ORDER
Ramachandriah, J.
1. The short but interesting point that falls for determination in these three connected Revision Petitions filed by the tenants under Section 50(1) of the Karnataka Rent Control Act, 1961 (for short 'the Act') is:
'Whether the provisions of the Act cannot be invoked by the landlord of a premises leased in perpetuity or for a fixed term with a clause enabling the tenant to renew the lease?'
It has arisen in this way:
FACTS
C.R.P. No. 5905/1990:
2. Respondents are the owners of a premises known as 'Melville House' bearing No. 59, situate in Palace Road, Bangalore having an area of 55,750 sq. feet (for short 'the premises') which originally belonged to one Rajkumar Prithviraj Urs. Respondents as his heirs granted a lease of the premises to the petitioner-Society (for short 'the tenant') on perpetual lease under a registered deed dated 11-2-1974 subject to payment of rent of Rs. 2,570/- per month. The Society is accordingly in possession of the premises on payment of the stipulated rent regularly to the respondents. However, respondents filed an eviction petition against the petitioner in H.R.C. No. 10321/1989 in the Court of the Small Causes Judge, Civil Station, Bangalore (for short 'the trial Court' or 'the trial Judge') seeking eviction of the petitioner under Clauses (h), (j) and (p) of the proviso to Section 21 (1) of the Act although according to the terms of the deed dated 11-2-1974 the leased premises stood vested in the lessees having all the incidents of ownership. Petitioner resisted the eviction petition by inter alia contending in its objection statement that the eviction petition filed under the Act is not maintainable as the lease of the premises in question was a perpetual lease. Petitioner-Society also filed an application-I.A.II under Section 151 CPC requesting the trial Court to dismiss the eviction petition as not maintainable.
C.R.P.6140/1990:
3. The facts of this Revision Petition are also similar to the one mentioned above except that the area of the premises is 2,50,300 sq. feet of the same premises known as 'Melville House' leased by the respondents to the petitioner-Society on a permanent lease under a registered lease dated 11-2-1974 subject to payment of rent of Rs. 3,430/- per month. Respondents filed an eviction petition under Clauses (h), (j) and (p) of the proviso to Section 21(1) of the Act seeking eviction of the petitioner-Society in the trial Court, Petitioner resisted the said eviction petition by inter alia contending in its objection statement that the eviction petition was not maintainable as the lease granted in its favour was a perpetual lease and, as such, it was not covered by the provisions of the Act. Subsequently, the petitioner-tenant filed an application-I.A.II under Section 151 C.P.C. praying for the dismissal of the eviction petition as not maintainable.
4. By a common order dated 13-9-1990 passed in both cases, the learned trial Judge dismissed both the applications by holding that the eviction petitions filed under the Act were maintainable.
C.R.P. No. 1447/1991:
5. Respondent is the owner of a building bearing No. 380, 13th Cross, Sadashivanagar, Bangalore consisting of the ground floor and the first floor (for short 'the premises'). He leased the premises in favour of the petitioner-Bank for a period of five years commencing from 12-5-1986 with a renewal clause enabling the tenant to renew the premises before the expiry of the said lease period for a further period of five years i.e., upto 15-5-1995. Respondent filed eviction petition against the tenant in the trial Court on 25-10-1989 in H.R.C. No. 2757/1989 seeking eviction of the petitioner under Clause (h) of the proviso to Section 21 (1) of the Act, Petitioner-Bank resisted the said eviction petition by inter alia, contending in its objection statement that the eviction petition filed even before the expiry of the period fixed in the deed dated 15-5-1985 was not maintainable. Subsequently, the Bank also filed I.A.IV under Section 151 C.P.C. requesting the trial Court to dismiss the eviction petition as not maintainable for the aforesaid reasons. By order dated 13-2-1991, the learned trial Judge has dismissed I.A. No. IV by holding that the eviction petition as filed is maintainable in law.
6. Therefore, the tenants have filed these Revision Petitions challenging the correctness and legality of the orders of the trial Court.
7. Sri S.S. Naganand, learned Counsel for the petitioners-tenants, argued that the eviction petitions filed by the respondents in C.R.P.5905/1990 and C.R.P.6140/1990 in respect of the premises leased under the deeds dated 11-2-1974 for perpetuity subject to payment of the stipulated rents which are being paid regularly are not maintainable as the respondents could not fife the eviction petitions by treating the lease deeds as if they are non-est. He also submitted that the eviction petition filed by the landlord of the premises leased to the Bank even before the expiry of the stipulated period of five years was equally not maintainable and added that the Bank had exercised its option to renew the lease for another five years by duly intimating the landlord, even before the expiry of the original period exercising its option to renew the lease for five years. According to Sri Naganand, the premises concerned in all the three cases are not residential premises and non-obstinate clause in Section 21 of the Act has to be construed in keeping with the object of the Act as indicated in the preamble and also heading of Chapter V of the Act so as not to obliterate the contractual terms. He also placed reliance on the commentary at pages 93 and 94 and 101 to 103 of G.P. Singh's book on PRINCIPLES OF STATUTORY INTERPRETATION, IVth Edition regarding the manner in which statutes are to be interpreted having due regard to the intention indicated in the preamble and heading of several chapters and Sections of the statute and also with reference to the side-note. Sri Naganand placed reliance on a Division Bench Decision of this Court in HEGDE GOLAY LTD. v. STATE BANK OF INDIA : ILR1987KAR2673 and argued that the landlord had no right of re-entry and to seek eviction during the subsistence of the original lease period of five years and, therefore, the eviction petition filed on 25-10-1989 under Section 21 of the Act was patently not maintainable.
8. On the other hand, Sri Md. Saifulla, learned Counsel for the respondents-landlords in the first and second of the above mentioned three cases argued that the stand taken by the petitioners in their reply notice dated 14-12-1988 was that that the transaction covered by the deed dated 11-2-1974 was in effect a sale but in the objection statement it is contended that it is a perpetual lease and added that even in the letter of the lessee dated 16-7-1984 the permanent lease theory is not mentioned and, therefore, the lease is at will. Distinguishing the Decision of the Supreme Court in MODERN HOTEL, GUDUR represented by M.N. NARAYANAN v. K. RADHAKRISHNAIAH AND ORS., : [1989]2SCR725 he argued that the eviction petitions filed by the respondents in the two cases are perfectly maintainable as the two leases were at will and not in perpetuity as is evident from the fact that the petitioner-Society has been paying monthly rent as stipulated in the deeds dated 11-2-1974. He further submitted that even otherwise, it is premature for the petitioner-tenant to contend that the eviction petitions are not maintainable as it is a matter that has to be decided by the trial Court after recording evidence and on a proper interpretation of various clauses of the lease deeds and, therefore, these C.R.Ps. are liable to be dismissed.
9. In C.R.P.1447/1991, Sri N. Kumar, learned Counsel for the respondent-landlord, argued that the eviction petition filed even before the expiry of the original lease period of five years is perfectly maintainable in view of the Decision of this Court in NARAYANAPPA v. DIVAKARAPPA, 1979(2) KLJ 8 in which it is held that the High Court can take into consideration the subsequent event that the lease period had expired by efflux of time and that the tenant continued as statutory tenant in order to effectively adjudicate the proceedings before the parties and to do substantial justice between them.
10. He further submitted that the eviction petition is filed even before the tenant renewed the lease. He also submitted that the landlord has right to seek eviction even before the expiry of the lease period fixed inasmuch as conditions in the 'term lease' have no bearing on landlord's right to initiate eviction proceedings under Section 21 as has been held by a Division Bench of this Court in BHARAT PETROLEUM CORPORATION LTD. v. MOHAMMED NAHEEF CHOOHEY : AIR1986Kant191 .
