Karnataka High Court
Mr Gangadhar Nayak vs Mr Ananth G Pai on 21 July, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
HOUSE RENT REV. PETITION NO.3/2019 (IO)
BETWEEN:
MR. GANGADHAR NAYAK
AGED 52 YEARS,
S/O LATE M. BABURAYA NAYAK
R/AT BHARATH BEEDI COMPOUND
KUDROLI-575003
MANGALURU.
... PETITIONER
(BY SRI CHANDRANATH ARIGA, ADVOCATE)
AND:
1. MR. ANANTH G. PAI
S/O GANAPATHI PAI
AGED 44 YEARS,
R/AT BHARATH BAGH, KADRI,
MANGALURU-575002.
SNICE DECEASED BY LRS
1(a). SMT. SUMA ANATH PAI
W/O LATE ANANTH G. PAI
AGED ABOUT 46 YEARS
1(b) ANVITA ANANTH PAI
D/O LATE ANANTH G. PAI
AGED ABOUT 19 YEARS
2
BOTH R/AT 3-30-2473
KADRI ROAD
BHARATH BAGH, KADRI
MANGALURU-575 002. ... RESPONDENTS
(BY SRI B.S.SACHIN, ADVOCATE FOR R1(a & b)
THIS HRRP IS FILED U/S.115 OF CPC AGAINST THE
ORDER DATED 13.07.2018 PASSED IN HRC NO.21/2011 ON
I.A.NO.V PASSED BY THE PRL. CIVIL JUDGE, MANGALURU, D.K.,
AND THE ORDER DATED 20.12.2018 IN RENT REVISION
PETITION No.15/2018 PASSED BY THE III ADDL. DISTRICT
JUDGE, D.K., MANGALURU AND ETC.
THIS HRRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 12.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
ORDER
This HRRP is filed challenging the order dated 20.12.2018 passed in Rent Revision Petition No.15/2018 on the file of III Additional District and Sessions Judge, D.K., Mangaluru and also praying the Court to set aside the order passed on I.A.No.V in HRC No.21/2011 on the file of the Principal Civil Judge, Mangaluru, D.K.
2. The factual matrix of the case before the Trial Court is that the respondent in this revision petition had filed the eviction petition and the same is numbered as HRC No.21/2011 3 and sought for an order of eviction under the Karnataka Rent Act, 1999 (for short 'the Act of 1999') on the ground that he requires the premises to construct a godown and for expansion of his business and the premises is also old one and it may collapse at any time. The petitioner herein has filed the objection statement denying the relationship between them contending that there is no landlord and tenant relationship between them and sought for an order of dismissal of the petition and an interlocutory application has been filed invoking Section 43 of the Act and the same was numbered as I.A.No.V. An enquiry was held and the respondent herein examined as PW1 and got marked the documents at Ex.P1 to P18 and the petitioner herein has examined as RW1 and got marked the documents at Ex.R1 to R8. The Trial Court after considering the material on record held that there is a relationship of landlord and tenant between the parties and rejected the application vide order dated 13.07.2018. As against the said order, the revision petition was filed under Section 46 of the Act of 1999 challenging the order passed on I.A.No.V. The revision Court also dismissed the said petition vide order dated 20.12.2018. Hence, being 4 aggrieved by the said order, the present revision petition is filed under Section 115 of CPC.
3. The main contention of the revision petitioner herein that both the Trial Court as well as the revisional Court have committed an error in holding that there is a landlord and tenant relationship between the parties but there is no existence of such relationship between them and the respondent herein has not produced any document of lease or rent receipt to prove the said fact and there was no suggestion to the petitioner that there exists a landlord and tenant relationship. Hence, both the Courts have committed an error. It is contended that Rent Court does not have jurisdiction to pass an order of eviction unless the jural relationship of tenant and landlord is established and the Trial Court and the revisional Court has not considered this aspect and erroneously dismissed the application and revision and hence, it requires interference.
4. The counsel for the revision petitioner vehemently contend that both the Courts have committed an error in holding that there is jural relationship between the parties in the 5 absence of documentary evidence to establish the same hence, the said Courts ought not to have pass such an order. There is not even admission in this regard except stating that 'the landlord' and the same does not convey and establish the jural relationship between the parties. Both the Courts mainly concentrated on the evidence of RW1 wherein he admitted that the petitioner is the son of landlord Sri Ganapathi Pai and the same is not an admission wherein the relationship between the petitioner and the landlord is disputed and not admitted the ownership and tenancy and hence, the very approach of both the Courts is erroneous.
5. Per contra, the learned counsel appearing for the respondent would vehemently contend that the second revision is not maintainable since the impugned order is also a revision under Section 46 of the Act of 1999 and the revision against the revision order is not maintainable. The counsel also vehemently contend that both the Courts have taken note of the admission of RW1 and the revisional Court also extracted the admission of RW1 while passing an order in paragraph 17 and discussed the 6 facts in paragraph 18 and rightly comes to the conclusion that there exists a jural relationship between the parties and this Court cannot find fault with the order of the Trial Court as well as the revisional Court.
6. The counsel in support of his arguments, relied upon the judgment of this Court reported in (1987) 0 SUPREME [KAR] 101 in the case of M M YARAGATTI vs VASANT decided on 04.10.1987 and brought to notice of this Court wherein it is clearly held that in view of the judgments of the Apex Court in the case of VISHESH KUMAR vs SHANTI PRASAD reported in 1980 AIR (SC) 0 892 and AUNDAL AMMAL vs SADASIVAN PILLAI reported in 1987 AIR (SC) 0 203, a revision under Section 115 of CPC does not lie to the High Court from a revisional order made by District Judge under sub-section (2) of Section 50 of the Karnataka Rent Control Act, 1961 and also held that in view of the latest two judgments of the Apex Court, the law laid down in KRISHNAJI VENKATESH SHIRODKAR's case is no more a good law and hence, the 7 counsel contend that the second revision is not maintainable before this Court.
7. The counsel also relied upon the judgment of the High Court of Orissa reported in LAWS (ORI)-2022-3-127 in the case of KAILASH CHANDRA PANDA vs STATE OF ORISSA and in paragraph 9 it is held that while referring to the language of Section 115 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 which is almost in pari materia with the provision of Section 115 of "the Code" as in force in State of Odisha so far as the use of phrase "other proceeding" is concerned, the Supreme Court pronounced clearly that the decisions of the District Courts rendered in appeal or revision are beyond revisional jurisdiction of High Court.
8. The counsel also relied upon the judgment of this Court reported in 2015 (2) AIR [KAR] (R) 417 in the case of AVINASH LAL CHANDANI S/O LATE HEMANDAS vs P A NIRANJAN S/O LATE SRI P S ASWATHANARAYANA decided on 20.01.2015 wherein this Court held that revisional powers to correct factual errors if appreciation of evidence done by 8 subordinate Court is apparently improper or incorrect leading to injustice. High Court as revisional Court can re-assess evidence if it is either ignored or misinterpreted or law has been misapplied to facts of particular case or otherwise, the Court cannot exercise the revisional power.
9. The counsel also relied upon the judgment of this Court reported in 2015(3) KLJ 641 in the case of SANDHYA K R AND OTHERS vs S RUKMINI decided on 17.04.2015 wherein also it is held that tenants admitting that they were tenants of vendor's vendor, held transferee becomes owner upon transfer of ownership of premises. Tenant cannot dispute transferee/landlord's right to maintain eviction petition. Tenants cannot invoke Section 43. And brought to notice of this Court paragraph 8 wherein also discussed that the tenant cannot dispute the right of the transferee landlord to maintain an eviction petition under Rent Act or to claim rent. Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor's rights. The counsel referring this judgment would vehemently contend that in the cross-examination, RW1 9 categorically admits that the petitioner is the son of the landlord and hence, finding given by the Trial Court is proper and revisional Court also taken note of the same and dismissed the revision. Hence, no merit in the second revision petition.
