Karnataka High Court
Smt. Vrishendramani vs K. Venugopal Rai on 18 October, 1994
Equivalent citations: AIR1995KANT230, ILR1994KAR3127, 1995(1)KARLJ241, AIR 1995 KARNATAKA 230, (1996) 1 RENCJ 116, (1995) 1 KANT LJ 241, (1995) 1 RENCR 131
ORDER
This revision petition is filed against the order dated 22-4-1994 passed in Revision (Rent) Petition No. 332/87, on the question of maintainability of revision petition.
1. Few facts to breifly state are :--
The parties are described as landlord and tenant. K. Venugopal Rao (Landlord) initiated eviction proceedings against one K. Hithavanthi (tenant) under clauses (a), (b),(c) and (h) of proviso to sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961 (hcreincalled as 'the Act'), the proceedings being numbered as HRC. 100/80. After contest, the trial Court granted the reliefs sought for by the landlord under Section 21(1)(a), (c), and (h) of the Act. Aggrieved against the order of eviction, tenant preferred a revision to the Court of the District Judge under Section 50 of the Act and proceedings was numbered as R.(R)P. 332/87.
2. During the pendency of the first revision proceedings, original tenant K. Hithavanthi expired and on 13-7-1989 one Smt. Vrishendramani made an application under O. 22. R. 3 of the C.P.C., seeking permission to come on record as the legal representative of the deceased tenant K. Hithavanthi and to continue the revision petition. The application was numbered as I.A. II. Case was adjourned to 19-9-1989, for Objections of the landlord.
3. It is brought to the notice of the Court [hat the landlord did not raise any objection for allowing of I. A. II and as such I. A. II was allowed and Smt. Vrishendramani came on record on 19-9-1989. The revision petition was posted to several dates of hearing on 16-7-1993 an application was filed by revision petitioner Vrishendramani under O. 6, R. 17, CPC, for amendment of statement of objections to the effect that the landlord having no subsisting legal interest in the petition schedule property since he has sold the petition schedule property to one Chandrakanth Sanu and as such it was prayed that the landlord's main petition allowed under Section 21(1)(a), (c) and (h) be dismissed on the ground of non-survival of cause of action. The application was numbered as I.A. III. After contest, I.A. III was allowed on 7-2-1994. It is submitted by the Revision petitioner that the landlord has not challenged the orders passed on I.A. II and as well as on I.A. II. Subsequently, the landlord moved the Court as not to take cognizance of the sale deed in view of rectification deed having come into effect between the parties to evidence the factum that by mistake the petition schedule premises having been mentioned in the deed of sale executed by landlord in favour of Chandrakanth Sanu and what was sold by landlord was a different premises. As against this contention, revision petitioner submits that the aforesaid Chandrakanth P. Sanu has subsequently sold the very same property, the subject-matter of purchase to another party, the purchaser being T.M.A. Pai Foundation detaining the petition schedule property as the property, the subject-matter of sale.
4. Revision petitioner moved the Court, with an application under O. 41, Rule 27, CPC to receive copies of two sale deeds by way of additional evidence and the application was numbered as I.A. IV and another application was filed under O. 16, R. 1 of CPC. numbered as I.A. VIII for summoning the parties to give evidence in respect of sale transactions. Revision proceedings was adjourned to several dates to consider I. As. VII and VIII. It is at this stage of the proceedings, the landlord changed the Counsel and motion was made to consider the maintainability of the revision petition as Vrishendrarnani, who was on record, as L.R. of deceased K. Hitavanthi as being not the persons legally entitled to prosecute the revision petition. The first revision Court after hearing both the parties has dismissed the revision petition mainly on the ground that the revision petitioner Smt. Vrishendrarnani as being not the legal heir of deceased tenant Smt. Hitavanthi and that the impleading applicant being not entitled to prosecute the revision petition. In consequence of the order passed on maintainability the first revision Court dismissed I.A. No. VII and I.A. VIII which were pending consideration. The order passed on maintainability is under challeged in this civil revision petition before this Court.
5. Before adverting to the contentions advanced by both the Counsel on record, it is apt to refer to the relevant provisions governing the subject-matter of enquiry. Section 51 of the Act reads:-
"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 representative.
(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 of against his legal representatives."
Rule 30 of the Karnataka Rent Control Rules 1961 (hereinafter referred to as 'the Rules') reads as follows:--
"Applications for making legal representatives of deceased persons parties to proceedings under the Act.-
Applications by or against legal representatives under Section 51 of the Act shall be made within fifteen days from the date of death of the party or person concerned or the date of knowledge of the death of the party or person concerned, and for this purpose, the provisions of Order XXVI of the Code of Civil Procedure 1908, shall as far as may be and with the necessary modifications, be followed."
