Karnataka High Court
Hameed & Hameed Enterprises vs Nicky'S Parlour on 4 January, 1989
Equivalent citations: ILR1989KAR835
JUDGMENT
Rajendra Babu, J
1. In C.R.P.No. 3911/86 the petitioner/Judgment debtor questions the correctness of the order dated 8-8-1986 and 22-8-1986 in Ex.No. 10046/1986, whereby the executing Court issued warrant for delivery of possession of the suit schedule property to the respondent/decree-holder.
In C.R.P.No. 3560/86 the petitioner/decree-holder questions the correctness of the order dated 18-9-86 passed on I.A.No. IV In Ex.No. 10046/86 whereby the executing Court passed an order of restitution by redelivery of possession of the suit schedule property to the Judgment-debtor/respondent.
I shall refer to the array of parties, for the purpose of convenience, as in the executing Court in Ex.No. 10046/ 86 from which these two petitions arise. Since the two petitions arise out of common proceeding on the same set of facts, I dispose of them together.
2. The facts leading to these revision petitions, in brief, are as follows:-
The Decree-holder filed a suit on 20th February 1984 in O.S.10099/84, on the file of the City Civil Court, Bangalore City, for ejectment of the Judgment-debtor and for payment of a sum of Rs. 16,510/- being the arrears of rent. In that suit, in spite of the Court granting several adjournments, the Judgment-debtor did not file the written statement and, ultimately, the suit was decreed ex parte as prayed for. There was also a direction in the decree to ascertain the rent or damages from the date of suit till delivery of possession under Order XXI, Rule 12 of C.P.C. This decree was put in execution on 19-4-86 for delivery of possession. However, a Miscellaneous Petition was filed under Order IX, Rule 13 of C.P.C. seeking to set aside the ex parte judgment and decree made on 22-8-86 in O.S.10099/84, with an application to stay the execution of that decree. The trial Court passed an order on 10-12-85 staying the operation of the decree in question pending disposal of the main petition. The executing Court issued warrant for delivery of possession on 8th August 1986 in compliance of which the Decree-holder was put in possession of the premises. Thereafter the Judgment-debtor filed an application for restitution and that application was allowed by an order dated 18th September 1986. The decree-holder, aggrieved by this order has approached this Court in C.R.P.No. 3560/86 praying for setting aside the order of restitution; while the Judgment-debtor has approached this Court in C.R.P.No. 3911/86 questioning the executabllity of the very decree in question.
3. The learned Counsel on either side presented their respective cases on a very broad canvass with a parenthesis of paradoxes drawing sustenance from a long catena of precedents.
4. The contention of the Judgment-debtor in C.R.P. No. 3911/86 is that the ex parte decree itself suffers from an element of inexecutability as it was passed in a suit which was saved under Section 31 of the Karnataka Rent Control Act, 1961 (for short the Act), which came to be struck down later on and on the date of the execution petition the decree could not be enforced contrary to the provisions of Section 21 of the Act, which became attracted to the proceedings on the removal of Section 31 of the Act from the statute book on account of the declaration of law made by this Court. Therefore, the only question that falls for consideration in this case is the effect of the declaration of law made in PADMANABHA RAO v. STATE OF KARNATAKA wherein this Court held that though the provisions of Section 31 of the Act when they were enacted were valid, in course of time they having become discriminatory are violative of Article 14 of the Constitution and hence invalid.
5. The learned Counsel for the Judgment-debtor in C.R.P.No. 3911/86 while addressing his arguments as to the inexecutability of the decree in O.S.No. 10094/ 84, contended that even assuming that the decree was valid on the date when it was drawn, Section 31of the Act having disappeared from the statute book consequent on the enunciation of law made by this Court holding that Section invalid, the same became inexecutable as Section 21 of the Act comes into play. It was submitted that Section 21 of the Act covers even cases of a tenant against whom a decree for ejectment had been passed so long as he continues to be in possession and he cannot be deprived of possession except as provided in Section 21 of the Act. In support of this proposition he relied upon a decision of the Supreme Court in H. SHIVA RAO v. CECILIA PEREIRA as also another decision in B.V. PATANKAR v. C.G. SHASTRP .
