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Basavannappa Kotrappa and anr. Vs. Krishna Trading Co., Gadag - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1978 of 1972
Judge
Reported inAIR1973Kant129; AIR1973Mys129; (1973)1MysLJ77
ActsMysore Rent Control Act, 1961 - Sections 43(3)
AppellantBasavannappa Kotrappa and anr.
RespondentKrishna Trading Co., Gadag
Appellant AdvocateK.A. Swami, Adv.
Respondent AdvocateB.G. Sridharan, Adv.
Excerpt:
.....the enquiry under section 43 (4) that the court has to decide the existence of the relationship of landlord and tenant between the parties and it is not necessary for the court to decide the existence of the said relationship when it is acting under section 43 (3). it is his further contention that if the court were to enter into an enquiry with regard to the existence of the relationship of landlord and tenant between the parties it would take time and the court cannot give immediate relief to the tenant as contemplated under section 43 (3) and that the very object of the legislature would be defeated. that these are provisions of an exceptional character, meant to be in force for a specified period during which the legislature thought it advisable and expedient to provide for such..........tenant and there is no relationship of landlord and tenant between the parties, the court has to decide as a jurisdictional fact whether the petitioner is the landlord and the respondent is the tenant as defined under the act, that such a power is incidental to the jurisdiction conferred on the court under section 21 of the act and that if the petitioner in the proceedings taken under section 21 of the act fails to establish the existence of the relationship of landlord and tenant the petition has to be rejected in limine.9. in : (1962)iillj227sc (management of express newspapers pvt. ltd., madras v. the workers) it has been held that if the action taken by the employer is not a lockout but is a closure, bona fide and genuine, the dispute which the workersmay raise in respect of such a.....
Judgment:
ORDER

M. Sadananda Swamy, J.

1. This revision petition is filed under Section 50 of the Mysore Rent Control Act, 1961 (hereinafter referred to as the Act) against the order dated 13-9-1972 passed by the Principal Munsiff, Gadag, in H. R. C. No. 28 of 1972 on I. A. No. I filed by the respondent under Section 43 (3) of the Act. The respondent in that application has prayed for an interim order directing the petitioners, who are opponents Nos. 1 and 2 in the lower Court, to restore the amenity, namely, the supply of electric power and light. That application was allowed. Hence, the petitioners have challenged that order in this revision petition.

2. According to the case of the respondent, he is a tenant running a flour mill under the name and style of 'Shri Krishna Trading Co., Gadag' in the premises belonging to the first petitioner having taken the same on a yearly rent of Rs. 650/-. The second petitioner is a firm which supplies electric power. According to him, the first petitioner, in collusion with the second petitioner, cut off the supply of electric power to the respondent's premises suddenly with a view to compel the respondent to vacatethe premises belonging to the first petitioner.

3. The lower court issued notices to the present petitioners. The first petitioner denied that the respondent was a tenant of the suit premises and alleged that the second petitioner has cut off the supply of electric power according to law and at the request of the first petitioner. The second petitioner in his statement of objections contended that there was no privity of contract between the respondent and the second petitioner and that the supply of electric power was discontinued at the request of the first petitioner who was the registered consumer.

4. After perusal of the application and affidavit of the respondent and the statements of objections and after hearing the arguments, the lower court directed the second respondent to continue the supply of electric power on payment of the necessary charges by the respondent leaving open the question of relationship between the respondent and the first petitioner to be decided on merits on the final hearing of the case.

5. It is contended on behalf of the petitioners, by Mr. K. A. Swamy, that the lower court has failed to decide the question whether the respondent is the tenant of the first petitioner or not and that without the court coming to the conclusion that the relationship of landlord and the tenant exists the court had no jurisdiction to grant the interim relief to the respondent under Section 43 (3) of the Act. He also contended that it is obligatory on the court acting under Section 43 (3) to examine the applicant in order to satisfy itself that a prima facie case has been established and that the order of the lower court is vitiated due to its failure to examine the respondent in the present case.

