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S.P. Hamidsha Chandshawale Vs. Seshagiri Bhiku Pai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1072 of 1968
Judge
Reported inAIR1973Kant228; AIR1973Mys228; (1973)1MysLJ127
ActsMysore Rent Control Act, 1961 - Sections 3 and 51
AppellantS.P. Hamidsha Chandshawale
RespondentSeshagiri Bhiku Pai and ors.
Appellant AdvocateK.R. Karanth, Adv.
Respondent AdvocateS.G. Bhagwan and ;P. Ramachandra Rao, Advs.
DispositionRevision allowed
Excerpt:
.....application had been filed to bring the legal representatives of the deceased respondent on record within 90 days and therefore, the appeal abates and the application nevertheless has been filed subsequently and an application is also filed for setting aside the abatement, the application for bringing the legal representatives of the deceased respondent having not been made within 90 days, there is a delay in making this application and therefore, unless the delay is condoned the application for bringing the legal representatives on record cannot be entertained. liberty given to make an application for condonation. .....a finding on the question whether all or any of the respondents were living with the original tenant seshagiri bhikku pai in the suit premises as members of his family up to the date of his death. he also gave liberty to the parties to adduce evidence on the matter.4. after examining the witnesses produced by the parties, the district judge has now returned a finding according to which, the deceased seshagiri bhikku pai and his wife and children were not actually residing in the suit premises but were, for some time residing in a separate house in chavat galli in belgaum. till about the year 1962 according to one version or till 1965 according to another, and thereafter in kolhapur. although the district judge takes the view that legal possession of the suit premises was with the.....
Judgment:
ORDER

A. Narayana Pai, C.J.

1. This revision petition, arising out of proceedings for eviction of a tenant under the Mysore Rent Control Act. 1961. has completely changed its complexion bv reason of the death of the tenant pending the proceedings.

2. Petitioner is the landlord. He had rented out certain premises in Belgaum to one Seshagiri Bhikku Pai to run a tea-shop. He instituted proceedings against him to recover possession on the ground that he had sublet the premises contrary to the provisions of the statute and also on the ground that he had kept rents in arrears. The original Court made en order of eviction. Upon appeal, the same was set aside. Before the revision petition could be filed but within the period of limitation prescribed therefor, Seshagiri Bhikku Pai the tenant died. The revision petition was therefore, filed with his wife and children and the manager impleaded as respondents.

3. During the hearing of the revision petition before Malimath J. a question arose whether the legal representatives so impleaded as respondents in the revision petition could be regarded as persons falling within the definition of 'tenant' given in Clause (r) of Section 3 of the Act. the relevant part of which reads.--

' 'Tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or anv son or daughter, or father or mother of a deceased tenant who had been living with the tenant in the premises as member of the tenant's family up to the death of the tenant .....'

The premises, as already stated, were prima facie business premises. There was however, no material before Court to determine whether they were also used for the purposes of residence. Mali-math. J., therefore called upon the District. Judge to return a finding on the question whether all or any of the respondents were living with the original tenant Seshagiri Bhikku Pai in the suit premises as members of his family up to the date of his death. He also gave liberty to the parties to adduce evidence on the matter.

4. After examining the witnesses produced by the parties, the District Judge has now returned a finding according to which, the deceased Seshagiri Bhikku Pai and his wife and children were not actually residing in the suit premises but were, for some time residing in a separate house in Chavat Galli in Belgaum. till about the year 1962 according to one version or till 1965 according to another, and thereafter in Kolhapur. Although the District Judge takes the view that legal possession of the suit premises was with the deceased Seshagiri Pai and that because his wife and children were residing with him they must also be regarded as 'living with the original tenant Seshagiri Pai in the suit premises as members of the family', it makes no difference to the real position.

5. What is of importance is that the word 'living' in the context has the clear indication of what is commonly known as 'residence' because, in the etymological sense wherever a person may reside, he continues to live until he dies. So, when it is loosely stated that a person is living in a particular place, it really means that he is residing at that place.