11. Smt. Nalini Chidambaram, learned Counsel for the respondents in C.R.P. Nos. 5905/1990 and 6140/1990 continuing further arguments on behalf of Sri Md. Saifulla on 6-8-1991 submitted that whether the lease is perpetual or at will is a matter that has to be decided by the trial Court after recording evidence on merits and not at the preliminary stage and even otherwise, the impugned orders are not liable to be disturbed by this Court in exercise of the revisional jurisdiction under Section 115 C.P.C.
12. By way of reply Sri Naganand submitted that these are fit and proper cases in which revisional jurisdiction vested under Section 115 C.P.C. has to be exercised as the trial Court had no jurisdiction to entertain the eviction petitions filed under Section 21 of the Act. He further requested that these Revision Petitions may be referred to a Division Bench under Section 9 of the Karnataka High Court Act as the Division Bench Decision of this Court in the case of Bharat Petroleum Corporation Ltd. requires re-consideration. In support of the latter contention, Sri Naganand drew my attention to the order of K. Shivashankar Bhat, J., dated 11-10-1990 in W.P. No. 16156/1990 in which it is contended that Section 21(1) of the Act in so far as it denies protection to a contractual tenant holding property under subsisting permanent perpetual mulgeni and term lease is violative of Articles 14, 19(1)(e) and 21 of the Constitution of India (COI). The order dated 11-10-1990 in the said Writ Petition reads thus:
'Issue Rule.
Question raised is of great importance in the light of : [1989]2SCR725 and in the background of AIR 1986 Karnataka 91 (Bharath Petroleum) the decision rendered in AIR 1896 Karnataka 191 seem to require re-consideration and the law would affect a very large number of transactions. Hence I refer the matter to Division Bench under Section 9 of the Karnataka High Court Act. Papers to be placed before Hon'ble C.J. for appropriate orders. Petitioner to move the Bench for interim relief. Paper Books to be filed in three weeks.'
13. In respect of the last of the above mentioned contentions, Smt. Nalini Chidambaram submitted that there is no need to refer these Revision Petitions to a Division Bench in view of the Division Bench Decision of this Court in the case of Bharat Petroleum Corporation Ltd. which does not require re-consideration. In this connection, she also drew my attention to the Order dated 5-7-1991 in W.P.15117/1984 in which a Full Bench of this Court presided over by the Hon'ble the Chief Justice, has observed as under:
'...We are clearly of the view that no reference is warranted having regard to the pronouncement in Writ Appeal Numbers 438 and 439/1990 dated 7-3-1990 of the Division Bench which is binding on the learned Single Judge...'
(Vide true copy of the Order dated 5-7-1991 in W.P. No. 15117/1984 produced by Sri Md. Saifulla for reference). In view of the observations of the Full Bench of this Court, I am of the opinion that there is no need to refer these Revision Petitions to a Division Bench as the Division Bench Decision of this Court in Bharat Petroleum Corporation Ltd. is binding on me.
14. I consider it appropriate to examine first the order of the trial Court challenged in C.R.P.1447/1991 as it relates to a term lease and not a perpetual lease.
C.R.P.1447/1991:
15. The period of tease mentioned in the lease deed dated 15-5-1985 is admittedly for five years with an option to the lessee to seek extension for another five years provided the lessee exercises that option within five years. It was, therefore, argued by Sri Naganand that the eviction petition filed on 25-10-1989 is clearly not maintainable. Reliance was placed in support of the said contention on a Decision of the Supreme Court in Modern Hotel Gudur, represented by M.N. Napayanan v. K. Radhakrishnaiah and Ors. in which it is held with reference to the provisions of Sections 7 and 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the A.P. Rent Control Act') in paragraph-11 at page 1513 as under:
'...The lease being for a term of 30 years is to expire in September 1999. As we have already said, the lease did not stipulate a forfeiture clause and in the absence of a forfeiture clause in the lease leading to terminating by forfeiture, the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy.'
