Anraj S/O Karamchand Vs. Mahalakshmamma W/O Late Kantharaj, - Court Judgment

Excerpt:
- karnataka small causes courts act, 1964 [k.a. no. 11/1964]. sections 8 & 9: [k. ramanna, j] suit for ejection - jurisdiction of small causes court - suit for possession in respect of non-residential premises - held, small causes court has jurisdiction to pass a decree. however, a suit for possession of with mesne profits or damages would be outside the jurisdiction of small causes court. ordera.s. pachhapure, j.1. the petitioner herein has challenged the order of the court below directing him to vacate and handover the possession of the schedule premises to the respondents herein, within 3 months from the date of the order and also directing to pay arrears of rent from july 2007 till the date of handing over possession of the schedule premises.2. the facts relevant for the purpose of this revision are as under:i will be referring the parties as per their rank before the trial court for the purpose of convenience.the petitioner and the respondents herein are the respondent and petitioners respectively before the trial court. the petitioners filed a petition under section 27(2)(r) of the karnataka rent act, 1999 [hereinafter referred to as 'the act' for short] against the respondent to pass an order of eviction and to direct him to quit and hand-over vacant possession of the schedule premises and to pay arrears of rent from july 2007. the schedule premises was leased to the respondent on a monthly rental of rs. 700-00. as the rent was not paid by the respondent/the petitioners issued a legal notice dated 17.01.2008 to him under registered post and also under certificate of posting, terminating the tenancy. the notice was not claimed and the petitioners approached the trial court, seeking an order of eviction.it is thereafter that the trial court issued notice to the respondent by order dated 29.02.2008 through the court and also by registered post. on the next date of hearing, the notice was awaited and both the notices did not return. the matter was adjourned to 16.04.2008 to await notice and as the notice did not return, the matter was posted for taking steps by 30.05.2008 on which day the petitioners filed an application under the provisions of order v rule 20 r/w. section 151 cpc. the trial court heard and allowed the application permitting to issue notice to the respondent by paper application in 'samyuktha karnataka' daily newspaper and the matter was adjourned to 30.06.2008. as the respondent did not appear, he was placed ex-parte and thereafter, the trial court recorded the evidence of the 2nd petitioner as p.w. 1 and documents exs. p1 to p7 were marked. thereafter, the trial court heard the learned counsel for the petitioners and passed the impugned order directing eviction of the respondent from the schedule premises and to pay the arrears of rent from july 2007 till the possession is handed over to the petitioners. aggrieved by the said order, this revision has been preferred.3. i have heard the learned counsel for the petitioner and also the respondents.4. it is the contention of the learned counsel for the petitioner that the order passed by the trial court on 30.05.2008 on the application under order 5 rule 20 r/w. section 151 cpc is not in accordance with law and no reasons have been assigned by the trial court while passing the order and in such circumstances, he submits that the order placing the petitioner ex-parte is illegal and has to be set aside. the learned counsel for the petitioner also submits that the petitioner has deposited the arrears of rent and the same may be ordered to be paid to the respondents, without prejudice to his contentions.5. the learned counsel for the respondents supported the impugned order of the trial court. he further submits that on enquiry with his colleague it is learnt that after the decree of eviction, possession has been taken and the petition schedule premises has been leased and that it is yet to be confirmed.6. in view of the rival contentions, the points that arise for my consideration are;1) whether the order passed by the trial court regarding service of summons by paper publication is legal and valid?2) whether consequent order of eviction is erroneous and illegal?7. i have carefully scrutinized the material placed on record including the order sheet of the trial court. as could be seen from the order sheet dated 29.02,2008, the trial court passed an order to issue notice to the petitioner/tenant through court and by rpad returnable by 01.04.2008. on the said date, neither the court notice nor the notice sent by registered post nor the acknowledgement for having sent the notice by registered post were returned. therefore, the trial court posted the case to await notice on 16.04.2008. even on that date, the acknowledgement or the court notice did not return and it posted the case for steps on 30.05.2008, on which day i.a. came to be filed under order v rule 20 r/w. section 151 cpc to issue notice to the petitioner/tenant by paper publication. the order of the trial court reads as under:b.h.s. filed i.a. under order 5 rule 20 r/w. 151 cpc. heard and allowed. issue notice to respondent by paper publication in 'samyuktha karnataka' daily news paper and call on 30.06.2008.8. now as could be seen from the provisions of order v rule 20 cpc., it is necessary that the court should be satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house and sub-rule (2) provides service of notice by substituted service by publication in a news paper. so, before passing an order under the provisions of order v, rule 20 cpc, it is necessary for the court below to satisfy itself that the respondent is avoiding service of notice and it is thereafter, in case if there are sufficient reasons, the court has the authority to issue substituted service. but, as could be seen from the impugned order, no such reasons have been assigned and in such circumstances, the impugned order is not in accordance with law. ultimately, the impugned order of eviction is also illegal as the material placed on record does not reveal the fact that the petitioner/tenant was served with the notice. in the circumstance, i answer point no. 1 in negative and point no. 2 in affirmative and proceed to pass the following:

Judgment:
ORDER

A.S. Pachhapure, J.

