Karnataka High Court
Gadi Narayanappa vs Lakshmamma on 15 November, 1991
Equivalent citations: ILR1992KAR962, 1991(4)KARLJ187
ORDER B.N. Krishnan, J.
1. The Revision Petitioner was defendant in S.C. No. 2303/82 on the file of the Court of Small Causes (SCCH-13) Bangalore. That was a suit filed by the plaintiff for ejectment of the defendant from the suit house bearing No. 402-350 situated in First Division, Yelahanka and for recovery of arrears of rent of Rs 350/-. The case of the plaintiff is that the defendant was inducted as tenant of the suit house on a monthly rent of Rs. 35/- by one P.M. Nagaraju and that Nagaraju and other members of his family had sold the said house in her favour, under a registered sale deed dated 8th April 1981 and consequent upon the said sale deed, the tenancy of the defendant was also attorned in her favour. The defendant by a notice through his Advocate had admitted that he had been inducted into possession of the house as a tenant of Nagaraju. However, he set up a title in himself and abandoned the claim of tenancy. Consequently, the plaintiff terminated his tenancy and filed this suit for possession of the leased house and also for recovery of the rent. The defendant though admitted that he entered into possession of the suit house as tenant under Nagaraju has set up that there was an agreement to sell in his favour by the said Nagaraju and he had paid various amounts to the said Nagaraju and therefore, he was in possession of the suit house pursuant to the agreement to sell in his favour and he ceased to be a tenant in respect of the suit house. He denied that he had become the tenant under the plaintiff or that there was valid termination of his tenancy. He further pleaded that the suit was not maintainable in the Small Causes Court.
2. The learned Small Cause Judge, after evidence was adduced, raised the following points for his consideration and answered points 1 to 3 in the affirmative and consequently decreed the suit as prayed for:
(1) Whether the Small Cause Court is competent to entertain this suit in view of the Article 4 of the Schedule provided under the Small Cause Courts Act, 1964 read with Section 8 of the said Act?
(2) If so, whether the plaintiff proves that there is relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit house?
(3) Whether the plaintiff, is entitled to arrears of Rs 350/- and ejectment of the respondent? And (4) What order?
It is being aggrieved by this Judgment and Decree of the learned Small Cause Judge that the defendant has preferred this present Revision Petition.
3. In the course of this Revision Petition the following contention has been taken: the house in respect of which eviction has been sought is situated within the limits of Yelahanka Town Municipal Council. Though, as on 13.7.1982 the date on which the suit was filed, the provisions of Karnataka Rent Control Act (for short 'the Act') and more particularly Parts IV and V of the Act were not applicable to the area comprised within Yelahanka Town Municipal Council, as it was not one of the places mentioned in Schedule II of the Act, consequent upon the amendment of Schedule II of the Act, by Act 17/83, Part V of the Act has been made applicable to Yelahanka Town with effect from 13.12.1982 and by the time the suit was decreed on 23.1.1989, there was clear embargo imposed by Section 21(1) of the Act and therefore, there was no scope for the learned Small Cause Judge to have passed the decree for eviction against the defendant. Further, it was contended that the revision petitioner has taken up the contention that in view of the agreement to sell in his favour he has ceased to be the tenant and therefore, one of the substantial issues that has to be decided in the suit is: "Whether there is agreement to sell in favour of the defendant as set up by him and whether therefore, he had ceased to be a tenant" and hence the suit does not come within the category of suits referred to in Clause 4 (c) of Schedule II to the Karnataka Small Cause Courts Act, 1964, and therefore, there was no scope for the learned Small Cause Judge to have proceeded with the suit and determine the several questions arising between the parties.
