Karnataka High Court
Ismail And Ors. vs Sushila Bai And Ors. on 19 September, 2002
Equivalent citations: 2002(6)KARLJ476
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. This revision petition is filed by the legal representatives of the original tenant in H.R.C. No. 4 of 1988 on the file of Principal Munsiff, Bantwal, aggrieved by the order dated 13-4-1999 in Revision (Rent) Petition No. 54 of 1997 on the file of I Additional District Judge, Mangalore, allowing revision (rent) petition and directing the petitioners who are the legal representatives of the original tenant to vacate the Schedule premises by reversing the order dated 1-2-1997 in H.R.C. No. 4 of 1988 on the file of Principal Munsiff, Bantwal.
2. A few facts which are relevant for deciding the questions involved in this revision petition are stated herein. One Ummer Saheb was a tenant under the respondents 1 to 3 who are said to be the landowners of the Schedule property. The landowners who are referred to as landlords have filed H.R.C. No. 4 of 1988 under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 ('the Act' for short) seeking eviction of the respondent-tenant from the Schedule premises for their bona fide use and occupation. The premises in question is admittedly a non-residential premises which measures more than 14 Square Metres. The Principal Munsiff, Bantwal, Dakshina Kannada by his order dated 1st February, 1997 has dismissed the petition holding that the landlords have not established their case under Section 21(1)(h) of the Act. The landlords have filed the Revision (Rent) Petition No. 54 of 1997 on the file of 1st Additional District Judge, Dakshina Kannada, Mangalore. During the pendency of revision (rent) petition, the respondent-tenant therein died on 26-11-1997. The landlords have filed necessary application to bring the legal representatives of the deceased tenant on record. The said application was allowed and L.Rs were brought on record. Subsequently thereafter, the petitioners-landlords have filed a Memo dated 2-3-1999 bringing out to the notice of the Court the decision of the Apex Court to the effect that the legal representatives of the original tenant of a non-residential premises cannot contest the eviction proceedings. The same has been in Venkatesh Thimmaiah Gurjalkar v. S.S. Hawaldar. On the basis of the said decision of the Apex Court, the First Revisional Court namely, the District Judge, Dakshina Kannada, Mangalore has allowed the revision petition and set aside the order of dismissal of the H.R.C. No. 4 of 1988 by the learned Principal Munsiff, Bantwal and consequently directed the respondents-legal representatives of the deceased tenant to vacate and hand over the vacant possession of the Schedule premises to the landlord within two months.
3. Aggrieved by the said order, the present revision petition is filed by the legal representatives of the said tenant.
4. Mr. Balakrishna Shastry, learned Counsel appearing for the petitioners-tenants has contended that subsequently to the decision of the Apex Court in Venkatesh Thimmaiah Gurjalkar's case, supra, a larger Bench of the Apex Court as in Gantusa H. Baddi (dead) by L.Rs v. Meerabai G. Pai and Ors., has over-ruled the earlier decision in Venkatesh Thimmaiah Gurjalkar's case, supra and therefore, the order of the First Revisional Court is unsustainable in law. Alternatively, it is also his contention that by virtue of Clause (c) of Sub-section (2) of Section 70 of the Karnataka Rent Act, 1999 (hereinafter referred to as 'Act 34 of 2001') the entire proceedings would abate as the premises in question is a non-residential premises measuring more than 14 sq. metres as provided under Clause (g) of Sub-section (3) of Section 2 of the Act 1999.
4-A. Mr. H.K. Shetty, learned Counsel for the respondents-landlords on the other hand has brought to the notice of the Court that by virtue of Schedules I and II, the premises in question is taken out from the purview of the provisions of the Act 1999 and therefore, in the interest of landlord the matter may be remitted to the lower Court for fresh consideration.
5. In view of these contentions of the learned Counsel for the petitioners as well as the respondents, the points that arise for my consideration are:
1. What is the effect of Sub-sections (1) and (2) of Section 2 of the Act 1999?
2. Would the entire proceedings abate in view of Clause (c) of Sub-section (2) of Section 70 of the Act 1999 (Act 34 of 2001)?