6. Under Section 43 (3) of the Act the court has to be satisfied that a prima facie case has been made out in favour of the applicant on a perusal of the application and affidavits, if any, filed by the tenant 'after making such examination of the applicant as it thinks fit.' Hence, the examination of the applicant is obligatory though the manner of examination is discretionary. If the object of the legislature was to make the examination of the applicant discretionary, the wording of the Section would have been 'after making an examination of the applicant if it thinks fit.' We find the words 'as it thinks fit' instead of the words 'if it thinks fit'. Hence, it is obligatory on the court to examine the applicant before it decides whether a prima facie case has been made out by the tenant.

7. In (1965) 1 Mys LJ 560 (Venkataram v. P. H. Seshagiri Rao) it was contended that when the tenant questions the status of the landlord, the Munsiff cannot make an order under Section 29 of the Actwithout first deciding the dispute as to the existence of the relationship of landlord and tenant between the parties. Upholding the contention it was observed as follows:--

'There is not and cannot be any dispute before me that the Munsiff functioning under the Mysore House Rent and Accommodation Control Act is not an ordinary Civil Court of general jurisdiction, but a Tribunal of limited jurisdiction, the scope of which is defined by the special Act under which he functions. The principal purpose of that Act is briefly to con-trot the relationship between landlords and tenants In respect of buildings, hotels, and lodging houses. Unless the subject-matter of the proceeding is a dispute relating to a lease of a building, hotel or a lodging house and unless the parties to the proceeding are landlord and tenant in respect of such building, hotel or lodging house, the Tribunals and authorities functioning under the statute would have no jurisdiction to exercise any of the powers conferred on them by that statute. In other words the existence of such relationship of landlord and tenant in respect of a house, hotel, or lodging house is a jurisdictional fact, in the absence of which the Munsiff would have no jurisdiction to function under the statute. When the existence of that jurisdictional fact is questioned, unless the statute vests in some other authority the power to decide upon the existence or otherwise of that jurisdictional fact, it is well established that it is the duty of the Tribunal itself to decide whether the jurisdictional fact exists, subject no doubt to correction by the High Court in the event of its committing an error in deciding that question.'

The said decision has been followed in (1969) 2 Mys LJ 229 (Vagdeviamma v. Keshavamurthy) and (1971) 2 Mys LJ 370 (Y. Narayana Pai v. A. C. Appaji Rao).

8. In Civil Revn. Petn. No. 44 of 1969 decided on 25-2-1971 (Mys.) (Hajarbi v. Babalal Hasimsahab), it has been held that when the respondent in proceedings taken under Section 21 of the Act contends that he is not the tenant and there is no relationship of landlord and tenant between the parties, the court has to decide as a jurisdictional fact whether the petitioner is the landlord and the respondent is the tenant as defined under the Act, that such a power is incidental to the jurisdiction conferred on the court under Section 21 of the Act and that if the petitioner in the proceedings taken under Section 21 of the Act fails to establish the existence of the relationship of landlord and tenant the petition has to be rejected in limine.

9. In : (1962)IILLJ227SC (Management of Express Newspapers Pvt. Ltd., Madras v. The Workers) it has been held that if the action taken by the employer is not a lockout but is a closure, bona fide and genuine, the dispute which the workersmay raise in respect of such a closure is not an industrial dispute at all; on the other hand if in fact and in substance it is a lockout, but the said action has adopted the disguise of a closure and a dispute is raised in respect of such an action, it would be an industrial dispute which industrial adjudication is competent to deal with and it was observed as follows:--

'It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an industrial dispute or not and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the appellant is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceedings before the Tribunal so far as the main dispute is concerned. If, on the other hand, the finding is that the action of the appellant amounts to a lockout which has been disguised as a closure, then the Tribunal will be entitled to deal with the reference, The finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional fact and it is only when the jurisdictional fact is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute.'

10. Under Section 43 (3) of the Act, the intention of the legislature is to provide quick relief to the tenant if an essential supply or service is cut off or withheld without sufficient cause by the landlord. But it is to be remembered that the relief contemplated under the said provision is to be granted only to a tenant as defined under the Act. Hence, before granting the interim relief the court must be satisfied, prima facie, not only that the essential supply or service has been cut off without sufficient cause but also that the applicant is a tenant as defined under the Act. In the present case, before passing the order, the Court issued notices to the petitioners who were the opponents in the lower court. The first petitioner contended that the respondent is not a tenant under him. The lower Court was therefore bound to decide the question whether the relationship of landlord and tenant exists between the respondent and the first petitioner. I is only if the court comes to the conclusion that such a relationship exists between the respondent and the first petitioner that the court gets jurisdiction to pass an order under Section 43 (3) of the Act.