10. In reply to the arguments of the respondent's counsel, the counsel for the petitioner relied upon the judgment reported in 1987 (SUPP) SCC 321 in the case of SHYAMARAJU HEDGE vs U VENKATESHA BHAT AND OTHERS decided on 25.09.1987. The counsel referring this judgment would vehemently contend that the Apex Court in paragraph 13 taking note of the case of VISHESH KUMAR and AUNDAL AMMAL dealing with provisions of different statutes and held that there is a direct decision of this Court in the case of KRISHNADAS BHATIJA which has already been quoted. This Court, dealing with the very provision after its amendment in 1975 and the very question which now falls from consideration was before this Court. In KRISHNAJI's case, the decision of this Court had been relied upon as a binding authority and it was concluded that the High Court has powers to entertain a revision 10 under Section 115 of the CPC against the revisional order of a District Court. The counsel also brought to notice of this Court paragraph 14 wherein it is held that no justification has been pointed out by the High Court why that should be discarded. It is one of the essential requirements of the administration of justice that judgments rendered by superior Courts and particularly with the approval of the Apex Court should not be frequently changed so as to unsettle settled positions. The fact that the State legislature has not thought it necessary to amend the law and set at naught KRISHNAJI or BHATIJA is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstances, we fell advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow BHATIJA. And further observed that we have not felt it necessary to examine whether the ratio of AUNDAL AMMAL is binding or requires reconsideration in the presence of BHATIJA in the field as a direct authority and held that Full Bench decision in KRISHNAJI'S case holds the field and hence, prayed the Court to held that second revision is maintainable.
11
11. Having heard the respective counsel appearing for the parties and also the principles laid down in the judgments referred supra and the grounds urged in the revision petition, the points that would arise for consideration of this Court that:
1. Whether the present revision petition is maintainable against the order of revision of the District Court under Section 115 of CPC?
2. Whether both the Courts have committed an error in dismissing the application filed under 43 of the Karnataka Rent Act?
3. What order?
Point No.1
12. Admittedly, there is no dispute with regard to the fact that this revision petition is filed invoking Section 115 of CPC against the order of the revision passed by the District Court dated 20.12.2018 and in the said revision, the District Court comes to the conclusion that the petitioner herein has not made out any grounds to interfere with the impugned order of the Trial Court. Being aggrieved by the said order, the present revision 12 petition is filed. The main contention of the respondent counsel that second revision petition is not maintainable and in support of his contention, relied upon judgment of the YARAGATTI's case referred supra wherein this Court in paragraph 11 discussed with regard to filing of a revision under Section 115 of CPC against the order of the District Judge cannot be envisaged. The scheme of the Act does not warrant a conclusion that two revisions are permissible and also referring the judgments of VISHESH KUMAR and AUNDAL AMMAL held that a revision under Section 115 of CPC does not allow to the High Court from the revision order made by a District Judge and held that law laid down in KRISHNAJI VENKATESH SHIRODKAR's case is no more a good law. The Apex Court considered the case of M M YARAGATTI and the same was overruled and affirmed KRISHNAJI VENKATESH SHIRODKAR's case and also distinguished VISHESH KUMAR and AUNDAL AMMAL's case which has been relied upon by this Court and hence, the judgment quoted by the respondent in YARAGATTI's case cannot be relied upon in view of the overruling of the same. The counsel also relied upon the judgment of the Orissa High Court 13 but when the Apex Court held that second revision is maintainable, the principles laid down in the Orissa High Court also cannot be relied upon.
