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T. Krishnappa and anr. Vs. H. Lingappa - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1023 of 1979
Judge
Reported inAIR1982Kant58; ILR1981KAR1276; 1981(2)KarLJ225
ActsKarnataka Rent Control Act, 196l - Sections 21 (1) and 50; Code of Civil Procedure (CPC), 1908 - Sections 114 and 151
AppellantT. Krishnappa and anr.
RespondentH. Lingappa
Appellant AdvocateS.S. Javali, Adv.
Respondent AdvocateR.N. Byra Reddy, Adv.
Excerpt:
- administrative law. administrative orders: [h.n. nagamohan das, j] administrative authorities excursing quasi judicial powers, passing adverse order without evidence or basis is not sustainable and is liable to be set aside. judicial review:held, judicial review is an integral part of the constitutional system. an authority is bound to pass reasonable order. if not, interference by high court and supreme court is permissible. - v and wants the court to consider the subsequent events and consider if the respondent has failed to establish his reasonable and bona fide need treating the application as an i. it is also contended that the application filed after 166 days is clearly barred by time and is not maintainable. 5. sri javali, learned counsel appearing for the petitioner argued.....order1. the tenant-petitioner has filed i. a. v and wants the court to consider the subsequent events and consider if the respondent has failed to establish his reasonable and bona fide need treating the application as an i. a. in the petition or a c. p. and recall the order, the respondent-landlord opposed this application.2. the petitioner has also filed i. as. vii. viii and ix under o. 47. rule 2 r/w. section 151 c. p. c. for a direction to the respondent or his sons to produce the gale deeds referred to therein under which properties are acquired subsequent to the respondent applying for possession of the property leased and to receive the same as additional evidence.3. i. a. x is an application for condoning the delay in filing i. a. v. treating it as one filed under order 47, r. 1.....
Judgment:
ORDER

1. The tenant-petitioner has filed I. A. V and wants the Court to consider the subsequent events and consider if the respondent has failed to establish his reasonable and bona fide need treating the application as an I. A. in the petition or a C. P. and recall the order, The respondent-landlord opposed this application.

2. The petitioner has also filed I. As. VII. VIII and IX under O. 47. Rule 2 r/w. Section 151 C. P. C. for a direction to the respondent or his sons to produce the gale deeds referred to therein under which properties are acquired subsequent to the respondent applying for possession of the property leased and to receive the same as additional evidence.

3. I. A. X is an application for condoning the delay in filing I. A. V. treating it as one filed under Order 47, R. 1 C. P. C. In the affidavit in support of this application, the petitioner has stated that the reasons for the delay have already been set out in the affidavit supporting I. A. V. The respondent in his objection has stated that the application filed for recalling the order cannot be treated as an application under Order 47, Rule I C. P. C. The explanations given are not true and the petitioner was aware of these transactions all along. It is also contended that the application filed after 166 days is clearly barred by time and is not maintainable.

4. In I. As VII, VIII and IX the petitioner wants the respondent and his three sons to produce the sale deeds evidencing acquisition of properties subsequent to the respondent applying for the recovery of possession and before the order was made on 23-6-1980. The existence of these sale deeds is not disputed by the respondent but is admitted by him. But the dispute between the parties, according to the petitioner is that it is the respondent who has acquired these Properties while according to the respondent it is his sons who have acquired these properties and these properties do not belong to him. The petitioner has also Produced certified copies of the sale deeds. Therefore it is not necessary to look into original-sale deeds to appreciate the contentions of the parties. I. As VII. VIIJ and IX are therefore dismissed.

5. Sri Javali, learned counsel appearing for the petitioner argued that by the order made on 23-6-1980, the dispute or controversy between the parties is not completely resolved and the 'lispends' till the respondent is given relief by putting him in possession of the properties, Pursuant to the order and therefore, the Court can take into consideration an the events happening after the institution of the proceedings till the order is satisfied and determine the respondent's right for possession under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred as the Act). According to him, as long as the order for possession is not executed and his client continues in possession, the 'lispends', and it is open for the Court to annul or revise the order already made and refuse the relief of possession, if he is able to satisfy the Court that the respondent is not entitled to recover Possession under Section 21 (1) (h) and Placed reliance on P. Venkateswarulu v. Motor & General Traders : [1975]3SCR958 . The respondent according to him, has acquired properties in the name of his three sons and these properties are available for him for occupation and is therefore not entitled for the recovery of possession of the property leased to his client.

