Judgment:
(Prayers: THIS HRRP IS FILED UNDER SECTION 46(1) OF KR ACT AGAINST THE ORDER DATED: 15.4.2004, PASSED IN HRC.NO.560/1999, ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE PETITION FILED UNDER SECTION 21 (1) (h) (j) OF KRC ACT (UNDER SECTION 27 (2) (r) OF KRC ACT) AND ALLOWING THE PETITION UNDER SECTION 5 OF THE KR ACT FOR EVICTION.
THIS HRRP IS FILED UNDER SECTION 46(1) OF KR ACT AGAINST THE ORDER DATED 15.4.2004, PASSED IN HRC. NO.564/1999. ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, DISMISSING THE PETITION FILED UNDER SECTION 21 (1) (h) (j) OF KRC ACT (UNDR SECTION 27 (2) (r) OF KR ACT) AND ALLOWING THE PETITION UNDER SECTION 5 OF THE KR ACT FOR EVICTION.)
1. These revision petitions are directed against the orders passed by the Court below ordering the petitioners to hand over vacant possession of the schedule premises under Section 5 of the Karnataka Rent Act, 1999 (hereinafter called as ‘the New Act’).
2. The parties will be referred as per their rank before the Trial Court to avoid inconvenience.
3. The petitioners herein are the tenants of “clusters” bearing Corporation Nos.10 and 11, Mission Road, Bangalore-27, whereas, the respondent is a co-ownership enterprise named as “NDH Enterprises” represented by its P.A.Holders,. The Clusters bearing Corporation Nos.10 and 11 were owned by Sri.N.D.Hanumantharayapa and on his death, his wife, sons and daughter succeeded to the estate and to avoid practical difficulties in managing the said properties, they formed a co-ownership under the name and style “NDH Enterprises”. They filed the petitions before the Court below alleging that the petitioners herein (the respondents before the Court below) were the tenants on monthly rental of Rs.50/- and rs.23/- respectively. The said Clusters were more than 80-90 years old and as they were in a dilapidated condition, the petitioners intended to demolish the structure and put up a Hotel complex as the petition premises is in a commercial locality and running the business on behalf of NDH Enterprises. Hence, the petitions were filed under Section 21 (1) (h) (j) of the Karnataka Rent Control Act, 1961 (hereinafter called as ‘the Old Act’).
4. The tenants filed their objections denying the allegations made and contended that the need put forth by the petitioners is malafide and that there is no need to demolish the construction and put up a hotel complex. On these grounds, they sought for the dismissal of the petitions.
5. These two petitions were clubbed with HRC 561 and 562/1999 and common evidence was led. Both the power of attorney holders of the petitioners were examined as PWs.1 and 2 and the documents Esx.P.1 to P.28 were marked. The tenants were examined as RWs. 1 to 4 and Ex.R.1 the power of attorney was admitted in evidence. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record held that the petitioners have not proved the requirement of the premises on the ground under Section 21 (1) (h) (j) of the Old Act (under Section 27 (r) of the New Act) and the petitions were dismissed, on the ground under aforesaid provisions are concerned. But, it held that the provisions of Section 5 of the New Act is applicable and as there was the death of the tenants and the LRs could occupy the premises only for a period of five years, granted eviction under Section 5 of the New Act, as the period of five years had expired. Aggrieved by the eviction order under Section 5 of the New Act, the tenants have approached this Court in revision.
6. I have heard the learned counsel for both the parties. The points that arise for any consideration are:
1. Whether the Trial Court committed error in directing the eviction of the tenants under Section 5 of the New Act?
2. Whether this Court in the revision petitions filed by the tenants could exercise the revisional powers to assail the validity of the findings of the Court, rejecting the request for eviction under Section 27 (2) 9r) of the New Act is concerned?
3. Whether the petitioners have made out any grounds to call for interference in the orders of eviction passed by the Trial Court?
