Karnataka High Court
Jain Cloth Stores vs M. Kewalchand (Deceased) By L.Rs on 6 February, 2002
Equivalent citations: ILR2002KAR1694, 2003(2)KARLJ276
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. This revision petition under Section 50(1) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the repealed Act'), is filed by the tenant against the order of eviction dated 27-6-1997 passed by the Small Causes Court in H.R.C. No. 4351 of 1980.
2. The deceased respondent was the landlord and petitioner was the tenant in the Trial Court. The respondents herein are the legal heirs of deceased landlord. For the sake of convenience, the rank of the parties is referred to as 'landlord' and 'tenant' respectively.
3. The brief facts of the case are, the landlord filed petition in H.R.C. No. 4351 of 1980 under Section 21(1)(a) and (h) of the repealed Act seeking eviction of the tenant on the ground that the tenant is in arrears of rent and that the landlord requires the petition schedule premises for his bona fide use and occupation. The tenant resisted the eviction petition denying the claim of the landlord and the jural relationship and taking various stands and prayed for dismissal of the petition. The stand of the parties will be referred to while considering the revision petition on merits. Parties led evidence and produced documents in support of their case. Upon appreciation of the material evidence placed on record, the Small Causes Court by its order dated 27-6-1997 allowed the eviction petition on all the grounds urged in the eviction petition directing the tenant to vacate and deliver vacant possession of the petition schedule premises to the landlord within three months and to deposit the arrears of rent of Rs. 23,205/- within three months. Aggrieved by the same, the tenant has filed this revision petition.
4. During the pendency of these proceedings, the Karnataka Rent Act, 1999 (hereinafter referred to as 'the new Act'), came into force and the Karnataka Rent Control Act, 1961 was repealed, as a result of which, the fate of pending proceedings initiated under the repealed Act has been hanging like a democle sword. Consequently, an important question as to entertaining such cases is left for consideration.
5. After the new Act came into force, Mr. S. Shekar Shetty, learned Counsel for the petitioner-tenant placed reliance upon Sections 2(3)(g) and 70(2)(c) of the new Act and contended that the proceedings are abated as the premises used for commercial purpose involved in this case is more than 14 sq. metres in plinth area and it is precluded from the applicability of the provisions of the new Act. In support of this contention, the learned Counsel for the tenant has placed reliance upon the decisions in Ambalal Sambhai Enterprises Limited v. Amrit Lal and Company and Anr., and D.C. Bhatia and Ors. v. Union of India and Anr., According to the learned Counsel, what is saved under Section 70(2) of the new Act are the cases falling under Clauses (a) and (b) and the cases falling under Clause (c) stands abated. The Counsel also brought to the notice of this Court the unre-ported decision in H.R.R.P. No. 1591 of 1996 and connected case of Saptagiri Complex, Bangalore and Ors. v. Bhupathi Naidu, 2002(2} Kar. L.J. 159 holding that the proceedings are abated and hence the matter be referred to a larger Bench.
6. Per contra, Mr. C.B. Srinivasan, learned Counsel for the respondents, who are the legal representatives of deceased landlord, submits that the proceedings are not abated due to the repeal of repealed Act but on the other hand the proceedings are saved under Section 70(2) of the new Act. In support of the submissions, the Counsel has placed reliance upon the decision in the case of Karam Singh Sobti and Anr. v. Pratap Chand and Anr., wherein it is held that when a new Act is enacted, the actions and proceedings initiated under the repealed Act are saved.
7. Before proceeding to consider the case on merits, the rival contentions advanced by the learned Counsels for the parties on the question that has emerged by virtue of repeal of old Act and enactment of new Act requires consideration with the touchstone of law laid down in such situations.
8. In order to resolve the controversy, it is necessary to look into the two provisions in the new Act on which the learned Counsel for the petitioner placed reliance. The relevant portions of the same read as under:
"2. Application of the Act:
(1) xxxx (2) xx xx (3) Nothing contained in this Act shall apply.--
xx xx xx
(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".
It is clear from a plain reading of the above that the provisions of the new Act are not applicable to any non-residential premises except the premises whose plinth area is below 14 square metres. In other words, in respect of non-residential premises, the provisions of new Act are applicable only to those whose plinth area is less than 14 square metres and if the plinth area exceeds 14 square metres, the new Act will not apply.
9. According to the learned Counsel for the petitioner, since the premises in question is a non-residential one and its plinth area exceeds 14 square metres, the proceedings are abated under Clause (c) of Section 70(2) of the new Act. For better understanding, Section 70(2) is extracted under:
"70. Repeal and Savings.--(1) xxxx (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 of 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 of 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".
The starting words of Sub-section (2) "notwithstanding such repeal" assumes importance. The opening word starts with non obstante clause, which means despite repeal of old Act. It is crystal-clear from Clause (a) extracted above that the pending proceedings shall be continued and disposed of by the Court as if the repealed Act has not been repealed. To be more precise, it has to be assumed that the new Act is not there. But, the words "all proceedings in execution of any decree or order passed under the repealed Act" in the beginning of the said clause implies that it is applicable only to proceedings pertaining to pending execution cases. If Clause (a) is confined only to such execution proceedings, then the next question comes to the other pending proceedings emerged from the repealed Act.
10. Pending proceedings not covered under Clause (a) in respect of the premises to which the new Act applies, shall be continued and disposed of. If the new Act is not applicable, then the proceedings stand abated as per Clause (c). As per Section 2(3)(g), the application of new Act to non-residential premises is confined only to those having plinth area upto 14 square metres. The new Act does not apply to non-residential premises having plinth area exceeding 14 square metres. This is clear from a combined reading of the words in Sub-section (3) which stated "nothing in this Act shall apply" and Clause (g) thereof which states "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". If such a strict interpretation is applied, not only this revision petition but a large number of cases relating to non-residential premises having plinth area of more than 14 square metres stand abated under Clause (c) of Section 70(2) of the new Act. The provisions of Sections 2(3)(g) and 70 of the new Act are not properly worded. The application of new Act shall not have been restricted to non-residential premises having plinth area below 14 square metres under Section 2(3)(g) of the new Act. The words "to any premises used for non-residential purpose" in Section 2(3)(g) of the new Act should be read down in view of Section 70(3) of the new Act which reads as under:
"(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 Sections 8 and 24 of the said Act shall be applicable as if the said enactment had been repealed and re-enacted by this Act".
The relevant portions in Section 6 of the Karnataka General Clauses Act, 1899 are extracted hereunder:
"6. Effect of repeal.--Where this Act, or any Karnataka Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
xx xx xx
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or xx xx xx
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed".
In view of these clear provisions, it has to be held that the proceedings are not abated under Clause (c) of Section 70(2) of the new Act as contended by the learned Counsel for the tenant.
11. It is true that this Court shall not rewrite the contents of the statute. But, to give a harmonious construction of the provisions of the Act, liberal interpretation has to be applied. Otherwise, the very object and purpose of the litigation fought and succeeded in the Trial Courts would be frustrated. Since Section 6 of the General Clauses Act is made applicable to the repealed Act, it is obvious that it was not the intention of the Legislature to deprive the successful litigants the right accrued to them under the repealed Act and to compel them to initiate fresh proceedings as provided in law. It is well-settled in a catena of decisions, namely, Garikapati Veeraya v. N. Subbaiah Choudhry and Ors., AIR 1957 80 540, Hoosein Kasam Dada (India) Limited v. State of Madhya Pradesh and Ors., , Bhagat Ram Sharma v. Union, of India, , Haricharandas v. V.K. Satyanamyan, ILR 1978 Kar. 1573, D.B. Avalakki and Anr. v. Union of India and Ors., and Sub-Registrar, Kodad Town and Mandal v. Amaranaini China Venkat Rao (deceased) by L.Rs and Ors., AIR 1998 AP 252 that the rights of the parties under the repealed Act are saved when the provisions of existing Act are either amended or repealed unless the amended provisions or new Act are given retrospective effect or the proceedings initiated or action taken under repealed Act are not saved. Such liberal interpretation is also warranted in view of Sub-section (3) of Section 70 of the new Act which provides that Section 6 of the Karnataka General Clauses Act, 1899 are applicable in respect of the repealed Act.
12. The learned Counsel for the respondents has rightly placed reliance upon the decision of the Supreme Court in the case of Karam Singh Sobti, supra. In that case also, during the pendency of the revision petition before the High Court the Act under which the proceedings arose was repealed and new Act was brought into force, the pending proceedings under the old Act are held to be saved. The Apex Court in that case at para 12 approved the Division Bench judgment of the Punjab High Court in Jhabar Mal Chokhani v. Jinendra Pershad, 1965 Pun. LR 469. Paragraphs 10, 12 and 13 of that case read as under.--
"10. Let us now consider Section 57 of the Control Act of 1958 against the background of the scheme of the two Control Acts, as stated above. The first sub-section of Section 57 repeals the Control Act of 1952 insofar as it is applicable to the Union territory of Delhi. If the repeal stood by itself the provisions of the General Clauses Act (X of 1897) would have applied with regard to the effect of the repeal and the repeal would not affect the previous operation of any enactment repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The provisions of the General Clauses Act will not, however, apply where a different intention appears from the repealing enactment. Such an intention is clear from Sub-section (2) of Section 57 which contains the saving clause. It states in express terms that notwithstanding the repeal of the Control Act of 1952, all suits and proceedings under the Control Act of 1952 pending before any Court or other Authority at the commencement of the Control Act of 1952 had continued in force and the Control Act of 1958 had not been passed. Nothing can be more emphatic in the matter of a saving clause than what is contained in Sub-section (2) of Section 57. We had said earlier that had Sub-section (2) of Section 57 stood by itself without the provisos, then the incontestable position would have been that the present case would be governed by the provisions of the Control Act of 1952. The question before us is, does the first proviso states inter alia that in the matter of eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of the Control Act of 1958. Section 54 need not be considered by us as it merely saves the operation of certain enactments which do not apply to the premises under our consideration. What is the meaning of the expression "shall have regard to the provisions of this Act" (meaning the Control Act of 1958)? Does it mean that the proviso takes away what is given by Sub-section (2), except in the matter of jurisdiction of the Civil Court to deal with an eviction matter which was pending before the Control Act of 1958 came into force? We are unable to agree that such is the meaning of the first proviso. We think that the first proviso must be read harmoniously with the substantive provision contained in Sub-section (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted namely, that the words "shall have regard to the provisions of this Act" merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied". We see no other way of harmonising Sub-section (2) with the first proviso thereto.
12. We now turn to the decisions of the Punjab High Court in Krishna Aggarwal v. Satya Dev, it was held that the first proviso to Sub-section (2) of Section 57 was directory in character and not mandatory; therefore, the Courts and authorities concerned had a discretion conferred on them to take into consideration the provisions of the new Act when it was considered necessary in a proper case and in the interest of justice. We do not wish, however, to base our decision on these grounds. We think that the proper way of reading Sub-section (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 1962 Pun. LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Bimal Parshad Jain v. Niadarmal, 1962 Pun. LR 664. The question was considered by a Division Bench in Jhabar Mal Chokhani's case, supra. At pages 474 and 475 of the report Dulat, J. who spoke for the Bench said:
"It would thus appear that apart from Gosain, J., the other learned Judges of this Court have generally agreed that the proviso to Section 57, Sub-section (2), does not demand that a suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, those modifications and clarifications should be applied, but, where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act and nearly all the cases have been decided on that basis".
We agree with the view expressed by Dulat, J. We also agree with the High Court that if the first proviso to Sub-section (2) of Section 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though Sub-section (2) of Section 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will he dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.
13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of Clause (c), Sub-clause (i) of the proviso to Section 13(1) of the Control Act, 1952 and the first proviso to Sub-section (2) of Section 57 of the Control Act of 1958 does not stand in his way. He is, therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question. Therefore, the High Court rightly allowed the petition in revision and restored the decree for possession made by the Trial Court. The appeal fails and is dismissed with costs".
In view of this clear pronouncement of law on the issue, the contention of the learned Counsel for the petitioner placing reliance upon the decisions referred to in paragraph 4 of this order have no application and the contention does not hold water and the same deserves rejection. Consequently, it is held that despite the new Act coming into force, the proceedings initiated under the repealed Act shall be entertained and disposed of in view of the saving provision as provided under Section 70(3) of the new Act as if the repealed Act is in force and new Act has not at all been passed. The reliance placed upon Section 2(3)(g) and Clause (c) of Section 70(2) of the new Act and the interpretation of the said provisions made by the learned Counsel for the tenant/petitioner is untenable and misconceived, therefore, the same cannot be accepted.
13. Another important aspect is, the new Act is prospective in nature and it has no retrospective effect. Hence, the new Act shall not have the effect of nullifying the orders passed under the old Act and the rights acquired by the parties under that Act. Otherwise, the time and money spent and the energy lost for the conduct of the case would be wasted and the whole exercise of initiating and conducting the proceedings before the Jurisdictional Courts would be futile. That is not the intention of the Legislature while enacting the new Act and that can be gathered from the provisions of Section 70(3) of the new Act. This proposition of law is well-settled in a catena of cases by the Apex Court and this Court referred to in this order.
14. It is also an important aspect that if there is an order in favour of a party, that party acquired a right by virtue of the said order which is passed after determination of rights of the parties by the Competent Courts. The same should not be taken away by the repeal of the statute under which the proceedings are initiated and by enacting new Act by the State Legislature in exercise of its legislative power. Courts are temples of justice and they should provide justice to the parties who are entitled for the same and shall not cause injustice by depriving the valuable rights acquired by them under the provisions of the repealed Act after succeeding the litigation in the subordinate Courts merely because of repeal of the old Act and enactment of new statute, especially when savings provision is provided in the new Act. The legislative intendment in enacting the new Act should be borne in mind while interpreting the provisions of the new Act and such interpretation shall be liberal and it should not defeat the intendment and object of the Legislature it had while enacting new statute in exercise of its legislative power and wisdom under the Constitution of India.
15. In the matter of interpretatipn of statutes, the Constitution Bench of the Supreme Court in the case of S.R. Bommai and Ors. v. Union of India and Ors., has held as under:
"238. The question, further arises whether by interpretative process, would it be permissible to fill in the gaps. Though it is settled law that in working the law and finding yearning gaps therein, to give life and force to the legislative intent, instead of blaming the draftsman, the Courts ironed out the creases by appropriate technique of interpretation and infused life into dry bones of law.... Bennion at page 338 extracting from the Institute of the Law of Scotland, Vol. 3, page 1 of the practice by David Maxwell at page 127 abstracted that "Where a matter depends entirely on the construction of the words of a statute, there cannot be any appeal to the nobile officium". He stated at page 344 that "where the literal meaning of the enactment goes narrower than the object of the legislator, the Court may be required to apply a rectifying construction. Nowadays it is regarded as not in accordance with public policy to allow a draftsman's ineptitude to prevent justice being done. This was not always the case". "... In American Jurisprudence 2nd Series, Vol. 73 at page 434 in para 366 it is further stated that:
"While it has been held that it is duty of the Courts to interpret a statute as they find it without reference to whether its provisions are expedient or unexpedient, it has also been recognised that where a statute is ambiguous and subject to more than one interpretation, the expediency of one construction or the other is properly considered ... By the same token an omission or failure to provide for contingencies, which it may seem wise to have provided for specifically, does not justify any judicial addition to the language of the statute. To the contrary, it is the duty of the Courts to interpret a statute as they find it without reference to whether its provisions are wise or unwise, necessary or unnecessary, appropriate or inappropriate, or well or ill-conceived" ".
In view of the law laid down by the Apex Court regarding the interpretation of the statute, this Court has to interpret the provisions of Section 2(3)(g) and Clauses (a), (b) and (c) of Section 70(2), bearing in mind the provisions under Section 70(3) of the new Act, in favour of parties to hold that the proceedings initiated under the repealed Act and pending before the Courts are saved in respect of the non-residential premises irrespective of the plinth area and such saving cannot be confined to the non-residential premises whose plinth area is below 14 sq. metres mentioned in Section 2(3)(g) of the new Act.
16. In the unreported decision in H.R.R.P. No. 1591 of 1996 and connected case relied upon by the learned Counsel for the petitioner, this Court has not considered the decision of the Supreme Court in the case of Karam Singh Sobti, supra. The law laid therein is extracted above. Further, this Court also not considered the savings provisions of the new Act. Hence, the decision in the said unreported decision of this Court cannot be applied to this case and it is of no help to the tenant/petitioner. The legal question raised by the learned Counsel on behalf of the tenant that the pending proceedings initiated under the repealed Act in respect of non-residential premises exceeding 14 sq. metres plinth area as defined under Section 2(3)(g) of the new Act is not applicable, is wholly untenable in law.