Smt. Nalini Chidambaram argued that the said observations are distinguishable from the facts of the case on hand inasmuch as the said observations are made on a consideration of the provisions of Section 10(3)(d) of the A. P. Rent Control Act which does not contain any non-obstinate clause like the one in Section 21 (1) of the Act.
16. In my opinion, there is considerable force in the said argument of Smt. Nalini Chidambaram as Section 10(3) of the A.P. Rent Control Act reads thus:
'10. Eviction of tenants:
XXX XXX XXX
(3)(d): Where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period.'
17. The facts in the case of Bharat Petroleum Pvt. Ltd. are almost similar to the facts of the case on hand inasmuch as that was a case in which the landlord had leased the premises to the tenant under the lease deed for 10 years period with option to renew for a like period. Subsequently, a second lease deed was executed with option therein. It is held that 'the non-obstinate clause in Sub-section (1) of Section 21 of the Act makes it clear that the right given to the landlord is 'notwithstanding anything to the contrary contained in any other law or contract' and, therefore, it is obvious that the non-obstinate clause has an over-riding effect. It follows, therefore, that even if there is a contract for a stipulated term, the law gives a fight to the landlord, to initiate action for eviction, if the conditions in the Section are fulfilled. To hold otherwise, would be making the non-obstinate clause redundant Hence, even in cases of 'term lease', the landlord can initiate proceedings under Section 21(1) of the Act. The contractual rights are replaced by the rights created by statute. When the landlord seeks to enforce his right, under the statute, the contract to the contrary cannot be set up as a defence, because to that extent, the contract stands eclipsed by the Statute'. In the instant case, what is pleaded is only implied renewal of the lease. Therefore, I am of the opinion that the view taken by the learned trial Judge that the eviction petition is maintainable even before the parties adduced necessary evidence calls for interference by this Court in exercise of the revisional powers under Section 50(1) of the Act.
C.R.P. Nos. 5905/1990 and 6140/1990:
18. Sri S.S. Naganand, in the course of his lengthy arguments quoted extensively from G.P. Singh's book on 'Principles of Statutory Interpretation' and wanted me to hold by considering the preamble of the Act that the non-obstinate clause in Section 21 of the Act has to be ignored having regard to the facts of the case on hand. He also submitted that if a landlord has no right of re-entry in terms of the two deeds dated 11-2-1974, and also the provisions of the Transfer of Property Act and Section 21 of the Act does not confer such a right on him. He placed reliance in support of his said argument on the following Decisions:
(a) Bharat Petroleum Corporation Ltd. v. Md. Haneef Choohey.
(b) IBUL HASAN AND ORS. v. RAJINDRA KUMAR JAIN, : AIR1990SC678 ;
(c) Modern Hotel, Gudur, represented by M.N. Narayanan v. Radhakrishnaiah and Ors.;
(d) H. PADMANABHA RAO v. STATE OF KARNATAKA, ILR 1986(3) Kar 2480;
(e) BURRAKUR COAL CO. LTD. v. UNION OF INDIA, : [1962]1SCR44 ;
(f) BHIM SINGHJI v. UNION OF INDIA, AIR 1981 SC 235;
(g) DIRECTOR OF PUBLIC INSTRUCTIONS v. SCHILDKAMP, 1969(3) All. E.R. 1640 (HL); (h) BOWMICK v. BOWMICK, 1957(2) All.E.R. 1197.