1. The petitioner herein has challenged the Order of the Court below directing him to vacate and handover the possession of the schedule premises to the respondents herein, within 3 months from the date of the Order and also directing to pay arrears of rent from July 2007 till the date of handing over possession of the schedule premises.

2. The facts relevant for the purpose of this revision are as under:

I will be referring the parties as per their rank before the Trial Court for the purpose of convenience.

The petitioner and the respondents herein are the respondent and petitioners respectively before the trial Court. The petitioners filed a petition under Section 27(2)(r) of the Karnataka Rent Act, 1999 [hereinafter referred to as 'the Act' for short] against the respondent to pass an Order of eviction and to direct him to quit and hand-over vacant possession of the schedule premises and to pay arrears of rent from July 2007. The schedule premises was leased to the respondent on a monthly rental of Rs. 700-00. As the rent was not paid by the respondent/the petitioners issued a legal notice dated 17.01.2008 to him under registered post and also under certificate of posting, terminating the tenancy. The notice was not claimed and the petitioners approached the trial Court, seeking an order of eviction.

It is thereafter that the trial Court issued notice to the respondent by Order dated 29.02.2008 through the Court and also by registered post. On the next date of hearing, the notice was awaited and both the notices did not return. The matter was adjourned to 16.04.2008 to await notice and as the notice did not return, the matter was posted for taking steps by 30.05.2008 on which day the petitioners filed an application under the provisions of Order V Rule 20 r/w. Section 151 CPC. The trial Court heard and allowed the application permitting to issue notice to the respondent by paper application in 'Samyuktha Karnataka' daily newspaper and the matter was adjourned to 30.06.2008. As the respondent did not appear, he was placed ex-parte and thereafter, the trial Court recorded the evidence of the 2nd petitioner as P.W. 1 and documents Exs. P1 to P7 were marked. Thereafter, the trial Court heard the learned Counsel for the petitioners and passed the impugned Order directing eviction of the respondent from the schedule premises and to pay the arrears of rent from July 2007 till the possession is handed over to the petitioners. Aggrieved by the said order, this revision has been preferred.

3. I have heard the learned Counsel for the petitioner and also the respondents.

4. It is the contention of the learned Counsel for the petitioner that the Order passed by the trial Court on 30.05.2008 on the application under Order 5 Rule 20 r/w. Section 151 CPC is not in accordance with law and no reasons have been assigned by the trial Court while passing the Order and in such circumstances, he submits that the Order placing the petitioner ex-parte is illegal and has to be set aside. The learned Counsel for the petitioner also submits that the petitioner has deposited the arrears of rent and the same may be ordered to be paid to the respondents, without prejudice to his contentions.

5. The learned Counsel for the respondents supported the impugned Order of the trial court. He further submits that on enquiry with his colleague it is learnt that after the decree of eviction, possession has been taken and the petition schedule premises has been leased and that it is yet to be confirmed.

6. In view of the rival contentions, the points that arise for my consideration are;

1) Whether the order passed by the trial Court regarding service of summons by paper publication is legal and valid?

2) Whether consequent Order of eviction is erroneous and illegal?

7. I have carefully scrutinized the material placed on record including the order sheet of the trial Court. As could be seen from the order sheet dated 29.02,2008, the trial Court passed an order to issue notice to the petitioner/tenant through Court and by RPAD returnable by 01.04.2008. On the said date, neither the Court notice nor the notice sent by registered post nor the acknowledgement for having sent the notice by registered post were returned. Therefore, the trial Court posted the case to await notice on 16.04.2008. Even on that date, the acknowledgement or the court notice did not return and it posted the case for steps on 30.05.2008, on which day I.A. came to be filed under Order V Rule 20 r/w. Section 151 CPC to issue notice to the petitioner/tenant by paper publication. The Order of the trial Court reads as under:

B.H.S. filed I.A. Under Order 5 Rule 20 r/w. 151 CPC. Heard and allowed. Issue notice to respondent by paper publication in 'Samyuktha Karnataka' daily news paper and call on 30.06.2008.

8. Now as could be seen from the provisions of Order V Rule 20 CPC., it is necessary that the court should be satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall Order the summons to be served by affixing a copy thereof in some conspicuous place in the court house and Sub-rule (2) provides service of notice by substituted service by publication in a news paper. So, before passing an order under the provisions of Order V, Rule 20 CPC, it is necessary for the Court below to satisfy itself that the respondent is avoiding service of notice and it is thereafter, in case if there are sufficient reasons, the Court has the authority to issue substituted service. But, as could be seen from the impugned Order, no such reasons have been assigned and in such circumstances, the impugned Order is not in accordance with law. Ultimately, the impugned Order of eviction is also illegal as the material placed on record does not reveal the fact that the petitioner/tenant was served with the notice. In the circumstance, I answer point No. 1 in negative and point No. 2 in affirmative and proceed to pass the following: