B. Venkataswami, J.
1. This is, a defendant's second appeal under S. 100, Civil P. C. and directed against the decree in R. A. No. 139 of 1970 on the file of the Civil Judge, Karwar, dismissing the appeal of the appellant and affirming the decree in 0. S. No. 397 of 1962 on the file of the Additional Munsiff, Honavar.
2. Briefly, the facts so far as they are material for the disposal of the only contention urged in support of the appeal, are
The respondent-landlord instituted the suit on 5-11-1962 seeking a decree for possession of the suit shop premises, arrears of rent and mesne profits, principally on the ground that the appellanttenant had defaulted in payment of arrears of rent due for the period 22-2-1962 to 1-11-1962. At the time of institution of the suit, Parts IV and V of the Mysore (Now Karnataka) Rent Control Act, 1961, hereinafter referred to, as the Act, comprising Ss. 19 to 31, regulating payment of rents by tenants and their eviction, had not been extended -and made applicable to Honavar town which is concerned herewith.
The said provisions, however, were made, applicable to the area for the first time with effect from 1-6-1963, when the suit was still pending in the Court of first instance. Taking advantage of the change in the law, the appellant raised a contention substantially to the effect that the suit would not be maintainable in the face of the express prohibition enacted in sub- a. (1) of S. 21 of the Act.
3. Both the Courts below negatived the contention and decreed the suit for possession and mesne profits only, the claim regarding arrears of rent not having survived for consideration for one reason or another. The first appellate Court, in negativing the said contention, however, depended almost exclusively on a ruling of a Division Bench of this Court in the case of Ibrahim v. Mandepanda Cariappa, reported in 1,971 (1) Mys LJ 453: (AIR 1971 Mys 298).
4. On behalf of the appellant, the very same contention has been reiterated, but in a slightly modified form, placing reliance on an enunciation by the Supreme Court in the case of Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subashchandra Yogaraj Sinha, : 2SCR159 . Briefly, the contention formulated may be stated thus: Having regard to the prohibition enacted in the main clause of sub-s. (1) of S. 21 of the Act, the Court would not be Competent to make a decree for recovery of possession of the premises governed by the provisions of the Act except in the manner and in accordance with the conditions specified in the proviso therein.
,Since the bar enacted therein affects the very Power of the Court to make a decree or order for recovery of possession by the landlord, the Court was bound to have taken notice of the same at the time it was called upon to make the decree and dismissed the suit. On behalf of the respondent, this contention was sought to be repelled by placing reliance almost exclusively on the decision in Ibrahim's case (AIR 1:971 Mvs 298) (supra). Upon a care- examination of the authorities cited, we are clearly of the view that the contention of the appellant is well-founded and must be upheld.
5. In the case of Ibrahim v. Mandepada Cariappa, (1971 (1) Mys LJ 453): (AIR 1971 Mys 298), the facts were substantially similar to those -present in the case on hand. After suits were filed by landlords against tenants for decrees for recovery of possession of the premises concerned therewith and arrears of rent, Parts IV and V of the Act were extended in their application to the area in point. By appropriate amendments of the written statements, -pleas were raised which gave rise to -an issue 'whether the Court has no territorial jurisdiction to try the suit for -reasons stated in para. 10 of the written statement'. The issue was explained by the Bench thus:
'Apparently what the Court meant by framing the above issue was whether the Court had on the coming into force of Parts IV and V of the Act jurisdiction to continue to try the suits which had already been instituted. In fact no question of territorial jurisdiction arose for consideration. xx xx xx'
(contd. on col. 2)
S. 21 (1) of the Act.
Protection of tenants against eviction:- (1) Notwithstanding anything to the contrary contained in any other law or contract, no Order or decree for the recovery of possession of any -premises shall be made by any court, or other authority in favour of the landlord against the tenant;
XX XX XX
6. In the light of the above interpretation of the issue of jurisdiction, the Bench proceeded to enunciate thus:
' xx xx xx We, therefore, hold that the proceedings which are instituted and pending in Courts prior to the extension of Parts IV and V of the Act to the area within which the premises are situate, can be proceeded with in those Courts and appeals can be filed against orders or decrees passed in those proceedings before Courts having the power to hear appeals from those orders and decrees, as if Parts IV and V of the Act have not been extended to the area.
,We, however, make it clear that we have not gone into the question whether S. 21 of the Act can be taken into con- the Court while making a decree in such pending suits. That question is left open.'
7. It is plain from this observation that the answer to the question in the form in which it has been raised in the present case has been expressly left open, although we find it difficult to visualise the purpose served by prosecuting the proceedings in the manner indicated therein, when the suit is exclusively one for recovery of possession of a premises from a tenant and the Court had lost its jurisdiction to make any such decree by virtue of S. 21 (1) of the Act. Hence, this decision is of little assistance to the respondent.
8.Before adverting to the only other decision in Sha Bhojrai Kuverji Oil Mill'scase, : 2SCR159 wherein the effect of S. 12(1) of the Bombay Rents,Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the 'Bombay Act', has been considered by the Supreme Court, it would be convenient to notice the relevant portions of the provisions of S. 21 (1) of the Act and the said S. 12 (1) for the purpose of comparing and contrasting them. They read:
S. 12(1) of the Bombay Act.
A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the
Act. xx xx xx
(Underlining by Court)
9. On a careful and comparative study of the above provisions, it is seen that while sub-s. (1) of S. 21 of the Act takes away or restricts the jurisdiction of the Court to make a decree or order of recovery of possession of a premises by a landlord, S. 12(1) of the Bombay Act precludes a landlord from claiming or restricts his right to claim any such decree for possession. But, the resultant effect of both these provisions is one and the same and that is that no decree could be passed for recovery of possession in favour of a landlord and against a tenant.
10. Turning now to the decision in Shah Bhojraj's case, : 2SCR159 , the facts which bear a close resemblance to those of the instant case, are : The landlord on 25-4-1957 instituted a suit for recovery of possession of a premises from a tenant. whose tenancy had expired by efflux of time. At the time of the institution of the said suit, Part 11 of the Bom Act, including S. 12, !,ad not been made applicable to the area where the premises was situated. During the y of the suit, on 16-8-1958, by a notification issued under S. 6 of that Act, Part 11 thereof was made applicable to that area.
Taking advantage of this change in the law, the tenant claimed protection of Section 12 of that Act which deprived the landlord of the right to possession under certain circumstances. As a result of such a plea, two issues were raised relating to the maintainability of the suit and the jurisdiction of the Court to try the same. These were tried as preliminary issues and answered against the tenant. This decision was upheld by the High Court in revision,
11. On appeal by the tenant. the Supreme Court upheld the contention of the -tenant by enunciating thus,
'x x x Then again, S. 12(1) enacts that the landlord shall not be entitled to recover possession, not 'no suit shall be instituted by the landlord to recover pos- The point of time when the subsection will operate is when the decree for recovery of -possession would have to be passed. Thus, the language of the subsection applies equally to suits pending when Part II comes into force and those to be filed subsequently. The contention of the respondent that the operation of S. 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted . The conclusion must follow that the present suit cannot be de- favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside,'
12. In our view, notwithstanding the difference in the language of S. 12(1) of the Bombay Act and S. 21 (1) of the Act, the principle of law underlying the above enunciation would be applicable on all fours to the facts of the instant case. We therefore, hold that the Courts below had no jurisdiction to decree the suit in question. The decree in appeal cannot also be upheld
13. As a result of the foregoing discussion this appeal is allowed. The decrees of both Courts below are set aside, and the suit stands dismissed. In the circumstances, the parties are directed to bear their own costs.
14. Appeal allowed.