7. It is the contention of the learned counsel for the petitioners that the provisions of Section 5 of the New Act cannot be invoked as the death of the tenants in both the cases was prior to the commencement of the New Act and the legal representatives on record would be the tenants as defined under the provisions of the Old Act. Hence, they contend that the Trial Court was not justified in granting eviction under Section 5 of the New Act. It is their further contention that so far as the dismissal of the petitions under Section 27 (2) (r) of the New Act the finding has attained finality and this Court cannot revise the said findings without a revision by the land lord challenging the dismissal of the petitions on the said ground.
8. Per contra, the learned counsel for the respondents contend that when a tenant dies, the legal representatives can at the most continue in occupation of the premises for a period of five yeas and they have no right to reside to the petition premises after expiry of five yeas and therefore, the Trial Court was justified in directing the eviction on this ground. It is his further contention that under the revisional powers with this Court under Section 46 of the New Act, there is unlimited jurisdiction and with a view to do justice to the parties, the Revisional Court can pass appropriate orders and as the land lords have proved the need of the premises for demolition and construction of a Hotel complex, even without challenging the said findings, as there is ample material on record to prove the need, this Court can grant the relief of eviction, even on the ground under Section 27 (2)(r) of the New Act.
9. Reg. Point No.1: The jural relationship between the parties as land lord and tenant is not disputed. Under the New Act, the provisions of Sections 1, 3 and 66 came into force on 5.12.2001 and the remaining Sections have come into force on 31-12-2001. Till then, it were the provisions of the Old Act, which were applicable to the proceedings before the Court. Indisputedly, the petitions were filed by the land lord under the Old Act seeking eviction of the tenants on the ground under Section 21 (1) (h) and (j) and when the said proceedings were pending the New Act came into force by repealing the Old Act.
10. Under Clause (b) of Section 70 of the New Act, the provisions of the Act are very much applicable to the pending proceedings and Clause (b) which is relevant is extracted hereunder:
“70. (b) all cases and proceedings other than those referred to in clause 9a) pending at the commencement of this Act before the Controller Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority in accordance with the provisions of this Act.”
So, under the abovesaid provision, the Trial Court had the authority to continue with the proceedings as the provisions of the New Act were applicable to the petition premises and therefore, there was no impediment for the Trial Court to proceed with these cases.
11. The provision in the nature of Section 5 of the New Act was introduced for the first time, wherein it provided inheritability of tenancy and the right of the legal representative to continue for a period of five years from the date of the death of the tenant and the said Section 5 is extracted hereunder for the sake of convenience.
“5. Inheritability of tenancy – (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely:
a. Spouse;
b. Son or daughter or where there are both son and daughter both of them;
c. Parents;
d. Daughter-in-law, being the widow of his pre-deceased son;
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenants as a member of his family up to the date of his death and was dependent on the deceased tenant:
Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premise in the local area in relation to the premises let.”
For the first time under the aforesaid provisions of the New Act, the right of tenant was restricted to five years from the date of death of the tenant to his successors. In this context, it is necessary to consider the definition of ‘tenant’ as provide under the Old Act and it reads.
“”Tenant” means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises a a member of the tenant’s family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.”
12. At the time when the petitions came to be filed for eviction, it was the Old Act which was prevailing and the definition ‘tenant’ includes the surviving spouse or any son or daughter or father or mother of the deceased tenant who had been living with the tenant as a member of tenant’s family upto the death of the tenant and continues thereafter.
13. In HRC 560/1999, the tenant Mrs.Mary George expired on 10-10-2000. Accordingly, a Memo came to be file on 13-02-2001 and the said Memo indicates the date of death. After the death of Mrs.Mary George, her LR Mr.Paul George Brahmakulam was brought on record on the basis of an order on I.A.No.II dated 29-11-2001 and the amendment came to be carried out in the cause title of the petition on 7-12-2001.
14. So far as HRC 564/1999, the petition came to be filed against Mrs.Jaikar, Daughter of Mrs.B.Williams and the mother who was the original tenant dies long prior to the filling of the petition, i.e., the death was earlier to 10-06-1999. It is only after the death of her mother that the petition came to be filed seeking eviction of Mrs.Mary George and her husband has been examined before the Trial Court as RW.2. He admits the death of his mother in law i.e., the mother of Mrs. Mary George prior to the filing of eviction petition.
