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N.S. Ganesh Rao Vs. Sarphina D'Souza Bai and Anr. (11.08.1975 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1618 of 1973
Judge
Reported inAIR1976Kant4; 1975(2)KarLJ352
ActsKarnataka Rent Control Act, 1961 - Sections 48 and 48(1); Karnataka Civil Courts Act, 1964 - Sections 5 and 5(2)
AppellantN.S. Ganesh Rao
RespondentSarphina D'Souza Bai and Anr.
Appellant AdvocateP. Ganapathy Bhat, Adv. for ;K. Krishna Bhat, Adv.
Respondent AdvocateB.V. Acharya, Adv.
Excerpt:
.....vested with the government held, even if the sale in favour of the petitioners husband is held to be invalid, originally it was tenanted land and the land was vested with the government. the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - she bad settled the petition premises on her second son, pescal d'souza (respondent 2 herein), reserving her right of residence therein during her lifetime. 9 of his judgment that the tenant had not deposed that he attempted to secure another house and failed in his attempt or that he had applied to the controller for allotment of a house and that the landlord could not be expected to look out for a rented house for his occupation...........case (1964) 2 mys lj 458 turned upon the provisions of sections 4-a and 4-b of the mysore civil courts act, 1883, which was in force when that case was decided and that the jurisdiction and powers of additional district judges are materially different under section 5 of the karnataka civil courts act. 1964, which has superseded the mysore civil courts act, 1883.7. we have set out below the material portions of section 4-a and section and section 5 of the karnataka civil (contd. on col. 2)the mysore civil courts act, 1883.,sec, 4-a: the state government may by notification fix, and from time to time vary. the number of judges to be appointed for a district...........court.sec.4-b: when more than one judge is appointed for a district ......... ,court, one of the judges shall be.....
Judgment:

Chandrashekhar, J.

1. This revision petition under Section 50 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act) has been referred by one of us to a Division Bench in view of the importance of the question arising for decision, namely, whether an Additional District judge has jurisdiction to hear and decide an appeal under Section 48 of the Act.

2. The petitioner herein is a tenant. The respondent herein had made an application under Section 21 of the Act for evicting him from the petition premises. The learned Munsiff had dismissed their application. They preferred an appeal to the District Judge. South Kanara, who transferred it to the Additional District Judge of the District Court, South Kanara. The learned Additional District judge reversed the decision of the learned Munsiff and made a decree for eviction of the tenant. Feeling aggrieved by the decision of the learned Additional District Judge. the tenant has come up in revision.

3. Sri P. Ganapathy Bhat, learned counsel for the petitioner, contended that the judgment of the learned Additional District Judge was, void and without jurisdiction as an appeal under Section 48 of the Act can be heard and decided only by the District Judge having jurisdiction over the area in which, the petition premises are situate and that that section does not empower an Additional District judge of a District Court to hear and decide such appeal.

4. Sub-section (1) of Section 48 of the Act, reads :

'48. Appeals.- (1) Notwithstanding anything contained in any law for the time being in force, every person aggrieved by an order under Section 14, Section 16. Section 17 or Section 21, passed by the Controller or the Court. may with n thirty days from the date of the order, prefer an appeal in writing to the District Judge having jurisdiction over the area in which the premises are situate.'

(Underlining is ours).

The above sub-section is in pair material with See. 15 (1) (a) of the Mysore House Rent & Accommodation Control Act, 1951, which read .

' 15 (1) (a) . any person aggrieved by an order passed by the court or the Controller may, within fifteen days from the date of the order, prefer an appeal in writing to the District judge having jurisdiction over the area in which the house is situate.' (Underlining is ours).

5. Dealing with a similar contention, namely. that an Additional District Judge had no jurisdiction to hear and decide an appeal under Section 15 of the Mysore House Rent and Accommodation Control Act, 1951, a Division Bench of this Court (of which one of us was a member) held in Haji M. P. Mohammad v. Sheik Ahmed (1964) 2 Mys LJ 458 that an Additional District Judge of a District Court is as much a District Judge of that Court as the Principal District Judge of that Court that Section 15 of that Act made no detection between the Principal District Judge and an Additional District Judge of that Court and that an Additional District Judge of a District Court having jurisdiction over the area in which the house was situated, had jurisdiction to hear and decide an appeal under that section in respect of such premises. The Division Bench repelled the contention that since Section 15 of that Act did not confer appellate authority on the District Court but only on the District Judge, an Additional District Judge could not share that appellate power with the Principal District Judge.