Rule 35 reads:--
"The provisions of the Civil Procedure Code to be generally followed.-
In deciding any question relating to procedure not specifically provided for by these rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908."
6. Sri Uday Holla contends that having in view of the definition of tenant under Section 3(r) of the Act, revision petitioner who claims to be the adopted daughter of deceased original tenant cannot get herself either impleaded or substituted as legal representative of deceased tenant and thereby it is not legally permissible for her to prosecute the revision filed by the original tenant. Section 3(r) of the Act defines 'tenant':--
"tenant" means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession alter the temination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority."
7. Sri Uday Holla contends that apart from the person who have been classified and categorised as tenants under the definition clause, no other perosn can come on record after the death of original tenant either to prosecute or context the proceedings initiated under the provisions of the Act.
8. What is to be noted is that as far as provision of the Act is concerned, there is no provision or rule which specifies as to who is the legal representative of deceased party in a proceeding under the Act and as such the inevitable course is to turn to the definition of legal representatives as contained in the C.P.C. Section 2(11) of CPC., defines 'legal representative':--
" "legal representative" means a person who is in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued:"
It is to be noted that as far as Rule 30 is concerned, it envisages application to be made within 15 days from the date of death of the party or person concerned, by legal representatives or against L.R. under Section 51 of the Act. Relevant provisions in CPC, which deal with the aspect of bringing successors-in-interest, heirs, assignees, and legal representatives in places of parties on record to be summarised are.
9. Section 146 of CPC is enacted with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment and being beneficent provision should be construed liberally so as to advance justice and not in a restricted sense. Order 22, Rr. 2, _3 and 4 deals with procedural aspects of bringing L.Rs. in case of death of parties to the cause. O. 22, R. 4 A reads:--
"Procedure where there is no legal representative. -- (1) If, in any suit, it shall appear to the court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representating the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
Order 22. Rule 10 C.P.C., envisages, in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Crucial test to find out whether the right of action surives or not is to examine whether the relief sought could be enjoyed by the Survivors or would it be nugatory. It is in this context, distinction is drawn between cases where the death occurs before decree and cases where death occurs after the decree. In the former case, cause pleaded is in fluid stage and has not crystallised while in the latter case cause has crystallised and it is crystallised form or substance which is in the hands of legal representative. In Thodar Ananth. Bhandary v. Rama Amin reported in 1968 (2). Mys LJ 103, this Court has observed:--
"The question arises whether when the landlord transfers the house pending application seeking eviction of the tenant under Section 21 of the Act, the transferee is or is not entitled to continue the proceedings started by his vendor. In the instant case, one of the grounds on which election is sought is that the tenant is in arrears of rent. There seems to be no reason why the transferee should not be permitted to come on record and to continue the proceedings especially when the landlord has authorised to recover arrears also. It is true that there is no specific provision made in the Rules framed by the State Government for impleading the transferee. However, Rule 35 of the Rules made under the Act provides for the application of the provisions of CPC generally in deciding any question relating to procedure not specifically providing for the procedure to be followed in respect of any application made such as the one under Order XXII, Rule 10, CPC, it is to get over such difficulties that Rule 35 provides for the application of the provision of CPC, generally."
10. As far as tenants are concerned Section 23 of the Act reads:--
"Tenant not to sub-let or transfer after commencement of this Part.-- (1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part, for any tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:
Provided that the State Government may by notification, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification:
Provided further that nothing in this section shall apply to a tenant having a right to enjoy any premises in perpetuity.
(2) Any person who contravenes the provisions of sub-section (1) shall, on conviction be punished with fine which may extend to one hundred rupees."
11. Sri Holla relies upon the decisions rendered in Jaspal Singh v. Addl. District Judge, Bulandshar reported in AIR 1984 SC Relevant observations are found at Paragraph-9 (at pp 1885, 1886) which reads :--
"From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant. There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building. In the case of a non-residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant sublets, the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously, cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his life time. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding of the effect that there was no will in respect of the tenancy rights of the disputed shop."
12. Sri Uday Holla's main contentions are centered to three aspects:--
1) Whether a legal heir of deceased tenant can prosecute a revision petition even though she is not a tenant as defined under Section 3(r) of the Act?
2) Whether, it is open for the legal heir after coming on record to contest the revision petition on merits?
3) whether the present Civil Revision Petition is maintainable under Section 115, of CPC?