17. One of the contentions advanced by the learned Counsel for the tenant is that since disputed questions of law is involved, the parties should have been referred to Civil Court. The Counsel has placed reliance upon the decisions in Budhu Mal v. Mahabir Prasad and Ors., , Pratapsingh v. Jaibunnisa Begum, ILR 1987 Kar. 3464 : AIR 1989 Kant. 70 19 and Rukamoddia Dastagirsab v. Basawwa and Ors., 73(2) Mys. L.J. 206 in support of his contention. The contention is untenable and decisions relied upon will be of no assistance in view of the decision in Budhu Mal's case, supra. In paragraph 9 of the said decision it is held as under.--
"9. It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title".
18. Having turned down the plea of abatement of the proceedings raised by the learned Counsel for the petitioner by virtue of repeal of repealed Act and enactment of new Act, the case requires examination on merits. The only admitted fact is that the premises in question is a non-residential building and the landlord and tenant are in the same building in different portions. The tenant has disputed the relationship of landlord and tenant, the rate and also arrears of rent, the requirement of premises by the landlord and that hardship would be caused to landlord if eviction is not ordered. The Trial Court recorded its findings in favour of the landlord and passed the order under challenge. In this background the Court proceeds to consider the case on merits with reference to the rival contentions urged on behalf of the parties and the material evidence on record.
19. While the landlord claimed the monthly rent of the premises was Rs. 175/-, the tenant contended that the rent in respect of the premises in question was Rs. 105/-; that the premises in question was agreed to be sold to the tenant by the vendor of the landlord by receiving an advance of Rs. 2,000/- and put the tenant in possession of the premises and after the sale agreement the rent was not paid to the landlord as there was part performance in terms of Section 53-A of the Transfer of Property Act by the vendor of the landlord. A Trial Court did not accept the case of the tenant. Since sale deed was in favour of the landlord in respect of the petition schedule premises, katha stood in his name and the suit for specific performance filed by the tenant was dismissed. The Small Causes Court has held that landlord is the owner of the property on proper appreciation of evidence on record, the said finding is in conformity with law. The tenancy was created in favour of the tenant earlier to the sale agreement had been admitted by him. Since he is not the owner of the premises, his tenancy has been continued in view of the provision of Section 55(4)(a) of the Transfer of Property Act. Taking into consideration the admission of RW 1, the Trial Court held that rent was Rs. 105/- per month. Once it is held that landlord is the owner and the rate of rent is determined by the Small Causes Judge and the occupation of tenant in respect of the premises in question is not in dispute, it has to be held that there exists the relationship of landlord and tenant between the parties, the Trial Court has rightly held so in favour of the landlord. In this view of the matter, the contention of the learned Counsel for the tenant placing reliance upon the decisions in Nathulal v. Phoolchand, and Narasimhasetty (deceased) by L.Rs v. Padmasetty, 1998(8) Kar. L.J. 78 : ILR 1998 Kar. 3280 that the jural relationship of landlord and tenant came to an end when the tenant was put in possession of the suit schedule property towards part performance of agreement of sale in his favour, is untenable and the decisions relied upon are not applicable to the fact situation. The further reliance placed upon the decisions in S.D. Patel v. B.E. Thippaiah, 1979(1) Kar.L.J. 423, Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Limited v. Khaja Midhat Noor and Ors., and Carona Shoe Company Limited and Anr. v. K.C. Bhaskaran Nair, regarding existence of relationship of landlord and tenant between the parties in respect of the premises in question, have no application to the case on hand in view of the law laid by the Apex Court and this Court in Budhu Mal's case, supra, Durga Prasad and Anr. v. Deep Chand and Ors., , K. Visvanathiah Setty v. S.K Chikka Veerappa, ILR 1990 Kar. 498 and Pratapsingh's case, supra, of which the learned Counsel for the respondents has rightly placed reliance in this case which are aptly applicable to the facts of this case. In view of the findings recorded by the Trial Court and law laid down in the cases by the Apex Court and this Court in the cases referred to supra, the submissions made on behalf of the tenant placing reliance upon the judgments referred to above are all misplaced and the same cannot be accepted by this Court to annul the findings both on the question of the jurisdiction of the Small Causes Court which has entertained the eviction proceedings and with regard to the relationship of landlord and tenant.