15. So as could be seen from the facts stated above, the death of one tenant was on 10-10-2000 and the death of original tenant in the other case was prior to the filing of the petition. Therefore, as on the date when the death of tenant took place to both the cases, it was the Old Act which was in force. Further, as stated above, the definition of ‘tenant’ as provided in Section 3(r) of the Old Act includes the surviving spouse or the son or daughter or father or mother of the deceased and therefore, the tenants who were impleaded in both the petitions as respondents are the original tenants as defined under the Old Act, though the death of one tenant was prior to the filing of the petition and the death of the other tenant was prior to the coming into force of the New Act. At the cost of repetition, it is necessary to refer here that Sections 1, 3 and 66 of the New Act came into force on 5.12.2001 and the remaining Sections of the Act came into force on 31-12-2001. Therefore, the death of the tenants was at the time when the Old Act was in force and the definition of tenant under Section 3(r) of the Old Act includes the surviving spouse, son, daughter, father or mother of the deceased tenant. Therefore, the said persons we well are the tenants under the Old Act and continue to be so even after the coming into force of the New Act.
16. The learned counsel for both the parties have relied upon the decision of this Court reported in ILR 2003 KAR 4732 (Shahwar Basheer and others vs. Veena Mohan and others) wherein this Court took into consideration the provisions of the Old Act and also the New Act and granted eviction though the original tenant had died prior to the commencement of the New Act holding the provisions of Section 5 of the New Act retrospective and as five years period had expired much prior to the commencement of the New Act and though the death was prior to the filing of the petitions, it held that despite the death of the tenant while the Old Act is in force, the eviction could be ordered under Section 5 of the New Act.
17. In ILR 2002 KAR 4846 (Smt. Thilothamma and another vs. Rahamathunnisa) it applied the provisions of Section 5 of the New Act directing the eviction of the tenant to whom the rights had accrued while the Old Act was in force. Against the judgment of the decision reported in ILR 2003 KAR 4732 (Shahwar Basheer and others vs. Veena Mohan and others) referred to supra, the matter was taken to the apex Court in Civil Appeal No.7022-7023/2005 (Shahwar Basheer) and others vs. Veena Mohan and others) and the Apex Court took into consideration that the original tenant had died on 20-05-1994 and the first appellant was the widow of the original tenant and after discussing the provisions of the Old Ac t, the definition of tenant under Section 3(r) and also section 5 of the New Act, the Apex Court held that the previous tenant had died in 1994 and therefore, the appellants had become the tenants in 1994 in whose favour the rights have been accrued and thereafter, it took into consideration the provisions of Section 70(2) (b) of the New Act and ultimately held that Section 5 of the New Act would not be applicable in case if the death of the tenant has occurred prior to the commencement of the New Act. It observed that the death of tenant if occurred after the New Ac t came into force. Section 5 of the Act would restrict the right to inheritance of tenancy for a period of five years. Therefore, as the death of the original tenant in both these petitions was prior to the commencement of the New Act, the legal representatives acquire a right as a tenant under the Old Act itself and therefore, the provisions of Section 5 of the New Act cannot be made applicable to these proceedings. A perusal of the provisions of the New Act does not reveal the said proviso retrospective and therefore, the order of eviction passed by the Court below on the ground under Section 5 of the New Act is both erroneous and illegal.
