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M.M. Mathew and Etc. Vs. Prafulchand Amritlal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 5149 to 5151 of 1979
Judge
Reported inAIR1980Kant57; 1980(1)KarLJ234
ActsKarnataka Rent Control Act, 1961 - Sections 21
AppellantM.M. Mathew and Etc.
RespondentPrafulchand Amritlal
Appellant AdvocateS.K. Kulkarni, Adv.
Respondent AdvocateS.S. Vijjannavar, Adv.
Excerpt:
.....preamble to the cpc indicates clearly that it, is a 'law relating to the procedure of courts of civil jurisdiction' this 'above principle was allowed and approve d by malimath, j. that the rulings of this court in menakshamma's as cases, are no longer good law or in conflict with several other rulings of this court i will now proceed to examine these submissions of sri kulakarni in that orders. act was no longer good law or the principles enunciated therein was inapplicable. for these reasons, i am of the opinion, that the contention of sri kulkarni that on the changes in the act, the principles enunciated by this court in meenakshamma's and subbanna's cases are no longer good law or inapplicable, is wholly misconceived and is devoid of merit. 12. even though i have held that on the..........preamble to the cpc indicates clearly that it, is a 'law relating to the procedure of courts of civil jurisdiction'this ''above principle was allowed and approve d by malimath, j. in subbanna v. b. seethathma, (1970) 2 mys lj 560 in these words:,'the court under- the act is a civil 'court. no special provision has been made in the act for executing the decrees or orders passed under section 21 they have to be executed as decrees passed by a civil court.xx xx xxas an order or decree passed under s. 2, ;of the act is one passed by a civil court and as no special remedy has, been provided under, the act , for execution, of such orders and decrees it is clear that the provisions of the cpc in regard to the execution of such orders and decrees are i attracted by virtue of the provisions of.....
Judgment:
ORDER

1. A frivolous, unjust and a desparate attempt made by the petitioners, who are the judgment-debtors, to delay and defeat decrees for eviction made against them, as early as on 28-11-1973, by the trial Court in Proceedings instituted under the provisions of the Karnataka Rent Control Act of 1961 (Karnataka Act No. 22 of 1961), (hereinafter referred to as the Act) relentlessly, fought and lost before the District Court, this Court and ultimately before the Supreme Court of India on the basis of a contention urged-in these cases, which is also concluded against them by the consistent and the rulings of this Court,even be rejected by just noticing their contention and the rulings of this Court on the point. But, I do not propose to do so out of deference to Shri S. K. Kulkarni learned counsel for the petitioner, who addressed elaborate and serious argument on their behalf. In order to appreciate the contentions urged before me in these cases, it is necessary to notice the facts that are not in dispute in the first instance.

2. The three petitioners are in occupation of different portions of premises bearing CTS No. 1015-A/3 situated in Ward No. III of Hubble City, Dhawar District having taken their respective portions on lease from one Sri. K. V. Kulkarni, who was its then owner. On 28-7-1972, respondent No. 1 (hereinafter referred to as the respondent) and his father Amritlal Singala, who were carrying on automobile business in a rented premises in the same city and were facing eviction form their landlord, purchased the premises for valuable consideration with the object of shifting their business to the premises. After exchange of notices, the respondent and his father commenced actions in H. R. C. Nos. 256, 258 and 286 of 1972 against the Petitioners in the Court of the Mummify Hubble, for their eviction which was contested by them. Before the termination of the said applications and passed decrees for eviction against the petitioners, which was unsuccessfully challenged by them in H. R. C. Appeals Nos. 18, 31 and 32 of 1974 before the District Judge, Dharwar. Against the said orders, the petitioners filed C. R. P. Nos. 1916, 1939 and 1940 of 1975 before this Court. On 20-2-1976, Venkatachaliah,, J. dismissed the said revision petitions granting 8 months time form that day to the petitioners to vacate the premises. Special Leave Petitioners Numbers 2605 to 2607 of 1976 filed by the petitioners against the said orders of this Court were rejected by the Supreme Court on 10-12-1976 after notice to the respondent.

