Karnataka High Court
Madanlal vs C. Chandrashekaran And Others on 17 August, 1998
Equivalent citations: ILR2000KAR94, 2000(4)KARLJ416
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER R.V. Raveendran, J.
1. This is a tenant's revision petition under Section 115 of the Code of Civil Procedure.
2. One C. Chandrashekaran (hereinafter referred to as 'landlord') filed an eviction petition against the petitioner herein (hereinafter re1 ferred to as tenant') in HRC No. 283 of 1989, on the file of the learned First Munsiff, Mysore under clause (h) of the proviso to Section 21(1) of the Karnataka Rent Control Act, 1961 ('Act' for short), in regard to a non-residential premises. The landlord contended that he is an Engineering Graduate with specialisation in Electronics and Communications, that he had no avocation and therefore he wanted to open a shop in the petition schedule premises ('premises' for short) to deal in electrical and electronics consumer items. The eviction petition was, thus, to meet the personal requirement of the landlord, It is not in dispute that neither the pleading nor evidence of the landlord put forth the requirement of any other members of landlord's family, nor stated that any other members of landlord's family will carry on business along with the landlord. In other words, the need was purely that of the landlord alone and not of landlord and the members of his family.
3. After contest, the petition was allowed by the Trial Court, holding that the landlord had established that he required the petition schedule premises for his own use and occupation. The Trial Court also held that the need was that of the landlord and not that of any other member of his family. Feeling aggrieved, the tenant has filed a revision petition under Section 50(2) of the Act in Rent Revision No. 3 of 1997, on the file of the Principal District Judge, Mysore.
4. During the pendency of the said revision, the landlord, who was the respondent in the said revision petition, died on 6-1-1997. His widow and son filed two applications.-
(i) LA. No. III under Order 22, Rule 4 of the CPC read with Rule 30 of the Karnataka Rent Control Rules, 1961, seeking permission to come on record as the legal representatives of the deceased respondent (landlord);
(ii) LA. No. IV under Order 6, Rule 17 of the CPC for amending the eviction petition. The averments sought to be introduced by the amendment was that during his lifetime, the landlord had taken up servicing work (apparently of electrical items) at his house; that his wife had actively assisting him in the said work and the landlord taught her the finer aspects of the servicing and all aspects relating to starting a shop in electrical goods and therefore the first legal representative (wife) had become eligible to deal with the sale and purchase of electric and electronic consumer items, and even though the landlord had died, she was capable of running the business all by herself, so that she can maintain herself and her minor son; that therefore, the schedule premises was reasonably required for the bona fide use and occupation of legal heir No. (a) to install the business in electrical and electronic consumer items; that even during the lifetime of the landlord the said business had turned out to be the business to be run by the family in view of the training rendered by the landlord to his wife; and that the need of legal heir (a) of the landlord, to establish the said business is emergent, pressing and bona fide and therefore the tenant is liable to vacate the premises.
5. On the other hand, the tenant, who was the petitioner in the said revision petition, also filed an application (LA. No. V) for amendment of the statement of objections to plead that the eviction petition had become infructuous on the death of the landlord on 6-1-1997 and the alleged need of the landlord had vanished and therefore the petition was liable to be dismissed forthwith.
6. The Revision Court considered the said three applications and by a common order dated 20-6-1998 allowed all the three applications. Feeling aggrieved by the said order, insofar as it allowed I.A. No. IV for amendment filed by the L.Rs of the landlord, the tenant has filed this petition, under Section 115 of the CPC.
7. The tenant contends that the eviction petition was filed seeking the eviction on the ground that the premises was required for the business of landlord and therefore the cause of action was personal to the landlord and did not survive to his legal heirs on the death of landlord. He further contends that the legal representatives of the deceased landlord will have to be brought on record, for the limited purpose of allowing the revision petition and dismissing the eviction petition and no relief can be sought or granted to the legal representatives of the deceased landlord on the basis of a cause of action which disappeared with the death of the landlord; and that revision petition before the District Court ought to have been allowed, by setting aside the order of eviction, leaving it to the legal representatives of the deceased landlord to file a fresh petition for eviction, if they required the premises for their own use. According to the tenant, the question of legal representatives of the landlord amending the eviction petition putting forth their own need in place of the need of the deceased landlord did not arise and therefore the amendment application should have been rejected by the District Court; and the District Court committed a serious error of jurisdiction in allowing the application for amendment, filed by the legal heirs of the deceased landlord.
