Karnataka High Court
Uttam Veranekar vs Shattu Laxman Donkari on 23 January, 1986
Equivalent citations: ILR1986KAR1162
ORDER Kulkarni, J.
1. This is a revision by the defendant against the judgment and decree dated 18-6-1982, passed by the I Additional Civil Judge, Belgaum, in Small Cause Suit No. 30/81.
2. The parties have been referred to with reference to their position in the Trial Court.
3. The plaintiff filed a suit against the defendant for possession a of House No. 685, situated at Angol-Mal Extension, Angol, Belgaum and for future mesne profits, after terminating the tenancy of the defendant under Section 106 of the Transfer of Property Act.
4. The defendant resisted the suit.
5. The Trial Court decreed the suit. Hence, the revision.
6. The present suit for possession was instituted in the Civil Judge's Court, Belgaum, exercising the Small Cause jurisdiction. It was decreed on 18-6-1982. The present revision had been filed on 23-9-1982.
7. The learned Senior Counsel Sri. Javali, submitted that when the suit was filed, it had been filed in a proper Court, having jurisdiction and that when the suit was decreed it was decreed by a Court having jurisdiction and that therefore a right had become vested in the plaintiff to get the possession of the property. He referred me to Maxwell on the Interpretation of Statutes, 12th Edition, page 220 and 221. It reads as :
"In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights."
The Learned Counsel Sri. Javali also relied on a decision tendered in the case of Ram Singha and Anr. v. Shankar Dayal and Anr., AIR 1928 Allahabad 437. It lays down as:
"That the right to appeal to the Court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision, or at the date of the filing of the appeal."
8. The Supreme Court in Lakshmi Narayan Guin and Ors. v. Niranjan Modak, has stated in para 6 as :
"The suit was filed on June 12, 1967, and was decreed by the Trial Court on February 17, 1969. During the pendency of the first appeal, the West Bengal Government extended the West Bengal Premises Tenancy Act, 1956 to Memari, in which the property is situate. Section 13 of the Act provides for a qualified protection of the tenant against eviction inasmuch as it injuncts the Court from passing an order or decree in a landlords sun tor recovery of possession except on the limited grounds detailed in Sub-section (1) thereof, Sub-section (6) provides that no suit or proceeding for the recovery of possession on any of the grounds mentioned in Sub-section (1), except the grounds, mentioned in clauses (j) and (k), can be filed by the landlord "unless he has given to the tenant one month's notice expiring with a month of tenancy." There is no dispute thai the grounds mentioned in clauses (j) and (k) do not come into play in the instant case. The High Court found that the notice for eviction served by the appellants on the respondent gave notice of less than one month and, therefore, there was no compliance with Sub-section (6) of Section 13. Consequently, it held that the suit was incompetent."
In para No. 7 me Supreme Court held as:
"Does the decree here refer to the decree of the Trial Court or, where an appeal has been preferred, to the appellate decree ? Plainly, reference is intended to the decree which disposes of the suit finally. It is well settled that when a Trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the Trial Court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. The object of Sub-section (1) of Section 13 is to protect the possession of the tenant, subject to the exceptions specified in the subsection, and that protection is ensured if we construe the subsection to mean that, subject to those exceptions, no effective or operative order or decree can be made by the Court in a landlord's suit for possession against a tenant. To our mind, therefore, Sub-section (1) of Section 13 of the Act can be invoiced by a tenant during the pendency of an appeal against a Trial Court decree."
In para No. 9 the Supreme Court has said :
"That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi , which was followed by this Court in Mula v. Godhu . We may point out that in Dayawati v. Inderjit this Court observed;
"If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance."
Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal (1902) ILR 26 Mad 91 (FB) by Bhashyam Iyengar J., that the hearing of an appeal was, under the processual law of this country, in the natue of rehearing of the suit. In Amarjit Kaur (supra) this Court referred also to Lachmeshwar Prasad Shukul V. Keshwar Lal Chaudhri (1940 FCR 84 : (AIR 1941 FC 5) in which the Federal Court had laid down that once a decree passed by a Court had been appealed against the matter became sub judice again and thereafter the appellate Court acquired seisin of the whole case, except that for certain purposes, for example execution, the decree was regarded as final and the Court below retained jurisdiction."