13. This Court would like to extract paragraphs 13 and 14 of SHYAMARAJU HEGDE's case as herein below.
"13. As against the two authorities of this Court, namely, the cases of Vishesh Kumar and Aundal Ammal dealing with provisions of different statutes, there is a direct decision of this Court in the case of Krishnadas Bhatija which has already been quoted. This Court was dealing with the very provision after its amendment in 1975 and the very question which now falls for consideration was before this Court. In Krishnaji's case the decision of this Court had been relied upon as a binding authority and it was concluded that the High Court has powers to entertain a revision under Section 115 of the Code of Civil Procedure against the revisional order of a District Court. It is conceded that the impugned provision which was being considered by this Court in Krishnadas Bhatija case continues to be the same. Though the decision rendered in Bhatija case by this Court is not a detailed one, the conclusion on the point is clear and admits of no ambiguity. The Full 14 Bench in the impugned judgment clearly went wrong in holding that the two Judge Bench of this Court referred to by it had brought about a total change in the position and on the basis of those two judgments Krishnaji case would be no more good law. The decision of a Full Bench consisting of three Judges rendered in Krishnaji case was binding on a Bench of equal strength unless that decision had directly been overruled by this Court or by necessary implication became unsustainable. Admittedly there is no overruling of Krishnaji's decision by this Court and on the analysis indicated above it cannot also be said that by necessary implication the ratio therein supported by the direct authority of this Court stood superseded. Judicial propriety warrants that decisions of this Court must be taken as wholly binding on the High Courts. That is the necessary outcome of the tier system. We may briefly refer to the observations of the Lord Chancellor in Cassell & Co. Ltd. v. Broome where the Lord Chancellor administered a warning by saying:
... I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the 15 Court of Appeal, to accept loyally the decisions of the higher tiers.
This has been approved by this Court on more than one occasion. Added to the above is the provision of Article 141 of the Constitution which unequivocally states that the law declared by this Court shall be binding on all courts within the territory of India. In the facts and circumstances of the case, the High Court should not have taken onto itself, the responsibility of saying that its earlier Full Bench judgment based upon a decision of this Court in the circumstances indicated above had lost its binding authority in view of two other judgments rendered in different situations and setting. We are really not in a position to appreciate the manner in which a coordinate bench of the High Court has chosen to overrule an earlier judgment of that court.
14. On the view we have taken, it must follow that we too are bound by the decision taken by this Court in Krishnadas Bhatija case. Krishnaji's case was rendered under the Karnataka Rent Control (Amendment) Act, 1975 and has held the field for over a decade. No justification has been pointed out by the High Court why that should be discarded. It is one of the essential requirements of the 16 administration of justice that judgments rendered by superior courts and particularly with the approval of the Apex court should not be frequently changed so as to unsettle settled positions. The fact that the State legislature has not thought it necessary to amend the law and set at naught Krishnaji or Bhatija is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstances we feel advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow Bhatija. We make it clear that we have not felt it necessary to examine whether the ratio of Aundal Ammal is binding or requires reconsideration in the presence of Bhatija in the field as a direct authority."
14. Perused the aforesaid paragraphs wherein the Apex Court in paragraph 13 held that in KRISHNAJI's case, the decision of this Court had been relied upon as a binding authority and it was concluded that the High Court has powers to entertain a revision under Section 115 of the CPC against the revisional order of a District Court and also further observed in paragraph 14 relying upon both KRISHNADAS BHATIJA's case and KRISHNAJI's case was rendered under the Karnataka Rent 17 Control (Amendment) Act and has held the field for over a decade and further observed that no justification has been pointed out by the High Court why that should be discarded and further observed that it is one of the essential requirements of the administration of justice that judgments rendered by superior Courts and particularly with the approval of the Apex Court should not be frequently changed so as to unsettled settled positions. The fact that the State legislature has not thought it necessary to amend the law and set at naught KRISHNAJI or BHATIJA is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstances we feel advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow BHATIJA. It is further observed that we make it clear that we have not felt it necessary to examine whether the ratio of AUNDAL AMMAL is binding or requires reconsideration in the presence of BHATIJA in the field as a direct authority and hence, held revision is maintainable and the Apex Court also set aside the judgment of the Karnataka High Court and declared that the earlier Full Bench decision in KRISHNAJI's case holds 18 the field and hence, the very contention of the counsel for the respondent that second revision cannot be maintainable cannot be accepted. Hence, I hold that second revision petition under Section 115 of CPC is maintainable as against the revisional order passed by the District Court. Hence, I answer this point as affirmative.
