Karnataka High Court
B. Prakash Chand vs S.V. Gyanchand Jain on 10 December, 2003
Equivalent citations: ILR2004KAR1387, 2004(2)KARLJ504, 2004 AIR - KANT. H. C. R. 814, 2004 AIHC 1270, (2004) 2 KANT LJ 504, (2004) 2 KCCR 772, (2004) 2 RENTLR 156
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. The petitioner is the tenant and the respondent is the landlord in regard to a shop premises measuring more than 14 sq. mtr. situated at Sakleshpur ('Premises' for short). The landlord filed H.R.C.No. 3 of 1995 in the Court of the Civil Judge (Junior Division), Sakleshpur for eviction of the tenant under Section 21(1) provisos (a), (h) and (i) of the Karnataka Rent Control Act, 1961 ('old Act' for short). After evidence, the said petition was allowed under Section 21(1) proviso (h) of the old Act, by order dated 18-8-2000 and the tenant was directed to deliver vacant possession of the suit premises to the landlord within one month.
2. Feeling aggrieved, the tenant (petitioner herein) filed a revision petition under Section 50(2) of the old Act before the District Judge, Hassan on 31-8-2000 registered as H.R.C.R.P. No. 19 of 2000.
3. During the pendency of the said revision proceedings, the old Act was replaced by the Karnataka Rent Act, 1999 ('new Act' for short). Sections 1, 3 and 6 of the new Act came into force on 5-12-2001 and the remaining provisions of the new Act came into force on 31-12-2001. The provisions of the new Act were inapplicable to the premises having regard to Section 2(3)(g) of the new Act which excluded its applicability to any premises used for non-residential purposes (excluding premises having a plinth area of not exceeding fourteen square metres used for commercial purposes). In view of it, the Revisional Court passed an order dated 30-8-2002 holding that revision petition stood abated.
4. Feeling aggrieved, the tenant has filed this writ petition. The petitioner contends that the Revisional Court ought to have held that the entire eviction proceedings in H.R.C. No. 3 of 1995 stood abated and as a consequence the order of eviction dated 18-8-2000 was non est and unenforceable, instead of holding that only the revision proceedings abated. The learned Single Judge who considered the matter has referred it to the Division Bench for decision, apparently in view of the conflict between the decision of the Division Bench in Mercury Press, Bangalore v. Ameen Shacoor, 2003(3) Kar. L.J, 505 (DB) : ILR 2002 Kar. 2304 (DB) and the decisions of two learned Single Judges of this Court in Diesel (India), Bangalore v. Smt. Kamalamma (deceased) by L. Rs, 2002(6) Kar. L.J. 109 : ILR 2002 Kar. 4592 and Ismail v. Sushila Bai., 2002(6) Kar. L.J. 476 : ILR 2003 Kar. 141
5. In Mercury Press case, supra, and identical argument was advanced, which was noticed in para 7.2 extracted below.--
"7.2 As the old Act, under which the eviction proceedings were initiated ending with an order of eviction, has been repealed, and as Sub-section 2(c) of Section 70 of the new Act provides that "all 'cases and proceedings' pending in regard to premises to which the new Act did not apply shall stand abated as from 31-12-2001", the entire proceedings, that is, not only the pending revision, but the order of eviction under the old Act from which such revision petition arises, stands abated and therefore the order of eviction become non est".
The said contention was resisted by the landlords contending that the order of eviction was passed under the old Rent Act; that the subsequent repeal of the old Act with effect from 31-12-2001 did not affect the orders of eviction already passed under the old Act, having regard to Section 70(3) of the new Act read with Section 6(c) and (e) of the Karnataka General Clauses Act; and that any revision petition filed by the tenants under Section 50 of the old Act, either before 31-12-2001 or on or after 31-12-2001 would stand abated having regard to the provisions of Section 70(2)(c) of the new Act and consequently, the orders of eviction became final and conclusive and the landlords will be entitled to execute the said orders of eviction. Considering the said contentions, the Division Bench held:
"Clause (c) is the residuary provision under Sub-section (2), which applies to all other cases and proceedings (that is proceedings other than execution proceedings and proceedings covered by Clause (b) of Sub-section (2) of Section 70) pending in respect of any premises to which the Act does not apply. It provides that such case or proceedings relating to a premises to which the Act does not apply, shall stand abated as from 31-12-2001. This would mean all original proceedings or revisional proceedings or appeals as the case may be, arising under the old Act and pending as on 31-12-2001, in regard to a premises to which the new Act does not apply, will stand abated. If what was pending is a revision or appeal, what will abate is only such revisional or appellate proceedings and not the order in the original proceedings from which the appeal or revision arose.
