LexH. SESHADRI versus K.R. NATARAJAN AND ANR.
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H. SESHADRI A v. K.R. NATARAJAN AND ANR. APRIL 10, 2003 [R.C. LAHOTI AND S. B. SINHA, JJ.] B Code of Civil Procedure, 1908: Order 21, rr. 99 and JOO-Tenancy of shop in residential building- Execution of eviction decree against tenant of residential portion-In execution C proceedings tenant of shop also evicted-Application by shop tenant for restoration of possession alleging that his tenancy was independent of the tenant of residential portion and he was illegally evicted-Judge, Small Causes Court allowed the application-Revision petition filed by landlord allowed by High Court-Held, for considering an application under Order XX/, rr. 90 D and 100, it is to be considered as to whether the applicant claimed a right independent of judgment- debtor or not-A person claiming through or under a judgment debtor may be dispossessed in execution of a decree passed against the judgment debtor but not when he is in possession of the premises in his own independent right or otherwise-Neither the plan was produced nor there existed on record any material to show that the shop was a part of premises E tenanted inf avour of tenant of residential portion or that applicant was inducted by him as a sub-tenant or otherwise-Landlord also did not raise a specific plea as to how the applicant came in possession of the shop-A clear finding on the question whether or not the shop was within the tenanted premises of the tenant of residential portion was imperative-High Court should have F taken note of its limited jurisdiction in terms of s. 50 (1) of Rent Act ands. 18 of Small Causes Coui:t Act-A finding of/act based on oral evidence is not ordinarily set aside even by an appellate court save and except on strong and cogent reasons-Judgment of High Court set aside-Matter remitted to High Court for consideration afresh-A plea not raised before courts below not to be entertained for the first time before Supreme Court- Karnataka Rent G Control Act,1961-s. 50(1)-Karnataka Small Causes Court Act, 1964-s. 18-Revisional Jurisdiction of High Court. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3321 of 2003. From the Judgment and Order dated 28.9.2001 of the Karnataka High H 505 506 SUPREME COURT REPORTS [1003) 3 S.C.R. A Court in H.R.R.P.No. 783 of 1999. B Girish Ananthamurthy and P.P. Singh for the Appellant. Sam path Anand Shetty Satya, Mitra Garg and San jay R. Hegde for the Respondents. The following Order of the Court was delivered: Leave granted. This appeal is directed against a judgment and order dated 28.9.2001 C of the High Court of Kamataka in HRRP No. 783/99 whereby and whereunder a revision petition filed by the respondent no.1 herein purported to be under Section 50( 1) of the Kamataka Rent Control Act read with Section 18 of the Kamataka Small Causes Court Act questioning an order dated 10.6.1999 passed in miscellaneous petition No. 257/96 by the Small Causes Judge, Bangalore allowing the petition filed by the appellant herein under Order D XX! Rules 99 and 100 of the Code of Civil Procedure was set aside. The fact of the matter is as under: The appellant is said to have entered into a lease agreement with the father of the first respondent in respect of the premises described in the E Schedule of the original application which comprises of one shop in a portion of the residential building bearing No. 297, 11th Cross, Wilson Garden, Bangalore. The appellant is said to have been running a tailoring shop in the said premises under the name and style 'Rajalakshmi Tailoring Hall'. According to the appellant, the residential portion of the said building was in F occupation of the second respondent. An eviction petition marked as HRC No. 2463/90 was filed by the first respondent against the second respondent in respect of the residential, portion of the premises pursuant whereto and in furtherance whereof a decree for eviction was passed on the consent of the respondent No. 2. G While purporting to evict the respondent No.2 in execution of the said decree; allegedly the appellant was also evicted. The appellant thereafter filed an application purported to be under Order XX! Rule 99 of the Code of Civil Procedure inter alia claiming independent right to the said tailoring shop wherein he not only alleged H execution ofa lease agreement in his favour by the father of the first respondent } - H. SESHADRI v. K.R. NAT,ARAJAN 507 ,_ but also alleged that he had all
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