Karnataka High Court
Suresh Babu vs Smt. S. Susheela Thimmegowda on 12 November, 1998
Equivalent citations: 1999(2)KARLJ580, 1999 A I H C 2189, (1999) 2 KANT LJ 580 (1998) 2 RENTLR 702, (1998) 2 RENTLR 702
Author: R.V. Raveendran
Bench: R.V. Raveendran, P. Vishwanatha Shetty
ORDER R.V. Raveendran, J.
1. All these revision petitions relate to eviction proceedings initiated under the proviso to Section 21(1) of the Karnataka Rent Control Act, 1961 ('the Act' or 'the KRC Act', for short) filed in respect of non-residential premises, the rent of which exceeds Rs. 500/- per month.
2. The revision petitions in HRRP Nos. 423, 425, 465 and 1719 of 1996 and 548 of 1997, are filed by tenants against whom orders of eviction have been passed under Section 21(1)(h) of the Act. The revision petitions in HRRP Nos. 438 and 1148 of 1996 are filed by the landlords against the rejection of their eviction petitions filed under Section 21(1)(a)/(h) of the Act. The revision petitions in HRRP Nos. 1415 of 1997 and 12 of 1998 are filed by the tenants aggrieved by the rejection of their interlocutory applications for dismissal of eviction petitions filed against them under Section 21(1)(h) of the Act on the ground that the eviction petitions under Section 21(1)(h) of the Act were not maintainable.
3. Part V of the Act deals with control of eviction of tenants. Section 21 of the Act provides that notwithstanding anything to the contrary contained 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; provided that the Court (as defined in Section 3(d) of the Act) may, on an application made to it, make an order for the recovery of possession of a premises on one or more of the grounds specified therein. Section 31 of the Act provides that the provisions of Part V of the Act shall not apply to non-residential premises the rent of which, exceeded Rs. 500/- per month (or the annual rental value of which exceeded Rs. 6,000/-).
4. Having regard to the exemption contained in Section 31, the owners/landlords of non-residential premises the rent of which exceeded Rs. 500/- per month, continued to file civil suits, after terminating the tenancy as required by the provisions of the Transfer of Property Act, 1882 ('TP Act' for short) and owners/landlords of other premises filed petitions for eviction under the proviso to Section 21(1) of the Act, when matters stood thus, a Division Bench of this Court in Padmanabha Rao H. v State of Karnataka, declared Section 31 of the Act as void, being viola-tive of Article 14 of the Constitution. That decision attained finality. With effect from the date of the said judgment (1-7-1986), the litigant public had to proceed on the basis that Section 31 of the Act was not in the statute book and consequently, the provisions of Chapter V of the Act applied even to non-residential buildings the rent of which exceeded Rs. 500/- (or annual rental value of which exceeded Rs. 6,000/-) and therefore file petitions for eviction under Chapter V of the KRC Act, instead of terminating the tenancies and filing civil suits for possession. In fact, many original suits which were pending in Civil Courts on the date of the decision in Padmanabha Rao's case were dismissed on the ground that the remedy of the landlords was to file eviction petitions under the proviso to Section 21(1) of the Act and those landlords filed eviction petition under Section 21(1). This situation continued till 1-11-1996.
5. A Division Bench of this Court in H. V. Rajan v Shobha Surendar, had allowed an appeal filed by a tenant and set aside a decree dated 8-8-1983 for possession passed by a Civil Court in a suit filed in the year 1980 in regard to a non-residential premises the rent of which was more than Rs. 500/- per month, on the ground that Section 31 of KRC Act was struck down in Padmanabha Rao's case, supra, during the pendency of the appeal and consequently the remedy of the landlord was under the Rent Control Act and the decree for possession passed in the suit had become unsustainable. The said decision was challenged by the landlord before the Supreme Court in in the case of Shobha Surendar v H.V. Rajan. The Supreme Court by its order dated 1-11-1996, allowed the said appeal holding that in view of its decision in D.C. Bhatia and Others v Union of India , the owner's appeal had to be allowed and the order of the High Court ought to be set aside and the decree for possession granted by the Trial Court should be restored. Though no reasons were given, it was clearly implied from the said decision that the Court had proceeded on the basis that Civil Court had jurisdiction to grant the decree, which, in turn, implied that Section 31 of the Act was held to be in the statute book. The same view was reiterated by the Supreme Court in P.N. Padmavathi v B. Vishwanatha Shetty.
