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P. Kannaswamy Vs. B.L. Shankaranarayana Shetty - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant72; ILR1976KAR1792; 1976(2)KarLJ266
ActsHigh Court of Karnataka Rules, 1959 - Rules 6 and 6(2); Karnataka Rent Control Act, 1961 - Sections 21(1); Transfer of Property Act, 1882 - Sections 116
AppellantP. Kannaswamy
RespondentB.L. Shankaranarayana Shetty
Appellant AdvocateH. Rangavittala Char, Adv.
Respondent AdvocateGopal L. Bangalore, Adv.
Excerpt:
.....are, the specific case taken by the landlord that the respondent is a tenant on the basis of the lease deed and the cause of action arose only when the lease was determined by a notice to quit, as well as the recitals made in the lease deed......of the provisions made in section 111 of the transfer of property act. in the instant case, the lease period was for four months between 1-12-62 and 31-3-63. the main contention of the learned counsel was that after the efflux of time, the petitioner tenant became a statutory tenant, as he could not be evicted due to statutory immunity provided for under the rent control act. but the contract under which he was holding the lease as well as the subsequent conduct give out entirely a different picture. it is abundantly clear that rents were accepted for a considerable period and the petition was filed in 1967. besides, there were recitals in the lease deed to indicate that the intention was not to discontinue the tenancy after the expiry of four months. i may refer to the clause.....
Judgment:
ORDER

1. B. L. Shankaranarayana Setty applied under Section 21(1), Proviso (h) Of the Karnataka Rent Control Act, for eviction of P. Kannaswamy in H. R. C. 700/67 from shop premises bearing No. 110 in Raja Market, Avenue Road, Bangalore City. The contention of the landlord was that he needed the shop for his own reasonable and bona fide occupation and for that he determined the tenancy by serving a notice to quit Upon the tenant. According to the respondent-landlord, the lease was for a period from 1-12-1962 to 31-3-1963, i.e., for four months. Thereafter, the petitioner-tenant assumed the status of a statutory tenant. Subsequently, an argument was founded that the notice to quit was not necessary for a statutory tenant. There was also a plea initially that the tenant had fallen due in arrears of rent although that plea was subsequently given up. The learned First Munsiff, Bangalore allowed the petition. Thereafter, the tenant came in appeal before the First Additional District Judge, who dismissed the appeal and confirmed the eviction order made by the Munsiff. Now, the present revision is filed against the judgment of the First Additional District Judge.

2. Both the learned Munsiff and the learned First Appellate Judge have held that after the expiry of four months, period the tenant became a statutory tenant and as such, a notice to quit was not required. It was an admitted finding that the notice to quit Ext. PA was not served, as the report indicated that the tenant was not, available at his residence. That is why, insistence was made on behalf of the landlord for the plea that a notice to quit was not a legal requirement in the case. The contention on behalf' of the tenant' was that he became governed by a fresh contract of tenancy by holding over Under Section 116 of the Transfer of Property Act. If that was so, the tenancy was required to be determined before the application seeking eviction was to be made under Section 21 (1) of the Act.

3. A preliminary objection was raised on behalf of the respondent-landlord that the present revision is time barred. Under a mathematical calculation for the period taken to file a revision from the date of the judgment of the District Judge excluding the period required for taking a certified copy, a delay of 78 days is calculated. There is no dispute as to that period. The learned counsel for the petitioner-tenant however contended that Section 50 of the Act never provided for any limitation. In that connection he referred to Section 48 which provided 30 days' period for filing the appeal. Thereby, the learned counsel contended that residuary article in the Limitation Act providing for three years period should be made applicable. The learned counsel for the respondent-landlord in that connection referred to Rule 6 of Chapter VII of the High Court of Karnataka Rules, 1959. According to this rule, petitions to revise the order of a proceeding of any court, for which no period of limitation is prescribed by any law applicable to it, are to be presented to the High Court within a period of 90 days from the date of the order complained of and in computing that period, provisions of Section 12 of the Indian Limitation Act, are made applicable. It was then contended that the order of a proceeding in the instant case was not made by a 'Court', as the court notified under Section 3(d) of the Act is only a persona designata. That may be so with reference to jurisdiction to be exercised by that court. Can it be stated that he ceased to be a Court even for the purpose of Rule 6, Chapter VII? That is the question to be decided. In that connection, the learned counsel relied on Winifred Mathias v. Louisa Correa, (1968) 1 Mys LJ 573. That case related to the application of Mysore Civil Courts Act (21 of 1964) to a court appointed under the Karnataka Rent Control Act with reference to its Section 48. In that connection it was held that the court notified under the Karnataka Rent Control Act will not be of a Civil Court contemplated under the Mysore Civil Courts Act (21 of 1964). As such, that decision shall not be an authority for interpreting the expression 'Court' with reference to Rule 6 of Chapter VII of the High Court of Karnataka Rules. Therefore, in my opinion, if the expression 'Court' is used in Rule 6, it refers as well, to a court notified under the Karnataka Rent Control Act, to decide petitions under Section 21 (1) of that Act.