18. Reg. Point No.1: The petitioner NDH Enterprises had sought eviction of the tenants on the ground under Section 21 (i) (h) and (j) of the Old Act i.e., Section 27 (2) (r) of the New Act. The petitioner led the evidence putting forth the reasons for eviction. But the Trial Court rejected the petitions so far as the ground under Section 21 (i) (h) and (j) of the Old Act i.e., Section 27 (2) (r) of the New Act. It granted eviction under Section 5 of the New Act. It is in this context a submission is made by the learned counsel for the land lord that though a revision petition is not filed challenging the findings rejecting the request for eviction, this Court in the present revision petition can look into the said finding and pass appropriate orders and therefore, he took this Court through all that evidence led for the ground under Section 21 (i) (h) and (j) of the Old Act. He placed reliance on the decision of the Apex Court reported in AIR 1968 SC 843 (Swastik Oil Mills Ltd. vs. H.B.Munshi, Deputy Commissioner of Sales Tax, Bombay) wherein it has been observed and held as under:
“3. In the present case, the notice issued by the Deputy Commissioner of Sales Tax, on the face of it, discloses the reasons which led him to take proceedings for exercising his revisional power suo motu, and it cannot be said on those facts that he was acting merely on conjecture. The Deputy Commissioner has not yet proceeded further under the notice to make the assessment. We have no doubt that, when the Deputy Commissioner does make an enquiry, if any, for the purpose of exercising his revisional powers, he will keep within the limitations indicated by this Court in the case cited above. The notice cannot be quashed or the proceedings restrained merely on the ground that the Deputy Commissioner may have to hold some enquiries in order to properly exercise his revisional jurisdiction. Mr. Desai on behalf of the appellant emphasized the circumstance that in Section 12(2) of the Madras General Sales Tax Act, which was considered by this Court, the Deputy Commissioner’s power was expressed by stating that he may pass such order as he thinks fit, while no such words occur in the corresponding provisions in the Bombay Sales Tax Acts with which we are concerned, but we do not think that his circumstance makes any difference. A revising authority necessarily has the power to make such order as, the in the opinion of that authority, the case calls for when the authority is satisfied that it is an appropriate case for interference in exercise of revisional powers.”
Furthermore, he also relied upon the decision of this Court reported in ILR 1992 KAR 232 (Divisional Commissioner vs. H. Hiriyannaiah) wherein this Court taking into consideration the provisions of Section 56(3) of the Karnataka Land Revenue Act held that the Deputy Commissioner has suo motu powers of revision and he may call for and examine the records suo motu or at the instance of the party.
He also relied upon the decision reported in AIR 1980 SC 258 (Raj Kapoor and others vs. State (Delhi Administration) and others) wherein the Apex Court considering the provisions of Sections 482 and 397 Cr.P.C. held that the revisional powers cannot bar the exercise of inherent powers vested with the Court under Section 482 Cr.P.C. and the Courts while exercising the powers under Section 397 Cr.P.C. can exercise the inherent powers and grant appropriate reliefs.
So, on the basis of the dictum laid down by the Apex Court in the decisions referred to supra, it is his contention that though the land lord has not challenged the order rejecting his request for eviction on the ground under Section 21 (i) (h) and (j) of the Old Act, can assail the said finding without filing a revision petition against the rejection of the request.
The provisions of Section 46 of the New Act red as under:
“46. Revision – (1) The High Court may, at any time call for and examine any order passed or proceeding taken by the Court of Small Causes or the Court of Civil Judge (senior Division0 referred to in items (i) and (ii) of Clause (c) of Section 3 for the purpose satisfying itself as to the legality or correctness of such order or proceeding and may pass such order in reference thereto a it thinks fit.”
Under the provision, this Court has the authority to suo moto call for and examine the order passed or proceeding taken by the Court below to satisfy itself as to the legality or correctness of such order and may pass such order in reference thereto a ti thinks fit, (emphasis supplied by me).
So far as the revisions filed hereunder are concerned, it is not in the exercise of the suo motu jurisdiction of this Court and these revisions have been filed at the instance of a party challenging the finding putting forth the grievance that the said finding is erroneous and illegal. It is because of this reason that in the decision reported in AIR 2000 SC 43 (Delhi Electric Supply undertaking v. Basanti Devi and another) wherein, the Apex Court held referring to the provisions of Order 41 Rule 33 CPC that the questions raised must properly arise out of the judgment of the lower Court and if they are so raised, the Appellate Court would consider any objection against any part of the judgment or decree of the Court below. It is relevant to note that the land lord by filing a revision petition rejecting his request for eviction on the ground under Section 21 (i) (h) and (j) did not raise any questions for consideration by this Court by filing a proper revision petition. Though the eviction order came to be passed in the year 2004, only when the matter was taken up for hearing in the year 2012, that is also while submitting his arguments challenges the finding of the Court below rejecting his request for eviction on the ground stated supra. By not preferring a revision within a reasonable time, he has lost his right to raise any question, so far as the validity of the order on the said ground. At the same time, a right accrues in favour of the tenants by lapse of time to retain their possession of the petition premises as the request of the land lord was rejected on the ground under Section 21 (i) (h) and (j) of the Old Act. In the decisions referred to supra, in none of the cases, the Apex Court passed any order adverse to the interest of the revision petitioner and setting aside the finding which was against the respondent in the said revision. The validity of an order which has been challenged has to be looked into in the context of the grounds taken by the parties in the revision and the questions raised therein and therefore, I am of the opinion that the decisions referred to supra do not apply to the facts on hand.