6. Re: Points 1 and 2.--The pivot of the case is the 'Repeal and Savings' clause contained in Clause (c) of Sub-section (2) of Section 70 of the Act. It reads.-
"(1) The Karnataka Rent Control Act, 1961 (Karnataka Act 22 of 1961) is hereby repealed. (2) Notwithstanding such repeal and subject to the provisions of Section 69.-
(a) .........
(b) .........
(c) all other cases and proceedings pending in respect of premises to which this Act does not apply shall as from the date of commencement of the Act stand abated".
(emphasis supplied) Clause (c) is a repealing clause, Clause (c) governs premises to which the Act does not apply and brings out the effect of such non-application of the Act by stating that 'all cases and proceedings pending. . . . shall as from the date of commencement of the Act stand abated'. The reference is to 'all cases and proceeding's pending' and not merely to 'any proceeding'. As the revision is a pending proceeding in respect of an eviction case filed under the old Act, if the new Act has no applicability to the premises in question, then the entire case would abate as the abatement is in relation to the entire case and not confined to a particular proceeding related to the case. Therefore, it is not only the revision that would abate but also the entire eviction proceedings. The contention of learned Counsel Mr. Balakrishna Shastry that the entire proceedings would abate is correct. As the entire proceedings abate, nothing survives for consideration be it in this revision or before the Court below. The resultant position in law is that the order suffered by the tenant in the eviction proceedings that were concluded before the Court below would have no force in law as the proceedings that were concluded before the Court below have lost their validity after the advent of the Act 1999. The only course open now to the landlord is to start an action afresh under the common law for eviction of the tenant as the premises is excluded from the purview of the Act of 1999. Therefore, the contention of learned Counsel that the matter has to be remanded to the Court below for fresh disposal on merits does not have the support of law.
7. In the light of the conclusion reached by me on the question of abatement of the proceedings under Section 70(2)(c) of the Act, there is actually no need to consider the other contention regarding Section 2 of the Act. But, since the question raised is a pure question of law, I deem it proper to consider and pronounce on it notwithstanding the fact that it may not alter the position of the parties in any way in the light of the conclusion reached by me on the previous point. Section 2 of the Act deals with the application of the Act. In the present case we are concerned only with the provisions contained in Sub-section (2) and Clause (g) of Sub-section (3). They read:
"2. Application of the Act--(1) Chapters I to III and V to VIII of this Act shall apply to areas specified in the First Schedule. (2) Chapters I and IV shall apply only to areas specified in the Second Schedule. (3) Nothing contained in this Act shall apply.-
(a) ... ...
(b) ... ...
(c) ... ...
(d) ... ...
(e) ... ...
(f) ... ...
(g) to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square metres used for commercial purpose;
(h) ... ... (4) ... ... (5) ... ...".
Schedules 1 and 2 of the Act relate to Section 2 of the Act. As the Act is made applicable only to areas covered by Schedules 1 and 2, I extract them hereunder:
Areas to which Chapters I to III and V to VIII apply Part A Areas within the limits of Cities constituted under the Karnataka Municipal Corporation Act, 1976 and within a radius of three kilometres from the limit of the said cities. Part B Areas within the limits of the City Municipal Councils constituted under the Karnataka Municipalities Act, 1964. Second Schedule Areas to which Chapters I and IV apply Areas within the limits of cities constituted under the Karnataka Municipal Corporations Act, 1976 and within a radius of three kilometres from the limits of the said cities".
7-A. The premises in question is situate in Bantwal Town which is neither a city corporation nor a city municipality. Therefore, without doubt, the provisions of the Act would not apply to the premises in question. In such a situation Sub-clause (c) of Sub-section (2) of Section 70 would operate and the case and the proceedings in respect of the premises would abate.
8. In the result, for the reasons stated above, the revision cannot be decided on merits and stands abated without any adjudication on merits. It be treated as disposed off.