4. In view of Rule 6, Chap. VII, the limitations for filing the revision was only 90 days. There was an obvious delay in filing the revision. But there is a provision in sub-rule (2) of R. 6 and the court can condone the delay provided a case of sufficient cause is made out by the petitioner. In that connection, an affidavit is submitted explaining the delay in filing the revision petition. There is apparently no ground not to grant the condonation for these reasons. Besides, after considering the case on merit and keeping regard to the power of the, court suo motu to interfere in revision under Section 50 of the Act, there are stronger grounds to condone the delay and the revision petition can be entertained on merits. The central point on which the case is to be decided, will be the status of the petitioner, as to whether he should be considered a statutory tenant or a tenant by holding over. In that connection a series of decisions were referred to by the learned counsel and the consensus appears to be, that the facts and circumstances in each case determine, as to whether the tenant was to continue as a tenant by holding over even after determination of the contract of tenancy under any of the provisions made in Section 111 of the Transfer of Property Act. In the instant case, the lease period was for four months between 1-12-62 and 31-3-63. The main contention of the learned counsel was that after the efflux of time, the petitioner tenant became a statutory tenant, as he could not be evicted due to statutory immunity provided for under the Rent Control Act. But the contract under which he was holding the lease as well as the subsequent conduct give out entirely a different picture. It is abundantly clear that rents were accepted for a considerable period and the petition was filed in 1967. Besides, there were recitals in the lease deed to indicate that the intention was not to discontinue the tenancy after the expiry of four months. I may refer to the clause incorporated in the lease deed, Ext. P-1, saying, that the period of tenancy was from 1-12-1962 to 31-3. 1963 'in the first instance' meaning thereby that the initial period fixed was for four months and the intention was to continue the tenancy provided the consent of both the land lord and the tenant was there. One has then to infer as to whether this consent was forth coming. In my opinion, the mutual consent to continue the tenancy could be inferred from the long period the rent was accepted, the notice to quit already given by the landlord, the recitals made in the lease deed and besides all these, the very contentions made by the landlord in his petition for eviction. It was rather stated in the petition that the respondent was a tenant under the petitioner, that the tenancy month was the calendar month and that the respondent also executed a lease deed in favour of the petitioner-landlord. The cause of action was taken from the date of the expiry of the notice to quit. It is significant to note that the case of statutory tenancy was not taken up in the petition. The learned counsel pointed out that on the basis of Ganga Dutt v. Kartik Chandra Das, : [1961]3SCR813 , the acceptance of rent for a longer period and the notice to quit by themselves will not be sufficient to hold the tenancy contract, to be by holding over. But in addition to these circumstances, as I have stated before, the other circumstances in the case are, the specific case taken by the landlord that the respondent is a tenant on the basis of the lease deed and the cause of action arose only when the lease was determined by a notice to quit, as well as the recitals made in the lease deed. Even in Ganga Dutt Murarka, (supra) the Supreme Court held:-

'There is, however, no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case.'

5. On the facts of this case, in my opinion, the contract of tenancy by holding over can be inferred. The learned counsel for the respondent relied on Hassan Sab v. Kakubalappa, (1969) 1 Mys LJ 295. But in that case, the landlord immediately after the determination of tenancy took up the matter of getting the premises vacated by issuing a notice to quit. The lease had expired by efflux of time and as there was a statutory immunity, it was held that the tenant was a statutory tenant. It was further stated that a notice to quit was not necessary. The facts of that case were different and the ratio of that decision will not be helpful. The learned counsel then referred to Datton Pant v. Vithal Rao, : AIR1975SC1111 . In that case, it was held upon facts, that the tenancy continued by holding over and in that situation it was observed, that unless the tenancy was determined by a valid notice to quit or in any other mode set out in Section 111 of the Transfer of Property Act, it was not open to the landlord to seek the eviction of the tenant.

6. The assent of the landlord, is presumed in the circumstances of this case, and he created a new tenancy. The lessee remained in possession of the premises after his term was over and there was a definite consent on the part of the landlord to continue his possession as tenant. In fact, that is the very frame of the petition that was submitted before the court. In that contingency, the notice to quit was required before the tenancy could be determined, and it is an admitted case of the parties that a notice to quit was not served upon the petitioner-tenant. Therefore, the tenancy continued and no petition could be' filed for eviction of the tenant under Section 21 (1), Proviso (h). On this short ground, the two decisions of the court below need be set aside.

7. The revision is therefore allowed and the judgment of the learned District Judge is set aside and the petition under S. 21 (1), Proviso (h) of the Karnataka Rent Control Act shall be deemed dismissed. However, no order is made as to costs.

8. Revision allowed.


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