Sub-section (3) of Section 70 of the new Act provides that on the repeal of the old Act, the provisions of Section 6 of the Karnataka General Clauses Act applies in respect of the repeal, except in regard to cases and proceedings covered by Section 70(2). As a consequence any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act will also not be affected and it will be possible to enforce any such right or liability.
....... if an order of eviction has already been passed under the old Act, then the right to evict the tenant has been acquired by the landlord and a corresponding obligation or liability had been incurred by the tenant to vacate the premises or be evicted from the premises, under the order of eviction. Such right/liability acquired or incurred under the order of eviction passed under the old Act on or before 30-12-2001 remains unaffected by the repeal having regard to Section 6 of the Karnataka General Clauses Act and as a consequence, the landlord becomes entitled to enforce such order of eviction by executing it, subject to any remedy to which the tenant will be entitled under law.
It is true that in regard to those cases which were initiated under the old Act and where the orders of eviction were passed, Section 70(2)(c) has the effect of taking away the statutory remedy of revision under Section 50 of the old Act. But, Section 70(2)(c) of the new Act is V provision consciously made by the Legislature in the new Act. The reason is obvious. When the new Act becomes inapplicable to a premises, the tenant has no protection against eviction and the landlord will be entitled to evict the tenant under the provisions of the Transfer of Property Act without any restrictions. The Legislature obviously thought that when the landlord can get the remedy of eviction without any restrictions, after the repeal, why deny him the benefit of a remedy (eviction order) which he secured even when his right was restricted or abridged. Therefore, denial of the right of revision under the old Act, to tenants of premises to which the new Act does not apply, in regard to orders of eviction passed under the old Act, cannot be said to lead to unreasonable and arbitrary results, requiring an interpretation other than the plain and direct meaning of Section 70(2)(c). It is also possible that the Legislature might have thought that it was not proper to deny to the landlords, the benefit of decrees of eviction obtained by them after undergoing a lengthy litigation, and make them undergo one more round of litigation, in regard to premises to which the protection under the Rent Act has been withdrawn. Whatever be the reason, the fact remains that the Legislature has in its wisdom has used clear and unambiguous words and deprived the benefit of revision to those class of tenants who are no longer entitled to the protection under the Rent Act".
Having analysed the effect of the repealed old Act, with reference to the provisions of Section 70 of the new Act and Section 6 of the Karnataka General Clauses Act, and several decisions of the Supreme Court, the Division Bench summed up its conclusions, the relevant portion of which is extracted below:
(c) Pending cases and proceedings under the old Act in regard to a premises to which the new Act does not apply.--
(i) Any proceedings initiated under the old Act, pending either before the Court of first instance, or Controller or Deputy Commissioner stands abated as from 31-12-2001;
(ii) Any revision proceedings initiated under Section 50 of the old Act and pending before the District Court or High Court shall stand abated as from 31-12-2001. As a consequence any revision proceedings initiated under Section 50 of the old Act, on or after 31-12-2001 will also stand abated as and when they are initiated;
(iii) The proceedings that get abated under Section 70(2)(c) are only proceedings initiated under the provisions of the old Act.
(iv) Any order of eviction passed by the Court of first instance under the old Act prior to 31-12-2001 and which became final and conclusive on account of the abatement of revision proceedings, may however be amenable to challenge under writ jurisdiction in appropriate cases (the scope of interference under writ jurisdiction being however much narrower than the scope of interference under Section 50 of the old Act).
6. By applying the said principles, it is clear that revision petitions filed by the tenant on 31-8-2001 and pending before the District Court on 31-12-2001 stood abated from 31-12-2001; and as a consequence of the abatement of the revision proceedings, the order of eviction passed on 18-8-2000 by the Court of the Civil Judge (Junior Division), Sakleshpur became final and conclusive and is enforceable. The only remedy available to the tenant was to challenge the order of eviction dated 18-8-2000 passed in H.R.C. No. 3 of 1995 in a writ proceeding.
7. The learned Counsel for the petitioner submitted that Mercury Press case, supra, may require reconsideration, having regard to following three subsequent decisions of the Supreme Court:
(i) Mahendra Saree Emporium v. G. V. Srinivasa Murthy, ;
(ii) Sultaan Mohiyuddin v. Basheer Ahmed Shariff, ; and
(iii) M. Subbarao and Sons v. Yashodamma .
7.1 In Mahendra Saree Emporium's case, supra (Civil Appeal No. 6296 of 1998) which was an appeal by the tenant under Article 136 of the Constitution of India, the Supreme Court observed thus.--
"2. It is not disputed that the area of the suit premises used for non-residential purposes exceeds fourteen square metres. Hence, looking to the provisions of Clause (g) of Sub-section (3) of Section 2 of the 1999 Act, the provisions of the 1999 Act do not apply to the suit premises and, therefore, by virtue of Clause (c) of Sub-section (2) of Section 70 of the 1999 Act, these proceedings shall stand abated.