3. On the termination of the proceedings before the Supreme Court, the respondent sued out execution of the decrees before the Mummify in Execution Petitions Nos, 32, 33 and 34 of 1977 which were again resisted by the petitioners. On 22-3-1979 the executing Court, over-ruled the objections filed by the petitioners and directed the executions to be proceed with. Against the said order, the petitioners filed C. R. P. Nos. 984, 985 and 993 of 1979 before this Court inter alia urging the very grounds urged by them in these petitions. On 4-4-1979 Mahendra, J. stayed the further proceedings of the aforesaid executions till 4-5-1979 to enable the petitioners to seek clarification, elucidation or review of the Supreme Court seeking for review of the orders made in the said special leave petitions which have also been rejected and thereafter on 23-5-1979 Mahendra, J. dismissed the said revision petitions.

4. While the review petitions filed before the Supreme Court and the C.R.P. Nos.,984,'985. and 993 of 1979 were pending before this Court; the petitioners on 18-5-1970, have moved this Court under Article 226(1)(b) and (c) 'of the Constitution as it -then; stood seeking for a writ in the nature of prohibition or order or direction to the respondents from proceeding with Execution Petitioners Nos. 32 to 34, of 1977,with , a prayer for stay of the further proceeding in t he said cases. On the same day,, Desai J. ordered emergent notices to the respondents returnable by one week to show cause as to why rule nisi should not be issued and an interim order sought by the petitioners should not be granted. On the service of notices on the respondents, these cases were posted before me on 8-11-1979 for preliminary hearing 'Group-B' on which day I hearted them.

5. According to the petitioners the decrees for eviction, made against them under the Act in the absence of an express, provision to execute the said decree under that Act, are inexecutable before a Civil Court and the rulings of this Court to the contrary are no longer good law or in conflict with the later rulings of, this Court and the Supreme Court and therefore they have 1bught for a writ of prohibition to the respondents to prohibit the execution of 1hose decrees.

6. The jurisdiction and power to, entertain application for eviction and grant a decree thereto under Section 21 of the Act, has always been conferred on the Civil Courts of the State. The Act has not made any express provision for execution of the decrees made, by a Civil, Court under Section 21 of the, Act. But, still the Civil Courts, were executing the decrees made under the Act, as if they were, decrees made by them

7. An execution petition filed by one Modur Rarigamnia to execute a decree obtained by her under the Act in H.R.C. No.222 of 1964 was resisted by one Smt. Meenaksharnma the judgment-debtor in that case in the very ground on which the petitioners are resisting the execution petitions, filed by the respondent, which was overruled by the Munsiff, Bangalore on, 31-2-1968. Smt, Meenakshamma challenged the said order of, the Munsiff before this, Court, in C. R. P. No. 225 of 1968 and reiterated the same before this Court on 14th August; 1968, Venkataswamy, J. rejected the said revision petition reported in Meenakshamma v. Modur Rangamma, (1968) 2 Mys LJ 255 and laid down the following principle:

'It will be seen from the definition of the, word 'Court' as reproduced earlier, that the words ''Civil Court' have been deliberately used even, though a provision is made Wherein, the State Government js empowered to constitute a Court, by special authorisation, presumably on the ground of, administrative convenience such, other reason. According to, the definition, in the absence of such special authorisation, Civil Courts having jurisdiction specified therein are statutorily vested with jurisdiction to deal with, cases arising under the Act, which require to be deal with by a Court. The use of the words Civil Court is significant. If is also not with out significance that the State Government can specially authorise only Civil, Courts. In the face of these indications it is difficult to accede to the contention of Sri Rama Rao that a Civil Court should be treated as a special Tribunal functioning under a special enactment, namely the Act. I am, therefore, clearly, of the opinion that the Court, function in for, the purpose of Part V of the Act functions As a Civil Court and as such, it is entitled to exercise jurisdiction under the provisions of the CPC. Once this position is reached, having regard the preamble to the CPC, it is entitled to exercise the, powers, and functions indicated under the Code. The preamble to the CPC indicates clearly that it, is a 'law relating to the procedure of Courts of Civil jurisdiction'