6. The effect of the decision in Shobha Surendar was considered by two learned Single Judges of this Court. In K. Barkathulla Khan v C.N. Rudramurthy, a learned Single Judge of this Court relying on the decision of the Supreme Court in Rattan Arya v State of Tamil Nadu, held that the decision in Padmanabha Rao was not overruled by Supreme Court in D.C. Bhatia, and decision in D.C. Bhatia was inapplicable in regard to Section 31 of the Act. He also held that the decision in Shobha Surendar and Padmavathi had not laid down any law in the matter. Another learned Single Judge of this Court in Shanta Bai v Sha Ghevar-chand Kotaria, held that having regard to the decision in Bhatia's case, supra, Section 31 of the Act should be held to be in the statute book and the decision in Padmanabha Rao was no longer good law. He consequently restored the decree for possession granted by the Civil Court in regard to a non-residential premises, the rent of which exceeded Rs. 500/- per month, holding that the Civil Court had jurisdiction. In view of the conflict between the said two decisions of learned Single Judges of this Court, all these revision petitions have been referred to the Division Bench.
7. Having regard to the fact that large number of cases all over the State are likely to be affected by the decision, we heard not only the learned Counsel appearing in the matters before us, but also several other Counsels who desired to address arguments in the matter. Arguments were addressed on the following three questions.-
(i) Whether the decision in Padmanabha Rao was impliedly overruled by the Supreme Court in Shobha Surendar.
(ii) When Section 31 of the Act was held to be void and was struck down in Padmanabha Rao and that decision became final, whether a subsequent implied overruling of that decision by the Supreme Court will resurrect Section 31 which was already struck down;
(iii) What is the effect of the decision in Padmanabha Rao being overruled, and the Supreme Court holding that Section 31 continues to be in the statute book, on: (a) pending cases; (b) cases which have -reached finality.
After arguments had been heard at considerable length, we were informed that the decision of the learned Single Judge in Barkathulla Khan had been challenged before the Supreme Court and the matter had been heard. Hence, we postponed further hearing in the matter.
8. The Supreme Court rendered its decision in C.JV. Rudramurthy v K. Barkathulla Khan . The Supreme Court has held that the decision of this Court in Padmanabha Rao had been impliedly overruled in Shobha Surendar's case, supra, and therefore it cannot be supported on the basis of Rattan Arya's case, supra. The following observations of the Supreme Court are relevant.-
". . . .The clear pronouncement made by this Court in Shobha Surendar's case, supra, was that D.C. Bhatia's case, supra, was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao's case, supra. In effect, Padmanabha Rao's case, supra, stood impliedly overruled".
In Rudramurthy, the Supreme Court was considering the correctness of an appellate decision setting aside a decree for possession granted in a civil suit filed in the year 1976. Therefore, the Supreme Court merely set aside the judgment of the learned Single Judge of this Court, and restored the decree for possession. There was no occasion to consider the effect of the decision in Shobha Surendar on eviction proceedings which have been initiated under the KRC Act, after the decision in Padmanabha Rao's case, supra.
9. The first question no longer survives for consideration as Supreme Court, in Rudramurthy, has held Padmanabha Rao stood impliedly overruled in Shobha Surendar and Section 31 of the Act continued to be in the statute book.
10. In regard to the second question, even though the Supreme Court did not specifically consider the question whether a provision of law that has been struck down could stand resurrected on subsequent implied overruling of the decision striking down the provision, the question is clearly answered as follows:
"Yet another argument was pressed upon us to the effect that when a provision of law in an enactment has been declared to be invalid and when the Supreme Court declares the law with reference to another enactment of similar nature, it would not be open to the High Court to say that the decision of this Court should be taken to have been overruled or upset the decisions rendered by the High Court declaring the law to be invalid. This principle has no application in the present case at all because this Court itself considered the effect of D.C. Bhatia's case, supra, with reference to the provisions of the Karnataka Rent Control Act and applied the same thereto and thereafter declared what the law should be; even though this Court did not specifically refer to the decision in Padmanabka Rao's case, supra, it is needless to say that the same stood overruled because the law declared by this Court was contrary to what was stated in Padmanabha Rao's case, supra, Therefore that argument also is not sound and needs to be rejected.
