K.A. Swami, J.
1. Defendants 1 and 2 have preferred this Appeal against the Judgment and decree dated 18-8-1983 passed by the learned XVI Additional City Civil Judge, Bangalore City in O.S. No. 1884 of 1980.
2. Though the suit in question was originally filed in the Civil Judge's Court, Bangalore City on 26-10-1977 as O.S. No. 770/1977, but on the establishment of City Civil Court, it statutorily stood transferred to the City Civil Court and was numbered as O.S. No. 1884/1980.
2.1. The trial Court (City Civil Court) has decreed the suit in the following terms:
'After contest, it is ordered and decreed that: the defendants-1 and 2 are directed to vacate and deliver the vacant possession of the suit schedule premises to the plaintiff's within three months from today.
It is further ordered and decreed that the defendants-1 and 2 do pay to the plaintiff a sum of Rs. 5,800-00 (Rupees five thousand eight hundred only) together with Court costs and current interest thereon at 6% p.a. from the date of suit till the date of payment.
And that the sum of Rs. 2614-50 (Rupees two thousand six hundred fourteen and paise fifty only) be paid by the defendants to the plaintiff on account of the costs of this suit.'
3. The respondent-plaintiff filed the aforesaid suit for ejectment and recovery of possession of the suit-schedule premises bearing Old Municipal No. 53, New No. 258, situated at Old Tharagupet. According to the case of the plaintiff, the suit schedule premises are shop premises and defendants-1 and 2 are the partners of the firm known as 'Sri Balakrishna Flour Mills'; that defendants-1 and 2 had obtained the premises on lease, therefore, defendants-1 and 2 were the tenants of the premises on a monthly rent of Rs. 1250/-. The further case of the plaintiff is that a sum of Rs. 10,000/- was paid at the time of commencement of the lease which has to be returned only at the time of vacating the premises; that the defendants put up a permanent structure without the consent of the plaintiff and they also remained in arrears and as such the plaintiff terminated the tenancy by issuing a notice as required by Section 106 of the Transfer of Property Act, and filed the suit for ejectment of the defendants and to direct them to deliver vacant possession of the schedule premises to the plaintiff and also to grant a decree for a sum of Rs. 5800/-together with Court costs and current interest at 16% p.a. on Rs. 5800/- from the date of suit till the date of realisation.
4. The defendants contested the suit and inter alia contended that Sri Balakrishna Flour Mills was the tenant of the plaint schedule premises, that defendants-1 and 2 were the partners of the firm called 'Sri Balakrishna Flour Mills'; that 1st defendant became the tenant of the building which stood prior to the reconstruction of the plaint-schedule premises by the plaintiff; that during December 1974, both the parties entered into an Agreement, according to which the plaintiff had to reconstruct the plaint schedule premises to suit the convenience of the defendants and thereafter the defendants should pay a rent of Rs. 1250/- p.m. for the first five years, and Rs. 1500/-p.m. for the remaining period of tenancy; that after the execution of the Agreement, the defendants handed over possession of the old building to the plaintiff who reconstructed the same but not as per the specifications; that the plaintiff put back the defendants in possession of the reconstructed building; that the plaintiff constructed a very steep and small-sized stair-case which was inconvenient for the use of the defendants; that the defendants have been making use of the suit schedule property as office and also as godown; that the staircase through which the goods were to be carried was narrow and dangerous to the use of the defendants; therefore, they requested the plaintiff to set it right; that on the oral permission of the plaintiff the defendants reconstructed the staircase and also put up an over-head tank; that the expenditure incurred in this regard was in the order of Rs. 10,000/-, however, the defendants claimed only the cost of the work which was permitted to be done by the plaintiff; that the defendants deducted the amount due to them out of the rents to be paid; that the plaintiff cannot retain more than 2 months' rent as advance, therefore, they requested the plaintiff to adjust the balance of the advance amount towards rent; that the plaintiff has no right to terminate the tenancy; that it is not true that the plaintiff requires the suit schedule premises for the use of his undivided son; that the defendants would be put to greater hardship if they are ejected; that as per the terms of the Agreement dated 3-12-1974, the defendants are entitled to be in possession of the, plaint schedule premises as tenants for a period of 10 years. Alternatively they are entitled to protection of Section 53A of the Transfer of Property Act, as they are in possession of the plaint schedule premises in part performance of the Agreement dated 3-12-1974; that the termination of tenancy is bad in law; that the defendants are entitled to relief against forfeiture as contemplated under the Transfer of Property Act. Thus the defendants pleaded for dismissal of the suit with costs.
5. On the basis of the pleadings of the parties, the trial Court framed the following issues:
1. Whether the contractual tenants are defendants 1 and 2 or the firm 'Sri Balakrishna Flour Mills' of which they are only the partners?