19. After giving my utmost consideration to the submissions made by the learned Counsel on both sides, I am of the view that it is not necessary to consider the niceties highlighted by Sri S.S. Naganand as the question whether the leases created under the deed dated 1-2-1974 concerned in C.R.P. Nos. 5905/1990 and 6140/1990 are perpetual leases or the lease created under the deed dated 15-5-1985 concerned in C.R.P.1447/1991 is a term lease and, therefore, the eviction petition filed by the landlords are not maintainable under Section 21 of the Act is not a matter which could have been decided by the trial Court at a preliminary stage without getting those documents marked as exhibits and recording the evidence of the parties especially in view of the stand taken by the landlords in their objection statement that the applications filed by the tenants are misconceived and there is no question of taking up any preliminary issue in the eviction cases as has been held by the High Court time and again and the leases created under the two deeds are clearly leases at wilt and not perpetual leases. The two deeds are no doubt described as perpetual leases. In one case, the rent payable is fixed at Rs. 2,570/- per month and security deposit of Rs. 5,57,145/-free of interest is paid to the lessor and in the other case, the rent payable is fixed at Rs. 3,430/- per month and the security deposit of Rs. 7,42,855/- is paid to the lessors free of interest. It is also recited in the two deeds that the said security deposits are refundable to the lessees at the time of determination of the leases for any reason except that of compulsory acquisition of the leased property. Therefore, what was the intention of the parties when they entered into the contract evidenced by the two deeds is a mixed question of law and facts and such a question cannot be decided purely as a legal issue, in this connection, I consider it apt to refer to a recent Decision of this Court in BORANNA v. M.A. CHANDRA RAJU, : AIR1990Kant121 . That was also a Revision Petition filed under Section 50(1) of the Act against an order of dismissal of the eviction petition on merits after recording findings against the petitioner-landlord on 12 issues. It is observed by H.G. Balakrishna J., in paragraph-12 at pages 124-125 as under:
'12. What is noticeable in the impugned order is the conspicuous absence of separate treatments of each issue in specific terms and the recording of findings. In a sense, it may be said that the disposal of the case by the trial Court is summary in character.
To surmise that such highly qualified persons would not venture to live together under the roof of the petitioner is a proposition which is too ludicrous to be accepted. I cannot subscribe to the hazardous presumption of the trial Court based on the said assumption.
13. It is unsafe for the Court to position itself on assumptions not conclusively proved to hold that it is not possible to lend credibility to the assertion of the petitioner that his first son-in-law who is a post graduate student in medicine has remained unemployed for a long time. Such a conjecture cannot bear legal scrutiny.........'
20. Onus of proof of permanent tenancy pleaded by the tenant with reference to the nature and incidents of the lease is considered by the Supreme Court in two Decisions in RAJA RAMESHWAR RAO AND ANR. v. RAJA GOVIND RAO, : [1962]1SCR618 and HAMIDULLAH v. ABDULLAH, : AIR1972SC410 . In the case of Raja Rameshwar Rao, the jagirdar of a village granted a Kowl of the same on Tahud (lease) for the fixed sum per year to the appellant's ancestors. No term was mentioned in the Kowl as to its duration, but after reciting that the village had been granted on Tahud for a certain fixed amount annually, the Kowl went on to say that the grantee should with entire confidence rehabilitate old and new ryots and pay the amount of Tahud annually as per fixed instalments in every crop season. It was further argued before the Supreme Court that the appellants were entitled to hold the charge permanently subject only to the payment of a certain sum annually to the respondent was proved. The Supreme Court has rejected the said contention by observing in paragraph-7 at page 1445 as under:
'No term is mentioned in the Kowl as to its duration; but, after reciting that the village had been granted on Tahud for a certain fixed amount annually, the Kowl goes on to say that the grantee should with entire confidence rehabilitate old and new ryots and pay the amount of Tahud annually as per fixed instalments in every crop season. As one reads the Kowl, on its plain terms, it cannot be read to confer on the appellants' ancestors a permanent lease on a fixed sum which was not liable to be varied at all. But the appellants claim that they had been in uninterrupted possession since 1817 for over 100 years on the same rent when the suit was filed and this shows that the village must have been granted to them as a permanent lease. We cannot accept this contention and the fact that the appellants and their ancestors have continued in possession for over 100 years on the same rent would not make the Kowl of 1817 a permanent lease in the face of its plain terms. The Courts below were therefore right in the view that the Kowl does not show a grant of a permanent lease on a fixed annual payment to the appellants.'