4. That the suit house is situated within the limits of Yelahanka Town Municipality has not been disputed. That as on the date of the institution of the suit Part V of the Act had not been made applicable to the area comprised within the said Municipality is also not in dispute. That consequent upon Act 17 of 83, Part V of the Act has been made applicable to the area comprised within the limits of Yelahanka Town Municipality has also not been disputed. What was urged on behalf of the plaintiff - respondent herein, is that by virtue of the Amending Act 17 of 83, no retrospective effect could be given to apply the provisions of the Act to a suit which had been instituted prior to the said amending Act. On the other hand, it was contended on behalf of the revision petitioner that the embargo imposed by Section 21(1) of the Act is against passing of any order or decree notwithstanding anything contained in any other law or contract by any Court except the designated Court and that too except on the grounds detailed in Section 21 (1) of the Act, and therefore, what we are to look to is the date on which the suit came to be decreed and not the date on which the suit was instituted. The relevant portion of Section 21 (1) of the Act reads as hereunder:
"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 may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:-"
It may be noticed that there is no reference to the institution of the suit in this Section nor is there anything in Amending Act 17 of 83 to take the suits instituted prior to 31st December, 1982 out of the purview of Part V of the Act. The question raised in this case is fairly well settled by a catena of Decisions of the Supreme Court which relate to similar enactments of other States and as the matter was argued at sufficient length on the ground that there is no decided Authority pertaining to the provisions of the Act, more especially where Part V of the Act has been made applicable by amendment of the Act, I propose to refer to a few of the Decisions cited at the Bar. Before referring to the Decisions, it may be noticed that the aspect that the rule of construction or interpretation is fairly well settled and well established that laws generally are prospective in character more particularly, laws affecting vested or substantive rights or laws creating new liabilities or imposing new disabilities, unless there are express words in the statute affecting the existing rights or unless there is clear manifestation of the intention of the Legislature on the basis of which it can be said that the law is retrospective in character. This aspect of the rule of interpretation of the law was not disputed on either side. It appears to me that the question of retrospective operation of the statute does not strictly arise in the present case, especially in view of the clear and unambiguous language employed in Section 21 (1) of the Act putting an embargo on the Courts to pass orders or decrees in respect of the cases mentioned therein and when the cases instituted prior to the Act have not been taken out of the purview of the same, In the Decision of the Suprerne Court in LAKSHMI NARAYAN GUIN and ORS. v. NIRANJAN MODAK, AIR 1985 SC III this is, what has been observed by the Supreme Court as to how the Court with reference to divestment of jurisdiction available at the time of institution of the suit. Their Lordships comment as to how the Courts had been divested of the said jurisdiction at para 8 which reads as follows:
"The next point is whether Sub-section (1) of Section 13 can be invoked where the suit was instituted before the Act came into force. In the instant case, the suit was instituted long before the Act was extended to Memari. Sub-section (1) of Section 13 directs the Court not to make any order or decree for possession, subject, of course, to the statutory exceptions. The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It is true that when the suit was instituted the Court possessed such jurisdiction and could pass a decree for possession. But ft was divested of that jurisdiction when the Act was brought into force. The language of the sub-section makes that abundantly clear, and regard must be had to its object."
That was a case arising from West Bengal where the plaintiff had filed the suit for eviction of the tenant on the ground that he was in arrears of rent and he refused to pay the same despite demand and the accommodation was required for demolition to enable the plaintiff to construct separate houses for their own business. The suit had been filed on 12th June 1967 and was decreed by the trial Court on 17th February, 1969, and during the pendency of the first appeal, the West Bengal Government extended the West Bengal Premises Tenancy Act, 1956 to Memari, in which the property was situated and Section 13 of the said Act provided for a qualified protection of the tenant against eviction inasmuch as it injuncted the Court from passing an order or decree in a landlord's suit for recovery of possession except on the limited grounds detailed in Sub-section (1) thereof, the language of which is more or less analogous to the language employed in Section 21 (1) of the Act. That was a case where even before the said Act was made applicable to the particular area, the suit had been decreed by the original Court whereas, in the present case the original Court had not passed any Judgment and Decree before the Amending Act 17 of 83. This Decision in my view practically negatives the contention urged on behalf of the plaintiff - respondent herein. Even in the earlier Decisions, the Supreme Court has dealt with this aspect of the matter in more than one case. In the Decision in RAFIQUENNESSA v. LAL BAHADUR CHETRI (DEAD) THROUGH HIS REPRESENTATIONS AND ORS., the lessor had filed a suit against the lessee for ejectment and under the convenant the lessee was entitled to build a house for residential purposes and the trial Court had decreed the suit and the lessee had preferred the appeal and only when the appeal was pending, the Assam Non-Agricultural Urban Areas Tenancy Act was passed. Thereafter, the lessee took up the contention that the two houses had been constructed by him within five years after the taking of the lease and therefore, he was entitled to claim benefit of Section 5 of the said Act. The High Court held that Section 5 was also applicable to the pending proceedings and the said Decision was confirmed by the Supreme Court on the appeal preferred by the lessor. In yet another Decision of the Supreme Court SHAH BHOJRAJ KUVERJI OIL MILLS and GINNING FACTORY v. SUBHASH CHANDRA YOGRAJ SINHA, which arose from the Decision of the Bombay High Court pertaining to Bombay Rents, Hotel and Lodging house Rates Control Act, 1947, where the language of Section 12(1) was that landlord shall not be entitled to recovery of possession of any premises so long as the tenant satisfies certain other aspects and where it was not even the language employed in Section 21(1) of the Act, this is what has been observed by the Supreme Court at page 1601:
"Then again, Section 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part II comes into force and those to be filed subsequently. The contention of the respondent that the operation of Section 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside."
The language employed in Section 21(1) of the Act is more injunctive against Courts themselves rather than the lessor as is the case with the Bombay enactment and therefore, the injunction given by such a Legislative Command in the Act cannot be whittled away by an interpretation that the suit itself had been instituted prior to the said Amending Act. It is too late in the day to refer to the intention of Legislature in enacting this law extending protection to the tenants against the unqualified right that was available to the landlord under the general law regarding eviction. The learned Advocate for the plaintiff - respondent invited my attention to the Decision of the Delhi High Court in MRS. NIRMALJIT ARORA v. BHARAT STEEL TUBES LTD., AIR 1091 Delhi 160 and pointed out that despite having referred to practically all the Decisions of the Supreme Court, the Delhi High Court has come to the conclusion that Section 3(c) of Delhi Rent Control Act (59 of 1958) inserted by Amendment Act of 1988 w.e.f. 1-12-88 was not applicable to pending proceeding and the provision was only prospective in application and not retrospective. The Division Bench of the Delhi High Court has referred to all the Decisions of the Supreme Court and has reiterated the same principle enumerated in all these Decisions of the Supreme Court referred to above but has come to the above said conclusion with reference to the Act with which it was concerned. In the first instance if the Supreme Court has laid down certain principles and with all respect if the Delhi High Court in its application of the principle has gone at tangent, there is no scope for this Court to adopt the same attitude. Further the language of this Act with which the Delhi High Court was concerned is not analogous to the language employed in Section 21 (1) of our Act. Therefore, the mere fact with reference to the Delhi Rent Control Act the Delhi High Court has come to the aforesaid conclusion is no ground to come to a contrary conclusion with reference to the applicability of Section 21 (1) of the Act to a pending suit after the said Section was made applicable to the area by virtue of Act 17 of 83.
5. In somewhat similar circumstances, this Court had to consider the applicability of the provisions of the Act to a pending proceeding in the Decision in DODDANNAVAR BROS. v. MALATHIBAI, . There the plaintiff had filed H.R.C. No. 219/75 on the file of Munsiff, Belgaum, on the ground that the provisions of the Rent Control Act applied to the property in question. In view of the Full Bench Decision of this Court in BALAWANT SHAMARAO DESHPANDE v. SADASHIV HARIPANT KULKARNI AND ORS., 1975 (1) KLJ 386 to the effect that the Act was not applicable to the extended area of the Municipality in the absence of a Notification issued by the State Government, the plaintiff withdrew that H.R.C. petition and filed the suit before the Court of Small Causes. The defendant contested that suit on the ground that provisions of the House Rent Control Act applied. The trial Court came to the conclusion that the area where the suit property was situated was not brought within the ambit of the Rent Control Act by a subsequent Notification of the Government and therefore, held that the Small Causes Court had the jurisdiction to try the suit. In view of amendment of Schedule II of the Act by the Amending Act of 1983, it was pointed out that no further notification was necessary and that the Small Causes Court had no jurisdiction to try the suit and the suit was dismissed on the ground that the Small Causes Court had no jurisdiction.
6. In yet another Decision of this Court UTTAM VERANEKAR v. SHATTU LAXMAN DONAKARI, practically relating to the very same Amending Act 17 of 83, the suit which had been earlier instituted and had been even decreed by the Court of Small Causes on 18-6-1982 it was contended that undisputedly the Court had jurisdiction to entertain the suit at the time of its institution and it had also jurisdiction to decree the suit when it was decreed and therefore, there was no scope to interfere with the said Judgment and Decree in revision. The said contention was repelled by this Court by placing reliance upon the Decision of the Supreme Court adverted to already.