2. If defendants-1 and 2 are proved to be the contractual tenants whether the plaintiff proves that the lease has been duly determined in accordance with Section 111 of the T.P. Act and on the grounds put forth in the plaint?
3. Whether the plaintiff has duly terminated the tenancy of the defendants in accordance with Section 106 of the T.P. Act?
4. Whether the defendants prove that the alterations and additions admittedly carried out by them were with the consent and knowledge of the plaintiff?
5. Whether the defendants prove that they spent a sum of Rs. 5450A towards those additions to the plaint schedule premises?
6. Whether the defendants show that they are entitled to deduct a sum of Rs. 7500/- out of the advance amount of Rs. 10,000/- and thereby leave behind only a sum equivalent to 2 months rent with the plaintiff as advance?
7. Whether the defendants are entitled to protection under Section 53A of the T.P. Act?
8. Whether the plaintiff is entitled to the ejection of the defendants and for vacant possession of the plaint schedule premises?
9. What order or decree?
6. On issue No. 1, the trial Court has held that defendants-1 and 2 alone are the tenants and not the partnership firm known as 'Sri Balakrishna Flour Mills'. Issues 2, 3 and 8 have been answered in the affirmative and issues 4, 5, 6 and 7 are answered in the negative. Accordingly, the trial Court has passed a decree for possession and for recovery of a sum of Rs. 5,800/- with interest at 6% p.a. from the date of suit till the date of payment and Court costs.
7. Sri D.L.N. Rao, learned Counsel appearing for the appellants/defendants contends that the trial Court is not justified in holding that defendants 1 and 2 alone were the tenants of the premises whereas Sri Balakrishna Flour Mills was the tenant of the premises; that the trial Court is not justified in deciding Issues 4, 5 and 8 after it came to the conclusion that defendants 1 and 2 were the tenants of the schedule premises; that during the pendency of the appeal Section 31 of the Karnataka Rent Control Act (hereinafter referred to as 'the Act') has been struck down by this Court in PADMANABHA RAO H. v. STATE OF KARNATAKA, consequently the provisions of Part V of the Act have become applicable to the premises in question, therefore, the findings recorded in issue Nos. 4, 5 and 8 are not sustainable because the finding recorded on Issue No. 4 becomes a ground under Section 21(1)(c) of the Act and similarly no decree for eviction can be passed by an ordinary Civil Court other than the 'Court' defined under the Act, on the application of the provisions contained in Part V of the Act to the premises, therefore, the findings recorded on Issues 4, 5 and 8 are liable to be set aside in the event the Court affirms the finding recorded on Issue No. 1.
8. In the light of these contentions, the following points arise for consideration:
1. Whether the trial Court is justified in holding that there existed a relationship of landlord and tenant between the defendants 1 and 2 alone and that Sri Krishna Flour Mills was not the tenant?
2. What is the effect of striking down Section 31 of the Act on the findings recorded on Issues 4, 5 and the decree for possession passed by the trial Court?
POINT No. 1
9. The trial Court has recorded a finding on Issue No. 1 on the basis of the Agreement of Lease dated 19-12-1974 which is marked as Ex.P-1 and also the oral evidence adduced in the case. On going through the finding recorded by the learned trial Judge and on considering the contention urged by learned Counsel for the appellants we do not find any justification to differ from the view taken by the trial Court. There is no evidence worth considering to hold that it is Sri Krishna Flour Mills which is the tenant and not the defendants 1 and 2. It may be relevant to notice that defendants 1 and 2 are no other than the father and son. They have executed the Agreement of Lease dated 19-12-1974. The plaintiff also issued notice to the defendants as per Ex.P-7 and defendants 1 and 2 replied the notice by Ex.P-8 dated 30-7-1977. It is also relevant to notice in this regard that the defendants did not dispute that in respect of old building that was existing, it was the defendants 1 and 2 who were the tenants. After the reconstruction of the building the stand taken by the defendants is that it is Sri Balakrishna Flour Mills a partnership consisting of defendants 1 and 2 which became the tenant. For that there is no evidence worth considering. Therefore, the trial Court is justified in holding that it is the defendants 1 and 2 who are the tenants of the premises and not the partners known as Sri Balakrishna Flour Mills. Point No. 1 is accordingly answered in the affirmative.
10. Point No. 2: Before taking up the second point we may also point out here that no doubt on the application of Part V of the Act to the premises the jurisdiction of the ordinary Civil Court is ousted from passing a decree for possession or ejectment of the tenant from the premises whether it is residential, non- residential or commercial. But the Act does not exclude the jurisdiction of Civil Court to determine the existence or otherwise of the relationship of landlord and tenant. Such jurisdiction is enjoyed by the ordinary Civil Court as well as the Court defined under the Act. Therefore, whenever a finding is recorded by a Civil Court i.e., the Court other than the one defined under the Act that there exists a relationship of landlord and tenant under the Act such a finding between the parties is final and the Court exercising the jurisdiction under the Act will be bound by it. In the same manner where the Court exercising the jurisdiction under the Act determines the question as to existence of relationship of landlord and tenant between the parties, such a finding also would be binding on the parties and if any question arises between the parties before a Civil Court i.e., the Court other than the one defined under the Act the parties would be bound by it so also the Court. This normally happens when two Tribunals or Courts enjoy the same jurisdiction. With this statement of law we now take up Point No. 2 for consideration.