6. The scheme of the Act apropos Sections 21 and 31 is as follows:
Section 21 of the Act occurs in Part V of the statute and grants protection to tenants against eviction. It provides that notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant except in the circumstances mentioned therein. However, one exception is made, namely, operation of Section 21 is exempted under Section 31 of the Act in respect of non-residential buildings the monthly rent of which exceeds Rs. 500/- or annual rental value exceeds Rs. 6,000/-. This exemption is not applicable to buildings taken on lease by public authorities or educational institutions or occupied by more than one tenant each paying a monthly rent exceeding Rs. 500/- or annual rent exceeding Rs. 6,000/-. In respect of cases covered by the main part of Section 31 Section 21 is not applicable because the exemption clause in Section 31 opens with the expression "nothing contained in this Part (i.e., Part V) shall apply to the buildings" described therein. The provisions of Section 31 of the Act being clear, Section 21 which opens with a non-obstante clause has no application to cases covered by Section 31 of the Act. As long as Section 31 was on the statute book a decree could be validly passed either for eviction or ejectment of a tenant notwithstanding Section 21 of the Act and does not come in the way or defeat the decree being executed in a suit excluded under Section 31 from the operation of the Act. There is no specific reference in Section 21 of the Act to inexecutability of decrees made or extending the definition of 'tenant' to such persons as holding the premises even after the decree.
7. In Padmanabha Rao's case declaration made by this Court that Section 31 of the Act is invalid as being violative of Article 14, is not with reference to any point of time.
8. In Shiva Rao's cases pursuant to a decree in a suit under general law of real property and before the tenant was dispossessed of the premises in compliance of that decree, the provisions of the Act were made applicable to the area where the tenant was residing. The only question before the Supreme Court therefore was whether in view of Section 21(1) of the Act the decree was executable because subsequent to the decree for possession the Act had been made applicable to the area in question. It was a simple case of applicability of Section 21 of the Act. It was not a case where a decree had been made pursuant to a provision like Section 31 of the Act which had overriding effect on Section 21. The facts narrated above do not make out that it was a case which attracted Section 31 of the Act. The Supreme Court in that case was not considering the effect of a decree passed in a suit which was permitted under the provisions of Section 31. The ratio of the decision is that the Act confers immunity to the tenant against eviction by landlord though prospective in operation takes away the right vested in landlord by a decree of a Court which has become final unless there is a clear implication to the contrary. Considering the scheme of the Act in granting immunity to tenants against eviction under Section 21 of the Act the same was excepted in cases falling under Section 31 of the Act and the two Sections formed part of one scheme telescoping into each other. When the latter Section operated the former was ineffective and that is a clear indication that a decree made pursuant to the exclusionary provision such as Section 31 is an intention not to confer any immunity on tenants of certain categories by that Section prior to the invalidation. Supreme Court was considering in that case the effect of commencement of operation of a law while what we are concerned in this case is the expiry of the effect of provisions by reason of its being declared invalid. Therefore, I am afraid, this decision has no application to the facts of the present case. So is the position with reference to Patankar's case
9. However, Shri Datar, learned Senior Counsel appearing for the Judgment-debtor relied on another unreported decision of this Court in EVERGREEN (BANGALORE) PRIVATE LTD. v. STATE OF KARNATAKA W.Ps.2100 & 2101/86 DD 11-12-86 wherein this Court held that after declaration of Section 31 as null and void the same stands obliterated and therefore Section 21 of the Act gets attracted automatically and tenant can only be ejected in accordance with Section 21 of the Act and not otherwise and the decree obtained earlier cannot be of any assistance to the Decree-holder in such cases. In that case the scope and ambit of the declaration made by this Court in Padmanabha Rao's case was not considered. The declaration made by this Court is not in absolute terms. What is stated was what was once legally valid became invalid by reason of efflux of time on erosion of money-value. It cannot therefore definitely be said as to when such declaration became effective to say that Section 31 stood removed from the statute book and Section 21 gets attracted. The contentions in the form in which they are posed before this Court in this case are entirely different and they were neither raised nor considered in that case. Therefore, I am of the view that the said decision in M/s Evergreen (Bangalore) Private Limited (supra) also cannot be of any assistance to the petitioner and is distinguishable because in that case the question as to the effect of the declaration in Padmanabha Rao's case was neither raised nor considered. However, Shri Datar, learned Counsel, submitted that in this Country when an enunciation is made as to the invalidity of a statute there is no presumption that the law was valid up to a point of time and became invalid only thereafter and once a statute is declared as void under Article 13 of the Constitution that declaration has the force of law and the statute declared as void is no longer the law and, in this context, referred me to BEHRAM KHURSHID PESIKAKA v. STATE OF BOMBAY . In Padmanabha Rao's case the declaration itself is that the law was valid when enacted but became invalid subsequently. Hence, the principle laid down in that case has no application to the facts of this case.
10. The learned Counsel for the Decree-holder submitted that the rights of the parties in any legal proceeding get crystallised as on the date of institution of suit and once such rights crystallised the adjudication of the rights between the parties must be in accordance with law obtaining on the date of the institution of the suit unless the law was amended as to have retrospective effect or if a law which is applicable to the case had been found to be invalid even from the date prior to the filing of the suit and for this proposition relied on a decision of the Supreme Court in ATMA RAM v. SUPRIYA SINGH . It is unnecessary in this case to consider this question inasmuch as the suit that had been instituted on 20th March 1984 had been decreed on 5-12-85 i.e., long before this Court declared Section 31 of the Act to be invalid. Therefore, the question for consideration is the effect of declaration made on the decree passed and whether it renders that decree inexecutable.
