Karnataka High Court
Ayesha Begum vs Shahzadi on 11 November, 2002
Equivalent citations: ILR2003KAR4255, 2003 AIR KANT HCR 365, 2003 A I H C 844, (2004) 1 RENTLR 19, (2003) 1 KCCR 385
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER Srinivasa Reddy, J.
1. This revision is filed against the concurrent findings of the Courts-below rejecting the petition filed under Section 21(1)(a) of the Karnataka Rent Control Act, 1961 ('the Old Act' for short) on the ground that there is no relationship of landlord and tenant between the parties.
2. The petitioner-landlord filed the eviction petition alleging that a plot measuring 55' east-west and 225' north-south along with some other properties fell to her share and she was put in possession of the same. The petitioner put forth a case that the respondent-tenant is staying on a portion measuring 20' north south and 20' east west in the plot which fell to her share in the partition. Claiming that the respondent failed to pay the rents the petitioner filed the petition for eviction of the tenant under Section 21(1)(a) of the Old Act. The Courts-below dismissed the petition filed by the petitioner holding that there was no relationship of landlord and tenant between the parties. Being aggrieved by the said concurrent orders of the Courts-below the present revision is filed by the petitioner.
3. I have heard the learned Counsel on both sides in this revision.
4. During the pendency of the revision in this Court, the old Act has come to be replaced by The Karnataka Rent Act, 1999 ('the Act' for short) which in its wake has brought about substantial changes in the matter of regulation of eviction. One such provision is Section 43 which governs the manner in which the Court has to act when a dispute is raised before it as to the relationship of landlord and tenant. Having heard the learned Counsel on both sides and on perusal of both the orders, I find no reason to differ with the Courts below on the finding of fact recorded by them on the question of relationship of landlord and tenant. Having come to the conclusion I could have simply dismissed the revision petition but I am required in the light of Section 43 of the Act to advert to a procedural aspect that arises for my consideration. In order to better understand the manner in which this Court sitting in revision has to proceed in a matter like this, I quote the said Section 43 of the 1999 Rent Act. The said section reads:
43. Dispute of relationship of landlord and tenant.-
(1) Where in anv 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 acknowledgment 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 acknowledgment 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 acknowledgment 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."
(Underlining is mine) The Courts dealing with cases arising under the Karnataka Rent Act, 1999 have been required frequently to consider the effect of legislative change in the law upon proceedings instituted before the change was made. Section 43 is a new substantive provision which has been brought into the statute book for the first time as there was no corresponding provision in the 1961 Rent Act. The 1999 Rent Act does not contain any special rule for interpretation of the provision contained in the 1999 Rent Act except that the pending proceedings are required to be considered under the new Act in terms of Clause (b) of Sub-section (2) of Section 70 with the result the Court has to settle for the general rule of construction ordinarily acted upon. The provision makes it mandatory for the Court to stop all further proceedings and direct the parties to approach the competent Court of Civil Jurisdiction for declaration of their rights. In the case on hand, undisputedly, the lease as alleged by the landlord is not evidenced by any rental agreement or receipt or acknowledgement of payment of rent and the case of the tenant right from the start of the proceedings is one of total denial of the relationship of landlord and tenant. But the provision governs only the 'proceeding before the Court'. 'Court' is defined under the Act, as:
"Court' means,-
(i) in respect of the area comprised within the limits of the City of Bangalore, the Court of Small Causes;
(ii) in such other area as the State Government, may, in consultation with the High Court, by notification specify, the Court of Civil Judge (Senior Division) having territorial jurisdiction over such area; and
(iii) in respect of areas other than those referred in Sub-clause (i) and (ii), the Court of Civil Judge (Junior Division) having territorial jurisdiction over such area;"
The 'proceedings' as found in Section 43, therefore, necessarily refers only to the proceedings before the Court of small causes. It does not refer to revisional proceedings before this Court. The object sought to be achieved by this provision is to eschew all cases in which there is a dispute as to the existence of relationship of landlord and tenant, from consideration of the H.R.C. Court straightaway and to direct parties to a competent Court. But, this provision having come into force only recently, the question crops up what should be the approach in cases where a question had been raised as to the non-existence of relationship of landlord and tenant and was decided by the H.R.C. Court dehors the considerations which have been set down in Sub-section (2) of provision.
5. The question that arises for my consideration in this revision is, in the light of Section 43 restraining the consideration of the issue to the exclusive jurisdiction of the H.R.C. Court, whether this Court sitting in revision has no other alternative but to remit the matter back to the H.R.C. Court to examine the issue from the point view of the considerations set out in Sub-section (2) and give a direction as required under Section 43 of the Act or this Court itself could give such a direction if it is satisfied that there is no relationship of landlord and tenant between the parties.
6. It is no doubt true that Section 43 speaks only of the Court of small causes. But in a matter where this question has been decided and a finding of fact is recorded by the Court under the Act, there could be no bar for this Court sitting in revision to do what the Act empowers the Court under the Act to do. It goes without saying that all powers that are available to an inferior Court are amenable to a Court having higher jurisdiction. As there is concurrent finding recorded by both the Courts below that there is no relationship of landlord and tenant, in my considered opinion, no useful purpose would be served by remitting the matter back to the Rent Court for merely carrying out the mundane task of directing the parties to the Civil Court for adjudication of their rights by once again taking the matter on its file. This Court sitting in revision under Section 115 C.P.C. can take cognizance of the findings recorded by the Courts-below to give a direction under Section 43 of the Act. Further, it would be useful to refer in this regard to Section 70 of the Act. It reads:
Section 70. Repeal and Savings. - (1) The Karnataka Rent Control Act, 1961 (Karnataka Act 22 of 1961) is hereby repealed.
(2) Notwithstanding such repeal and subject to the provisions of Section 69,-
(a) all proceedings in execution of any decree or order passed under the repealed Act, and pending at the commencement of this Act, in any Court shall be continued and disposed off by such Court as if the said enactment had not been repealed.
(b) All cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority in accordance with the provisions of this Act:
(c) all other cases and proceedings pending in respect of premises to which this Act does not apply shall as from the date of commencement of the Act stand abated.
(3) Except as otherwise provided in Section 69 and in Sub-section (2) of this Section, provisions of Section 6 of the Karnataka General Clauses Act, 1899 (Karnataka Act III of 1899), shall so far as may be applicable in respect of repeal of the said enactment, and Section 8 and 24 of the said Act shall be applicable as if the said enactment had been repealed and re-enacted by this Act.
(Underlining by me) The stipulation made in Sub-clause (b) to Sub-section (2) of Section 70 to "all cases and proceedings... pending at the commencement of this Act, before the ... High Court... in respect of the premises to which this Act applies shall be continued and disposed off by the High Court.... In accordance with the provisions of this Act' makes it obvious that this Court sitting in revision be it under Section 115 C.P.C. or under Section 50 C.P.C. also can exercise its jurisdiction to give effect to the provisions of the Act which would also include the power to issue a direction under Section 43 if a case falling within the purview of Section 43 is pending in revision and a clear finding recorded by the Court-below that there is no relationship of landlord and tenant between the parties is on record provided this Court has no reason to disagree with the said finding of the Court or the Courts-below.
7. This Court having come to the conclusion that the findings recorded by the Court-below that there is no relationship of landlord and tenant is well-founded, this Court can by itself issue a direction in terms of Section 43 of the Act, without remanding the matter to the Rent Court.
8. In the result, for the reasons stated above, the revision proceeding is stopped and the parties are directed to approach the competent Court of Civil Jurisdiction for declaration of their rights.