8. Strong reliance is placed by the tenant on the decision of the Division Bench of this Court in Yasimsab Fakruddinsab Dori u Basappa alias Basappa Hangaraki (dead) by L.Bs. In that decision this Court referred to the several grounds of eviction enumerated in clauses (a) to (p) of the proviso to Section 21(1) and held that the grounds enumerated in clauses (a) to (g), (i), (k), (m), (n), (o) and (p) do not depend upon the survival or death of the landlord, as the cause of action in respect of those grounds could continue even after the death of the landlord and therefore the legal representatives of the landlord can continue the proceedings. It was also held that the question as to whether the proceedings for eviction will survive on the death of the landlord will become relevant only when the eviction is sought on the grounds enumerated in clauses (h), (j) and (p); and that even in the case of clause (h), if the landlord pleaded that he required the premises for use and occupation for himself and/or members of the family, on the death of the landlord, the proceedings can be continued by his legal representatives i.e., the members of his family. The Court laid down the principles as follows.-
". . . . In the case of a proceeding in which the possession is sought for non-residential purpose i.e., for running a business or for one's own profession, if it is pleaded that the premises is required for carrying on the business by the landlord and/or by the members of his family or the business pleaded is a family business, the proceeding can be continued even on the death of the original landlord because, the requirement pleaded was not confined only to the landlord but it also covered the requirement of the members of his family. However, in the case of profession which is personal to the landlord such as legal profession, medical profession and any other profession which requires special acumen or a special qualification, unless the members of his family are also carrying on the same profession and that is pleaded in the petition, the proceeding will not survive on the death of the landlord because the very requirement pleaded in the petition would be that the landlord required the premises for carrying on his profession which was personal to him. ..".
". . . .It is no doubt true that the L.Rs of the landlord are not excluded from the definition of the word landlord'. In a petition filed under Section 21(1)(h) of the Act they become landlords, as the L.Rs on the death of the original landlord. But this does not in any way help the respondent because the right to continue the cause by the L.Rs in a petition under Section 21(1)(h), in turn, depends upon the plea raised in the petition viz., as to whether the possession of the premises is sought on the ground that it is required for the landlord and/or for the members of his family. If no plea is raised in the petition that the premises is also required for the use and occupation of the members of the family and/or for running the business in the case of seeking possession for non-residential purpose that the premises are required by the landlord and/or by the members of his family, the cause will not survive on the death of the landlord. As already pointed out, in the instant case, the original landlord has not pleaded that the premises are also required by the members of his family to run the business. The original landlord pleaded that he himself required the premises for running the business in order to maintain his family. Therefore, it is not possible to hold that the L.Rs of the deceased landlord falling within the definition of the word 'landlord' are entitled to continue the proceedings because there is no plea that they also reasonably and bona fide required the premises for running the business. Therefore, the petition has to fail".
The Division Bench relied on the decisions of the Supreme Court in Shantilal Thakordas and Others v Chimanlal Maganlal Telwala and Pukhraj Jain v Mrs. Padma Kashyap and Another, and held that:
". ... It is not possible to state in general terms or lay down the trite rule that a particular proceeding will continue or will not continue, as it has to be decided on the pleadings of the case. We have already pointed out that the effect of the decisions of the Supreme Court in Shantilal and Pukkraj's cases, supra, that whether the proceeding under the Rent Act will survive on the death of the landlord or not would depend upon the actual pleas raised by the landlord and the ground on which the eviction is sought. It is in this context only we have just now pointed out that there are certain grounds which survive even after the death of the landlord and which can be continued. However there are certain grounds viz., Section 21(1)(h), (j) and (1) the continuation of the proceedings on the death of the landlord would depend upon specific plea raised by the landlord, i.e., the plea raised was a personal requirement of the landlord or whether it was for himself and/or also for the members of his family... .".
9. It is also relevant to refer to the following observations of a learned Single Judge of this Court in Rajagopala v P, Revanna (dead) by L.Rs:
"In my judgment, the position cannot be different for the legal representatives of the deceased plaintiff, when a plea of the deceased plaintiff was personal to him. A person who is brought on record under Rule 30 can raise only such pleas appropriate to his character as legal representative. Likewise, the defendant can raise no defence against the legal representative, other than what he could have raised against the deceased plaintiff himself. Such being the cause, was it open to the legal representatives of Revanna to raise a plea that the shop is required by them for their business and for their occupation, when no such plea was raised by Revanna in his application for eviction. Under Section 21(1)(h) Revanna could have brought an action or eviction of the tenant on the ground that the premises were bona fide needed not only to him personally but also for the need of his sons or other dependents. He did not take up the cause of his sons or other relations. He pleaded that the premises were required for him for continuing his business. It was his personal requirement and on his death, his legal representatives cannot take up that plea and much less they could contend that the premises are bona fide required by them. The tenant had no opportunity to put toward his defence against the bona fide requirements of the legal representatives of Revanna. The evidence adduced in the case by the heirs of Revanna that the premises were needed by them, was therefore, contrary to the pleadings in the case and cannot therefore be looked into".