11. In cases where law is accepted to be valid but became invalid only by reason of efflux of time the Supreme Court has made certain observations which have relevance to the present case. In ATAM PRAKASH v. STATE OF HARYANA & OTHERS a Constitution Bench of the Supreme Court held that certain provisions of the Punjab Pre-emption Act 1913 to be invalid stating that the reasons which justify the recognition of the rights under the invalid provisions over a quarter of a century ago are today irrelevant and therefore that Section was declared ultra vires. However, the Court took care to make the following observations at para-14, which read thus:
"We are told that in some cases suits are pending in various Courts and where decrees have been passed, appeals are pending in Appellate Courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto."
To the similar effect is the decision of the Supreme Court in MOTOR GENERAL TRADERS AND ANR. v. STATE OF ANDHRA PRADESH AND ORS AIR 1984 SC 121. while dealing with the provisions of Andhra Pradesh Building (Lease, Rent & Eviction) Control Act, with reference to the validity of Section 32(b) of the said Act which exempted buildings, constructed on or after 26-8-1957 from the operation of the Act. It was held that though it was in existence for 23 years and held valid by the High Court previously it became invalid subsequently, The Supreme Court in that case observed at para 32 thus:-
"In the result these petitions succeed. Clause (b) of Section 32 of the Act is hereby declared as unconstitutional and it is quashed. We, however, make it clear that this declaration would not affect the validity of any proceedings which the decree for eviction passed by a Civil Court has become final and the landlord has already taken possession of the building in question pursuant thereto."
The declaration made by this Court in Padmanabha Rao's easel that Section 31 is invalid on account of efflux of time as having become violative of Article 14 of the Constitution is not made with reference to any point of time. In the Supreme Court decisions referred to earlier when making a declaration that the Section has become invalid with the passage of time though valid when enacted, they also declared the applicability or otherwise of such declaration to pending proceedings. In Padmanabha Rao's case there is no such declaration as to its applicability to pending proceedings or to decrees that have been passed already. This is not a case where Section 31 is void ab initio but becomes invalid by efflux of time and is so declared by a Court. Therefore, it is reasonable to hold that such declaration is effective from the date when it is made. Hence, it cannot be said that Section 31 was not in the statute book on the day the decree was passed in this case. If the decree is valid on the day it was passed and a right had accrued by the law which included both Sections 21 and 31 of the Act, it cannot be said that Section 21 of the Act can override such a decree to render it inexecutable. Any other view would affect the operation of Section 31 of the Act when it was applicable and was valid. When this Court declared Section 31 as invalid, not from its inception, its operation prior to such declaration remains unaffected. The resultant position of this discussion is that in this case a decree had been passed on 5-12-85 while the declaration of law was made by this Court on 1-7-86 and the decree had become final as on 5-12-85 inasmuch as no appeal had been filed against the same. Although the Judgment debtor had filed an application to set aside the decree that was neither here nor there and as long as the decree stood it is capable of being executed notwithstanding Section 21 of the Act being effective and in full cry after Section 31 stood removed from the statute book by declaration of law made by this Court that it is invalid. A decree which was passed pursuant to the exclusionary clause under Section 31 has overriding effect over Section 21 of the Act and it cannot be said that Section 21 is applicable to such a case. Therefore, I am of the view that as long as the decree stood as made on 5-12-85 the same is executable and hence the contention raised on behalf of the Judgment-debtor that this decree is inexecutable cannot be accepted.
12. One other contention that was advanced by the learned Counsel for the Judgment-debtor is that there was no notice to him before the execution was proceeded with. The execution having been initiated within two years after the decree there is no requirement under law to issue any notice before the decree could be executed. Hence, no infirmity can be found in the execution proceeding on that ground and hence this contention is also liable to be rejected. In the result, C.R.P.3911/86 is dismissed.
