Karnataka High Court
Y. Abdulla Kunhi And Anr. vs B. Ibrahim on 10 August, 2005
Equivalent citations: 2005(5)KARLJ332
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petition is by the eviction petitioners in HRC proceedings No. 31 of 2004 before the Court of the II Additional Civil Judge (Junior Division), Dakshina Kannada, who had instituted the eviction proceedings as against the respondent under Section 27(2)(a), (d), (i), (j) and (r) read with Section 37 of the Karnataka Rent Act, 1999 (for short, 'the Act') and who is now aggrieved by the order dated 5-10-2004 passed in Rent Revision No. 49 of 2004 on the file of the Principal District Judge, Dakshina Kannada, Mangalore.
2. Under the impugned order, the learned Principal District Judge exercising his revisional jurisdiction under Section 46(2) of the Karnataka Rent Act, 1999 has revised and set aside the order dated 16-9-2004 which had been passed by the HRC Court on I.A. No. II in the pending HRC case rejecting the application that had been filed by the tenant under Section 43 of the Act for stopping the proceedings before the HRC Court and referring the disputed aspect of the existence of relationship of landlord and tenant as between the petitioners and the tenants in the HRC case to a Civil Court.
3. While the Trial Court was of the view that there existed such relationship having regard to the material that had been placed by the parties before the Court, particularly, certain proceedings that had taken place as between the very parties earlier and had rejected the application for stopping the proceedings and referring the disputed aspects for determination by the Civil Court, the learned Judge of the Revisional Court has under the impugned order is of the view that there does exist such dispute, particularly, in the light of the provisions of Section 43 of the Act and has allowed the petitioner as well as the application and directed the proceedings before the Trial Court to be stopped and the parties to approach a Competent Court of civil jurisdiction for declaration of their rights.
4. A few facts leading to the petition which are not in dispute are that the petitioners are the owners of the residential premises in respect of which they had filed the eviction petition as against the respondents; that the respondent is in possession of this premises ever since the year 1982; that it was the first petitioner who had inducted the respondent into possession of the premises in the year 1982. It is also not much in dispute that on and after the year 1986, the respondent has not paid any rents in respect of the premises to the petitioners.
5. It is in respect of this premises the petitioners had instituted HRC No. 31 of 2004. The respondent, who had initially filed an application under Section 43 of the Act praying for stopping of all further proceedings in the eviction proceedings on the premise that there was no relationship of landlord and tenant as between the petitioners and the respondent, later by filing the counterstatement to the main petition fortified this stand elaborately. The counterstatement while did not admit the averment made in the petition to the effect that the respondent was the tenant under the petitioners, it had drawn the specific attention of the Court to certain letter dated nil, sent in June 1986, wherein the first petitioner himself had admitted that the respondent is not his tenant, and placing reliance on the same, disputed the relationship of landlord and tenant as between the first petitioner (the second petitioner being the son of first petitioner) and the respondent. The respondent also averred that even as per the admission of the first petitioner himself, the respondent was not paying any rent ever since his occupation etc. The respondent had also denied certain other averments relating to the circumstance under which the respondent had been inducted as a tenant as averred in the eviction petition. In sum and substance, the defence was that there was no relationship of landlord and tenant and therefore the provisions of the Act were not attracted and the petition was not tenable.
6. The Trial Court heard the learned Counsels for the parties on LA. No. II filed by the respondent under Section 43 of the Act and on consideration of the materials placed, the Trial Court was of the opinion that the respondent had not made out a case for allowing the application and for stopping all further proceedings as indicated earlier, and accordingly dismissed the application.
7. The respondent being aggrieved by the said order, had carried the matter to the Principal District Judge, Dakshina Kannada District, invoking the revisional jurisdiction under Section 46 of the Act and met with success in terms of the impugned order dated 5-10-2004 and that is how the present writ petition by the eviction petitioners.
8. I have heard Sri Lakshminarayana, learned Counsel for the petitioners and Sri Shashi Kiran Shetty, learned Counsel appearing for the respondent. I have been taken to the orders of the Courts below and also certain materials, which had been referred to by the Trial Court as well as the Revisional Court.
9. While it is the contention of Sri Lakshminarayana, learned Counsel appearing for the petitioners that the Revisional Court should not have interfered with the order passed by the Trial Court in exercise of its revisional jurisdiction but to accept the well-considered order passed by the Trial Court for dismissing the application; that the learned Judge of the Revisional Court has missed the real issue in holding that relationship of landlord and tenant was a disputed relationship; that the very respondent by his own conduct and action earlier had clearly indicated that he was a tenant under the first petitioner in respect of the premises in question and that it was not open to the respondent to take a stand contrary only for the purpose of defeating the eviction petition; that in fact the Trial Court has rightly held that there cannot be any dispute in this aspect, but the Revisional Court on a technical view of the matter and without appreciating the obvious materials which had been placed before the Courts and by overlooking the same, has allowed the revision petition and the application and directed stopping of all further proceedings; that the impugned order is detrimental to the petitioners and calls for interference even in exercise of writ jurisdiction and the order is to be set aside the Trial Court to be directed to proceed with the eviction proceedings.