Sri Uday Holla places his reliance on the ratios of decisions reported in :
1973 (1) Mys LJ 127 : (AIR 19773 Mys 228); 1975 (2) Kant LJ 459; 1978(1) Kant LJ 212; 1992(2) Kant LJ 425; ; ; .
The sum and substance of ratios of the cases relied on are :
1973 (1) Mys LJ 127 a AIR 1973 Mys 228) (S.P. Hamjdisha Chandshawala v. Seshagiri Bhiku Pai).
"After the termination of the contractual tenancy, the tenant was in the position of a statutory tenant. The protection which he had against being dispossessed by the landlord was personal to him and could not be transmitted to his legal heirs who answer the description of legal representatives, against the legal representatives. The legal effect of these two principles is that whereas the landlord is entitled to continue the proceedings under the statute, the legal representatives of the deceased tenant are deprived of the protection which their predecessor had as a statutory tenant,"
1975 (2). Kant LJ 459 (Sundar Raj v. Kamalamma).
"Section 51 of the Act provides of continuation of the eviction proceedings against the legal representatives of the deceased tenant. That does not, however, confer any right on the legal representatives of the deceased statutory tenant, which they do not otherwise have. Unless the legal representatives set up an independent right of tenancy to the non-residential premises they cannot be heard to contend that they should be recognised as tenants."
Vishnu Narayan v. Paplal Baldev, (1978 (1) Kant LJ 212) "..... In the Karnataka Act, Section 3(r) defines the term 'tenant' and inter alia it provides for the transmision of the statutory tenancy. It states 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant. It clearly indicates that the Legislature in its wisdon does not provide for transmission of tenancy in the case of non-residential premises. It positively states that only the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family is entitled to the protection by transmission. It clearly excludes a non residential premises."
A. Mukambika v. A. Premnanda Rao, (1990 (2) Kant LJ 425.
"These beneficial legislation confine their benefits only to certain persons and subject to certain conditions. It is in this context the statutory definition of tenant will have to be understood and applied. Its scope cannot be enlarged by the Courts because such an intention is not expressly disclosed or by necessary implication warranted by law in question. Section 3(r) of the Act thought fit to confine the concept of tenant only to a particular category of persons and a granddaughter living with the deceased tenant does not fall with the said category."
(J.C. Chattarjee v. Sri Sri Kishan T at para 9: Placing reliance on ratio in ;
"A person remaining in occupation of premises let to him after the determination or expiry of the period of the tenancy is commonly though in law not accurately called a 'statutory tenant'. Such a person is not a tenant at all, he has no estate or interest in the premises occupied by him. He has merely protection of statute in that he cannot be turned out so long he pays the standard rent and permitted increases if any performs the other conditions of tenancy. His right to remain in possession after the determination of contractual tenancy is personal and it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute."
It is relevant to note the ratio decided by the Supreme Court in Damadilal y. Paras Ram in :--
"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy had determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same as in this Country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate a property, in the subject matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the state must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the "sanctity" of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhva Pradesh Accommodation Control Act, 1961 to find out whether the respondents predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy."
In Jaspal Singh v. Addl. Dist. Judge, Bulandshah on the meaning to be attached to a word 'will' the Supreme Court has observed at Para 8 which reads as under (at pp. 1884, 1885):
".....In other words, it is indicative of persons entitled by will or otherwise to share the estate of the deceased. It is thus true that technically the word 'heir' may be distinguishable from the word 'legatee' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word 'heir' may well be treated as equivalent to 'Legatee' or 'devisee'. The true scope, effect and significance of this word is, therefore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used. "Thus, the word 'heir' has been construed both in a wider as well as in a narrower sense. Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs. This will also raise an allied question whether the tenancy rights could be devised by a will".
In M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust, Association Madras; the Supreme Court has observed at Para 15 as follows:--
"From these provisions, it would appear that except in cases covered by the two provisos to sub-section (1) of Section 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who subjects or assigns or transfers the premises in contravention of this prohibition loses the protection of law and can be evicted by the landlord under Section 21(1)(f), In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer, is, therefore, absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation as governed by the Karnataka Rent Control Act is a limited interest which eanbles the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferable and, therefore, the interest of a company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act, cannot be regarded as property of the company for the purpose of sub-section (1) of Section 22(1) were not attracted to the eviction proceedings instituted by the respondents against the appellant company. The provisions of Section 22(1) did not, therefore, bar the prosecution of the said proceedings by the respondents and the order dated September 30, 1989 passed by the XII Additional Small Cause Judge, Bangalore, allowing the eviction petition cannot be held to have been passed in contravention of the provisions of Section 22(i) of the Act. Civil Appeal No. 2553 of 1991 also, therefore, fails and is liable to be dismissed."
