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Judgment
Anand Byrareddy
The petition coming on for consideration of the application for vacating stay filed by the respondent herein, is considered on merits. The petition is filed by the tenant who is contesting the proceedings for eviction filed by the respondent herein under the provisions of the Karnataka Rent Act, 1999 (hereinafter referred to as the ''Rent Act'' for brevity). It is the case of the petitioner that the earlier order had been challenged on a finding as to the arrears of rent being a ground for eviction and the ground on personal use and occupation was not challenged by the petitioner herein in the earlier order. According to the petitioner, the ground for self-occupation was rejected by the Trial Court itself and therefore was not the subject matter of challenge earlier. It transpires that during the pendency of the matter on remand, the landlord - respondent had filed an application seeking amendment of the eviction petition in several particulars, which are as follows:
Proposed Amendments:-
In the first page of the petition at the title line, Provision on 27(a) has to be inserted prior to the provision 27(r).
At Page No. 5 para 6 of the petition in 9th line after the date "19/09/2003" the following sentence is to be inserted.
The Respondent by voluntarily admitting the arrears of rentals while entering into the compromise on O.S. No. 74/2003 has ignored the terms of compromise and committed a default. His act has become an estoppel to claim any reliefs or any privileges either u/s 27(a) of the Karnataka Rent Control Act or otherwise u/s 45 of the Act. The respondent has no excuse of any sort for having committed the default within two months of period after issuing legal notice.
In the petition after para No. 8, Para No. 8(a) is to be inserted as follows:
8 a) The petitioner has already brought to the notice of the court that they need the suit schedule property for their business in dealing with K.M.F. products. Hither to the 2nd petitioner is doing the wholesale business in a rented premises situated at Savarkar Nagar, Double Road, Shivamogga. The landlord of the 2nd petitioner is repeatedly demanding for vacating the property. The petitioners are requesting their landlords that, they will quit and deliver possession of the property soon after taking possession from the respondent. The petitioner is intending to have dealings in retail business of KMF products at Gandhi Bazaar to develop his profitable business. The petitioner has decided to secure a godown in some other interior place of Shivamogga, for storage and carry on the business at Schedule property at his convenience. Except this property, there is no other property available for him to do his business. Hence, he needs the property for his reasonable and bona fide use and occupation.
The same having been allowed, the present petitioner seeks to question the same.
Though it is to be noticed that the amendment sought to be incorporated insofar as supplying certain particulars, namely the provision of law and the legal contention which is sought to be incorporated by way of pleadings, there is further elaboration of the ground for self-occupation of the property. The petitioner is seriously aggrieved by the said ground having been incorporated by way of amendment notwithstanding that the very ground being raised over again, was clearly barred by principles of res judicata and therefore, would contend that the present petitioner being called upon to resist the petition on that ground as well, causes serious prejudice. In the light of the above circumstances, in the opinion of this Court, if the plea taken by way of amendment to elaborate upon the ground seeking the permission for self-occupation, had already been raised in the earlier round of litigation and had been rejected by the Trial Court, the same being entertained over again, would be clearly barred by res judicata. If this is a debate, it is a matter to be addressed by the Trial Court which is in a more vantageous position to decide on the same. Therefore, the mere amendment having been allowed, cannot be construed as the petitioner having established the ground and therefore, leaving open the question whether any such plea is barred by res judicata and leaving it to the discretion of the Trial Court to decide that issue, it is made clear that mere incorporation of the pleadings does not confer any advantage on the petitioner.
Accordingly, the petition stands disposed of without prejudice to the claim of the petitioner. Since the matter is of some vintage and admittedly is a matter that has been remanded by this Court, the Trial Court shall endeavour to expedite the proceedings.