To borrow the words of the Supreme Court from Mis. Shenoy and Company v Commercial Tax Officer, Circle II, Bangalore and Others , Section 31 was in eclipse between the date of decision in Padmanabha Rao (1-7-1986) and the date of decision in Shobha Surendar (1-11-1996), and with the declaration of law by the Supreme Court, the shadow cast on Section 31 disappeared, the decision in Rudramurthy thus answers the second question in the affirmative. Consequently, the remedy of a landlord who wants possession in regard to non-residential premises the rent of which is more than Rs. 500/-, is to terminate the tenancy and then approach the Civil Court for possession, instead of filing petitions for eviction under the proviso to Section 21(1) of the KRC Act.
11. What remains for consideration is the third question regarding the effect of the decision in Shobha Surendar and Rudramurthy on eviction petitions filed under the KRC Act, after the decision in Padmanabha Rao. Normally, we would have decided only the first part of the third question, that is the effect of the said decision on pending cases and would not have ventured to consider the second part (relating to the effect on cases which have reached finality) which does not directly arise in theses cases. But the situation and circumstances are special and peculiar and as several litigants who have been lead to believe that their remedy was by way of eviction petition in Padmanabha Rao's case, supra, are affected by the decisions of the Supreme Court, we have ventured to decide the effect of the decisions in Shobha Surendar and Rudramurthy in cases which have reached finality, so that the litigants do not face uncertainty and confusion in the matter.
Re: Pending cases:
12. Eviction cases which have been filed subsequent to the decision in Padmanabha Rao and are pending consideration before the Trial Court or in revision before the District Court or this Court and cases where eviction orders are made, but limitation for filing revision has not expired, fall under the category of pending cases. It was urged that owners of non-residential premises, the rent of which was more than Rs. 500/-, used to file civil suits for possession even after the KRC Act came into force, having regard to the exemption contained in Section 31. By virtue of the decision of this Court in Padmanabha Rao, they were led to believe that Section 31 of the Act was void and therefore their remedy was under the provisions of the KRC Act and that they can no longer file civil suits for possession. Thus, they (owners of such premises) have all filed eviction petitions under the proviso to Section 21(1) of the Act. The Supreme Court in Shobha Surendar and Rudramurthy, has subsequently held that Section 31 of the Act continues to be in the statute book and, therefore, the remedy of such landlords is by way of civil suit for possession and not by eviction proceedings under the proviso to Section 21(1) of the Act; and if the decision of the Supreme Court is held applicable to pending proceedings, all those eviction petitions will be dismissed; that in several cases, the landlords have succeeded in the eviction petitions and the matters are pending in revision and there are several cases where the landlords have also succeeded in the revision proceedings and matters are pending in second revision. They also point out that there are quite a few cases where the landlords had approached the Civil Court for possession prior to 1-7-1986; that when this Court held in Padmanabha Rao that Section 31 was invalid, their suits were dismissed and they were forced to file eviction cases under KRC Act; and now, again, in view of the decision in Shobha Surendar their eviction petitions which are ripe for disposal or pending in revision, will be dismissed; and consequently they will have to again approach the Civil Court. It is contended that one of the fundamental Rules of Law is that the acts of Courts and acts in law should prejudice no one; but in these cases, for no fault bf theirs, these litigants will be put to hardship and inconvenience by having to change the forum; and that therefore, the decision in Shobha Surendar, as clarified in Rudramurthy, should be held to be prospective in operation and not applicable to pending cases.
13. In Major General A.S. Gauraya v S.N. Thakur, the Supreme Court held that "there is nothing like any prospective operation alone of the law laid down by the Supreme Court. The law laid down by this (Supreme) Court applies to all pending proceedings".