20. Insofar as the eviction ordered under Clause (a) of Section 21(1) of the old Act is concerned, it is an admitted fact that the tenant has not paid rent right from the date of agreement of sale in his favour. Hence, the Trial Court calculated the rent at the rate of Rs. 105/- per month and held that the tenant was in arrears of Rs. 23,205/- relating to 221 months. The landlord got issued statutory notices as per Exs. P-13 and P-19 to the tenant. Despite issuing notices, the tenant acknowledging the same he has failed to pay the arrears of rent. Hence, the Trial Court has rightly ordered eviction of the tenant under Section 21(1)(a) of the old Act. The stand taken by the tenant that the advance amount of Rs. 2,000/- was not adjusted, was not accepted by the Court below on the ground that the said amount is not covered under Section 18(2)(b) of the old Act is legally not correct. Even if such an adjustment was made and deduction is given in the sum of Rs. 23,205/- determined as arrears, the tenant was still in arrears of huge amount. Hence, the reliance placed by the learned Counsel for the petitioner on the decisions in Kranti Swaroop Machine Tools Private Limited and Anr. v. Smt. Kanta Bai Asawa and Ors., has no application to the case. On the other hand, the decision in Chunilal Parasram (deceased) by L.Rs v. Bombay Misc.
Private Limited, 1982(2) Kar. L.J. 585, Ramaiah v. Narasaiah, and Shivanna v. Gangamma, 1977(1) Kar. L.J. 321 relied upon by the learned Counsel for the landlord are applicable to the facts of this case.
21. The submission of learned Counsel for the petitioner/tenant that there was sufficient cause for non-payment of rent. According to him, in view of the agreement of sale executed by the vendor of the landlord in favour of the tenant, rents were not liable to be paid to the landlord in respect of the premises in question. This contention is no longer res integra in view of the Division Bench decision of this Court in B.R. Mulani v. Dr. A.B. Aswathanarayana, which is extracted hereunder;
"35.1 However, it is contended that Section 55(4)(a) of the Transfer of Property Act is not attracted because it is a case in which the plaintiff had paid the entire amount of consideration before filing the suit and as such equity demanded that he should be entitled to continue in possession without paying rent as otherwise the payment of consideration by the plaintiff would have gone without any benefit or interest. In this regard a decision of this Court in Malkajappa Bhimappa Bennur v. Bhimappa Kashappa Parasannavar and Ors., 1965(2) Mys. L.J. 229 : AIR 1966 Mys. 86 was relied upon. We may point out here that Section 55(4)(a) of the Transfer of Property Act is clear in its terms. It specifically provides that:
'In the absence of a contract to the contrary the buyer and seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:
XXX XXX XXX (4) The seller is entitled--
(a) to the rents and profits of the property till the ownership thereof passes to the buyer...' "
The same has been affirmed by the Apex Court in the decision of B.R. Mulani v. Dr. A.B. Aswathanarayana and Ors., . In view of the law laid down by the Apex Court on the legal question referred to supra, the cause shown by the tenant for non-payment of arrears of rent determined by the Court below to the landlord cannot be accepted by this Court, as the cause shown is not legal and valid in law.
22. So far as the bona fide requirement of the landlord and his family is concerned in respect of the premises in question, the landlord expired and his legal representatives continued the proceedings. The Trial Court found that they are in the first floor of the premises in question; that their mother is aged about 80 years and she has to be provided accommodation in the ground floor; that the landlord got three major sons; that their intention is to demolish the building as it is old and dilapidated and reconstruct the building according to their need and requirement and the same cannot be described as mala fide. It is the natural and bona fide desire, need and requirement of the owners of the property to enjoy the property as they like and the tenant shall not come in the way of such a desire. Taking into consideration the accommodation available, the number of members of the family of landlord and their need and bona fide desire, and the age of landlord's wife, the Trial Court held that the requirement of the premises in question to the landlord was reasonable and bona fide. Accordingly, it has ordered eviction of the tenant under Clause (h) of Section 21(1) of the repealed Act. The tenant has not shown the findings recorded by the Trial Court in the impugned judgment is either erroneous in law or error in law and that there is miscarriage of justice.