This ''above principle was allowed and approve d by Malimath, J. in Subbanna v. B. Seethathma, (1970) 2 Mys LJ 560 in these words:,

'The Court under- the Act is a Civil 'Court. No special provision has been made in the Act for executing the decrees or orders passed under section 21 they have to be executed as decrees passed by a civil Court.

xx xx xx

As An order or decree passed under S. 2, ;of the Act is one passed by a Civil Court and as no special remedy has, been provided under, the Act , for execution, of such orders and decrees it is clear that the provisions of the CPC in regard to the execution of such orders and decrees are I Attracted by virtue of the provisions of S. 141 of the C.P.C.'

The correctness legal principle enunciated in Meenakshamma's and Subbanna's cases consistently followed by this Court has not also been doubted, by the Supreme Court in any case , cited before me by Sri Kulkarni. But, still Sri Kulkarni urged. That the rulings of this Court in Menakshamma's as cases, are no longer good law or in conflict with several other rulings of this Court I will now proceed to examine these submissions of Sri Kulakarni in that orders.

8. Sri Kulkarni maintained a. that the ruling of this, Court in Meenakshamma's case was solely based on the language of the definition of the 'Court' then occurring in Sec, 3 (d) of the Act, which inter alia employed the term. 'Civil Court' which has been substituted by the Karnataka Rent Control (Amendment) Act, 1975 (Karnataka Act, No, 31 of 1975) (hereinafter referred to as the Amending Act) and, that ruling having regard, to the change made in the. Act was no longer good law or the Principles enunciated therein was inapplicable.

9. In my view the Amending substituting, the definition of the word 'Court' has not made any teal and substantial change to any way whittle down the principles stated in Meenakshamma's and Subbann'a cases. The use of the words 'Civil Court' in the definition of the 'Court' as it stood prior to its amendment on the deletion of the word 'Civil' thereto, in 1975 has little 'or no significance on the question'. The words 'Civil Court' had, been used in the, definition of the term 'Court' in the original Act only ex abundanti cautela before the uniform, the Karnataka Civil Courts. Act of 1964 came into force on 1-7-1964. The Courts exercising jurisdiction and power before or after the amendment are undoubtedly, the Civil Courts in the State. In reality and substance, the Legislature has not made any departure in the definition of the term 'Court' at any time. For these reasons, I am of the opinion, that the contention of Sri Kulkarni that on the changes in the Act, the principles enunciated by this Court in Meenakshamma's and Subbanna's cases are no longer good law or inapplicable, is wholly misconceived and is devoid of merit. I, therefore, reject the same.

10. Sri Kulkarni next contended that the principles enunciated by this Court in Meenakshamma's and Subbanna's cases are in conflict with the principles enunciated by Narayana Pat J. as he then was, in Venkataram. v. P. H. Seshagiri Rao (1965) 1 Mys LJ 560 Malimath, J. in Mohammed Qasim V. Mohammed Mainuddin (1974) 1 Kant LJ 316, by a Division Bench consisting of Venkataswamy and Tewatia, JJ. in Manju Ramakrishna v. Umesh Shridar (1977) 1 Kant LJ 445 and another Division Bench consisting of Venkataramiah, J. as he then was and Venkatachala, J. in R. Govindaswamy v, C. S. Pannalal (1978) 1 Kant LT 506 and therefore, the question raised should be referred to a larger bench for resolving the conflict.