7. However, the learned Advocate for the plaintiff contended that in yet another Decision of this Court reported in JANAKI v. RAMA BANGERA, which was decided on 26-11 -85, i.e. prior to the Decision which was decided on 23-1-86, practically a different view has been taken and therefore, this is an appropriate matter which should be referred to a Division Bench. It appears to me that there is no necessity to refer this case to a Division Bench and there is more than one ground for the said conclusion. In the first instance it may be noticed that in JANAKI's case the contention advanced was with reference to a concluded affair and only during the execution proceeding an objection was taken that in view of the provisions of Part V of the Act having been made applicable to the area in question the decree passed by the Civil Court was inexecutable. It was pointed out that both at the time of institution of the suit and also at the time of passing of the decree, the Court undisputedly had jurisdiction and the matter was not pending in appeal or revision at the time Part V of the Act was made applicable to the particular area. Further, decree passed by the Court was neither a contract nor law within the meaning of Section 21 of the Act and the wordings of Section 21 is that 'no Court shall pass a decree for eviction notwithstanding anything to the contrary contained in any law or contract' and there was absolutely no prohibition for executing a decree passed prior to the commencement of the Amending Act as there was no prohibition for the same, ft is in that context that this Court has observed in this Decision that the Amending Act itself being prospective and not retrospective and that was not the intention of the Legislature. I find that there is no conflict between the two Decisions as sought to be made out by the learned Advocate for the plaintiff and therefore, there is no necessity to refer this matter to the Division Bench.
8. The learned Advocate for the plaintiff contended that in the Decision of the Supreme Court reported in A.I.R. 1985 S.C. 1111 the observations made in the earlier Decision in DAYAWATI AND ANR. v. INDERJIT AND ORS., AIR 1966 SC 1422 @ 1426 have been followed. They are as under:
"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 must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance."
It was urged that in the Amending Act 17 of 83 there is a specific mention that it shall be deemed to have come into force on the 31st day of December, 1982 and therefore, these provisions would apply only to suits instituted subsequent to 31st December, 1982 or in other words that has got prospective application only to suits instituted subsequent to 31st December, 1982. There is no substance in this contention as it is already pointed out that the clear language employed in Section 21(1) of the Act is an injunction against the Court not to pass an order or decree for eviction notwithstanding anything contained in any other law and the decree in the present case had not been undisputedly passed prior to the Amending Act or prior to 31st December, 1982 and having regard to this express language employed in the said Section and also having regard to the laudable object of the Legislature of giving relief to the tenants in enacting this legislation and also having regard to the fact that the suits instituted prior to 31-12-82 but pending as on the date when this Amending Act came into force not being exempted from the purview of the provisions of especially Part V of the Act, the contention urged by the learned Advocate for the plaintiff is without any substance.
9. Having given my anxious consideration to all the contentions urged in this case, I am satisfied that the embargo imposed by Section 21 (1) of the Act is applicable to this suit despite the fact that it had been instituted prior to 31-12-82. In that view of the matter, it is clear that the Small Causes Court had no jurisdiction to pass the order of eviction against the defendant.
10. The only other aspect that remains to be considered is, how far the trial Court had jurisdiction to grant the prayer for recovery of rent. It was contended by the learned Advocate for the revision petitioner that the matter involves proof or disproof of title to immoveable property or other title within the meaning of Section 16 of the Karnataka Small Causes Courts Act and therefore, the plaint so far as the prayer for recovery of rent is concerned should be returned. Section 16(1) of the Act reads as hereunder:
"Return of plaint in suits involving question of title:-
(1) Notwithstanding anything in the foregoing provisions of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes, depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may, at any stage of the proceedings, return the plaint to be presented to a Court having jurisdiction to determine the title."
In this case the fact that P.N. Nagaraju the vendor of the plaintiff was the previous owner of the property in question is not disputed. That the defendant was tenant under him has also not been disputed. That the said Nagaraj has executed a registered sale deed in favour of the plaintiff has not been disputed. Therefore, there is a statutory attornment of tenancy of defendant in favour of the plaintiff could not also be disputed. The only other aspect that remains to be considered is, whether the agreement set up by the defendant in his favour by Nagaraju is true and whether in view of the said agreement he has ceased to be a tenant and whether therefore, he is not liable to pay the rent. Having regard to the language of Section 16(1) and other Sections and the Small Cause Courts Act, it cannot be said that the Court of Small Causes has no jurisdiction to adjudicate on this aspect of the matter and record a finding. If that be so, there is absolutely no scope to sustain the contention of the revision petitioner that the Court of Small Causes had no jurisdiction to entertain and adjudicate upon the claim of the plaintiff so far as rent is concerned. No other ground to dislodge the finding of the trial Court and the direction in respect of payment of rent, could be urged on behalf of the revision petitioner. Therefore, that portion of the order of the Court of Small Causes regarding payment of rent should be sustained.
11. In the result, the Judgment and Decree of the trial Court so far as they relate to recovery of possession of the property are set aside and in other respects, that is, so far as they relate to recovery of rent, Judgment and Decree are confirmed. The Revision Petition is, therefore, allowed only in part. In the circumstances of the case, the parties are directed to bear their own costs in this Court.