23. Coming to the question of hardship will be caused in an order of eviction is either passed or not, the Trial Court on appreciation of evidence on record found that much inconvenience and hardship would be caused to the landlord if an order of eviction is not ordered in his favour. On the other hand, it has been found that the tenant has not made any attempts to secure alternative accommodation and that no hardship or inconvenience would be caused if he is ordered to vacate the petition schedule premises. It was also observed in the impugned order that RW 1 has admitted in his evidence that many shops and houses have come up newly in Bangalore during pendency of the proceedings before the Small Cause Judge Court. Therefore, it has rightly held that the tenant can secure an alternative accommodation if an order of eviction is passed against him. Taking into consideration all these aspects, the Trial Court rightly recorded the finding based on evidence on record regarding hardship in favour of the landlord. This Court also takes judicial note of the fact that the tenant has been litigating the matter for the last 22 years and even after such a long passage of time if the landlord is deprived an order of eviction, the desire of his legal representatives will not be fulfilled. It is also to be noted that the tenant has enjoyed the property without paying the rent for a long time. Added to that, the rent of Rs. 105/- is very small and not even a small room is available in Bangalore for that rent. Hence, the tenant cannot be allowed to enjoy the premises with such low rent for a longer period, without revision of rent in respect of the premises in question particularly in view of the fact that the building is old and dilapidated. The tenant must content with the enjoyment of the property at such a low rent for all these years and an end has to be put to this long litigation as the landlord established his right of securing an order of eviction on all the grounds urged by him.
24. Regarding partial eviction is concerned, learned Counsel for the tenant placed reliance upon the decisions in Nasirul Hague v. Jitendra Nath Dey, and Krishna Murari Prasad v. Mitar Singh, to contend that the Trial Court has not considered feasibility of partial eviction in a proper perspective. I have gone through the order of the Trial Court in this regard. While answering point No. 5 at paragraph 16, the Trial Court has taken into consideration the condition of the building, the family of the landlord, their bona fide need and requirement for residence and doing the business and found that they require the entire building and there is no scope for partial eviction. The reasons assigned by the Trial Court are well-founded and since the building is in a dilapidated condition, question of partial eviction does not arise. In the circumstances, the reliance placed by the learned Counsel for the tenant upon the decisions referred to supra have no application to the present case and the contention urged in this regard is untenable.
25. During the pendency of these proceedings, learned Counsel for the petitioner has filed an application praying to take note of the subsequent events after filing the eviction petition by the landlord. Along with the said application, an invitation card is also produced to show that the legal representatives of deceased landlord have started new business in some other place and they do not require the petition schedule premises. Objections have been filed opposing the application and denying the statements made in the application. Learned Counsel for the petitioner has placed reliance upon the decisions in M.M. Quasim v. Manohar Lal Sharma and Ors., , Variety Emporium v. V.R.M. Mohamed Ibrahim Naina, and Bhoolchand and Anr. v. Kay Pee Cee Investments and Anr., in support of the prayer in the application. After perusing the invitation produced along with the application, this Court prima facie satisfied that the invitation does not pertain to the business of legal representatives of deceased landlord. The invitation pertains to opening of Prince Jewellers and the invitation is offered by one M. Shantilal Bafna, who is not the legal representative of deceased landlord. In that invitation, best compliments are offered by the legal representatives of deceased landlord. That does not mean that the business was started by them. It is to be held that it is nothing but a misrepresentation of fact to mislead the Court. Be that as it may, no other material or proof is produced by the tenant in proof of the alleged subsequent event. Therefore, it has to be held that no subsequent event took place after filing of the eviction petition by the landlord and during the pendency of the proceedings before this Court. Hence, the reliance placed upon the decisions in this regard by the learned Counsel Mr. Shekar Shetty on behalf of the tenant have no application to the case on hand and hence the same cannot be accepted by this Court.
26. For the foregoing reasons, the order under challenge shall not be interfered and the revision petition is devoid of merits and is liable to be dismissed.
27. Accordingly, the revision petition is dismissed,
28. At this juncture, the learned Counsel for the tenant sought for two years time. Having regard to the passage of time consumed by this case for more than 22 years without reaching finality, the Court was inclined to grant reasonable time of three months to the tenant to vacate and deliver vacant possession of the petition schedule premises. Counsel for the tenant persuaded that if some reasonable time is granted, the tenant will vacate voluntarily without seeking extension of time. In the circumstances, time is granted to the tenant till the end of September 2002 subject to the petitioner filing an undertaking by way of an affidavit within three weeks from receipt of this order to that effect and continue to pay the rents every month without fail and will vacate voluntarily before the time granted.
29. The rents deposited be paid to the landlord.