11. In none of the cases, relied an by Sri Kulkarni, the question that has been directly decided in Meenakshamma's and Subbanna's cases that is apposite for the purpose of these cases, has been considered and decided by this Court. The principles decided in those cases viz., that the Court functioning under the Act is a Court of exclusive jurisdiction, on which Sri Kulkarni sought to derive his entire support, does not in any way touch on the principle decided in Meenakshamma's and Subbanna's cases. The fact that the Court exercising jurisdiction and power under Section 21 of the Act, is a Court of exclusive jurisdiction, does not necessarily mean that it is not a Civil Court and a decree made by it under the Act cannot be executed by A though there is no specific enabling provision for the same. I do not see any inconsistency in the principles enunciated in these cases and Meenakshamma's case followed in Subbanns's case. In my opinion, the submission of Sri, Kulkarni proceeds on a total misapprehension of the legal position and is devoid of any merit and I do not find any justification to refer these cases to a larger bench to resolve a conflict that does not at all exist.

12. Even though I have held that on the authority of the rulings of this Court, the matter is clearly concluded against the petitioners, I will assume that the matter is not so concluded and examine their contentions afresh.

13. As noticed earlier the one and the only ground on which the petitioners seek to resist the execution proceedings instituted by the respondent is, that there is no specific provision enabling a Civil Court to execute its own decrees and the Court granting a decree is not a Court of general jurisdiction but is a Court of exclusive jurisdiction. Under the Act as it stood prior to its amendment, or thereafter, the Court empowered to grant decrees under Section 21 of the Act has and has always been a Civil Court only. When a Civil Court is empowered to adjudicate a matter and pass a decree, in the absence of any express provision providing for a special mode of execution by the Act itself, it appears to me that to contend that such a decree should remain a mere paper decree and should not be executed by such court and the relief granted to the decree-holder should not be given to him by executing the same, would render the proceedings, as totally meaningless, and cause hardship and injustice to a decree-holder. In my opinion, such a construction productive of grave mischief and injustice and set at naught the provisions of the Act can never be placed by a Court. On the other hand all canons of construction of statutes would support that the Court that has passed a decree, which is a Civil Court, can execute the decree exercising all the powers it can otherwise exercise as if it is a decree made by it in accordance with the provisions of the Code of Civil Procedure. In these circumstances, even if the matter was not res integra, I have no hesitation in rejecting the contention of Sri Kulkarni.

14. In Mohinder Singh Gill v. Chief Election Commr. New Delhi, : [1978]2SCR272 the majority speaking through Krishna Iyer, J. applied the principle of implied powers in interpreting Section 98 of the Representation of the People Act and ruled that an election Court was competent to grant all effective reliefs. On that question, Krishna Iyer, J. observed thus:

''Law transcends legalism when life is baffled by surprise situations. In this larger view and in accordance with the well established doctrine of implied powers we think the Court can and it justified, shall do, by its command, all that is necessary to repair the injury and make the remedy realisable. Courts are not luminous angels beating their golden wings in the void but operational authority sanctioning everything to fulfil the trust of the rule of law. That the less is the inarticulate part of the larger is the jurisprudence of power. Both Sri Sorabjee and Sri Phadke agree to this proposition and Sri Rao, in the light of the election petition filed and is pending, cannot but assent to it. By way of abundant caution or otherwise, the appellant has declaration of the 3rd respondent as challenged, in his election petition, the returned candidate. He has also prayed for his being declared the duly elected candidate. There is no dispute there cannot be that the cornerstone of the second constituency wide poll is the cancellation of the first. If that is set aside as invalid by the High Court for any good reason then the second poll falls and the third respondent too, with the cancellation of the entire poll is within the Court's power under Section 98 of the Act. All are agreed on this. In that eventuality, what are the follow up step? Everything necessary to resurrect, reconstruct and lead on to a consummation of the original process. Maybe, to give effective relief by way of completion of the broken election the Commissioner may have to be directed to hold fresh poll and report back together with the ballots. A recount of all or some may perhaps be required. Other steps suggested by other developments may be desired. If anything integrally linked up with and necessitated by the obligation to grant full relief has to be undertaken or ordered to be done by the, election machinery, all that is within the orbit of the Election Court's power.

88. Black's Law Dictionary explains the proposition thus:

'Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant'. (p. 1334 Black's Legal Dictionary 4th Edn.)