11. This Court in Padmanabha Rao H. v. State of Karnataka has struck down Section 31 of the Act. The said Section has been struck down on the ground that though initially the Section was valid in law, but it has become discriminatory in the light of the appreciation in the market value of the properties. Thus, the Decision striking down the provisions as contained in Section 31 of the Act is effective from the date it is rendered. Thus, from 1-7-1986 - the date on which Padmanabha Rao's case was decided Section 31 of the Act has ceased to be operative. Consequently, as the premises in question are situated within the area to which the Act applies the provisions contained in Part V of the Act are attracted to the premises. The appeal being continuation of the suit, the Appellate Court is required to take into consideration the change in law which affects the jurisdiction of the Court as well as the rights of the parties. In addition to this, the Supreme Court also had an occasion to consider a case in H. SHIVA RAO AND ANR. v. CECILIA PEREIRA AND ORS. wherein a decree for ejectment passed by a Civil Court long prior to the application of the Act to the premises concerned therein was held to have become inexecutable because during the course of execution of that decree the provisions of the Act came to be extended to the area wherein the premises concerned in that case was situated; Therefore, during the course of execution a contention was raised that the decree had become inexecutable having regard to the application of the provisions contained in the Act and the provisions contained in Part V of the Act. The Supreme Court upheld the contention on the basis of the provisions contained in Section 21(1) of the Act and set aside the order passed therein and held that the decree passed by a Civil Court for ejectment had become inexecutable. Hence it follows that the decree now passed by the trial Court is not executable insofar it relates to ejectment and recovery of possession from the tenants even if it is confirmed. Therefore in such a case when during the pendency of the Appeal the provisions of Part V of the Act become applicable to the premises the decree passed by the Civil Court cannot be sustained in the Appeal.
12. The next question for consideration is whether the findings recorded on Issues 4 and 5 and the decree for recovery of arrears of rent of Rs. 5,800/- are to be retained.
13. It may be relevant to notice that Section 21(1)(c) of the Act specifically provides a ground for eviction of a tenant who has without obtaining the consent of the landlord in writing erected on the premises any permanent structure. Further under the provisions contained under Section 44 of the Act the tenant is entitled to recover or adjust the amount spent by him on repairs only if those repairs are made on complying with the provisions contained in Section 44 of the Act. Therefore, we are of the view that the findings recorded on Issues 4 and 5 need not be retained because those issues are required to be considered by the Court exercising jurisdiction under the Act.
14. As far as the recovery of arrears of rent is concerned, it is the jurisdiction of a Civil Court to pass a decree. There is no provision under the Act for the landlord to seek only for the recovery of arrears of rent, therefore, the decree passed for recovery of arrears of rent is well within the jurisdiction of the Civil Court. As far as the amount of arrears of rent is concerned, it has not been disputed by the defendants. The decree for ejectment and possession in the light of the finding recorded by us above, cannot be sustained. Accordingly, we answer Point No. 2 as follows:
The findings recorded on Issues 4 and 5 are liable to be set aside. The decree passed for recovery of arrears of rent has to be affirmed. The decree for ejectment and for possession of the premises is not sustainable. The findings on Issues 2, 3 and 7 are unnecessary because the question of termination of tenancy does not arise when once the provisions of the Act become applicable. Similarly, when once it is held that there exists a relationship of landlord and tenant between the plaintiffs and defendants 1 and 2 there is no necessity to rely upon Section 53A of the Transfer of Property Act. Hence the said findings are set aside as unnecessary.
15. For the reasons stated above, this Appeal is allowed in part, The Judgment and decree of the trial Court are modified in the following terms:
i) It is held that there exists a relationship of landlord and tenant between the plaintiff and defendants 1 and 2 in respect of the suit schedule properties.
ii) The decree passed by the trial Court that defendants 1 and 2 are liable to pay the arrears of rent of Rs. 5800/- with interest at 6% per annum from the date of suit till the date of realisation is affirmed. The findings on other issues are set aside.
iii) The suit -for ejectment and for possession is dismissed reserving liberty to the landlord to seek appropriate relief under the Act.
iv) As the plaintiff fails in the appeal to have the decree for ejectment confirmed because of the subsequent change in law, we disallow the costs in this appeal. However, the costs awarded by the trial Courts are retained.