Point No.2
15. Now, the facts of the case on merits is concerned, it is the contention of the respondent/tenant that there exists no jural relationship between the parties as landlord and tenant and he also filed an application under Section 43 of the Act of 1999 and the same was dismissed by the Trial Court and the revisional Court also confirmed the same. The main contention of the petitioner herein that there is no document of lease or having paid the rent to establish the jural relationship between the parties. No doubt, in view of the principles laid down in the judgments referred supra by the counsel for the respondent, it is clear that the scope of the revision is very limited as held in the judgment of SANDHYA K R as well as AVINASH LAL 19 CHANDANI (referred supra) and also it is held that it is improper on the part of the revisional Court to re-appreciate the evidence and only High Court can re-assess the evidence if it is either ignored or misinterpreted or law has been misapplied to facts of particular case. But in the case on hand, it has to be noted that both the Courts have taken note of the admission given by RW1 in his cross-examination and the same is discussed by the Trial Court while rejecting I.A.No.V and in paragraph 12, the Trial Court taken note of the evidence of PW1 as well as RW1 and in the cross-examination, RW1 clearly admitted that petitioner is the son of landlord Ganapathi Pai, he is the owner of the schedule premises and also he admitted that there is 16 houses in the Bharath Bidi compound and he also admitted that revenue documents are in respect of schedule premises is in the name of the petitioner and also he admitted that Ex.P12 is in respect of schedule property which is standing in the name of the petitioner as stated in the settlement deed and the petitioner is the owner of the schedule premises which is residing by the respondent and also taken note of Section 43 of the Act of 1999 and also relied upon the judgment reported in 20 2015 (3) KLJ 432 in the case of S SOMASUNDARAM vs RUKMINI wherein it is held that the petitioner admitting that he was tenant under the previous owner, when once the ownership is transferred, transferee becomes the owner of the premises, tenant cannot dispute the right of transferee landlord to maintain an eviction petition and hence, dismissed the application.
16. It is also important to note that the revisional Court also considered the grounds urged in the revision and also admission given by RW1 in his cross-examination whereas RW1 categorically stated that the petitioner in the HRC petition is the son of his landlord Ganapathi Pai and comes to the conclusion that the petitioner cannot deny the jural relationship between the parties and given the definite finding that the said contention cannot be accepted. If he is not a tenant, why he gave an answer that the petitioner is the son of the landlord Ganapathi Pai and the same has not been explained. When such admission is extracted and considered by both the Courts, this Court sitting under Section 115 of CPC cannot re-appreciate the evidence available on record. This Court can exercise the revisional 21 jurisdiction only if it is found that the order of the revisional Court suffers from legality or correctness.
17. The contention of the petitioner counsel that the very admission that the petitioner in HRC petition is the son of his landlord Ganapathi Pai does not amounts to an existence of jural relationship between the parties. The said contention cannot be accepted. I have already pointed out that no explanation with regard to the fact that if he is not a tenant, why he admitted that the father of the petitioner is the landlord. Hence, this Court sitting under Section 115 of CPC cannot re-assess the evidence when both the Courts have considered the admission of RW1 thus, there is no misinterpretation or misapplied the law. Hence, I do not find any force in the contention of the counsel for the revisional petitioner that both the Courts have committed any error. Hence, I answer this point as negative.
18. The HRC petition is of the year 2011 and the same is pending for consideration for more than a decade. Hence, it is appropriate to direct the Trial Court to dispose of the same within a period of three months from today.
22Point No.3
19. In view of the discussions made above, I pass the following:
ORDER The revision petition is dismissed. It is held that the present revision petition under Section 115 of CPC is maintainable.
The Trial Court is directed to dispose of the matter within a period of three months from the date of receipt of copy of this order.
Sd/-
JUDGE SN