14. One of us had occasion to consider the effect of the decisions of the Supreme Court on pending proceedings in Brindavan Roller Flour Mills Private Limited v Joint Commissioner of Commercial Taxes (Appeals), Mysore Division, Mysore, and held as follows.-
"A decision of the Supreme Court, being a declaration of the true and correct position of law becomes applicable to all transactions and proceedings which have not become final and concluded. The common use of the words 'prospective operation' and 'retrospective operation' with reference to a decision of the Supreme Court is misleading. The use of the words 'prospective' and retrospective' are more appropriate while referring to statutes. Rendering of a judgment by the Supreme Court is not the same as enactment of a statute. A decision of Supreme Court does not make the law, but merely explains and puts in proper perspective the true position and effect of law by declaring the law. The true position of law so declared exists from the very date of making the law and not from the date of declaration by the Supreme Court ..... When a legislature enacts a statute, it creates rights or obligations and therefore, its operation can be prospective or retrospective, depending on the provisions of the statute. But when the Supreme Court gives a decision declaring the law, it does not create rights/obligations but merely identifies and declares the pre-existing rights/obligations and declares the true position of law. Consequently, the terms 'prospective' and 'retrospective' strictly do not apply to decisions of the Supreme Court, as all decisions are 'retrospective'. It is thus a cardinal principle of construction that every Statute is presumed to be prospective unless it is expressly or by necessary implication made retrospective in operation; and every decision of the Supreme Court declaring the law is retrospective, unless it is expressly or by necessary implication restricted to prospective operation. .... The true and correct position of law declared by the Supreme Court applies not only to transactions and proceedings subsequent to the decision, but also to transactions and proceedings prior to the decision. This of course is subject to the rule of finality of proceedings; that is, the law declared by the decision cannot be used to reopen concluded decisions which have become final; it will apply to all pending transactions and proceedings. A proceedings in regard to which there is a provision for appeal, revision, review or rectification and the time prescribed for such remedy, has not expired, then such a proceeding cannot be said to have become final or concluded. .... It is no doubt true that where injustice and oppression will be caused by applying the decision to past transactions/proceedings, the Court while giving the decision, may stipulate that it will not affect past transactions. When and where the line should be drawn, restricting the application of the decision, are to be decided by the Court rendering the decision, having regard to considerations of justice, convenience, utility and finality. When the Supreme Court while rendering a decision, does not choose to restrict its operation, it will not be proper for the High Court to read such a restriction into the decision of the Supreme Court".
(emphasis supplied) In Golak Nath v State of Punjab and Managing Director, ECIL, Hyderabad v B. Karunakaran, the Supreme Court has made it clear that the discretion to restrict the operation of a decision prospectively, vests only with the Supreme Court. The High Court cannot, therefore, entertain or consider any contention or prayer for holding that the decision of the Supreme Court in any matter is only prospective in its operation or that it does not apply to pending cases.
15. Hence, it has to be held that cases which have not reached finality, i.e., cases which are pending in Trial Courts, District Courts and High Court and cases where decision has been rendered, but the time for approaching the higher Court has not expired, will be subject to the law declared in Shobha Surendar's case, supra. Consequently, the eviction petitions in such pending matters will have to be rejected.
16. There is, however, one category of pending cases where Shobha Surendar will not apply, that is, cases protected by the doctrine of res judicata. These are cases where a landlord has filed an eviction petition under the KRC Act after the Civil Court had dismissed his earlier civil suit on the ground that it had no jurisdiction, holding that he has to approach the Court under KRC Act.
16.1 It is well-settled that a Civil Court has always the jurisdiction to decide whether it has jurisdiction to try a suit before it or not and its decision on the question of jurisdiction will operate as res judicata in regard to the same question raised in any subsequent proceedings [see Upendranath v Lail and Avtar Singh v Jagjit Singh. Therefore, when the civil suit filed by the landlord against his tenant for possession is dismissed by the Civil Court by holding that it had no jurisdiction in view of the decision in Padmanabha Rao, and the landlord has to file an eviction petition under the KRC Act, such decision becomes final and conclusive as between the parties, in regard to the question so decided, and as between them, will constitute an absolute bar to a reconsideration of the same question in any subsequent litigation. The principle of res judicata is the principle of estoppel by judgment.
16.2 If an eviction petition under the KRC Act is subsequently filed by such landlord, the earlier decision in the civil suit will estop the tenant from raising any objection that the Court under the KRC Act has no jurisdiction, relying on the decision in Shobha Surendar. The earlier decision between the parties holding that the suit was not maintainable (based on Padmanabha Rao's case, supra, that Section 31 of the Act is void or invalid) will bind the parties to the proceedings and they cannot be permitted to approbate and reprobate and contend relying upon the decision of the Supreme Court in Shoba Surendar's case, supra, that Section 31 of the Act is valid and therefore the proceedings initiated under the Act must be held as one without jurisdiction. This is because the decision of the Civil Court holding that it had no jurisdiction, was correct and in accordance with law when it was rendered. As per the law declared then, the Court under KRC Act had jurisdiction to entertain the eviction petition. There has been no change in the statute, subsequent to such decision of the Civil Court in the suit. There is only a change in the interpretation of the statute by Courts. Therefore, the principle of resjudicata will continue to apply in such cases, with reference to any objection of want of jurisdiction of the Court under KRC Act.
