Karnataka High Court
Smt. K.S. Muddugowramma vs P. Suryanarayana (Deceased) By L.Rs. on 8 January, 2003
Equivalent citations: 2003(5)KARLJ87
Author: A.V. Sreenivasa Reddy
Bench: A.V. Sreenivasa Reddy
ORDER A.V. Sreenivasa Reddy, J.
1. Being aggrieved by the concurrent findings of the Courts below rejecting petitioner's prayer for eviction of the tenant on the grounds available under Clauses (a) and (h) of Section 21(1) of the Karnataka Rent Control Act, 1961, the petitioner-landlord has preferred this revision petition under Section 115 of the CPC.
2. The facts necessary for the disposal of the revision petition, briefly stated, are as under:
(i) The petitioner filed the eviction petition claiming that the respondent was a tenant under her in respect of the petition property on a monthly rent of Rs. 200/- and he had failed to pay rent of the said property from 1-2-1984 to 30-9-1985 in spite of several demands and legal notice dated 12-6-1985. She further claimed in the petition that the petition premises is required by her for the bona fide use and occupation of herself and her family members.
(ii) The learned Munsiff on a detailed examination of the claim of the petitioner and the defence put forth by the respondent-tenant, rejected the eviction petition on both the grounds. The petitioner took the matter in revision proceedings, in the Court below the respondent-tenant passed away and his legal representatives were brought on record. The Court below concurred with the findings recorded by the learned Munsiff and rejected the revision in toto. Aggrieved by the dismissal of both the eviction and the revision petitions, the petitioner has moved this Court in this revision under Section 115 of the CPC.
3. The original tenant disputed the claim of the petitioner under both heads.' The petitioner's learned Counsel however did not press the ground under Clause (a) in this revision.
4. During the pendency of the revision in this Court, the Karnataka Rent Control Act, 1961 ('the repealed Act' or 'the old Act' for short) was repealed and in its place. The Karnataka Rent Act, 1999 ('the present Act' for short), which has in its wake brought about far-reaching changes in the matter of regulation of eviction, has been brought on the statute book. By comparison with the rigour of proof required to be established under Section 21(1)(h) of the old Act, the rigour of proof that has to be discharged for getting an order of eviction against a tenant on any of the grounds available to him under the corresponding provision which is Section 27(2)(r) of the Act, has been considerably whittled down by the incorporation of a legal fiction in Explanation I to Section 27. In addition, certain beneficial provisions under Sections 28 to 31 providing the right to recover immediate possession of premises have been added on to the statute book. Furthermore, by Explanation I to Section 27, the Act mandates that the Court shall presume for the purposes of Clause (r) of Section 27(2) and Sections 28 to 31 of the present Act that where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or any member of his family dependent on him, the Court shall presume that the premises are so required, without the landlord being required to prove the genuineness of the requirement, unlike under the repealed Act. The provisions of the new Act, while introducing this legal fiction in favour of the landlord, has imposed the only onus on him of showing to the satisfaction of the Court that he does not possess a more suitable accommodation for his occupation. As the provisions of the present Act have been made applicable to all pending matters, I have heard the learned Counsels on both sides, on the merits of the revision, with reference to the provisions of the present Act.
5. Learned Counsel for the petitioner Mr. R. Vijayakumar placed reliance on Section 31 of the present Act and submitted that Section 31 recognises the need of a widow to have immediate possession of the premises by meting out a preferential treatment to her in the matter of eviction of tenants from the premises let out by her or her husband. It is his submission that the Court should examine the case in the light of this privilege bestowed on her by the present Act. His further submission is that such examination coupled with the changed situation in law which has substantially whittled down the burden of proof required under Section 27(2)(r) to be discharged by a landlord seeking the premises for purpose of her occupation for any member of her family, would undoubtedly enure to the benefit of the petitioner and should automatically result in an order of eviction being passed against the respondent-tenant. It is also his submission that in view of Section 5 of the present Act, the respondents who are the legal representatives of the deceased original tenant are not entitled to continue in possession of the premises in question for more than five years from the date of death of the original tenant.
6. On the other hand, learned Counsel for the respondent-tenant Mr. Rudragowda has advanced a three-fold submission. Firstly, according to him, the scope for interference in a proceeding under Section 115 of the CPC being very limited and the present revision being one preferred against concurrent findings of the Courts below, this Court sitting in revision cannot, even if it is possible to take a different view in the matter, interfere with the concurrent findings of the Courts below, more so, in the light of the amended Section 115 of the CPC. Secondly, it is submitted by him that as the premises in question exceeds fourteen square metres and is used for non-residential purpose, the provisions of the present Act would not apply to the case on hand and therefore the revision proceedings shall stand abated. Lastly, learned Counsel for the respondent submitted that the landlord does not 'require' the premises and the element of need that could be perceived from the case put forth by the landlord in the present case could only be termed as 'desire' and not a 'requirement' as stipulated in Section 27(2)(r) of the present Act which should have an element of 'must have' to it.
