Karnataka Circuit Bench High Court · 2009

3D. SHRI. MAIBUB KADARSAB BA(’1WAN Age:45 YEARS. 0CC BUSINESS. R/0 BACAWAN GALLI JAMAKHANDLS87 301 D1ST: BAG? LKOT. 3E. ABDULHAMID KADARSAB BACWAN Age:43 YEARS, 0CC BUSINESS, R/ 0 BAGAWA N GALLI JAMAKHANDI-5S7 301 DIST: BAGALKOT. 3F. Ni\SIR RADARSAB BA(MVAN ?ge:40 YEARS. CCC BONINESS R1’ 0 BAGAWAN GALLI 5JAMAKHANDU5S7 301 DIST: BAGALKOT. 3G SMT,L)ILSHAD V//C BABU BAG/VAN Age:37 YEARS, CCC HOUSE/s/OLD, R/0 EAGWAIN GAl/LI, N I PANI TO CHIT/QUO DIST: BEC.GA.UM. 4

314. MUNAF KAiDA.RSAB 13A0 WAN Age:35 YEARS, 0CC. BUSINESS R/O BAOAWAN CALLI. JAMAKHANDI. DIST: BAGALKOT. 31, MUBARAK KADARSAB BACWAN Agc:33 YEARS. 0CC BUSiNESS R/ 0 BAGAWAN GALLI. JAMA THAN DI, DIST:BAGALKOT. 3] J\VED KADARSAB BAGWAN Age:31 YEARS, 0CC BUSINESS R/O BAGAWAN GALLI,JAMAKHANDI DIST: BAOALKOT. 3K. SHAMMA W /0 MOULALJ BACWAN Age:2.9 YEARS, 0CC HOUSEHOLD R 0 33W ROAD HLF F SF3 DIS:T:BELGAUM, 3D ANWAR KADA.RSAB E.AGWAN Age:27 YEARS. UCu HF U NESS R/ 0 EL4JJAWAN CALLI ,JAIv1AKIIANDI LIST: BACALK0I. 3M. IRFiYN FAD/..RSAB BACWPJS Age:2.5 YEA.RS 0CC f3IJ3Ir4P5C F/F) BACA WAN CIALLI,3A3vIA.KHANDI Di S/U: i3A GALKOT. 4 3N.

4. IMRAN KADARSAB BAGWAN Age:23 YEARS, 0CC BUSINESS R/0 BAGAWAN GALLI,JAMAKHANDI DIST:BAGALKOT. APPACHAND HASANSAB BAGWAN Age:52 YEARS, 0CC BUSINESS RIO BAGAWAN GALLJ,JAMAKHANDI DIST: BAGALKOT. (By Sri. M U NAGANURI, ADV.) ... APPELLANTS AND: I.

2. SAIDUSAB RAJESAB BAGWAN Age: 62 0CC AGRICULTURE RIO BAGAWAN GALLI,JAMAKHANDI DIST:BAGALKOT. CHANDSAB RAJESAB BAGWAN Age: 57 0CC AGRICULTURE RIO BAGWAN GALLI, JAMAKHANDI DIST:BAGALKOT. (By Sri. A T SAVANUR, ADV.) 4 ... RESPONDENTS 5 THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19/07/2008 PASSED IN R.A.NO.36/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, JAMKHANDI, DISMISSING ThE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18/04/2007 PASSED IN O.S.NO. 112/2002 ON ThE FILE OF THE PRL.CIVIL JUDGE(JR.DN.), JAMKHANDI. ThIS APPEAL COMING ON FOR ADMISSION ThIS DAY, THE COURT DELIVERED ThE FOLLOWING: JUDGMENT The appellants were the defendants in OS No.112/2002. The suit in question was filed by the plaintiffs seeking for a judgment and decree of ejectment to evict the defendants from the suit schedule premises. The suit was decreed by judgment dated 18.04.2007. Thereafter, the same was questioned in appeal. Since the 3rd defendant had expired, by then the legal representatives of 3rd defendant were brought on record in the regular appeal before the lower Appellate Court in R.A No.3/2007. The lower Appellate Coun on reappreciating the material has affirmed the findings of the trial Court and concurred with the judgment by its own judgment dated 19.07.2008. The defendants are therefore before 4 6 this Court against the concurrent findings and judgment rendered by both the Courts below.

2. Insofar as the relationship between the parties and the issue of quit notice as required under law, there is no serious dispute. In any event, both the Courts below have concurred with each other with regard to the relationship as well as the quit notice and to grant the decree of ejectment. In that regard the Courts below have rendered a finding of fact which is sound.