16.3 In view of the above, the landlords, whose earlier civil suits had been dismissed by judgment of the Civil Court (as contrasted from withdrawal of the suits by the landlord) will be entitled to proceed with the eviction proceedings, even after the decision in Shobha Surendar.
Re: Cases which have reached finality:
17. We will now deal with cases where the orders of eviction have become final and conclusive before the date of decision in Shobha Surendar. It is a well-settled and recognised rule of law and public policy, arising from practical necessity, good sense and logic that cases which have reached finality and are concluded shall not be reopened. This rule is the cumulative and culminating effect of the following principles of public policy:
(a) Interest Reipublicae Ut Sit Finis Litium (It concerns the State that there be an end of law suits. It is for the general welfare that a period be put to litigation).
(b) Interest Reipublicae Res Judicatas Non Rescindi (It concerns the State that things adjudicated be not rescinded. It is a matter of public concern that solemn adjudications of the Courts should not be disturbed).
(c) Nemo Debet Bis Vexari Pro Una Et Eadem Causa (No man ought to be twice troubled or harassed, for one and the same cause. No person can be sued a second time for the same cause of action, if once judgment has been rendered).
(d) Res Judicata (a final judgment rendered by a Court of competent jurisdiction on the merits, is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In other words, a matter once judicially decided is finally decided).
(e) Doctrine De Facto (The acts of Judges de facto, performed by them within the scope of their assumed official authority, in the interest of the public or third parties and not for their own benefit, are valid and binding, as if they were the acts of Judges de jure. Even if there is any defect of his title to the office of the Judge, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure).
18. A decision rendered by a competent Court becomes final and conclusive when statutory avenues of challenge thereto by way of ap-
peal, revision, review, rectification or otherwise are availed and exhausted, or not availed within the period prescribed by law and thus becomes unassailable.
19. When such a decision has been executed, or given effect, or voluntarily complied with, without challenge, or is fully satisfied, nothing else remains to be done in regard to such decision. A party against whom such a decision had been rendered cannot seek reopening of the matter, or fresh adjudication of the matter in any subsequent litigation, unless fraud or other recognised exceptions are alleged and proved. Consequently, in cases where the eviction orders or decrees have become final and have also been either complied with or fully satisfied by execution, the subsequent decision of the Supreme Court will have no effect and furnish to cause to unsettle such settled matters. The position is the same even in regard to matters where the decision/judgment has become final and concluded, but which are not yet executed or fully satisfied.
20. Counsel for tenants contended that a judgment or decision rendered by a Court becomes a nullity, when the Supreme Court declares the law to be otherwise, after such judgment/decision, and therefore becomes inexecutable. They rely on the principle that a decree passed without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied on even at the stage of execution proceedings or collateral proceedings. In this behalf reliance is placed on the decisions of the Supreme Court in Kiran Singh v Chaman Paswan; B.V. Patankar v C.G. Sastry; Sunder Dass v Ram Prakash; H. Shiva Rao v Cecilia Pereira; Urban Improvement Trust, Jodhpur v Gokul Narain and Kesar Singh v Sadhu. Relying on this principle, it was contended that even in cases where the eviction decrees have become final, but where they are pending execution or pending compliance, the invalidity of such decrees can be urged in execution, having regard to the law declared by the Supreme Court (that the Court functioning under the KRC Act has no jurisdiction to pass orders of eviction in cases barred by Section 31).
20.1 In Kiran Singh's case, supra, on facts the Supreme Court refused to treat the judgment in that case as a nullity even when it was made without jurisdiction (Section 11 of Suits Valuation Act, 1887) by applying the principle that when a case has been tried by a Court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in a failure of justice.