6. However, Mr. Ganapathy Bhat contended that the decision in Haji M. P. Mohammad's case (1964) 2 Mys LJ 458 turned upon the provisions of Sections 4-A and 4-B of the Mysore Civil Courts Act, 1883, which was in force when that case was decided and that the jurisdiction and powers of Additional District judges are materially different under Section 5 of the Karnataka Civil Courts Act. 1964, which has superseded the Mysore Civil Courts Act, 1883.

7. We have set out below the material portions of Section 4-A and Section and Section 5 of the Karnataka Civil (Contd. on Col. 2)

The Mysore Civil Courts Act, 1883.

,Sec, 4-A: The State Government may by notification fix, and from time to time vary. the number of Judges to be appointed for a District...........Court.

Sec.4-B: When more than one judge is appointed for a District ......... ,Court, one of the Judges shall be appointed the Principal judge and the others Additional Judges.

Each of the Judges appointed to a District Court may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force.

Subject to the general or special orders of the High Court, the Principal District Judge may from time to time, make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof.

8. Mr. Genapathy Bhat is right in contending that there is an important distinction between the powers of an Additional District Judge under Section 4-B of the Mysore Civil Courts Act, 1883, and those under Section 5 (2) of the Karnataka Civil Courts Act. 1964. The former section provided that each of the Additional District Judges appointed to a District Court might exercise all or any of the powers conferred on that Court by that Act or any other law. for the time being in force. But Section 5 (2) of the Karnataka Civil Courts Act does not authorise an Additional District judge appointed to a District Court to exercise all or any of the powers conferred on that Court by that Act or any other law for the time being in force. What that subsection empowers an Additional District Judge of a District Court, is to discharge all or any of the functions of the District Judge of that Court under that Act or any other law for the time being in force which the District judge may assign to him. Unless the District Judge of a District Court assigns to an Additional District judge of that Court any of the former's functions, the latter cannot exercise functions of the District Judge even though he is an Additional District Judge of that Court.

9. But the question is whether the aforesaid distinction between the powers of an Additional District judge

4-b of the mysore civil Courts Act, 1883,and Section 5 of the Karnataka civil Courts Act 1964:

The Karnataka Civil Courts Act,

1964:

Section 5 (1): The State Government may, on the recommendation of the High Court. Appoint one or more Addl. District Judges to a Dist. Court for such period, as it may deem necessary.

(2) The Additional District Judge so appointed shall. Subject to the general or special orders of the High Court, discharge all or any of the functions of the Dist. Judge under this Act, or any other law for the time being in force which the Dist. Judge may assign to him, and in the discharge of those functions, he shall exercise the same powers as the District Judge.

Under Section 4-B of the Mysore Civil Courts Act, 1883, and those under Section 5 (2) of the Karnataka Civil Courts Act, 1964. Renders the ruling in Haji M. P. Mohammad's case, (1964) 2 Mys LJ 458 inapplicable after the Mysore Civil Courts Act, 1883, was superseded by the Karnataka Civil Courts Act, 1964.

10. Mr, Ganapathy Bhat laid particular emphasis on the words 'having jurisdiction over the area in which the premises are situated' which follow the words 'the District Judge' in Section 48 (1) of the Act and he maintained that only the District Judge can be said to have jurisdiction over the area in which any premises are situate and that an Additional District Judge cannot be said to have jurisdiction over any such area, since his (the Additional District Judge's) power under See, 5 (2) of the Karnataka Civil Court's Act, is only to exercise such functions as may be assigned to him by the District Judge. In other words, the contention of Mr. Ganapathy Bhat was that since an Additional District Judge under the Karnataka Civil Courts Act. 1964, unlike lids counterpart under the Mysore Civil Courts Act, 1883, is not conferred all the powers of the District Court and his power is only to hear such cases as may be, assigned to him by the District Judge having jurisdiction over the area in which the premises are situate, the District Judge alone has been authorised by Section 48 of the Act to entertain and decide appeals.

11. Even though an Additional District Judge has not been conferred under the Karnataka Civil Courts Act, 1964, the powers of the District Court, when once a case is assigned or transferred to him by the District Judge under Section 5 (2) of that Act, he has all the powers of the District Judge under that Act or any other law for the time being in force. in respect of that case, and he can hear and decide that case in the same manner as the District Judge could have done. in the present case, as the Dist. Judge, South Kanara, had transferred the appeal (out of which this revision petition has arisen) to the Additional District Judge, the latter had jurisdiction to hear and decide it.

12. However, MT. Ganapathy Bhat contended that though Section 5 (2) of the Karnataka Civil Courts Act. 1964, empowers an Additional District Judge to discharge all or any of the functions of the District judge under that Act or any other law for the time being in force, the Additional District Judge cannot exercise jurisdiction of the District Judge under Section 48 of the Act for two reasons. The first reason, according to Mr. Ganapathy Bhat. is that the Act is a self contained one and that Section 48 of the Act which confers the appellate power on the District Judge having jurisdiction over the area in which the premises are situate, excludes the application of the general provision in Section 5 (2) of the Karnataka. Civil Courts Act, 1964, which empowers an Additional District Judge to discharge all or any of the functions of the District Judge.

13. Support for the above contention was sought to be derived from certain observations of Somanath Iyer. J., (as he then was), in Winnifred Mathias v. Louisa Correa, (1968) 1 Mys LJ 573. There it was contended that in spite of Section 15 of the Mysore House Rent & Accommodation Control Act. 1951, providing that an appeal from an order of the Court of the Munsiff lies to the District Judge, an appeal from a decree for eviction passed by the Court of the Munsiff would lie to the Court of the Civil Judge, since Section 20 of the Karnataka Civil Courts Act, 1964. provides that appeals from decrees and orders passed by a Munsiff in original suits and proceedings of a civil nature shall lie to the Court of the Civil Judge and that an appeal from a decree or order of the Court of the Munsiff on an application under Section 21 of the Act, lies to the Court of the Civil Judge and not the District Judge. While repelling that contention, Somanath Iyer, J. (as he then was). observed that the Act is a complete and exhaustive code with respect to control of rents and eviction and the other matters in regard to which that legislation was enacted, that it is that special law by which all proceedings arising under that Act are governed, and that it is that special law which holds the field to the exclusion of the general law which the Karnataka Civil Courts Act is.

14. Mr. Ganapathy Bhat argued that from the aforesaid observations of his Lordship it follows that the provision in Section 48 of the Act that an appeal shall lie to the District Judge. should hold the field to the exclusion of the provision in Section 5 (2) of the Karnataka Civil Courts Act that an Additional District Judge may exercise all the functions of the District judge in cases assigned to him by the latter.

15. We are unable to accept the above contention of Mr. Ganapathy Bhat. The aforesaid observations in Haji M. P. Mohammad's case (1964) 2 Mys LJ 458 that Section 15 of the Mysore House Rent and Accommodation Control Act. made no distinction between the Principal District Judge of a District Court and an Additional District Judge of that Court, are equally applicable to Section 48 of the Act which also does not make any addiction between the Principal District Judge and an Additional District judge. As pointed out therein by Somanath Iyer, J. (as he then was), the definite article. the preceding the words 'District judge' has no other purpose than to identify the particular District Judge having Jurisdiction over the area in which the premises are situate and the purpose of that definite article is not to specify the Principal District Judge of the District Court. We are unable to find anything in Section 48 of the Act. which expressly or by necessary implication, requires that an appeal under that section should be heard and decided by the Principal District Judge only and, not by an Additional District Judge.

16. The second ground on which Mr. Ganapathy Bhat contended that Section 5 (2) of the Karnataka Civil Courts Act, 1964, cannot clothe an Additional District judge with the jurisdiction of the District Judge. was that Section 48 of the Act provides for appeal to the District judge and that an Additional District judge cannot be regarded as the District Judge. Support for the contention was sought to be derived from certain observations of the Supreme Court in Hari Chand v. Batala. Engineering Company : 1969CriLJ803 . There, the validity of an order of requisitioning made by an Additional District Magistrate, in exercise of the powers under the Defence of India Act, 1962. came up for consideration. The Central Government, by its notification dated 13-12-1962, in exercise of the powers under Section 40 (1) of that Act, had authorised the District Magistrates to exercise the powers of requisitioning under Section 29 of that Act, The exercise of that power by the Additional District Magistrate. was sought to be justified under Section 10 (2) of the Code of Criminal Procedure, 1898. The State Government by a notification had authorised the Additional District Magistrate to exercise all or any of the powers of the District Magistrate under that Code or any other law for the time being in force. The Supreme Court held that even though the Additional District Magistrate had been empowered under Section 10 (2) of the Code of Criminal Procedure, 1898. to exercise all or any of the powers of the District Magistrate, the District Magistrate and the Additional District Magistrate were two different and distinct authorities, that by no stretch of reasoning could an Additional District Magistrate be called the District Magistrate and that the Additional District Magistrate could not be held to be competent to exercise the powers of the District Magistrate under Section 10 (2) of the Code of Criminal Procedure, 1898.