10. The petition is strongly opposed by Sri Shashi Kiran Shetty, learned Counsel for the respondent, who has put forth several contentions urging that no interference is called for in the order passed by the learned Judge of the Revisional Court; that the order is not only proper but one in full compliance with the provisions of Section 43(2)(a) of the Act; that the petitioners failed to make good the requirement of law as contemplated under Section 43(2)(a) of the Act, the Court is left with no choice but to stop all further proceedings and to direct the parties to approach the Competent Court of civil jurisdiction for a declaration of their rights and such being the order and direction issued by the learned Judge of the Revisional Court, there is no occasion for this Court to interfere with such order in exercise of writ jurisdiction and therefore writ petition deserves to be dismissed.
11. Submission of Sri Shashi Kiran Shetty, learned Counsel for the respondent proceeds on the premise that the provisions of Section 43 of the Act governing the situation fully, where the relationship is disputed and the respondent having disputed such relationship, the question is required to be answered only in the light of the provisions of Section 43 of the Act and in the present case, the petitioners having not placed before the Trial Court either a document of lease or a receipt of acknowledgement for payment of rent, purporting to be signed by the landlord as prima facie evidence, the provisions of Sub-section (2) come into play and here again it is only Clause (a) of Sub-section (2) is attracted to the present situation and that inevitably leads to the conclusion as provided in this Sub-section viz., that the Court shall at once stop all further proceedings and to direct the parties to approach a competent Court of civil jurisdiction for declaration of their rights.
12. The submission and debate has mainly centered around certain exchange of letters, notices etc., between the parties earlier and also an order dated 24-7-1986 passed by the Court of Rent Controller, Mangalore, Dakshina Kannada District in HRC RCOP No. 1/86-87, which had been initiated by the respondent invoking the provisions of Section 14 of the Karnataka Rent Control Act, 1961 (for short, '1961 Act'), which governed the eviction of tenants in the city of Mangalore at the relevant point of time. While copies of this order and the petition that had been filed by the respondent in the said proceedings had been placed before the Trial Court and was relied upon by the Trial Court to characterise the defence taken by the tenant that there was no relationship of landlord and tenant is not a bona fide defence or contention and that it was only a mala fide contention for prolonging the proceedings was relied upon to reject the application, the learned Judge of the Revisional Court has found it fit not to act on an admission or material, but being of the view that such material being neither in the nature of a document of lease nor in the nature of an acknowledgement for payment of rent, cannot be used by the landlord for awarding consequences that should follow in terms of Sub-section (2) of Section 43 of the Act and for allowing the application for stopping all further proceedings.
13. The. respondent while did not deny either the initiation of the proceedings under Section 14 of the 1961 Act before the Rent Controller nor the order dated 24-7-1986 that had come to be passed, but only wanted to get over the consequence of his conduct and the order by drawing attention to the stand and reply of the first petitioner with reference to the very proceedings that the respondent had initiated and a copy of which was addressed to the Rent Controller, Mangalore to urge that HRC RCOP No. 1/86-87 should be rejected, wherein the first petitioner had clearly indicated thus:
"... You know it very well that legally speaking you are neither my tenant nor did you lawfully occupy the house by any order of Rent Controller...."
It is by drawing attention to this, the learned Counsel for the respondent had tried to pin down the petitioners with such a stand and that the defence taken by the respondent that he is not a tenant is well-fortified on the stand of the first petitioner himself.
14. Submission of Sri Shashi Kiran Shetty, learned Counsel for the respondent proceeds firstly with reference to the requirements of Section 43 of the Act and that the proceedings in HRC RCOP No. 1/86-87 before the Rent Controller are not to be put against the respondent for admitting the tenancy for the reason that the very petitioner had disputed it and at any rate subsequent to such proceedings, the respondent had not remained as a tenant nor had paid any rent and therefore on the date when the eviction petition in HRC No. 31 of 2004 was instituted, there did not exist a relationship of landlord and tenant as between the petitioners and the respondent.
15. The Karnataka Rent Act, 1999, successor to the Karnataka Rent Control Act, 1961, is a piece of legislation meant to provide some protection to the tenants who were in occupation of premises in areas where the Act is applicable and to such premises where the provisions of the Act are applicable. If the provisions of the Act become applicable, to that extent the jurisdiction of the Civil Court is excluded, being a special enactment for the purposes mentioned in the Act. It undoubtedly contemplates the existence of the relationship of landlord and tenant as between the petitioners and the respondent for entertaining a petition under the provisions of this Act by the Court as described in Section 3(c) of the Act. The relationship is sine qua non for proceedings in such eviction petition. In the absence of such relationship, there cannot be any premises and that is how the provisions of Section 43 of the Act indicate that when the Court is unable to prima facie come to the conclusion that there exists a relationship of landlord and tenant and if the dispute is a serious one and requires further examination, it is only the Civil Court which can have jurisdiction and not the Court under the Act. Section 43 of the Act provides the Court for action that is to be followed under this section when there is a dispute arises with regard to the existence of the relationship of landlord and tenant itself and it is for the resolution of such dispute, Sub-section (1) indicates as to what nature and material can be placed and relied upon by the Courts for enabling the existence of such relationship to continue the matter. Section 43 of the Act reads as under:
"43. Dispute of relationship of landlord and tenant.--(1) Where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgement of payment of rent purported to be signed by the landlord as prima facie evidence of relationship and proceed to hear the case.