6. Sri Byra Reddy, learned counsel for the respondent, argued that the controversy or the dispute between the Parties was finally decided on 23-6-1980 and the contention that the 'lispends' till the order is executed is unsustainable In law. He maintained that the order could have been annulled, varied or modified either in an appeal by a Superior Court or by this Court on an application for review of the order and this not having been done. the order has become final and binding on the parties and this application is not maintainable, He also argued that the properties are acquired not by his client but by his sons. He submitted that the property acquired by Devasurappa has already been considered: the property acquired by Eswar is for running a lodge and not for residence, while the other premises acquired by Purushotham is in possession of the mortgagee and tenants apart from being the subject matter of a litigation and therefore no one of the premises acquired by his clients's sons is available for occup4tion. According to him, the petitioner was aware of the acquisition of these properties even when the order was passed on 23-6-1980, but he did not rely on them as these acquisitions do not in any way affect the right of the respondent for recovering possession.

7. The landlord's rights over the premises are not absolute but are controlled and regulated by the provisions of the Act. The lease of the premises the rent payable and the recovery of possession of the premises leased are all regulated by the Act. Notwithstanding anything to the contrary contained in any other law o contract, no Court or authority can Pass an order or decree for the recovery of possession of any premises in favour of a landlord against a tenant except on an application made by the landlord for the recovery of possession on one or more of the grounds under Section 21 of the Act. The landlord can apply for the recovery of possession for his reasonable and bona fide need under S. 21 (1) (h) and his establishing the ground specified under Section 21 (1) (h), he is entitled for a decree for eviction. Section 25 of the Act further provides that if the landlord after obtaining a decree for Possession under Section 21 (1) (h), fails to occupy the Premises within a period of three months from the date he recovers possession or re-lets within one year of the said date to others, then the original tenant may apply within three months of such date to the court for an order directing the landlord to put him in occupation of the premises to the original terms and conditions and on such an order being passed, the landlord is required to give vacant possession of the premises to the original tenant. The cause of action or the right of the original tenant to apply under Section 25 accrues only after the decree for recovery of possession passed' under Section 21 (1) (h) is executed and the landlord recovers possession. It only means that if the landlord recovers Possession after obtaining a decree under S. 21 (1) (h) but still does not occupy or re-lets, it is open to the original tenant to recover possession of the premises i.e. he can re-enter the Premises. The landlord is also liable for prosecution under Section 25 (2). The language of Section 25 or the scheme of the Act does not support the contention urged on behalf of the petitioner that the relationship of the landlord and tenant continues even after the decree for possession against the tenant is executed and Possession is taken by the landlord or/and the landlord should establish his right to evict the tenant under Section 21 (1) (h) even on the day he is to be put in possession of the premises.

8. It is next to be seen whether the cause of action or the 'lispends' only till the order for possession is made in the case or continues till the recovery of possession in execution of the order for possession. An order for the recovery of possession is also referred to as the 'decree for eviction', in the Act. The word 'decree, is not defined in the Act. The CPC defines a decree. A 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary, or final. When a landlord applies for the recovery of possession, the dispute or controversy is whether the landlord has proved his right for the recovery of possession of the premises leased under one or more grounds under Section 21 of the Act. The Court records its decision on this controversy or dispute on the material produced by the parties. The rights of the landlord and the tenant are concluded by this decision and the party in whose favour the decision is given is entitled to the benefits flowing from this final decision.

9. 'Lis' means a suit, action, controversy or dispute. A legal action means judicial contest or a law suit. An action, arbitration or other proceeding is said to be pending after it has commenced and before the final judgment or award has been given. Pendency is the state of being pendant and Pendente life means during litigation. (Jowitt's Dictionarv of English Law).

10. It was however argued that though the doctrine of 'lis pendens' in the T. P. Act and Order 21, Rule 102 C. P. C. is not attracted to the proceedings, under the Act, the principle underlying these Provisions clearly supports the contention that the 'lis pends' till the satisfaction of the order of eviction.

11. The object of Section 52 of the T. P. Act is to maintain the status quo, unaffected by the act of any party to the litigation pending its determination.

In the words of Turner L. J. in Bellarnv v. Sabine (1857) 1 DC G & J 566:(26 LJ Ch 797) (pD 579, 584) -

'It is . . . a doctrine common to Courts both of law and equity, and rests ... upon this foundation, - that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations Pendente life, were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree and would be driven to commence his proceedings, de novo. subject again to be defeated by the same course of proceedings.'