9. Therefore, in view of the decision of the Supreme Court, the contention urged by the learned Senior Counsel Sri Javali that the law that would be applicable to the matters would be the law which was available only at the time of the institution of the suit, merits to be rejected.
10. There is no question of a right vested in the party in view of the simple principle of law that the matter will be governed by the law as it stands when the matter comes, up for final disposal in the Court. The law that is applicable today is the law mentioned in the Karnataka Rent Control Act as amended by Act No. 17 of 1983. By Act No. 17 of 1983,Angol area has been brought within the limits of Belgaum Corporation to which the provisions of the Rent Control Act apply.
11. Sri. Javali referred me to Sub section (2) of Section 1 of the Karnataka Rent Control (Amendment) Act, 17 of 1983. It reads as :
"It shall be deemed to have come into force on the Thirty first day of December, 1982."
He urged that the replacement of the Schedules by the new Schedule came into operation only from 31st Day of December, 1982.
12. Karnataka Rent Act was in force till 31-12-1982. By Act No. 17 of 1983, it was continued to be in force till 1992. It received the assent of the President on 15-7-83. Therefore, in order to make the pending proceedings legal it was stated by the legislature that the Amendment Act came into force on 31-124982, Therefore, the mention that the Act shall be deemed to have come into force on 31-12-1982 will not make the Act effective only from 31-12-1982.
13. Section 4 of the Karnataka Rent Control (Amendment) Act, (17 of 1983) reads:
"Substitution of Schedules I, II and III:- For Schedules I, II and III of the Principal Act, the following Schedules shall be substituted, namely :-
"SCHEDULE I [See Section 2(2)] A. Areas within the limits of the cities under the Karnataka Municipal Corporations Act, 1976 and the areas within a radius of three kilometers from the limits of the said cities.
B. Areas within the limits of the following City Municipalities.
6. Hospet
1. Bellary
7. Hassan
2. Bidar
8. Mandya
3. Bijapur
9. Raichur
4. Davanagere
10. Shimoga
5. Gadag-Betageri
11. Tumkur C. Areas within the limits of the following town municipalities of :
1. Arasikere
9. Karkala
2. Bhadravathi
10. Kollegal
3. Buntwal
11. Malavalli
4. Chickmagalur
12. Madikeri
5. Chitradurga
13. Mulki
6. Kundapur
14. Mudabidri
7. Kolar
15. Nippani
8. Karwar
16. Puttur
17. Udupi.
D. Area within the limits of Kolar Gold Fields Sanitary Board.
SCHEDULE II [See Section 2(3)] I. Areas within the limits of the cities under the Karnataka Municipal Corporations Act, 1976 and the area within a radius of three kilometers from the limits of the sad cities.
II. Areas within the limits of City Municipalities, Town Municipalities and notified areas constituted or deemed to be constituted under the Karnataka Municipalities Act, 1964, except the Notified Area Committee, Bhadravathi.
III. Area within the limits of the Notified Area Committee Bhadravathi, excluding New Town and Paper Town.
IV. Area within the limits of Kolar Gold Fields Sanitary Board.
V. Area within the limits of Town Panchayats of.
Bankapur
2. Gokarna.
VI. Areas within the limits of Revenue villages of :
1. Buntwal. 2. Kod. 3. Mudibidri. 4. Mulki.
SCHEDULE III [See Section 2(4)] Areas within the limits of cities under the Karnataka Municipal Corporations Act, 1976 and the areas within a radius of three kilometers from the limits of the said cities".
14. The substitution of the new Schedules shall be taken as though the Schedules were in existence from the very inception of the Act. Once Section 4 speaks about the substitution, the said substitution shall be deemed to be on the anvil of the Act since the coming into force of the very Act itself. This is also the view taken in Shamrao v. Parulekar v. The District Magistrate, Thana, Bombay and two ors., 1932 SCR 683. This is also the view taken by this Court in Doddannavar Bros. v. Malathibai, ILR 1985 KAR 3023 and in Sadiq Sab v. Akhilandamma, ILR 1985 KAR 1737.
15. It is undisputed that as per the Schedules now substituted, Angol comes within the limits of Belgaum City Corporation. Therefore, the provisions of the Rent Control Act are applicable to the budding in question.
16. In the result, the revision is allowed. The judgment and decree passed by the Trial Court are set aside. The plaintiff-landlord is at liberty to have recourse to the provisions of the K.R.G. Act if he so chooses.