A perusal of the order of the lower court shows that it was under the impression that it was not necessary to decide the question of the relationship of landlord and tenant between the respondent and the first petitioner at this stage and that it could be decided at a later stage, presumably under Clause (4) of Section 43 of the Act. The existence of the relationship of landlord and tenant between the parties is a jurisdictional fact which the court was bound to decide before passing an order under Section 43 (3) of the Act. Just as the court has to be satisfied, prima facie, that when essential supply or service has been cut off or withheld without sufficient cause, it is alto to be satisfied, prima facie, that the applicant is a tenant, before passing an order in favour of the tenant under Section 43 (3) of the Act.

11. It is contended by Mr. B. G. Sridharan, learned counsel appearing on behalf of the respondent, that it is only after holding the enquiry under Section 43 (4) that the court has to decide the existence of the relationship of landlord and tenant between the parties and it is not necessary for the Court to decide the existence of the said relationship when it is acting under Section 43 (3). It is his further contention that if the court were to enter into an enquiry with regard to the existence of the relationship of landlord and tenant between the parties it would take time and the court cannot give immediate relief to the tenant as contemplated under Section 43 (3) and that the very object of the legislature would be defeated. But, since the existence of such a relationship is a jurisdictional fact, the court has to satisfy itself with regard to the existence of such a relationship before it grants relief to the tenant under Section 43 (3) of the Act.

12. In : 1958CriLJ814 (Kanaiyalal V. Indumati) the court considered the scope of Sub-sections (2) and (3) of Section 24 of the Bombay Rents Hotel and Lodging House Rates Control Act and observed that these provisions enabled the Court to issue a mandate to the landlord to restore tie supply or the service before a specified date, the infringement of which would entail the liability to recurring fines until the mandate had been carried out by the landlord; that these are provisions of an exceptional character, meant to be in force for a specified period during which the legislature thought it advisable and expedient to provide for such extraordinary remedies. It is true that Section 43 (3) of the Act also provides for extraordinary remedies but nonetheless the intention of the legislature is that such remedy should be open only to a person who comes within the definition of 'tenant' under the Act.

13. Mr. Sridharan next relied on the decision in (1959) 37 Mys LJ 485 (Krishtappa v. Sogava). In that case the plaintiff filed a suit for possession of the land alleging that the defendant is his tenant.

The question of tenancy had to be decided only by the Tahsildar or Tribunal or Collector or Board of Revenue or Government under Section 99 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, which applied to the land in question, and the Civil Court had no jurisdiction to decide, the issue of tenancy. The defendant in that case asserted that she was the owner of the land. It was held that what is to be looked into to determine the jurisdiction of a court is the allegation made in the plaint and not what the defendant alleges in support of her claim after filing the suit. Since the plaintiff in that case made a definite allegation that the defendant was a tenant of the plaintiff, it was held that the Civil Court had no jurisdiction to try the plaintiff's suit. Relying upon this decision it is contended by Mr. Sridharan, that the court had to look into the application and affidavits filed by the tenant and not the contentions raised on behalf of the opponents under Section 43 (3) of the Act.

To the present case the court issued notices to the present petitioners, who were opponents before it, before passing an interim order. As observed above, the court has to be satisfied that, prima facie, the relationship of landlord and tenant exists and that the applicant is a tenant before passing an interim order under Section 43 (3) of the Act irrespective of the fact whether notice has been issued to the opponent or not. The fact that notices were issued to the opponents and the first petitioner contended that the respondent is not a tenant only reinforces the obligation on the court to decide whether, prima facie, the respondent was a tenant or not.

14. Since the lower court has failed to determine whether, prima facie, the respondent is a tenant, the order of the lower court is unsustainable and is therefore set aside. The lower court will consider the application, I. A. No. I, afresh and decide the same according to law keeping in view the observations made above.

15. A copy of this order shall be despatched to the lower court immediately,

16. In the circumstances of the case, there will be no order as to costs.


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