17. The main reason given by the Supreme Court for holding that the Additional District Magistrate was not competent to exercise the powers of the District Magistrate is contained in para. 9 of the judgment. which reads:

'It has not been disputed that the powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under Article 19(1)(g) of the Constitution. The Central Government while making the delegation of its power under Section 29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it was for that reason that an officer or authority of the high status of a District Magistrate in the district was empowered to exercise that power.'

18. The above reasoning of the Supreme Court has, is our opinion. no application to the exercise of the normal judicial power to hear and decide appeals conferred by Section 48 of the Act.

19. Moreover, the Additional District Magistrate is of a lower rank than the District Magistrate and subordinate, to the latter. But in Karnataka State Judicial Service, there is no separate cadre of Additional District Judges. Both the District Judge and the Additional District Judge are of the same cadre. Where there are more than one District Judge in a District Court, the senior of them will be designated as the Principal District judge and the others will be designated as Additional District Judge or judges

20. There is nothing in Section 48 of the Act which indicates that the appellate jurisdiction conferred on the District Judge thereunder, should be exercised only by the Principal District Judge of a District Court and not by an Additional District judge of that Court.

21. There is one more reason to hold that an Additional District judge to whom an appeal under Section 48 of the Act has been transferred by the Principal District Judge, has power to hear and decide such appeal. Though Section 48 of the Act designates the District judge and not the District Courts the appellate authority. the conferment of the appellate jurisdiction on the District Judge. Appears to us to be by virtue of his presiding over the District Court and the District judge is not a persona designate.

22. In Central Talkies Ltd. v. Dwarka Prasad : 1961CriLJ740 , Hidayatullah. J. (as he then was) who spoke for the Court, said that a persona designate is 'a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character'. His Lordship quoted with approval the observations of Schwabe, C. J.. in Parthasaradhi Naidu v. Koteswara Rao (AIR 1924 Mad 561) (FB) that persona designate are 'persons selected to act in their private capacity and not in their capacity as Judges.'

23. In construing the expression 'the Munsiff exercising Jurisdiction' under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, Desai, C. J., who delivered the leading opinion of the Full Bench in Chatur Mohan v. Ram Behari : AIR1964All562 .

'I am not enamoured of the distinction made between 'a Munsiff' and 'a court of Munsiff' and of the argument based upon it to the effect that 'a Munsiff' acts as a persona designate, whereas a court of Munsiff, acts as a court constituted under the Bengal.. Agra and Assam Civil Courts Act ................................. When the Legislature referred in S. 7-E to the 'Munsiff having jurisdiction'. it does not seem to have meant the person presiding over a Court of Munsiff as distinct from the Court and to have referred to the fact of his presiding over the court simply to describe him, He seems to have been selected on account of his presiding over a court of Munsiff.'

The above observation will, in our opinion, apply with equal force to the expression 'the District Judge having Jurisdiction over the area in which the premises are situate' occurring in Section 48 (of the Act. Though the term 'District Judge, has been used in Section 48 of the Act, the appeal provided thereunder is in reality to the Court of the District Judge.

24. As pointed, out by the Supreme Court in National Sewing Thread Co. Ltd. v, James Chadwick & Bros. : [1953]4SCR1028 , where, a new jurisdiction is given to an established Court without more, it imports that the ordinary Incidents and the ordinary rules of procedure of that Court are to attach to exercise of such jurisdiction also.

25. Under Section 5 (2) of the, Karnataka Civil Courts Act, 1964. the District Judge of a District Court has Power to transfer or assign to an Additional District Judge of that Court any suit appeal or proceeding of a civil nature, on the farmer's file. In the light of the aforesaid pronouncement by the Supreme Court in the National Sewing Thread Co.'s case. : [1953]4SCR1028 the same power to transfer or assign to an Additional District Judge, must -be held to be applicable to the special jurisdiction given by Section 48 of the Act to the District Judge, as there is nothing in that Section which, expressly or by necessary implication, forbids transfer or assignment of an appeal thereunder to an Additional District judge.