(2) Where--
(a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgement of payment of rent as referred to in Sub-section (1) above is produced; or
(b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgement of payment of rent, the Court shall at once stop all further proceedings before it and direct the parties to approach a Competent Court of civil jurisdiction for declaration of their rights".
The Court should prima facie satisfy as to the evidence of relationship and proceed to hear the case, and such evidence can be in the nature of document of lease or when there is no such document of lease nor was the petitioner able to produce any receipt of acknowledgement of rent. A receipt of acknowledgement of payment of rent can only forthcome from the tenant and not from the landlord. Therefore, on the part of the landlord, it is only be a document of lease, which can be produced if the agreement had been reduced to writing.
16. The petitioners themselves have placed before the Court the averments in HRC RCOP No. 1/86-87 before the Rent Controller, Mangalore, filed by the very respondent. The respondent in this application/petition had very clearly indicated that he is in occupation of the premises in question as a tenant on a monthly rent of Rs. 200/- ever since February 1982 under the first petitioner. The averment in the said petition very vividly describes the situation under which the respondent had come to occupy the premises and further proceeds to plead that the first petitioner was pressing for vacating the premises and also gives an explanation as to how the applicant/tenant was unable to place any rent receipts for payment of the rents, as the applicant himself had not insisted issue of any receipt for the rent that he had paid till then i.e., till the date of application on 26-5-1986. The application was for seeking protection from eviction and also for fixing a fair rent in respect of the premises.
17. Though an application of this nature cannot leave anyone with any doubt with regard to the respondent being a tenant under the petitioners, the submission of learned Counsel appearing for the respondent is that at the best this can only be in the nature of an admission in different proceedings and it cannot be directly used in the present proceedings; that assuming that it was an admission, it can be got over by any subsequent explanation and from the conduct of the petitioners by way of response to the very application vindicates the stand of the respondent that he is not a tenant but an unauthorised occupant, in which event, the petitioner cannot invoke the jurisdiction of the Court under the Act but has to approach the Civil Court. It is in this context reliance is also placed on the requirement of Sub-section (1) of Section 43 and the consequence as indicated in Sub-section (2).
18. The provisions of Sub-sections (1) and (2) are for the purpose of Court being satisfied by examination of some relevant material as to prima facie existence of the relationship of landlord and tenant. The document of lease is an obvious piece of evidence which can throw light on the existence of such relationship. Ultimately it is a piece of evidence to resolve the dispute with regard to the existence of the relationship of landlord and tenant. If stronger circumstance or a better piece of evidence has been placed before the Court and the Court prima facie acts on that and accepted the relationship for the purpose of the proceedings in the matter, as is done by the Trial Court, I am of the clear view that such order rejecting the application did not warrant interference in the exercise of revisional jurisdiction under Section 46 of the Act by the learned Judge of the Revisional Court by viewing the question in a technical manner and to stop the proceedings. I am of the view that the Revisional Court has clearly erred in interfering with by allowing the application for stopping the proceedings, as for such act the jurisdiction of the Rent Control Court is sought to be ousted and the parties are relegated to the Civil Court. The Act being a piece of welfare legislation to protect the interests of tenants, the interpretation should be one to further the benefits and not to deprive of the benefits. In the present case it was so happened that it may suit the connivance of the respondent to take up the stand that the provisions of the Act are not attracted for want of existence of relationship of landlord and tenant. If such relationship is made out with any convincing material placed by the parties, there is no reason why the Trial Court should not have acted upon the same and extending the benefit, in the sense the proceedings in the matter in such an event can be continued and eviction can be ordered only in respect of the limited situation as contemplated under the Act itself. In fact it is to the benefit of the tenant. If the provisions of the Act are excluded, benefits are denied to the tenant and the protection is taken away. The provisions of Section 43(1) and (2) should not be so understood as, given the slightest possibility it should be interpreted to exclude the jurisdiction by holding that the proceedings should be stopped and the parties should go to Civil Court.
19. It is for this reason, I hold that the Trial Court had rightly rejected the application and the Revisional Court has, without sufficient justification or warrant interfered with the matter to allow the revision petition and the application to stop all further proceedings. The respondent-tenant will have to defend the matter in the proceedings before the Trial Court which he is entitled to in accordance with law. The matter will have to proceed for trial in the light of the available defence to the tenant under the Act.
20. Accordingly, this writ petition is allowed and the order passed by the Revisional Court dated 5-10-2004 vide Annexure-A is set aside and the order dated 16-9-2004 passed in LA. No. II in HRC No. 31 of 2004 by the Trial Court, vide Annexure-G, is restored. The Trial Court is directed to proceed with the matter in accordance with law without any further delay. Rule issued and made absolute.