10. The said decisions of this Court categorically lay down that where the premises is non-residential and where the landlord had sought eviction in regard to such premises for his own use, on the basis of his special qualifications and where the eviction petition does not refer to the need of the members of the family of the landlord the cause of action will not survive after the death of the landlord and the petition filed under Section 21(1)(h) cannot be continued by his legal representatives.
11. Section 51 of the Act deals with proceedings by or against L.Rs. It reads as follows.-
"Proceedings by or against legal representatives.--(1) Any application made, appeal preferred, or proceeding taken under this Act by or against any person, may, in the event of his death be continued by or against his legal representatives.
(2) Where any application, appeal or other proceeding would have been made, preferred or taken under this Act by or against any person such application, appeal or other proceeding may, in the event of his death, be made, preferred or taken by or against his legal representative".
Rule 30 provides that such an application by or against L.Rs shall have to be made within 15 days from the date of the death of the party or date of knowledge of the death of the party and for this purpose, the provisions of Order 22 of the CPC shall, as far as may and with necessary modifications, as followed.
12. The scheme of the Act, the provisions of Section 21(1)(h) and Section 51 make it clear that the legal representatives of the deceased petitioner or respondent in an eviction petition or revision petition will have to be first brought on record. Then the Court will have to consider whether the cause of action survives to the L.Rs or not. If it survives, the Court should proceed on merits and may even entertain an application for amendment. If the deceased is the landlord and if the averments in the eviction petition show that the need put forth is of the landlord and not the members of his family, the position will be as follows.-
(i) If the death is during the pendency of the eviction petition, will have to be rejected as the cause of action does not survive.
(ii) If the death is during the pendency of a revision petition, it will be have to be rejected if it is a landlord's revision petition, and allowed if it is a tenant's revision petition.
The L.Rs of the deceased landlord will have to file a fresh eviction petition, in regard to their need. Unless the Court records a finding that the cause of action survives, an application for amendment by the L.Rs of the deceased landlord cannot be entertained.
13. The learned Counsel for the L.Rs of the landlord (respondents) does not dispute that the above would be position on the basis of the decision in Yasimsab's case, supra. He however, contend that the decision in Yasimsab's case, supra, is no longer good law, having regard to the two subsequent decisions of the Supreme Court in Kamleskwar Prasad v Pradumanju Agarwal (dead) by L.Rs, and Gurdev Singh v Surjit Kumar alias Jit and Another. Let me now consider whether the said two decisions in any way after the legal position, insofar Karnataka Act is concerned.
14. Kamleshwar Prasad's case, supra, arose under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In that case, the landlord had filed a petition for eviction on the ground that he bona fide required the premises for carrying on his own business. The tenant contended that the landlord did not require the premises. The prescribed Authority, on consideration of the material on record, came to the conclusion that the landlord did not require the premises for his own use and also held that greater hardship would be caused to the tenant, if an order of eviction was passed. The Uttar Pradesh Act provided for an appeal and that the decision in appeal was final. The landlord filed an appeal. The Appellate Authority reversed the decision of the prescribed Authority by giving a finding that the need of the landlord was bona fide and directed eviction. The said decision became final. As there is no provision for further appeal or revision, the tenant filed a writ petition under Article 226 of the Constitution of India, challenging the order of the Appellate Authority. During the pendency of the writ petition, the landlord died and his legal heirs (widow and children) came on record. The tenant therein contended in the writ proceedings that the landlord having died, the requirement which was found to have existed by the Appellate Authority did not survive and therefore the order of eviction passed by the Appellate Authority had to be quashed. The L.Rs of the landlord contended that having regard to the provisions of the Uttar Pradesh Act, the order of the Appellate Authority under the Act in an eviction proceedings was a decree and that decree having become final, the High Court in a proceedings under Article 226 was not entitled to take note of any subsequent event and interfere with the decree which had become final, in its writ jurisdiction. Accepting the contention of the L.Rs of the landlord, the High Court rejected the writ petition. Feeling aggrieved, the tenant filed an appeal before the Supreme Court. The tenant conceded that the proceedings under Article 226 was not in continuation of the eviction proceedings under the Uttar Pradesh Act, but urged that the High Court, while exercising its power of supervision under Article 226 of the Constitution was not denuded of its power to take note of the subsequent event, to mould the relief. That contention was negatived by the Supreme Court. The Supreme Court held:
". . . . Under the Act the order of the Appellate Authority is final and the said order is a decree of the Civil Court and decree of a competent Court having become final cannot be interfered with by the High Court in exercise of its power of superintendence under Articles 226 and 227 of the Constitution by taking into account any subsequent event which might have happened. That apart, the fact that the landlord needed the premises in question for starting a business which fact has been found by the Appellate Authority, in the eye of law, it must be that on the day of application for eviction which is the crucial date, the tenant incurred the liability of being evicted from the premises. Even if the landlord died during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any elder son. In this view of the matter, we find no force in the contention of Mr. Manoj Swarup, learned Counsel appearing for the appellant and we do not find any error in the impugned judgment of the High Court warranting interference by this Court under Article 136 of the Constitution....".