3. That being the position of law this appeal cannot be decided on merits and stands abated without any adjudication on merits. It be treated as disposed of.
(emphasis supplied) The Supreme Court thus clearly held that, what abated was the appeal under Article 136 of the Constitution of India, pending before the Supreme Court and not the original eviction proceedings or the order therein. The result of the decision is that the order of the High Court allowing the claim of landlord for possession, rendered when the old Act was in force stood confirmed.
7.2 In Sultaan Mohiyuddin's case, supra, which was an appeal by the landlord under Article 136 against an order of this Court dated 31-7-2001 rejecting the eviction petition, the Supreme Court held:
"During the pendency of these proceedings, the Karnataka Rent Act, 1999 has come into force with effect from 31-12-2001. According to the counter filed in this Court by the respondent-tenant, the area of the suit premises let out for non-residential purpose exceeds 14 square metres and, therefore, the premises are exempt from the provisions of the 1999 Act. It is the plea of the respondent tenant that the Karnataka Rent Act, 1999 being not applicable to the suit premises by virtue of the provisions contained in Section 2(3)(g) the proceedings shall stand abated under Section 70(2)(c) of the 1999 Act. The dimension of the premises, its being non-residential and the applicability of the relevant provisions of the 1999 Act referred to hereinabove is not disputed by the learned Counsel for the appellant-landlord. The proceedings, therefore, stand abated. Nothing survives for adjudication on merits. The appeal be treated as disposed of.
(emphasis supplied) Here again, what was treated as abated is the appeal. As a consequence the order of this Court rejecting the eviction petition became final and conclusive.
7.3 The decision in M. Subbarao's case, supra, also related to a non-residential premises measuring more than 14 sq. mtrs. In an eviction petition filed under the old Rent Act, the Trial Court directed eviction under proviso (f) on the ground of sub-letting. That decision was affirmed by the District Court in a revision under Section 50(2) and by this Court in a further revision under Section 115 of the CPC. The order of this Court was on 11-10-2000. The tenant was granted time to vacate till 11-4-2002. The landlord filed execution proceedings after 11-4-2002. In the meanwhile, the old Rent Act having been repealed, and the new Act being not applicable, the tenant contended that the eviction decree had ceased to be executable. The said objection was overruled by the Executing Court and this Court. The appeal by the tenant by special leave was dismissed by the Supreme Court holding that the decree was saved. The Supreme Court expressly approved the following view in Mercury Press case, supra; "orders of eviction passed under the old Act, which have become final and conclusive on or before 30-12-2001 in regard to which no execution was levied on or before 30-12-2001, can also executed thereafter as if the old Act has not been repealed". Thereafter, the Supreme Court considered the contention that there was a conflict between its decisions in Raminder Singh Sethi v. D. Vijayarangam and Mahendra Saree Emporium . The Supreme Court noticed that in Raminder Singh Sethi's case, supra, it had refused to evaluate the legality of the decree passed under the old Act by testing it with reference to the provisions of the new Act on the ground that Section 70 of the new Act does not provide for the provisions of the new Act being made applicable to an appeal or proceeding pending before the Supreme Court. Then referring to the decision in Mahendra Saree Emporium's case, supra, the Supreme Court observed:
"In Mahendra Saree Emporium's case, supra, an appeal pursuant to leave granted under Article 136 of the Constitution was pending in this Court when the new Act came into force. The decree passed by the High Court directing eviction of the tenant was in issue before this Court. In view of the area of the premises being such as to which the provisions of the new Act did not apply, this Court proceeded on an assumption that the appeal shall stand abated by virtue of the provisions contained in Clause (c) of Sub-section (2) of Section 70 of the new Act. It appears that such position of law was almost not disputed and, therefore, there is no in-depth scrutiny of the provisions nor any reasons assigned for the view taken. In any case, the case before us does not bear any similarity with the facts in the case of Mahendra Saree Emporium".
(emphasis supplied) The Supreme Court concluded that there was no conflict between the two decisions. The conflict if any between Raminder Singh Sethi's case, supra and Mahendra Saree Emporium's case, supra was only in regard to the question whether an appeal under Article 136 of the Constitution would abate. That question is not relevant for this case. What is relevant is that the Supreme Court has consistently held that, what would abate is the 'pending proceeding' and not the original eviction proceedings which has already ended in an order of eviction when the old Act was in force.