So far as the exercise of the powers under Order 41 Rule 33 CPC, the counsel has relied upon the decision reported in AIR 1993 SC 2054 (M/s. Bihar Supply Syndicate vs. Asiatic Navigation and others AND United Salt Works and Industries Ltd., Appellant vs. national Insurance Co. Ltd. and others) and ILR 1999 KAR 968 (The United India Insurance Co. Ltd. vs. Smt. Uma and others) wherein the aforesaid provisions were taken into consideration and in the later decision, that Court, though no appeal was preferred by the petitioner in MVC case enhanced the compensation by invoking the said provisions. But any how, this is not an appeal and the provisions of Order 41 Rule 33 CPC do not apply to the facts. At this juncture, it is necessary to rely upon the decision of this Court reported in ILR 1985 (2) KAR 2900 (Annappa Manjappa Gudigar vs. Amarnath Vishwanath Dhakappa) wherein this Court took into consideration the provisions of Section 50(2) of the Old Act and held that the appellate powers includes the revisional powers and not viceversa – not- synonymous – right of cross objection statutory right not inferable from language of statute – no filing of cross objections in revision petition and held as under:
“While Appellate power exercised would include corrective jurisdiction of the revisional power also, the revisional power when so exercised does not and cannot include the appellate powers. Undoubtedly, under the Civil Procedure Code in India, when Court exercises appellate powers, it can entertain cross objections or cross appeal as provided under Order 41 CPC. In other words, the right to file a cross objection is right conferred upon the Respondent in an appeal specifically by the Civil Procedure Code which could be exercised by such Respondent or Respondents in exercise of the right so conferred. In other words, right of cross objection is a statutory right. It is not a right which could be inferred from the language of a statute….. The Courts must necessarily maintain a distinction between an appellate and revisional jurisdiction at all times. It cannot use one for the other as if they are synonymous….. However wide the jurisdiction of the revisional power inferred may be, such Court which exercises revisional power cannot equate that power to the appellate power. The question of filing cross objections in a Revision Petition does not therefore, arise.”
So, the power vested with the Court under the provisions of Order 41 Rule 33 CPC cannot be exercised by a revisional Court in a revision petition.
It is relevant to note that the land lord had filed HRC Nos.560, 561 and 564/1999 and these revisions are preferred only against the orders in HRC 560 and 564/1999. The tenant in HRC No.562/1999 is not a party in this revision petition. In this context, even as regards the provisions of Order 41 Rule 33 CPC is concerned, the Apex Court in the decision reported in AIR 2000 SC 43 (Delhi Electric Supply Undertaking vs. Basanti Devi and another) referred to supra held that the only constraint that we could see, may be these. That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the Lower Court. If these two requirements are there, the Appellate Court could consider any objections to unchallenged part of the judgment or decree of the lower Court.
In the context of this decision, it is relevant to note that the parties to HRC 562/1999 are not before this Court and the property in dispute in all these cases are ‘Clusters’ No.10 and 1, the description of which is the same in all the eviction petitions filed. So, from whatsoever angle the matters are looked into, the land lord is not entitled to seek reversal of the finding so far as the ground under Section 21(i) (h) and (j) of the Old Act i.e. Section 27 (2) (r) of the New Act is concerned. Hence I answer Point Nos.1 and 3 in affirmative and Point No.2 in negative and proceed to pass the following:
ORDER
The revision petitions are allowed. The orders of eviction in HRC Nos. 560 and 564/1999 passed under Section 5 of the Karnataka Rent Act, 1999 is set aside and the petitions are dismissed. No costs.