26. In Ganpat v. Mahadeo a question arose whether an Additional District Judge can exercise the powers of a District judge in the matter of granting probate of a will. The Division Bench (consisting of Bose, C. J. and Mangalmurthy J.) observed that as the Additional District Judges had been exercising jurisdiction in granting probate, for many years. if there was any doubt on the point, then it should be resolved so as to hold that their jurisdiction was proper, However, their Lordships held that in that case there was not much doubt because in their view the Judges of the District Court include not only the District judges properly so termed but also all the Additional District Judges appointed to that Court.

27. Additional District Judges have been hearing appeals under Section 48 of the Act ever since the Act came into force in the year 1961. Even if there should be any doubt as to their jurisdiction to hear such appeals, it should be resolved so as to hold that they have such jurisdiction. But, in our opinion, there can be no serious doubt about their jurisdiction.

28. For the reasons stated above, we hold that an Additional District judge of the District Court having jurisdiction over an area in which the premises are situate. has jurisdiction to hear and decide an appeal under Section 48 of the Act, when such appeal has been transferred or assigned to him by the District Judge of that Court.

29. We shall now Proceed to consider the attack of Mr. Ganapathy Bhat on the merits of the appellate judgment of the learned Additional District Judge.

30. The landlords had Prayed for eviction of the tenant (the petitioner herein) on the ground, that they reasonably and bona fide require the petition premises for their own occupation. Their case was briefly as follows: Seraphina D'Souza Bai (original respondent 1 herein) had two houses in Mangalore, the petition premises being one of them. She bad settled the petition premises on her second son, Pescal D'Souza (respondent 2 herein), reserving her right of residence therein during her lifetime. She had settled another house on her elder son, Herald D'.Souza and was living therein along with her second son. Differences had arisen between her and her second son on the one hand and Herald D'Souza on the other hand. Herald D'Souza had issued a notice to them asking them to leave his house. Hence, they required the petition premises for their own occupation and they had no other house in Mangalore.

31. The learned Munsiff did not believe that there was any quarrel between Herald D'Souza on the one hand ,and his mother and his younger brother on the other and that the latter reasonably and bona fide required the petition premises for their own occupation. in appeal. the learned Additional District judge held that there was no reason to disbelieve the landlords' case that they had no other premises of their own in Mangalore and that their desire to occupy the petition Premises was both reasonable and bona fide.

32. In this petition. Mr. Ganapathy Bhat submitted that the mother had settled the bigger house on Herald D'Souza and the petition house which is smaller on her second son as a mere device to evict the tenant from the Petition premises and that if she really intended to reside with her second son, she would have settled the bigger house on him instead of settling it on Herald D'Souza and that hence the landlords cannot be said to require the petition premises bona fide.

33. Seraphina D'Souza Bai, original respondent 1 herein, has since died. The only question that survives: now for determination is whether her second son (respondent 2 herein) reasonably and bona fide requires the petition premises for his own occupation.

34. The mere circumstance that the settlor chose to settle the bigger of the two houses on her elder son and the smaller house on her younger son with whom she intended to reside, is wholly insufficient to infer that the settlement was sham and had no legal effect. Since the younger son (respondent 2 herein) is a married person with children, it is not unnatural for him to desire to set up a separate household instead of continuing to live with his, elder brother, Herald D'Souza. The learned Additional District Judge rightly accepted his case that he wanted to occupy the petition Premises for his residence.

35. Mr. Gana4pathy Bhat next contended that the learned Additional District Judge has not considered the question of comparative hardship to the land lords and the tenant. Mr. Ganapathy Bhat said that in Mangalore it is extremely difficult. if not impossible. for the tenant to find alternative accommodation within his means.

36. It is not correct to say that the learned Additional District Judge has not considered the question of comparative hardship. He has observed in para. 9 of his judgment that the tenant had not deposed that he attempted to secure another house and failed in his attempt or that he had applied to the Controller for allotment of a house and that the landlord could not be expected to look out for a rented house for his occupation. The learned Additional District Judge has rightly held that greater hardship would be caused by refusing a decree for eviction than by granting it.

37. All the contentions of Mr. Ganapathy Bhat therefore fail and we dismiss this petition, but without costs.

38. However, having regard to ac cute scarcity of accommodation in Mangalore City, we grant time to the tenant (the petitioner herein) till 30-6-1976 to vacate the petition premises.

39. Petition dismissed.


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