13. The point in controversy in the other petition (C.R.P.3560/86) is that the order made on an application for restitution is bad. It was submitted that the decree in the suit was passed on 5-12-85, which was put in execution by an application filed on 19-4-86 and in that execution proceeding warrant for delivery of possession was issued and the same was executed on 22-2-86. An application was filed by the Judgment-debtor stating that after the suit was decreed on 5-12-85 the Judgment-debtor filed an application on 7-12-85 under Order IX, Rule 13 of C.P.C. for setting aside the Judgment and decree in question and the Court issued as order of stay of the decree in question by an order dated 12-12-85 in the Miscellaneous Petition No. 10013/85. Therefore, the executing Court took the view that inasmuch as the decree that was put in execution having been stayed by an order dated 10-12-85 the execution case No. 10046/86 of the decree dated 5-12-85 could not be executed after that date and therefore directed restoration of possession to the Judgment-debtor. It is submitted on behalf of the Decree-holder that the application filed under Order IX, Rule 13 in Miscellaneous Petition No. 10013/85 was itself not proper and valid in law inasmuch as Order IX, Rule 13 was not attracted to a case wherein a decree had been passed under Order XVII Rule 2 or 3 of C.P.C. Whatever may be the controversy in regard to this, it is clear that an application had been filed and pending decision and on that application an interim order had been made by the trial Court staying the operation of the decree in question "for the present." It was also submitted that the trial Court could not have granted an interim order in a Miscellaneous Petition filed under Order IX, Rule 13 of C.P.C. But it is well settled and too late now to contend that in the ends of justice the Court has no inherent power to make any order which it thinks fit. In the present case, if an order of stay had not been granted and if the execution of the decree had been proceeded with the Judgment-debtor would have been put to irreparable hardship resulting in multiplicity of litigations. Therefore, the Court was right in invoking its inherent Jurisdiction to grant an interim order of stay on 10-12-85.
14. It was submitted that inasmuch as the interim order of stay was not communicated to the Decree-holder nor to the executing Court on the day when the decree was put in execution the same was valid and therefore until the decree was set aside the question of restitution of possession would not arise. In the present case it was submitted that Section 144 of C.P.C. was not attracted at all inasmuch as there has been no variation of the decree either by the Court granting it or by any superior Court.
15. Starting from AIR 1922 PC 269 Jai Berham and Ors. v. Kedarnath Marwari and Ors. the law has been settled that Section 144 provides for procedure and the power of restitution is independent of it and inherent in every Court. Section 144 is not exhaustive. There are various circumstances in which restitution is to be ordered to restore status quo ante for the ends of justice. Therefore, power of restitution is not confined to Section 144. Court has inherent power to grant restitution where Section 144 in terms does not apply. Decree-holder who has taken possession of a property pursuant to an ex parte decree must make restitution even if ultimately a decree is passed as has been held by the Supreme Court in BINAYAK SWAIN v. RAMESH CHANDRA PANIGRAHI AND ANR .
16. In exercise of powers under Section 151 of C.P.C. Court can set aside the steps taken between the time the stay order was passed and the time it was brought to its notice if it is necessary in the ends of justice and if it is asked to do so. I am fortified in this view by a decision of the Supreme Court in MULRAJ v. MURTI RAGHUNATHJI MAHARAJ . Assuming for a moment that order of stay had not been communicated either to the petitioner or to the Court, such non-communication does not make any difference when the decree was not available for execution by reason of the stay order granted on 10-12-85; there will be no decree that could be put in execution. When such a decree is put in execution it was the duty of the Court to restitute the parties to status quo ante. However, Shri Krishna Murthy, learned Senior Counsel, submitted that subsequently the Miscellaneous Petition No. 10013/85 which had been filed under Order IX, Rule 13 of C.P.C. had been dismissed. As already stated, a decree-holder who had taken possession of the property extending the principle enunciated in Binayak Swain's case (supra) by the Supreme Court to the facts of the present case what is to be seen is whether, on the date when the Court executed the decree the same was available for execution or not and the same having been stayed could not have been executed and therefore the Court is right in making the order in question, it is submitted that if an order for restitution has to be made it is only in the ends of justice and, in the present case, inasmuch as an application for restoration of the suit itself having been dismissed, it will not be in the ends of justice to restore the possession to the Judgment-debtor. But Shri Datar, learned Counsel, submitted that the Judgment-debtor had filed another application for restoration of the miscellaneous petition which had been dismissed. On the date when the decree was executed there was no decree aval table for execution and on the principle enunciated by the Supreme Court in Binavak Swain's case even if ultimately a decree is passed in favour of a Decree-holder and was put in possession of the property pursuant thereto, the decree-holder is obliged to restore possession of the property consequent on the setting aside of that decree. Applying that principle I reject the contention advanced by the learned Counsel for the Decree-holder.
17. An order for restitution can be made only in the ends of justice and if it is absolutely necessary and in the present case I have held that such an order is required to be made. However, the question is whether an unconditional order of restitution could have been made in a case of this nature where the Judgment-debtor is callous and negligent in the conduct of the suit inasmuch as the suit came to be decreed against him ex parte and thereafter he filed an application for restoration of the suit which also came to be dismissed for default. It is clear from the record in the case that there is a huge sum of rent due from the Judgment-debtor to the Decree-holder. Therefore, in my view, the restitution should be made subject to the condition that the Judgment-debtor shall pay the entire arrears of rent due under the decree till he was dispossessed by the executing Court to the Decree-holder before he is put in possession pursuant to the order of restitution made in the case, in the circumstances, C.R.P. 3560/86 is allowed in part and the restitution ordered by the executing Court is modified accordingly.