7. I would first take up for consideration the submission made by the learned Counsel for respondents, Mr. Rudragowda on the limitations within which this Court has to operate while deciding the issues arising in a petition filed under Section 115 of the CPC. No doubt, this Court cannot enter into appreciation or re appreciation of evidence merely because it is inclined to take a different view of facts as if it were a Court, of facts. However, an obligation is cast on this Court to test the orders on the touchstone of 'whether it is according to law' especially so in cases arising under the present Act, because they have to be determined in accordance with the provisions of the present Act whilst the orders under scrutiny have been passed with reference to the provisions of the repealed Act. It is trite to contend that a finding recorded with reference to the provisions of the repealed Act should not be tinkered with in a revision under Section 115 of the CPC merely because a different view is possible if the case is examined with reference to the existing law. No doubt, it is an axiomatic rule that the validity of an order passed by a statutory functionary based on certain grounds with reference to the law as it then prevailed has to be judged by the Court sitting in revision only with reference to the law as it prevailed at that time. But this rule will hold good only so long as the intent of the Legislature as it finds expression in the statute does not indicate otherwise. If there is a clear indication in the statutory provisions governing the case that this rule has to be given a go-by and the matter determined in accordance with a new set of provisions enacted with a specific intent and object, then there would be no gain-say in arguing that since the orders impugned are in accordance with the law that governed the case at the time when it was decided, that the Court should refrain from interfering with it even if it is not in accordance with the present law. Such an argument, if accepted, would defeat the very object behind the enactment of the present Act. By enacting Section 70 in the present Act, the Legislature has expressed its intent in no uncertain terms under Clause (b) of Sub-section (2) of Section 70 that all pending matters shall be continued and disposed off in accordance with the provisions of the present Act. Therefore, even in the exercise of the limited powers under Section 115 of the CPC it becomes the duty of this Court to see whether the order impugned is in accordance with the present law and if it is not, this Court has to interfere with it and determine the case in accordance with the present law. In S.N. Kapoor (dead) by L.Rs v. Basant Lal Khatri, , on the death of the petitioner-landlord during pendency of eviction proceedings his wife filed claim that the petition filed under Section 14(1)(e) for eviction be converted as one under Section 14-D of the Delhi Rent Control Act, 1958 as she having become a widow was entitled to recovery of possession and her claim considered accordingly. The High Court rejected the prayer on the ground that the High Court had no such powers t.o order for such conversion. The Apex Court finding fault with the approach of the High Court in refusing to consider the case as arising under Section 14-D, observed:
"As a matter of fact subsequent developments and altered circumstances are to be relevant in adjudging the nature and character of the claim made, at all stages of the proceedings. That apart, in adjudging the claim under Section 14-D what is required to be substantiated is that the landlady is a widow and that she wants the premises for her own residence and that the claim by her is bona fide and not a feigned one".
A contention was urged before the Apex Court that even under Section 14-D of the Act, the essential prerequisite of the claim being bona fide need to be substantiated to get relief and inasmuch as there had been concurrent findings against the claim, no exception could be taken to the order passed declining the request for conversion of the claim even on merits dehors the question of entertainability of the same at that stage of the proceedings. Brushing aside the contention as aforesaid, the Apex Court noticed:
"The plea based on concurrent findings, in our view, could not come to the rescue of the tenant in this case, having regard to the perfunctory nature of the said findings and want of proper consideration and lack of application of relevant principles governing the issue. When the Court exercising jurisdiction under Section 25-B(8) was obliged to objectively consider whether the order passed by the Rent Controller was "according to law", but has miserably failed to do so resulting in miscarriage of justice, the High Court must, be held to have failed to exercise its powers and consequently, this Court is bound to interfere in the matter to render real and substantive justice".
(emphasis supplied) Though the orders impugned in this revision cannot be faulted on the ground of lack of application of relevant principles governing the issue and want of proper consideration, still as there is no consideration of the material on record with reference to the altered law that governs the field now, this Court sitting in revision can adjudicate the matter as subsequent developments and altered circumstances are relevant in adjudging the nature and character of the claim made, at all stages of the proceedings. Touching upon this aspect, the Apex Court, held:
"The common determining factor being the 'bona fides' in both cases, and the landlady seeks an adjudication on the basis of materials already on record there should be no impediment for the Authorities I Courts functioning even under the Act to permit such conversion or alteration and consider the claims made under the altered provision of law".