12. Neither party to the litigation, can. 'Pendente life' alienate the property in dispute so as to affect his opponent. The pendency of the suit or proceeding commences from the date of presentation of the plaint or the institution of the Proceedings and continues until complete satisfaction of the decree has been obtained to give effect to the object underlying this principle. Though a transfer 'Pendente life', is not void or illegal, the transferee is bound by the decree in so far as it goes against his transferor and he is bound by the result of the litigation because of the doctrine or principle of 'lis pendens'. A reading of Order 21, Rule 102 C. P. C. makes it clear that it is the principle or doctrine of lis pendens under Section 52 of the T. P. Act that is embodied in this provision of C. P. C. also.

13. This principle or doctrine that the 'lis pends' till complete satisfaction or discharge of such decree or order has been obtained Or becomes unobtainable by reason of the expiration of the period of limitation, is. already stated, only to make the alienations of immoveable property 'Pendente life' subordinate to the rights flowing from the decree or order in the suit or proceeding. This principle cannot be invoked in support of the contention that the 'lis pends' for all purposes till complete satisfaction of the order or decree is obtained or has become unobtainable. The lis or cause of action merges in the order or decree passed by the Court.

14. In Kulandaivelu v. Soubbagymmal (AIR 1945Mad 350) and Digambara Rao v. Rang Rao (AIR 1949 Bom 367) relied on behalf of the petitioner, Section 52 of the T. P. Act is considered and they are therefore of no assistance to the petitioner.

15. In Salt v. Cooper (1880) 16 Ch D 544) it is held by the Master of the Rolls that so long as the final judgment in an action remains unsatisfied the action is a 'cause or matter pending' within the meaning of Section 24 of sub-section (7), of the Judicature Act, 1873. In the Clagett's Estate, Fordhan V. Clagett's ((1882) 20 Ch D 637) also the language used in the Bankruptcy Act 1861 and the Judicature Act 1873 am considered. They are therefore distinguishable and are of no assistance to the petitioner.

16. I cannot therefore Persuade myself to accept the argument that the 'lis pends' till full satisfaction of the order or decree of eviction is obtained or it has become unobtainable. The 'lis' commences from the institution of the proceedings and continues only till the final order or decree for eviction is made by the Court.

17. In Venkateswarulu's case : [1975]3SCR958 , the Supreme Court has laid down -

'........It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject of course, to the absence of other disentitling factors or just circumstances. Nor can we con template any limitation on this power to take, note of updated facts to confine it to the trial Court..If the litigation pends, the power exists, absents other special circumstances repelling resort to that course in law or justice.............'.

18. It is clear from the above decision that the events or facts which have come into existence after the lis has commenced, have a fundamental impact on the right to relief or the manner of moulding it, if they are brought diligently to the notice of the court. The Court is required to take into consideration such facts, events or developments, subsequent to the commencement of the lis if it becomes necessary by bending the rules of procedure and give substantial justice. This Power of the Court to take cautious cognisance of events and developments subsequent to the commencement of the proceedings, exists only 'if the litigation pends'. The revision Petition challenging the order of eviction was disposed of on merit on 23-6-1980 and was not pending when I. A. V. was filed on 16-12-1980. The Court has, therefore, no power to take cognisance of the acquisitions after the disposal of the case and recall the final order already made and permit the parties to re-agitate their claims.

19. Sri Javali then argued that I. A. V. could be treated as an application for review and when it was pointed by Sri Byra Reddy, that the prayer in the application is not for review and an application for review is barred by time the petitioners filed I. A. X. to treat I. A. V. as an application for review and condone the delay in filing the said application.

20. It is true as argued on behalf of the respondent that there is no specific provision in the Act conferring power on this Court to review its order. But' the power of review is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. This Court is a Court of plenary jurisdiction and has therefore the power to review its order. (See AIR 1963 SC 1909 Shivdeo Singh v. State of Punjab).

21. The petitioners have filed I. A. V. under Section 151 C. P.C. and prayed for recalling the order made on 23-6-1980 and decide afresh whether the respondent has established his right to recover possession under Section 21 (1) (h), in view of the acquisition of some properties in the name of respondent's sons. Though the petitioners have not used the word review, in the application, the prayer is to recall the order made on 23-6-1980 and decide whether the respondent has the right to get an order for the recovery of possession under Section 21 (1) (h). The prayer in substance is a Prayer for reviewing the order. Sri Javali is, therefore, justified in requesting the Court to treat this application as one for review.

