petitioner for eviction of the respondents on the ground of competency of the present petition relying upon the decision of this Court in Papinayakanahalli Venkanna's case, which in my view is impliedly over-ruled by the Hon'ble Supreme Court in Surajmal's case.

13. In the result, I allow both these petitions and set aside the impugned orders passed by the Courts below and consequently allow H.R.C.No.65 of 1978 filed by the petitioner under Section 21(1)(h) of the Karnataka Rent Control Act. The respondents are directed to vacate and hand-over the vacant possession of the petition schedule premises to the petitioner on or before 31st December, 1997. The respondent shall pay the monthly rentals regularly till they vacate and hand-over the premises to the petitioner.