(emphasis supplied) Learned Counsel Mr. Rudragowda relied on the decision in Johri Singh v. Sukh Pal Singh, , wherein the Apex Court held that where the Trial Court had jurisdiction to extend the time under Section 148 of the CPC on sufficient cause being made out, the first condition precedent to enable the High Court to exercise its revisional jurisdiction under Section 115 of the CPC was, therefore, lacking. In the said case the Apex Court found that there was nothing that has been brought on record on the basis of which it could be said that the discretion exercised by the Trial Court was in breach of any provision of law or that the Trial Court committed any error of procedure which was material and may have affected the ultimate decision. In the instant case, the discretion exercised by the Courts below is vitiated because in the exercise of such discretion the Courts below had no occasion to examine the case under Section 31 whereas this Court has to determine the issue with reference to Section 31 on the material available on record. Any failure in this regard would amount to failure on the part of this Court to exercise its jurisdiction as held in S.N. Kapoor's case, supra. This question is no longer res Integra as a Division Bench of this Court after an elaborate consideration in the case of Mercury Press, Bangalore v. Ameen Shacoor and Ors., 2003(3) KAR. L.J. 505, ILR 2002 Kar. 2304, has laid down the manner in which pending cases and proceedings, under the old Act, in regard to a premises to which the new Act applies, have to be dealt with, in the following terms:
"If any case or proceedings (other than execution proceedings) initiated under the old Act is pending in regard to a premises to which the new Act applies, such case or proceeding either original or appellate or revisional, shall have to be continued and disposed of in accordance with the provisions of the new Act, though they were initiated under the old Act".
The determination of the revision petition filed by the landlord would even entail reappreciation of facts as the appreciation of facts made by the Courts below with reference to the provisions of the repealed Act would not be of any assistance, in the present scenario, to determine with reference to the present Act whether the impugned orders suffer from any illegality or material irregularity as the very basis that the law then provided for such appreciation has been drastically altered by introduction of the legal fiction to which I have made a reference earlier in the course of this order. Therefore, the submission made by learned Counsel for the respondent that this Court cannot interfere with the concurrent findings in a revision under Section 115 of the CPC cannot be sustained.
8. Learned Counsel for respondents, then, submitted that the premises in question being one used for non-residential purpose, the provisions of the present Act would not apply and, therefore, the revision proceedings shall stand abated. Section 2 of the present Act governs the application of the Act. It reads:
"2. Application of the Act.--(1) Chapters I to III and Chapters V to VIII of this Act shall apply to areas specified in the First Schedule.
(2) Chapters I and IV shall apply only to areas specified in the Second Schedule.
(3) Nothing contained in this Act shall apply.-
... ... ...
(g) to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square metres used for commercial purpose".
(emphasis supplied) A building which reasonably accommodates a residential user is a residential accommodation. The possibility of putting a part of it for commercial use or the actual user of a portion for commercial use by the tenant, later on, after getting into the premises even if it be with the permission of the landlord would not render it a non-residential premises. The premises we are concerned with in the present case was let out for residence, is even now being used as a residence, is suitable otherwise for residence and is being credibly demanded for the petitioner's residence. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated as 'residential premises'. Residential suitability being the basic consideration, putting into use a part of the premises for non-residential purpose could not take it out of the pale of residential premises. Therefore, unless a building was let out for non-residential purpose, is being exclusively used as non-residential purposes and is incapable of being used for residential purpose it could not be termed as a non-residential premises. The conclusion reached by me as above obviates the need to consider the question whether the provisions of the Act are applicable to the present case.
9. The last submission by Mr. Rudragowda is that the premises are not required by the petitioner as the accommodation presently available to her is more than sufficient to meet her requirement and that the need as perceived by the petitioner could at the most be termed as a mere 'desire' and not as a 'requirement' with an element of 'must have' to it and, therefore, even under the provisions of the present Act the petitioner would not be entitled to the relief sought for by her.
10. The petition was filed under Clause (h) of Section 21(1) of the repealed Act on the ground that the premises was required by her for occupation of herself and the other members of her family. Such a claim could be sustained under Clause (r) of Section 27(2) and further she being a widow she would also be entitled to claim relief under Section 31 of the present Act which vests in her a special statutory right to recover immediate possession of the premises. The Legislature has thought it fit to add an explanation to Clause (r) of Section 27(2) and Sections 28 to 31 making it binding on the Court to draw a legal presumption that the premises sought for the occupation of the landlord or any member of his/her family is so required. The explanation reads:
"Explanation I.--For the purposes of this clause and Sections 28 to 31.-
(i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required;
(ii) ..........".