22. An application for review is required to be filed, under Article 124 of the Indian Limitation Act. 1963 within thirty days from the date of the order. This application is Med on 16-12-1980to review the order made on 23-6-1980. There is no doubt this application for review is filed beyond time and the petitioners have therefore filed L A. V. for condoning the delay in filing this application.

23. The Petitioners have to explain every day's delay covered by the Period between the last day prescribed for filing the review petition and the day on which they filed I. A. V. In the affidavit supporting I. A. X. it is stated that 1, all the reasons for the delay in filing I. A. V. have already been stated in the affidavit in support of the said I. A. V12. The reasons given for the delay in filing the application to review are these:

The respondent and his sons have nothing in common as members of the family and have been filing returns each one of them separately and exclusively. Premises No. 8 with similar accommodation has been purchased in the name of Purushotham the third son of the respondent on 1-2-1980 and the petitioners believe that possession of this premises is given to the respondent and his sons and therefore the respondent does not need additional accommodation. The respondent has acquired premises Nos. 131 to 136 in Cubbonpet main road close to the petition premises in the name of his second son Eswar under two documents on 23-2-1980 and another Premises in the name of the third son Purushotham in 12th Cross, Cubbonpet on 1-2-1980. The petitioners were not aware of these facts but on 14-10-1980 an income-tax Inspector made enquiries regarding the properties of the respondent and -asked the second petitioner to go to the office and he visited the Office the next day and only thereafter he learnt about the acquisition of the properties by the respondent in the names of his sons.

24. The respondent has in answer stated that there are no grounds for condoning the delay as the petitioners were aware of the properties being acquired by his sons, but did not bring them to the notice of the Court.

25. The second Petitioner and respondent reside in premises adjoining one another. The acquisition of premises in the name of Devasurappa first son of the respondent On 8-6-1978 after the commencement of the proceedings has been brought to the notice of the trial court and has been considered by the trial court and also this Court. Premises Nos. 131 to 136 in Cubbonpet main road are acquired in the name of Eswar -the second son of respondent under two sale deeds on 23-2-1980- This, it is stated, is purchased for running a lodge and after making necessary alterations and modifications with the Permission of the Corporation. a lodge is being run there, These things cannot be done overnight and secretly. Premises No. 8 in the 12th Cross of Cubbonpet is acquired in the name of Purushothaman - the third son of the respondent under a registered sale deed dated 1-2-1980 executed by the Commissioner appointed by the court pursuant to the decree in O. S. 477 of 1979, in the court of the II Addl. Civil Judge, Bangalore city, a suit filed for specific Performance of the agreement to sell dated 6-12-1979 in favour of Purushotham. A portion of this premises is in the occupation of the mortgage and the rest is in the occupation of the tenants. This premises is also the subject matter of litigation in O. S. 301 of 1980, in the court of the Principal Civil Judge, Bangalore city. The petitioners were naturally anxious to know whether the respondent or his sons acquired other properties and in fact having come to know the acquisition in the name of Devasurappa, brought it to the notice of the court. In these circumstances, it is difficult to believe that the petitioners were not aware of the acquisition of these properties in the name of Eswar and Purushotham immediately they were acquired or at any rate before the revision petition was heard by this Court. I have no doubt in my mind that the petitioners were aware of the acquisition of these properties also as and when they were acquired or in any event before the revision petition was heard. It is there fore not possible to accept that they came to know of the acquisition of these properties only after the disposal of the revision petition and after 14-10-1980.

26. The order dismissing the revision petition was made on 23-6-1980. This application I A. V. for review of the order should have been filed within 30 days of the date of the order but is filed only an 6-12-1980. This application. it is obvious, is not filed when the time Prescribed under Article 124 of Limitation Act. I have not accepted the case put forward by the petitioners that they came to know about the acquisition of properties only after 14-10-1980. They have failed to show any cause much less sufficient cause for the delay. The delay cannot therefore be condoned. The application for review is hopelessly barred by time. A. As. V. and X. are therefore liable to be dismissed.

27. Even if the cause shown is accepted and the delay in applying for review is condoned, it has still to be considered whether the petitioners are entitled for any relief and the order now Passed has to be reviewed.