20.2 In Patankar's case, supra, Shiva Rao's case, supra, the Supreme Court held that the decree for possession/eviction granted by the Civil Courts were inexecutable in view of the express bar contained in sub-
sequent Rent Control Legislation which specifically provided that notwithstanding anything contrary contained in any law, no order or decree for recovery of possession of any premises shall be made by any Court in favour of the landlord against the tenant except in the manner provided in such Legislation. The Supreme Court held that as there was a statutory bar for execution of decrees for possession under a legislation brought subsequent to the decree, the decree became a nullity and, therefore, inexcutable.
20.3 In Sundar Dass case, supra, the Supreme Court held that as a Rent Control Act was made applicable retrospectively, the Civil Court had no jurisdiction to entertain a suit for possession and therefore the decree for possession was a nullity.
20.4 In Urban Improvement Trust's case, supra, and Kesar Singh's case, supra, the matter did not directly arise for consideration. In these cases the decrees made were contrary to existing laws. The Supreme Court held that the decrees which violated express bars, contained in statutes were nullities and their invalidity could be set up as a defence to execution.
21. The principle that emerges from these decisions of the Supreme Court is that even in regard to a decision which has become final, it is possible to set up its invalidity as a defence to enforcement thereof, on the ground that it is a nullity, (a) where there was a inherent lack of jurisdiction in the Court which entertained and passed the decree; or (b) where the decree was made by the Court, in violation of a specific bar contained in a statute; or (c) where a subsequent statute which is given retrospective effect nullifies such decrees or bars enforcement of such decrees.
22. On the other hand, if the Court had jurisdiction to entertain the action, as the law stood at the time of entertaining such action, and if the Court had jurisdiction to make the decree, as the law stood at the time of making the decree, a subsequent declaration by the Supreme Court that the Court did not have jurisdiction, will not render the decision already rendered, a nullity. Judgments and decisions which were valid, when they were made, will not become null and void, on account of any subsequent declaration of a different position of law by a Court. A judgement based on the law as it stood on the day the judgment was pronounced, will never be a nullity. Two hallmarks of an act which is a nullity is, that it is invalid from the very inception and it can never become valid by any subsequent act or event. Therefore, a decision, which was valid when made, can never become null and void. It may become voidable on account of subsequent declaration of a different position of law by the Court, and can be set aside, if the matter is pending, or if it can be challenged in appeal or revision subject to law of limitation. Thus, a judgment which is given based on the law as it stood on that day, and which has become final, will not be affected, nor becomes a nullity, merely because the Supreme Court or this Court subsequently declares the legal position to be otherwise. The only circumstance which such a judgment or decision, which has become final, can be made ineffective or inoperative, is by a legislation with retrospective effect.
23. We may refer to the decision of the Supreme Court in Rangarao v Kamalakant, where this position is made clear. In Ranga Rao's case, supra, a civil suit was filed for possession by the landlord against the tenant. It ended in a compromise decree on 3-1-1985. The landlord had filed the said civil suit instead of an eviction petition, having regard to the fact that the building belonged to a category, which was exempted from the purview of the Rent Control Act by a notification issued under the Act. Subsequent to the compromise decree, the notification exempting the said category of buildings from the operation of the Rent Control Act was struck down on 9-6-1985 as being unconstitutional. When the compromise decree dated 3-1-1985 was sought to be executed, the tenant contended that the decree had become inexecutable since the Civil Court had lost the jurisdiction to pass an order of eviction in view of the decision striking down the exemption notification. The High Court upheld the objections and held that the decree was inexecutable. In an appeal by the landlord, the landlord contended that existence of jurisdiction of the Court, which passed the decree, will have to be determined with reference to the date of decree and not any later declaration by a Court. The tenant contended that if on the date of execution of the decree, the Court has lost jurisdiction, to pass an order of eviction, it was possible to resist the decree for eviction passed prior to the Court losing jurisdiction. The Supreme Court rejected the contention of the tenant. The Supreme Court held that when the consent decree was made, the Court had jurisdiction to pass such decree and the subsequent decision striking down the exemption notification will only bar filing of civil suits thereafter and cannot have the effect of rendering any decree which had been passed before the striking down of the exemption notification, and which had become final, a nullity; and no Court, including the Supreme Court, has the power to reopen decisions which have become final, as such power is available only to the legislature.