Section 31 which is supplemental to Section 27 which primarily governs eviction by landlords of tenants, reads:
"Section 31. Right to recover immediate possession of premises to accrue to a widow.--(1) Where the landlord is.-
(a) a widow and the premises let out by her, or by her husband;
(b) a handicapped person and the premises let out by him;
(c) a person who is of the age of sixty-five years or more and the premises let out by him, is required for use by her or him or for her or his family or for anyone for ordinarily living with her or him for use, she or he may apply to the Court for recovery of immediate possession of such premises.
(2) Where the landlord referred to in Sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of any one residential and one non-residential premises each chosen by him.
Explanation I.--For the purposes this section, "handicapped person" shall mean a person who is as if being an assessee entitled for the time being to the benefits of deduction under Section 80U of the Income-tax Act, 1961 (Central Act 48 of 1961).
Explanation II.--The right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use".
The petitioner's case as put forth in her eviction petition is that she has three sons and the accommodation available is not sufficient and there is no privacy for the members of the family. It was also stated by her that she was planning to conduct the marriage of her second son. She, had deposed in her evidence that her eldest son died in the year 1993, her second son works as a Physical Instructor in Government School, her third son is doing Shamiyana business and her last son is running power-looms. Undisputedly, the petitioner has three surviving sons. She had also stated that the accommodation available was not sufficient even to the existing members and there was no privacy. The Court below has discounted this evidence by reasoning that none of the sons had been examined to speak about the lack of privacy. The Court, in fact, even refers to the factum of the marriage of second son having taken place during the pendency of the proceedings before the Court below but still finds that she had not made out a case for eviction. Considering the fact that nearly five years have lapsed after the order was passed by the Court below the married son must be having children now. The petitioner's other two sons must have also married or reached the marriageable age. The accommodation presently available with the petitioner is a storeroom, a hall, a pooja room, kitchen room, two rooms, one room where there is the power-loom factory, bathroom and toilet. If we exclude the pooja room, kitchen, power-loom factory, bathroom and toilet what is available for the stay of the petitioner, her three sons, one of whom is married, are just two rooms and one hall. The married son and his wife would exclusively require a room for themselves. What is left is just one hall and one room for the petitioner, her two sons and may be the children of her second son. Certainly none of the family members could have even a modicum of privacy if we consider the sheer number of persons presently occupying the premises. Therefore, the need perceived by the petitioner certainly has an element of 'must have' to it and such a need could safely be termed as a 'requirement' which entitles a widow to the special right of recovering immediate possession of premises.
11. Now let me examine Section 31 which confers a right to a widow to recover immediate possession of premises which is in possession of her tenant. In Sections 28 to 31 of the Act the right to immediate possession accrues to a class of persons. The concept is pursued and clarified in the body of Section 31 that in the event of the premises being required by her for herself or any one ordinarily living with her, she may apply to the Court for recovery of immediate possession of such premises. Whatever be the merit of that philosophy, the theory appears to be that a widow should not be at the mercy of law's delays. The tenant is even deprived of the elementary right of a defendant to defend a proceeding brought against him under Section 31 by providing for the legal presumption under Explanation I which is made available to Clause (r) of Section 27(2) and Sections 28 to 31 of the Act. The vesting of a right to immediate recovery, the creation of a summary process and the package of connected provisions, all emphasise that the new law has to be viewed as a whole and the statute shall not be mocked at. The present Act provides comprehensive remedies and imparts operational speed and modernises the whole law for the good of the community. May be, as between two hardships viz., that of the tenant and the landlord, the Legislature has made the choice and Court implements the law based on the policy decision of the Legislature. The social setting, the nature of the subject-matter and above all the legislative diction which has been deliberately designed have narrowed down the scope for opening the door to any defence based on bona fides or hardship. That being the position in law, in the present facts of the case, the claim of the petitioner cannot be denied at all.
12. Learned Counsel Mr. Rudragowda cited for my consideration the decisions in T.R. Kapoor and Ors. v. State of Haryana and Ors., AIR 1989 SC 2082, JT 1989 ( 4 ) SC 31, Municipal Corporation of Greater Bombay v. Lala Pancham and Ors., and Bhoolchand and Anr. v. Kay Pee Cee Investments and Anr., . The principles enunciated in the said rulings by the Apex Court do not have any application to the issues involved in the present case which turns purely on the determination of the question as to whether the petitioner is entitled to the relief claimed by her under the altered position in law which is made applicable to the case.
13. In the result, for the reasons stated above, the revision petition is allowed and the impugned orders are set aside. The petition filed by the petitioner-landlord is allowed both under Sections 27(2){r) and 31 of the present Act. However; the respondent-tenant is given three months' time to quit and deliver vacant possession of the premises to the peti tioner-landlady.