28. The grounds urged for review of the order are that, (i) the respondent has acquired in the name of his three sons properties after the commencement of the proceedings, they are available for the respondent for occupation and he is therefore not entitled for recovering possession of the premises leased to the petitioners and, (ii) the sons, their wives and children are not members of the 'family' of the respondent as defined in the Act and therefore the respondent cannot apply for recovering possession of the petition premises to provide accommodation to persons who do not come within the meaning of the term 'family'.

29. There are limits to the exercise of the Power of review of this Court. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found: it may also be exercised by any analogous ground vide : 1979CriLJ908 .

30. As held by the Supreme Court in Northern India Caterers v. Lt. Governor, Delhi : [1980]2SCR650 -

'It is well settled that a Party is not entitled to seek a review of judgment delivered by this Court merely for the purpose of a re-hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Saijan Singh v. State of Rajesthan : [1965]1SCR933 . For instance, if the attention of the Court is not drawn to the material statutory provision during the original hearing, the Court will revise its judgment. G. L. Gupta v. D. N. Mehta : [1971]3SCR748 . The Court may also re-open its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mohindrao v. Dist. Judge. Delhi : [1971]2SCR11 ....... But whatever the nature of the proceeding it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib : [1975]3SCR933

31. The respondent applied for the recovery of possession under Section 21 (1) (h) on the ground that the accommodation for his 'family' consisting of his wife, grown up sons, their wives and children is insufficient. His need was not to provide additional accommodation for his 'family' as defined in the Act. The respondent, his two sons and their wives and children and others are residing as members of one family together is admitted by the petitioners. It was never disputed that the petition property is the joint family property and all these persons are living together as members of joint family. The decision was based on these admitted or undisputed facts that the property is joint family property and the respondent, his sons, their wives and others constituted a joint family. The respondent as the manager of the joint family holds the property on behalf of all the other coparceners and can certainly apply for the additional accommodation for the use of the joint family. On the admitted facts, the other view now sought to be projected that the respondent was not entitled for the recovery of possession for providing additional accommodation for the joint family was not possible. The petitioners did not contest the factual position. A review of the counsel's mentation (sic) cannot repair the verdict once given.

32. The contention that the sons and their wives and children do not come within the definition of the term 'family' of the respondent. the property belongs only to the respondent and therefore he is not entitled for the recovery of Possession to Provide accommodation for them was not urged in the trial court or when the revision petition was heard by this Court. The view now taken by this Court is the only view possible having regard to the admitted or undisputed facts. An error apparent on the face of the record exists if of two or more views canvassed on the point it is Possible to hold that the controversy can be said to admit of only one of them. If the view taken by the Court, in the order already made is the only possible view having regard to what the record states, it is not possible to hold that the order suffers from any error apparent on the face of the record. The order now passed, I am satisfied does not suffer from any error apparent on the face of the record.

33. The acquisition of the property in the name of Devasurappa on 8-6-1978 is already considered by the trial court and this Court. The properties purchased in the name of Eswar under two sale deeds on 23-2-1980 are in a different road altogether and are being used for running a lodge. The premises acquired in the name of Purushothaman 2-27-1980, though close by to the petition premises, is in the occupation of the mortgagee and some tenants- and is also the subject matter of litigation. Even according to the petitioners, the premises acquired under the sale deed on 23-2-1980 is in a different road and is used for non-residential purpose. The other premises acquired on 2-2-1980 which is not vacant, is the subject matter of litigation and is not available for respondent's occupation. That apart, the premises in the occupation of the petitioner, and the respondent are adjoining each other, and separated by an 'angala' and can be considered as forming one unit. It is for the landlord to choose the Premises which is suitable for his need and apply for the recovery of possession. The acquisition of these properties cannot therefore have any impact or bearing on the right of the respondent to claim possession of the premises leased or on moulding the relief to be given under Section 21 (1) (h). This supervening circumstance does not in any way assist the petitioners in resisting the respondent's claim for possession.

34. I am therefore satisfied that this review petition must fail both on the ground that it is barred by time and also on merits.In the result , I. As. V and X are also dismissed.

35. The 2nd petitioner has another premises of his own available but still resisting the respondent's claim for Possession in an attempt to delay the delivery of possession. The application, I have no doubt is not bona fide. However in order to avoid the petitioners being evicted immediately and to give them some time to shift the time now given to them to quit and deliver vacant possession of the premises, is extended till 31-7-1981.

In the circumstances of the case. parties are directed to bear their own costs.

37. Order accordingly.


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