21. In the case of Hamidulla, the Supreme Court was considering the sustainability of the contention of defendants 1 to 3 in a partition suit that besides being co-sharers of the suit property, they were also permanent lessees of the blue and red marked portions in the plan of the suit property prepared by the Commissioner. The issue regarding the permanent tenancy right set up by defendants 1 to 3 was decided against them by the trial Court although the. Court passed a preliminary decree for partition. In the appeal, a learned Single Judge of the Allahabad High Court affirmed the finding of the trial Court on the issue regarding the permanent tenancy right set up by defendants 1 to 3. But, in Special Appeal, the said finding of the trial Court was reversed by a Division Bench by accepting the case of permanent tenancy set up by defendants 1 to 3. So, the question arose (or consideration before the Supreme Court in an appeal by Special Leave was:
'Whether the documentary evidence in the case would support the contention of defendants 1 to 3 that they were permanent lessees?'
In that context, the Supreme Court has observed in paragraph-15 at page 413 that 'the onus of proving the permanent leases set up was upon defendants 1 to 3' and again in paragraph-17 at pages 413 and 414 as under:
'17. The mere fact that an uniform fixed rent had been paid for a long time or the fact that Haji Khuda Bux and Faquir Bux had been in possession of the land for a long time and making constructions on land at their own cost would not, in the circumstances of this case, raise a presumption that the tenancies were of permanent character. In every case, an inference of permanency of tenancy is a question of fact depending upon the facts of each particular case. In A.S.N. NAINAPILLAI MARAKAYAR v. TA.R.A. Rm. RAMANATHAN CHETTIAR (AIR 1924 PC 65, it was ruled that the onus of proving that a tenancy is permanent is on the tenant and that the mere fact of long occupation at a fixed rent does not raise a presumption of permanent tenancy. The same view was held in Subrahmanya Chettiar v. V.P. Subramanya Mudaliar (AIR 1929 PC 156). In Bejoy Gopal Mukherji v. Pratul Chandra Ghose : [1953]4SCR930 , this Court said that neither possession for generations at uniform rent nor construction of permanent structures by itself is conclusive proof of permanent tenancy. It is the cumulative effect of these circumstances coupled with several other facts that may lead to an inference of permanent tenancy. In the circumstances of the case we think that the learned Single Judge was right in his conclusion and that the Division Bench went wrong in reversing the Judgment and decree passed by him. We, therefore, set aside the Judgment and decree of the Division Bench and restore the decree passed by the single Judge. In the result we allow the appeal with costs.'
22. Applying the above observations of the Supreme Court to the facts of the cases on hand, I am of the view that the trial Court should not have proceeded to decide the contentions of the tenants that the eviction petitions were not maintainable by treating the same as purely a legal issue as it is now well settled that a plea which involves consideration of facts also cannot be treated as legal plea. So, I hold that the impugned orders of the trial Courts have to be set aside and the matters have to be set aside and the matters have to be remitted back to the trial Court for fresh consideration.
23. Before concluding, I would like to make it clear that whatever observations i have made above are intended only for the purpose of disposal of these Revision Petitions and, therefore, they shall not be construed by the trial Courts as expression of any opinion on the merits of the case. Therefore, the trial Courts are at liberty to come to their own conclusion on an appreciation of the oral and documentary evidence which the parties may place on record in respect of the plea of maintainability of the eviction petitions set up by the tenants.
24. In the result, for the foregoing reasons, all the three Revision Petitions are allowed, the impugned orders are set aside and the matters are remitted back to the trial Courts with a direction to consider the plea of maintainability of the eviction petitions raised by the tenants along with other contentions after giving opportunity to both parties to adduce evidence in proof of their respective contentions. The trial Courts are directed to dispose of the eviction petitions as expeditiously as possible.
25. Having regard to the facts and circumstances of the case, both parties are directed to bear their own costs.