3. The primary contention which was put forth by the learned Counsel for the appellant before this Court as was urged before the lower Appellate Court is that during the pendency of the appeal before the lower Appellate Court, the Jamakhandi town panchayat has been elevated as City Muncipal Council. Therefore, it is contended that the Karnataka Rent Act, 1999 would be applicable in view of the provision contained in part ‘B’ to the schedule. On this aspect of the matter, the learned Counsel for the appellant was heard in detail and even though the decision of this Court in the case of Smt. Suman u. Vithczl Rama Powar and ‘4 7 others (AIR 1987 KAR 92) was cited by the learned Counsel for the appellant, I am of the view that the said decision would not apply to the facts of the present case and in any event, the contention put forth by the learned Counsel cannot be accepted in this appeal. Since this Court was of the view that the appellant has not made out a case on merit, the appeal was to be dismissed without any other relief. However, to provide a quietus, it was also put to the learned Counsel for the appellant that reasonable time could be granted for vacating the suit schedule premises subject to the appellants according a finality to the legal contentions urged in this petition. In that view of the matter, the appeal was adjourned to enable the learned Counsel to secure appropriate instructions from the instructing appellants from among the array of appellants. In that view of the matter, when the appeal is taken up for admission today, two of the appellants namely Smt. Mallikma and Shri Abdul Hamir Kadarsab are present before this Court. The aspect with regard to the grant of time to vacate if the legal contentions are not pressed further is put forth by the learned Counsel for the appellant to the appellants present 4 the appellant S before this Court. In this regard, the said appellants, after due consultations have agreed that they would not press the legal contentions further and appropriate affidavit would be filed before this Court by way of undertaking, if time of 1 ½ years is granted to vacate and hand over vacant possession of the suit schedule premises.

4. Therefore, considering all these aspects of the matter, the appeal is disposed of in the following manner: i. The appellants herein shall file an affidavit of undertaking before this Court within a period of two weeks from today. In the said affidavit to be filed, the deponent shall state that legal contentions are not pressed further and in that view since time has been granted to the appellants to vacate the suit schedule premises, they would vacate and handover vacant possession of the suit schedule premises within a period of one year and six months to be computed from the 15th of September, 2009. 4 ii Thoap’h t i. le’uiwu Ct msd ‘1. 1 i 4ppelLrnt hail i idi c ted thy, ti t t ii t ‘ ta%a11 y U aypt_l.i.t’ .1.1% hi lx. •cdu c’ to some tcnt ‘l’is CoLitis .4 ‘he ‘ie mat .p • end to ‘ftr liugauoi T) Pitt 5 n ‘etwrv’n the parties. the tint s pn ed h wire raontt.u nccnt t ‘ the T.i that new of the ‘nattcr, for is grant-i. hnccr. raspcndct t latd (nrc. ippellants Iwrcin are directed i-n p’n the rent of Rs. 3O,’ pci ninth from 15- St1tciil s 20W till .he. bdcCte the sui sicdilapnmis s iii I s .nwle eh ii rriar t’ie i-i’ o’rit ‘f R° ‘taO by & a of JdaLg’b truwsi1ptri r fic’: yt this ‘,ir.ac itis • intra t ertcre ti_it) ‘icC 1 “ a’i. ‘sfl(’f Uttiri n the rrti 0 ‘t Tb l r In die 411 uatr t * ,c11 ri 1 •‘ i iI_ p ti? ‘V —. It4 t .11 j F ) - c.nt!l..itt.,•i,..•itt — • •.. 1 t t’L’S%1”’Li )It’ i’tt r’ r s-oil 10 v. It is made clear that if such an undertaking affidavit is not filed within the period of two weeks granted by this Court, the benefit of the time granted by this Court would not enure to the benefit of appellants. It is also made clear that if there is default of payment of the amount fixed by this Court, even for one month, the benefit of time granted will not enure to the appellants. In terms of the above, the appeal stands disposed of. No order as to costs. Sd! yUDGE BSPJ:

08.12.2009 RSANo.5218/2008 ORDER ON MISC.CVL.107600/2009 By a typographical error in the cause title to the judgment dated 10th September, 2009 instead of describing the appeal as Regular Second Appeal, is incorrectly typed as Regular First Appeal. Similarly at page No.9 of the judgment, in the first line while making reference to the submission made by the counsel for the respondent by mistake reference is made as “counsel appellants.” It is these two typographical mistakes which are sought to be corrected by filing the Misc. Cvl. Application. First respondent has filed this Miscellaneous Civil application. I have heard the learned counsel for both parties. The two mistakes referred to herein above are clearly the result of typographical error. They deserve to be corrected. Hence, the mistakes referred to herein are ordered to be corrected. Misc.Cvl. is accordingly allowed. JUDGE