89. This understanding accords with justice and reason and has the support of Sutherland. The learned Additional Solicitor General also cited the cases in Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) and Commr of Commercial. Taxes v. R. S. Jhaver : [1968]1SCR148 to substantiate his thesis that the doctrine of implied -powers clothes the Commissioner with vast incidental powers. He illustrated his point by quoting from Sutherland (Frank E. Hoarer Jr. Vol. 3).

'Necessary implications: Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, 'An, express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty.........That which is clearly implied is as much a part of a law as that which is expressed'. The reason behind the rule is to be found in the fact that legislation is enacted to-establish broad or general standards. Matters of minor detail are frequently omitted from legislative enactments, and 'if these could not be supplied by implication the drafting of legislation would be an interminable process and the rule intent of the legislature likely to be defeated.

The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to public officers and administrative agencies. The powers thus granted involved multitude of functions that are discoverable only through practical experience.

xx xx xx A municipality, empowered by Astute to construct sewers for the preservation of the public health, interest and convenience was permitted to construct a protecting wall and pumping plant which were necessary for the proper working of the sewer, but were, essential to public health. A country school superintendent, who was by statute given general supervisory power over a special election, was permitted to issue absentee ballots. The power to arrest, has been held to include the power to take finger prints and take into custody non residents who were exempted from the provisions of a licensing statute'.

90. Having regard to statutory setting and comprehensive jurisdiction of the Elect-ion Court we are satisfied that it is within its powers to direct a report of particular polling stations to be conducted by the specialised agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots, since those names are known can be ordered taking care to preserve the secrecy of the vote. The Court may, if necessary, after setting aside the election of R-3, (if there are good grounds therefore) keep the case pending, issue directions for getting available votes, order, recount and or partial re-poll keep the election petition pending and pass final order holding the appellant elected if, - only if - valid grounds are established. Such being the wide ranging scope of implied powers we are, in agreement with the learned Additional Solicitor General that all the reliefs the appellant claims are within the Courts powers, to, grant and Sri Rao's alarm is unfounded'.

In my view on the application of the above principles I will not be justified in holding that a Civil Court that has made the decree, cannot 'execute its decree and that a void; should, be created as 1 contended - for the petitioners.

15. So far I have dealt with the merits of the case and found against the petitioners. I now propose to examine whether these are fit cases in which this Court should exercise its extraordinary jurisdiction even if there is any merit in the contentions of the petitioners.

16. In the or original Proceedings, this Court had granted as much as 8 months time to the petitioners to vacate the premises, In C R., P. Nos., 984,985 and 993 of 1979 the petitioners while urging a similar ground. among various Other grounds, had stated ',before, this Court, that they would not file any further application for extension, of time if, the execution proceedings are stayed till 4-5-1979 to enable them to move the Supreme Court for review of its orders, which was not objected to by the respondent, and was, therefore, granted by this Court. After the Supreme Court rejected the review petitions this Court dismissed the said revision petitions virtually as not pressed by the petitioners. With the order of this, Court in the aforesaid revision petitions, the order made by the executing Court on 22-3-1979 has become final and binding on the parties. In these circumstances, it could be wholly unjust and inequitable, if not illegal for this Court to grant the prayer of the petitioners in these cases In my opinion the previous orders of this Court the Supreme Court and the con- of the petitioners disentitle them for any relief under Articles 226 and 227 of a Constitution, even if there is any merit of their contentions.

17. A narration of the facts and the contention urged for the petitioners reveal the, frivolous, unjust and inequitable nature of the proceedings instituted by them and persisted with unwarranted vehemence with the sole object of delaying and defeating the execution of the decrees that have become final in these circumstances, Iam of the opinion, that these are fit cases in which I should levy exemplary costs of Rs. 500/-.

18. In the light of my above discussion, I reject these writ petitions at the, preliminary hearing stage with exemplary costs of respondent No. 1. Advocate's fee Rs 500/-.

19. Let a copy of this order be communicated to the II Additional Munsiff, Hubli, within 10 days from this day.

20. Petitions dismissed.


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