6. It is also obvious that the extended definition of the term 'tenant' given in the extract of Clause (r) of Section 3 above has a special reference to residential quarters because, ordinarily nobody lives or resides in business premises.

7. Whichever way one looks at it, the plain meaning of the finding returned by the District Judge is that neither Seshagiri Pai nor his spouse, or any son or daughter, nor his father or mother was living or residing in the suit premises.

8. The legal effect of this finding is that none of the respondents comes within the scope of the definition of the word 'tenant'.

9. Another aspect of the matter which should now be adverted to is that before instituting these proceedings, the petitioner landlord had terminated the tenancy of Seshagiri Pai in respect of the suit premises. He therefore ceased to be a contractual tenant and acquired the status of a statutory tenant because, in spite of the protection of his possession having been taken away by the termination of the contract of tenancy, that protection was continued in his favour by the provisions of the Rent Control Act. The exact legal implication of such a situation is explained by the Supreme Court in the case of Anand Nivas (P.) Ltd. v. Anandji, : [1964]4SCR892 . The view of the majority expressed in paragraph 27 of the judgment is the following:--

'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy, is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any. end performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on bis death only in the manner provided by the statute.....'

The position in the present case is that alter the termination of the contractual tenancy. Seshagiri Pai was In the position of a statutory tenant. The protection which he had against being dispossessed by the landlord Is the protection conferred upon him as a statutory tenant by the Rent Control Act. That was personal to him. He could not transmit that protection to his legal heirs who answer the description of legal representatives as persons who in law represent his estate which includes his business concerns.

10. If that was all that could be said in this matter, the position would have been that the entire proceedings should have come to a termination without any conclusion being arrived at cne way or the other. Such a result is obviated by the express provision of Section 51 of the Rent Control Act according to which, 'any application made, appeal preferred or proceeding taken under this Act by or against any person may in the event of his death be continued by or against Ms legal representative' The petitioner-landlord is therefore, enabled to continue the proceedings against the legal representatives

11. The combined operation of these two principles is that whereas the petitioner-landlord is enabled to continue the proceedings under the statute itself and obtain the relief which he could have got under the statute, the legal representatives of the deceased tenant are deprived of the protection which their predecessor had as a statutory tenant. One need not however be surprised at this result because, the estate which devolves upon the legal representatives is the legal estate including the rights and liabilities if any, got under or by virtue of a contract, but the protection which a statutory tenant has against eviction is no part of his estate but a personal benefaction or bounty conferred upon him by the special statute specially intended to protect him.

12. The fact that in the case of residential premises the extended definition of a 'enant extends the protection to such of the relatives specified in that definition as have been living with the deceased tenant and continued to live with him till he died, does not make the position of legal representatives of a statutory tenant of business premises either unjust or absurd. Whereas in the case of a residential premises the legislature considers that some protection must be extended to others who have continued to reside with the deceased tenant. It does not consider it necessary to extend protection of the statute to any person beyond the statutory tenant in the case of business premises. That the statute is very particular about relating the protection given to one party to a contract to a restriction upon the rights of the other party to the contract is clear from the special provisions contained in the statute restricting the right of transferring the whole or any part of the tenancy right departing from the normal rule that in the absence of ex-Press prohibition rights of a tenant are capable of being transferred.

13. What is stated above Is also the view taken by the Gujrat High Court in the case reported in Paru Ba! v. Baldevdas, ((1964) 5 Gui LR 563).

14. In this view, it is unnecessary to examine the correctness or otherwise of the findings of the Courts below as to whether the petitioner-landlord has or has hot made out any ground under Section 21 of the Rent Control Act for eviction.

15. The order of the District Judge dismissing the petitioner's application is set aside and an order is made directing the respondents to put the petitioner in possession of the suit premises. Tune three months.

16. In this revision petition, parties will bear their own costs.


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