7.4 A careful reading of the said decisions of the Supreme Court shows that they do not lay down any principle, which changes or overrules the principle stated in Mercury Press case, supra, that a revision proceedings under Section 50 pending as on 31-12-2001 would get abated, thereby leaving the order of eviction passed by the Trial Court in fact and executable. The Supreme Court has not held that the order of eviction passed by the Trial Court in an eviction petition will stand abated if a revision petition against the order of eviction was pending as on 31-12-2001.
8. We will now consider the two decisions of the learned Single Judges of this Court which take a different view.
8.1 In Diesel (India) case, supra, it was held that, where a revision petition was pending as on 31-12-2001 against an order of eviction passed under the old Act in regard to a non-residential premises measuring more than 14 sq. mtrs., the proceedings for eviction abated and landlord will have to initiate separate proceedings for eviction under general law. Though, the decision in Mahendra Saree Emporium's and Sultaan Mohiyuddin's cases, supra, are relied, there is no discussion and no reason is assigned for holding that the original eviction proceedings itself would abate.
8.2 In Ismail's case, another learned Single Judge of this Court observed thus:
"The reference is to 'all cases and proceedings pending' and not merely to 'any proceeding'. As the revision is a pending proceeding in respect of an eviction case filed under the old Act, if the new Act has no applicability to the premises in question, then the entire case would abate as the abatement is in relation to the entire case and not confined to a particular proceeding related to the case. Therefore, it is not only the revision that would abate, but also the entire eviction proceedings.. ...The resultant position in law is that the order suffered by the tenant in the eviction proceedings that were concluded before the Court below would have no force in law as the proceedings that were concluded before the Court below have lost their validity after the advent of the Act 1999. The only course open now to the landlord is to start an action afresh under the common law for eviction of the tenant as the premises is excluded from the purview of the Act of 1999".
8.3 Unfortunately, the binding decision of the Division Bench in Mercury Press, was not brought to the notice of the learned Single Judges who decided the cases in Diesel (India), supra and Ismail, supra. Both decisions being contrary to the decisions of the Supreme Court and the decision in Mercury Press are not good law and are hereby overruled.
9. The petitioner next submitted that this writ petition may be treated as one challenging the order of eviction dated 18-8-2000. As observed in Mercury Press case, supra, the scope of interference in exercise of writ jurisdiction in regard to the orders of eviction is very narrow. When compared with the jurisdiction under Section 50 of the old Act, which enabled the Revisional Court to examine the legality and correctness of the order of the Trial Court. Recently, the Supreme Court in Surya Dev Rai v. Ram Chander Rai , held thus while referring to exercise of jurisdiction under Articles 226 and 227 in regard to orders of subordinate Courts:
"Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure of acting in violation of principles of natural justice" where there is no procedure specified, and thereby occasioning failure of justice.
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.
The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character".
We will now consider the matter with reference to the said principles.
10. The eviction petition was filed on the ground that the landlord owned the petition premises and the adjoining premises; that he was running a jewellery business in the adjoining premises; that he also has a Pawnbroker's licence, but he is not able to run the jewellery business and the Pawnbroker business in the same building since the licensing authority objected the petitioner from having both businesses in the same premises and instructed him to have separate premises for two businesses; and that therefore the petition premises is reasonably and bona fide required by him for running his pawn-broking business. The tenant resisted the said petition by contending that the landlord can conveniently continue the jewellery and the Pawnbroker business in the same premises and petition is filed with the sole intention of increasing the rent.
10.1 The landlord gave evidence in support of his need and produced the Pawnbrokers licence as Exs. P. 8 to P. 13. He also gave clear evidence about the need for a separate shop for his Pawnbroker business.
10.2 The Trial Court found on an analysis of evidence, that the need of the landlord for having a separate premises for Pawnbroker business was bona fide and also reasonable. The Court also found that the business of the landlord had increased and there is a need for the adjoining premises. The Court has adverted to the admissions made by the tenant as to the availability of several other premises which have come up in the area and the fact that tenant did not try to get any alternative shop suitable for his business. The Trial Court has therefore found that the tenant can secure suitable alternative accommodation and the hardship that will be caused to the landlord by denying eviction would be far greater than the hardship that would be caused to the tenant, by passing an order of eviction. As the petition itself is for additional accommodation, the question of partial eviction did not arise, on the facts.
11. We find no infirmity in the reasoning of the learned Civil Judge (Junior Division), Sakaleshpur in considering the evidence and recording the findings, requiring interference in exercise of jurisdiction under Article 226/227 of the Constitution.
12. The petition has no merit and accordingly it is dismissed. On the facts and circumstances, the tenant is granted four months time to vacate the premises. Parties to bear their respective costs.