24. It is useful to refer to the decision of a Division Bench of this Court in D.P, Sharma v State Transport Authority. In that case, the State Transport Authority had made a grant dated 29-10-1983, relying upon the pronouncement in Writ Petition No. 2052 of 1983. The decision in Writ Petition No. 2052 of 1983, was reversed by the Supreme Court in Karnataka State Road Transport Corporation v Secretary, Karnataka State Transport Authority. The Division Bench considered the question whether the decision of the Supreme Court affected the finality and effectiveness of the grant made by STA on 29-10-1983. M.N. Venkatachalaiah, J.(as he then was) speaking for the Bench held that the reversal of the order in Writ Petition No. 2052 of 1983 by the Supreme Court will not have the effect of uprooting the decision made in another case (that is, grant made by STA) relying on the decision in Writ Petition No. 2052 of 1983, at a time when the decision in Writ Petition No. 2052 of 1983 was a binding precedent. It was further observed "It is a trite proposition that even inter paries, if the law laid down in a pronouncement is later overruled, as distinguished from it being reversed, its binding effect inter partes is not set at naught. The decision itself has to be assailed and got rid of in a manner known to or recognised by law".
25. We may also refer to the de facto doctrine explained and applied in the decision of the Supreme Court in Gokaraju Rangarqju v State of Andhra Pradesh. The Supreme Court was considering the effect of its declaration that appointment of a particular Judge was invalid, on judgments rendered by such Judge prior to the declaration. The Court held.-
"A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.
The Supreme Court also approved the following observations of the Andhra Pradesh High Court in Immedisetty Ramkrishnaiah Sons v State of Andhra Pradesh.-
". . .'the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine'. . ".
The de facto doctrine saves judgments pronounced by a Judge, from the date of his appointment to the date when his appointment is declared defective or invalid. If the Judge renders any judgment after the declaration that his appointment is invalid, such judgment will not however be saved by the de facto doctrine.
26. Let us now apply the aforesaid principles to find out whether the decision of the Supreme Court in Shobha Surendar will enable tenants to resist the execution of eviction decrees which have become final. When such eviction petitions were filed under KRC Act (subsequent to 1-7-1986) the declared and binding law in Karnataka as per decision in Padmanabha Rao's case, supra, was that only eviction petitions under KRC Act were maintainable. When orders of eviction were passed (or confirmed), the declared law still was that eviction petition under KRC Act were maintainable. The fact that the Courts which passed the eviction orders under KRC Act, have jurisdiction to pass such eviction orders under the KRC Act, on the day when they entertained the petitions and on the day when they rendered the decisions, is not in dispute. Thus it cannot be said that when the cases were filed, there was inherent lack of jurisdiction in the Court to entertain the petition; nor can it be said that when the eviction orders were passed, there was any want of jurisdiction or bar to the Court to pass an order of eviction. Hence, the subsequent declaration of the legal position to the contrary, in Shobha Surendar will not invalidate the eviction decrees which were valid when made and which have already become final.
27. In the result, the answer to question (iii) in para 7 is as follows:-
(a) All pending matters as stated in para 15 above will have to be rejected (subject to the exception stated in para 16 above).
(b) All matters which have become final and conclusive will remain unaffected. And the implied declaration that Section 31 is in the statute book made by Supreme Court in Shobha Surendar's case, supra, will not nullify the decisions which have reached finality before 1-11- 1996 (date of decision in Shobha Surendar) and such decisions can be executed and landlords can obtain possession under them.
28. As a consequence of our answer to the aforesaid questions, we dispose of these revision petitions as follows:
(a) HRRP Nos. 423, 425, 465 and 1719 of 1996 and 548 of 1997 are allowed and the orders of eviction passed against the petitioners therein, are set aside;
(b) HRRP Nos. 438 and 1148 of 1996 are dismissed;
(c) HRRP Nos. 1415 of 1997 and 12 of 1998 are allowed and as a consequence it is held that the eviction petitions from which the said revision petitions have arisen, are held to be not maintainable;
(d) Having regard to the fact that all the eviction petitions which are the subject matter of the above revision petitions are being rejected on the ground that they are not maintainable having regard to Section 31 of the Karnataka Rent Control Act, 1961, liberty is reserved to the landlords to file civil suits for possession/ejectment after termination of tenancies in accordance with law;
(e) We also direct that in all the cases where the civil suits are filed by the landlords after the rejection of eviction petitions filed by them under the Karnataka Rent Control Act, the Civil Courts wherein such suits are filed, shall expedite the hearing of such cases having regard to the fact that such suits are by way of second round of litigation.