14.1 Relying on the above observations the learned Counsel for the respondents herein contended that the Supreme Court has laid down a proposition of law that even where an eviction proceeding is initiated by the landlord, for eviction in regard to a non-residential premises for his own use, the legal heirs are entitled to continue the proceedings and have the benefit of the order of eviction. He wants this Court to infer from the decision that when an eviction petition is filed by a landlord on the ground that he required it for his own use, an eviction order can be passed or an eviction order passed could be confirmed, even after the death of the landlord on the ground that his L.Rs are entitled to carry on the business which the landlord wanted to carry on.
14.2 A careful reading of the facts of that case and the observations of the Supreme Court, would show that no such principle was laid down. The ratio decidendi of the decision is that where a decision of a Court or authority becomes final, any subsequent event cannot affect such decision which has become final. In other words, a subsequent event can be taken note of only where the decision has not reached finality. In that case, the decision of the Appellate Authority having become final under the provisions of the Uttar Pradesh Act, it was held that mere initiation or pendency of the writ proceedings by the tenant, nor the subsequent death of the landlord during such writ proceedings, would affect the decree for eviction which had become final. It is in that context, and to negative the contention of the tenant that the subsequent event during the pendency of the writ petition ought to have been taken note of the mould the relief, the Supreme Court observed that in the eye of law, the tenant incurred liability of being evicted from the premises on the date of application for eviction was made and having incurred an order of eviction which became final he cannot avoid such a liability.
14.3 It is, no doubt, true that the Supreme Court observed that: "even if the landlord dies during the pendency of the writ petition in the High Court the bona fide need cannot be said to have lapsed as the business in question can be carried out by his widow or any elder son". This is not a statement of law, to hold that even where the landlord pleads only his requirement in regard to a non-residential premises, on his death, the L.Rs are entitled to continue the eviction proceedings and the cause of action survives in their favour. The said observation has to be read in the context of argument put forth by the tenant, that even if the writ petition was not a continuation of original proceedings, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India should take note of the subsequent event, that is the death of landlord. In negativing this contention, the Supreme Court held that if during the pendency of the writ petition, after the eviction decree became final, the landlord died, his L.Rs can carry on the business. The Supreme Court was merely answering the contention of the tenant and nothing more.
14.4 The principles relating to finality of proceedings are well-settled. If a decision becomes final and certain rights or liabilities accrued as a result of the decision becoming final, they cannot be changed or altered in any subsequent proceedings merely on the ground that circumstances had changed. But, if the decision had not become final, on account of the statute providing either an appeal or revision, the appeal or revision in such circumstances is considered to be continuation of the original proceedings and therefore the subsequent events during the pendency of the appeal or revision could be taken note of to mould the relief. A facet of this principle has been clearly enunciated in Ramesh Kumar v Kesho Ram, wherein it is held:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the Us. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. . . .
XXX XXX XXX When subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisages in Rule 1 of Order 19 of the CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence. All these depend upon the factual and situational differences characterising a particular case and the nature of the plea raised. There can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities".
14.5 In Pasupuleti Venkateswarlu v The Motor and General Traders, the Supreme Court held;
". ... It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice -- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the Trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. .. .".
14.6 Thus, the Courts have always borne in mind the distinction that while subsequent events can be taken note of in a proceeding which is a continuation of the original proceedings, subsequent events cannot be taken note of in a proceeding which is not a continuation of the original proceeding. It is this distinction which weighed with the Supreme Court in Kamleshwar Prasad's case, supra, to hold that the subsequent events were not relevant. Under the Karnataka Rent Control Act, 1961 the decision of the Revisional Court (in this case, the decision of the District Court under Section 50(2) of the Act) is made final. The death of landlord occurred before the decision became final and that affected the relief. Therefore, the decision in Kamleshwar Prasad does not lay down any principle contrary to the decision in Yasim Sab's case, supra.
