Karnataka High Court
Taradevi And Anr. vs Sakku Bai And Anr. on 20 January, 2003
Equivalent citations: 2003(3)KARLJ281, 2003 AIR - KANT. H. C. R. 2401, 2003 AIHC 3800, (2003) 3 KANT LJ 281, (2003) 1 KCCR 714, (2004) 1 RENTLR 152
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. In this revision filed under Section 115 of the CPC the petitioners landlords have questioned the legality and correctness of the order passed by the Additional District Judge, Chikmagalur in Revision Petition No. 10 of 1997 allowing the revision petition filed by the respondents-tenants against the orders of eviction passed by the learned Civil Judge (Junior Division) in H.R.C. No. 66 of 1987. The Court below reversed the orders of eviction passed by the learned Civil Judge (Junior Division) and thereby dismissed the eviction petition filed by the petitioners-landlords.
2. The facts leading to this revision, briefly stated, are as follows:
The petitioners filed an eviction petition under Section 21(1)(h) and (i) of the Karnataka Rent Control Act, 1961 ('the repealed Act', for short), against late B.R. Kashinath who was the tenant under them in respect of the petition premises. The tenant, B.R. Kashinath died on 30-12-1987 during the pendency of the eviction proceedings before the Additional Munsiff, Judicial Magistrate First Class at Chikmagalur. The learned Munsiff allowed the eviction petition under Clauses (h) and (i) of Section 21(1) of the repealed Act. The legal representatives of the deceased tenant took the matter in revision before the District Judge, Chikmagalur in Revision Petition No. 10 of 1997. The learned District Judge allowed the revision petition filed by the legal representatives of the deceased tenant and dismissed the eviction petition. Being aggrieved the petitioners-landlords have preferred this revision.
3. During the pendency of the revision in this Court, the old Act was repealed and in its place the Karnataka Rent Act, 1999 ('the present Act', for short), which has in its wake brought about far-reaching changes in the matter of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, on the statute book. Certain substantive provisions have been introduced for the first time in the history of rent legislation providing for comprehensive remedies and imparting operational speed and giving the law a contemporary touch. These provisions which are supplemental in nature to Section 27, which primarily is the section which provides the various grounds under which a landlord could evict a tenant, take away certain rights that had vested in the tenants under the repealed Act. One such section is Section 5 which limits the right of tenancy that accrues to the successors on the death of the tenant to various periods. The said provision reads:
"5. Inheritability of tenancy.--(1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely.-
(a) spouse;
(b) son or daughter or where there are both son and daughter, both of them;
(c) parents;
(d) daughter-in-law, being the widow of his predeceased son:
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family upto the date of his death and was dependent on the deceased tenant:
Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let.
(2) If a person, being a successor mentioned in Sub-section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies, such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished.
Explanation.--For the removal of doubts, it is hereby declared that.-
(a) where, by reason of Sub-section (2), the right of any successor to continue in possession of the premises becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises but if there is no other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;
(b) the right of every successor, referred to in Sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs".
The respondents herein are the legal representatives of the deceased tenant B.R. Kashinath who died on 30-12-1987. Though the legal representatives continued to reside in the petition premises and paid the rents, it remains to be seen whether they could claim to be tenants in their own right under the present Act or whether they should be treated as the successors of the original tenant. If they could claim to be tenants successfully, then it would call for determination of the revision on merits. But, on appreciation of the relevant provisions under the Act, if the Court comes to the conclusion that they only succeeded to the tenancy without actually becoming full-fledged tenants, then Section 5 would become operative. In order to examine this issue let me interpret Section 3(n) which defines the term 'tenant' in the following terms:
" 'Tenant' means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes.-
(i) a Sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted".
The definition clearly eschews from its ambit the legal representatives of the deceased tenant. A legal representative of the deceased person would not be a person by whom or on whose account or behalf the rent of any premises is payable because there is no privity of contract of tenancy between the landlord and the legal representatives of tenant. As the privity of contract was only between the landlord and the original tenant, any rent paid by the legal representatives of the deceased after the demise of the original tenant would be on account of the original tenant or on his behalf and not on their own behalf. If the meaning assigned to a tenant under the old Act has to be extended to persons who inherited the tenancy before the coming into force of the Act, then Section 5 would be rendered redundant and meaningless for, in that event Section 5 could be enforced only five years after the death of every one of the legal representatives of the original tenant because if they are all to be treated as tenants under the new Act, the tenancy would devolve in favour of all their successors. That could not have been the intention of the Legislature while narrowing down the meaning given to the term "tenant". The intention becomes clear and all the more obvious if we notice that the Legislature after giving a truncated meaning to the term, 'tenant' than what was provided in the repealed Act, has followed it up by introducing Section 5 which deals with the right of the successors on the death of the tenant and Section 5 clearly states who the successors are. The persons named in Section 5 as successors covers the spouse, children, parents and daughter-in-law being the widow of his predeceased son. Therefore, the respondents who could claim to be ten-
ants in their own right prior to the coming into force of the Act, cannot, after the coming into force of the Act, lay claim to the said status. Though the Act has been given only prospective effect, all pending proceedings have to be continued and disposed off in accordance with the provisions of Section 70(2)(b) of the Act. Therefore, while examining the question whether or not Section 5 is applicable in a given case the definition of the term 'tenant' as defined by the Act would alone have a bearing on all pending matters. The original tenant in the present case having died more than 5 years ago, the maximum period to which a successor of the original tenant can succeed to the right of tenancy having already elapsed, Section 5 of the Act is applicable to the present case.