13. A legal representative in a given case need not be a surviving spouse, son, daughter, father or mother of deceased tenant living with the tenant in the petition schedule property up to the death of tenant. Legal representative ordinarily means a person who in law represents the estate of deceased person or persons on whom the estate devolves on the death of individual.
Reference be made to the statement in Salmond's Jurisprudence 11th Edition p. 482 that:--
"Inheritance is in some sort of a legal and fictitius continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns; exercises and fulfils in the person of a living substitute. To this extent and in this fashion it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed and his property duly disposed of his representative among the living is no longer called for.
Essentially and in substance and for purpose of jurisdiction action brought by legal representative of deceased tenant against landlord did not alter the character even after the death of tenant but is continued to be an action substantially in respect of his estate as represented by legal representative.
Legal representative would be entitled to prosecute or defend the action only on such grounds as deceased tenant could have taken. In other words the defence of action which legal representative can take must be appropriate to their character as legal representative of deceased tenant. No plea which deceased tenant could not have taken can be taken by legal representatives. This emphatically brings out the character of contest between legal representative and the landlord. The legal representative in substance is proceeding with the claim originally made by deceased tenant in a manner appropriate to the character as legal representative. Laws of procedure are designed to facilitate justice and further it's ends not a penal enactment for punishment and penalties not a thing designated to trip people up. Fair action is all the more in here in judicial approach. Approach should be to advance substantial justice. Undoubtedly justice according to law and law to be administered to advance justice."
14. Sri Uday Holla contends that exercise of the revisional powers under Section 115, C.P.C. is very limited and as such this Court should not interfere with the findings of the trial Court passed on the maintainability of the revision petition filed under Section 50 of the Act.
The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of C.P.C. Under that Section revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of the subordinate Court if it appears to it that subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction vested in it by law or has acted in the exercise of jurisdiction illegally or with material irregularity. The exercise of revisional jurisdiction is thus confined to questions of jurisdiction. Here in the instant case, the landlord has raised a substantial question of law regarding maintainability of the petition by legal representatives of deceased tenant which goes to the root of jurisdictional aspect of the matter. It is well established that the High Court may at times have to go into a jurisdictional questions of law or fact that is it may have to decide collateral questions upon the ascertainment of which the decision as to jurisdiction depends. When the findings arrived at by the Court below is manifestly erroneous, courts cannot be blind to the realities, since if the impugned order is allowed to stand grave injustice to the party would result. As such, the contentions advanced by Sri Udaya Holla that the High Court should not interfere with the impugned order in its revisional powers do not stand to reason.
15. Another aspect in this case that is to be adverted to is that the landlord did not raise any objections at the time when the impleading applicant moved the Court with an application to come on record as legal representative to continue the proceedings but rather gave his consent to the application being allowed on 19-9-1989. Legal representative continued the proceedings. Landlord has not questioned the findings before higher forum. It is only in the year 1994, landlord became activated and moved the Court to decide the question of maintainability on the ground that the inipleading applicant cannot continue the proceedings as L.R. of deceased-tenant since she is not one of the persons enumerated in Section 3(r) to come on record as tenant's successor in interest. That decision given by a Court at an earlier stage of a case is binding at a later stage is welt settled though interlocutory judgments are open for adjudication by an appellate authority in an appeal against final judgment.
16. It is apt to refer to certain observations made by the Supreme Court in Satyadhyan Ghosal v. Deorajin Debi :--
"The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Com t or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding."
17. As such, it is not open for the landlord to question the legality of the factum of impleadment of Smt. Vrisbendramanu as legal representative of deceased-tenant. The impugned order is set aside. First revision Court is directed to consider the pleas put forward by the legal representative of deceased tenant taking cognizance of subsequent events regarding sale of petition schedule premises for ascertaining the subsistence of legal rights of the landlord with a view to find out whether benefit of order of eviction would enure to the benefit of subsequent purchasers during the pendency of the proceedings in respect of relief granted in favour of the landlord. Further, the first revision Court is directed to consider I.As. VII and VIII on merits. Possession of the L.R. need not be disturbed till the matter is disposed of on merits.
18. Accordingly, this civil revision is allowed. Both the parties are directed to be present before the first revision Court on 14th day of November, 1994 without awaiting any further notice from that revision Court. No costs First Revision Court is directed is dispose of the matter within 4 (Four) months from due date.
19. Petition allowed.