15. Let me now refer to the decision in Gurudeu Singh's case, supra. In that case, the landlord filed an eviction petition on four grounds viz., (a) that the first respondent had sublet the premises unauthorisedly to the second respondent; (b) that the premises was in a dilapidated condition and therefore unfit and unsafe for human habitation; (c) that the house which was residential was required for the use and occupation of the landlord (thereby meaning the landlord and his family); and (d) the tenant had committed defaults in payment of rents. The matter arose under the provisions of the East Punjab Rent Restriction Act, 1949. The second respondent contested the proceedings by contending that he was the tenant. The Rent Controller before whom the eviction proceedings were initiated, dismissed the eviction proceedings holding that none of the grounds were made out. On appeal, the Appellate Authority confirmed the decision of the Rent Controller and dismissed the appeal filed by the landlord. The landlord filed a revision petition and the High Court dismissed the revision petition in limine. The landlord then filed a special leave petition before the Supreme Court. He died subsequently. The application for substitution was allowed and the matter was remanded back to the Appellate Authority to enable the L.Rs of the landlord to establish their claim for ejectment. The facts of the case relating to the ground of own use are not set out in the order of the Supreme Court. It can be inferred that the landlord had contended in his petition that he was serving in Canada; that he would like 'to come back to India and occupy the petition schedule premises with his wife; that the said claim had been rejected by the original authority, the Appellate Authority and the Revisional Authority. When the SLP came up for admission, the learned Counsel for the landlord submitted that the landlord and his wife had retired from service in Canada and had taken a decision to come back to India and reside in the suit house. The Supreme Court made an order that in view of the said subsequent events, notice should be issued to the tenants. Thereafter, during the pendency of the SLP, the landlord died and an application by his legal representative for substitution was allowed. The widow of the landlord stated that after the death of her husband, she had "permanently come back to India and needs the house in question for her personal residence". The second respondent challenged the said statement, stating that the landlord's wife had come to India only for performing the last rites of her husband and she had gone back to Canada, that her contention should not be accepted and even if the subsequent facts had been placed on record, the same cannot be accepted without trial and the L.R will have to prove the new facts before the Trial Court, under Section 13(3)(a)(1)(b) of Punjab Act. In these circumstances, the Supreme Court felt that the ends of justice will be met if the case is remanded to the Appellate Authority to enable the L.Rs of the deceased landlord to establish her claim for ejectment under the present circumstances in the light of the provisions of law. The premises was a residential premises and the landlord had claimed that he wanted to come to India and occupy the house in question with his family. Hence, on his death, the cause of action survived. The decision in Gurudev Singh's case, supra, has no bearing to a case where the premises is a non-residential and the premises was required only for the use of the landlord.
16. Learned Counsel for the L.Rs of the landlord lastly contended that the tenant has challenged only the order allowing the legal representatives' application for amendment and has not challenged the order of the Court below allowing LA. No. II filed by the widow and son of the landlord to come on record as the L.Rs of the deceased landlord; and as the legal representatives have already come on record, they have become the landlords and they are entitled to amend the petition. Section 51 enables the legal representatives of the deceased tenant or landlord to come on record in all proceedings under the Act. But, that by itself does not mean that the legal representatives, who had come on record, can urge any contentions or seek any relief. As already notified, if the petition is one under clauses (a) to (g), (i), (k), (m), (n), (o) and (p), legal representatives of the landlord will be entitled to continue the proceedings and have the benefit of the order of eviction. But, if the petition is one under proviso (h), and that too in regard to a non-residential premises, where the landlord had sought possession for his own need, the legal representatives will come on record for the limited purpose of disposal of the matter and not for any other purpose.
17. The Revisional Court committed a serious error of jurisdiction in allowing the application for amendment filed by the L.Rs of the deceased landlord.
18. The revision petition is, therefore, allowed and the order of the District Court, Mysore allowing I,A. No. IV for amendment filed by the L.Rs of the deceased landlord is set aside. LA. No, IV in Rent Revision No. 3 of 1997, on the file of Principal District Judge, Mysore, is dismissed. The Revision Court shall now decide the revision petition under Section 50(2) of the Act in accordance with law, keeping in mind the principles laid down in Yasimsab's case, supra.