4. The question then arises whether the statutory right of tenancy that accrued to the legal representatives of the deceased original tenant under the superseded enactment can be taken away as the repeal of a law is operative for future and it ought not to affect action already taken and the legal consequences of such action. The revision in this Court is a pending proceeding. The only difference between a suit and a revision is that a revision only reviews and corrects the proceedings in a cause already constituted but does not create a new cause. The revision proceeding is a part of the cause because the order that emerges from the revision will become the final order determining the rights of the parties. In Smt. Dayawati and Anr. v. Inderjit and Ors., , the Apex Court was dealing with the question whether the new law would have a bearing on the rights of the litigants in an appeal. The Apex Court after dealing with the said question, observed:
". . . ordinarily a Court of appeal cannot take into account a new law brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Matters of procedure, are however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in, language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal may give effect to such a law even after the judgment of the Court of first inistance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment".
(emphasis supplied) To similar effect is the decision in General Auto Agencies, Jaipur v. Hazari Singh, . In the said decision, the Court was addressing the issue whether retrospective operation of a provision could be inferred from the implicit nature of the language employed in the provision. It held:
"No doubt, it is true that where vested rights are affected by any statutory provisions, the said provision should normally be construed to be prospective in operation and not retrospective, unless the provision in question relates merely to a procedural matter. The Legislature is competent to take away vested rights by means of retrospective legislation. But, it is equally clear that retrospective operation of statutory provision, can be inferred even in cases where such retrospective operation appears to be clearly implicit in the provision constituted in the context where it occurs".
(emphasis supplied) When Section 70(2)(b) mandates that all pending proceedings, which would include the revision also, shall be continued and disposed off in accordance with the provisions of the Act, the retrospective operation of Sections 3(n) and 5 of the Act has to be inferred and a party affected cannot escape from this conclusion by merely harping on the fact that the Act has been given only prospective effect. Section 70(2)(b) of the Act stipulates that all cases and proceedings other than those referred to in Clause (a) shall be continued and disposed off in accordance with the provisions of 'this Act'. Therefore, the saving clause is only in respect of proceedings pending in execution of any decree or order passed under the repealed Act. Thus, all proceedings barring those which had already reached the stage of execution would have to be continued in accordance with the Act and not in accordance with the repealed Act. The Act while obliterating the old Act from the statute books as completely as if it had never been passed barring for the proceedings in execution of any decree or order passed under the repealed Act and pending at the commencement of the Act, under Clause (b) it has clearly expressed its intention to affect the right, privilege, obligation or liability acquired, accrued or incurred under the old Act by subjecting them to investigation under the provisions of the present Act, in all cases where the proceedings are pending. I have come to the conclusion that when a matter is pending in revision it is to be deemed as a pending proceeding as the cause does not change. It would be no different in a matter pending under Section 115 of the CPC in this Court because the reference in Section 70(2)(b) is to 'all cases and proceedings' in respect of the premises to which the present Act applies. The reference clearly is to the premises to which the Act applies and not to the 'proceedings under the Act'. There can be no dispute in the present case that the present Act applies to the petition premises. If we apply Section 5 to the present proceedings, the inescapable conclusion is that the right of tenancy that had accrued to the legal representatives under the old Act is limited by Section 5 to five years from the date of death of tenant. Section 5 has been given retrospective effect by operation of the statutory stipulation contained in Section 70(2)(b) of the present Act. Therefore, the petitioner in this revision has to succeed under Section 5 of the present Act.
5. In the result, for the reasons stated above, the revision petition is allowed and the impugned order of the Court below is set aside. The eviction petition is allowed under Section 5 of the present Act. The respondents-tenants are given three months time to quit and deliver vacant possession of the petition premises to the petitioner-landlord.