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Onkareppa Wasappa Koloor Vs. Rachappa Gurushantappa Jagalalli and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 310 of 1962
Judge
Reported inAIR1963Mys159; ILR1962KAR809
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 9; Bombay Rents Hotel and Lodging House Rates Control Act - Sections 12, 13 and 13(1); Transfer of Property Act - Sections 55(1)
AppellantOnkareppa Wasappa Koloor
RespondentRachappa Gurushantappa Jagalalli and ors.
Appellant AdvocateV.S. Malimath, Adv.
Respondent AdvocateS.R. Rajasekhara Murthy, Adv. for Respondent 4
Excerpt:
.....in respect of the property which is governed by the provisions of the bombay rents, hotel and lodging house rates control act under another enactment like the transfer of property act, those rights are only enforceable in two separate proceedings brought for that purpose and whether they could not be combined in one and the same proceedings. far from there being any prohibition, there is, in my opinion, something in section 13(1)(a) which makes it abundantly clear that a relief which can be claimed by the plaintiff under the transfer of property act can very well be claimed even in a suit brought under the bombay rents, hotel and lodging house rates control act. that clause reads :13. (1) 'notwithstanding anything contained in this act (but subject to the provisions of section 15),..........asked for the eviction of defendant 4 was based on the provisions of the bombay rents, hotel and lodging house rates control act and that in so far as it related to defendants 1 to 3 was based on the provisions of the transfer of property act, and that the two reliefs which the plaintiff can claim under two different enactments cannot be combined in one and the same suit. very strangely, this submission made by defendant 4 appealed to the court below which directed the plaintiff to make an election. mr. malimath complains that this direction by the civil judge was entirely unnecessary and unjustified. i agree with him that it is so.5. now in this case since defendants 1 to 3 executed a sale deed in favour of the plaintiff under the provisions of section 55(1)(f) of the transfer of.....
Judgment:
ORDER

A.R. Somnath Iyer, J.

1. Whether the plaintiff's suit is bad for multifariousness is the question which arises in this revision petition which is presented by the plaintiff.

2. The property which is the subject-matter of the suit in the court below was a vacant land on which a house now exists. After that house was constructed, on March 11, 1957 the entire property was sold to the plaintiff, according to him, by defendants 1 to 3. Defendant 4, according to the sale deed, was a tenant of the property and the sale deed contained a recital that possession should be delivered to the plaintiff by defendant 4 after the expiry of a period of one year. Defendant 4 was, however, not a party to the transaction, and after the expiry of a year when the plaintiff found it difficult to obtain possession from defendant 4, he brought a suit for recovery of possession and in the plaint he stated that the suit was brought for the enforcement of the covenant in the sale deed that possession should be delivered to him after the expiry of a year from the date of the sale deed. Defendant 4 who admits that he is a tenant of the house repudiated the pale transaction and characterised the sale in favour of the plaintiff as 'illegal and void'. Defendants 1 to 3 pleaded that the sale was a 'hollow' sale.

3. Issues 1 and 4 are the material issues. The first issue is whether defendants 1 to 3 prove that the sale is hollow, and the fourth issue is whether defendant 4 proves that the sale is illegal and void. After these issues were framed, defendant. 4 asked the Court to direct the plaintiff to confine his suit to only some of the reliefs prayed for by him, and be asked this direction to be made on the ground that the suit is bad for multifariousness.

4. What was urged before the Court below was that the suit in so far as it asked for the eviction of defendant 4 was based on the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act and that in so far as it related to defendants 1 to 3 was based on the provisions of the Transfer of Property Act, and that the two reliefs which the plaintiff can claim under two different enactments cannot be combined in one and the same suit. Very strangely, this submission made by defendant 4 appealed to the Court below which directed the plaintiff to make an election. Mr. Malimath complains that this direction by the Civil Judge was entirely unnecessary and unjustified. I agree with him that it is so.

5. Now in this case since defendants 1 to 3 executed a sale deed in favour of the plaintiff under the provisions of Section 55(1)(f) of the Transfer of Property Act, the plaintiff had a right to insist upon defendants 1 to 3 delivering possession of the property to him after the expiry of the period of a year referred to in the sale deed. It is clear that the decree sought by the plaintiff against defendants 1 to 3 rests upon this statutory right which is available to him by reason of the sale deed executed in his favour. It is equally clear that the decree for eviction which the plaintiff wanted to be made against defendant 4 rests on the provisions of Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The ground on which the plaintiff wanted that decree for eviction to be made was that the house was reasonably and bona fide required by the plaintiff for his own occupation.

Now although defendants I to 3 were bound under Section 55(1)(f) of the Transfer of Property Act to deliver possession of the property to the plaintiff on the expiry of the period of one year referred to in the sale deed, it is clear that the possession which the plaintiff could get is that which the nature of the property admitted. This possession which he could get from defendants 1 to 3 could not be actual physical, possession since defendant 4 was on the premises as a tenant even on the date of the sale. It is thus plain that if the plaintiff wanted to get actual physical possession of the property, he could get it only from defendant 4 and under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act. It is incontrovertible that that is what the plaintiff wanted the Civil Judge to do. He wanted a decree for such possession as defendants 1 to 3 were able to give and a decree for eviction against defendant 4 under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act.

6. The question is whether there is any reason why he should not ask for both these reliefs in the same suit. I am able to discover no reason why a plaintiff in a situation like the one in which he found himself cannot bring one suit for both reliefs.

7. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as the preamble to that Act indicates, is an Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. Part I of the Act deals with preliminary matters. Part II consisting of Sections 6 to 31 deals with the residential and other premises. Part III deals with hotels and lodging houses, and Part IV contains miscellaneous provisions. Section 13 under which the plaintiff sought the eviction of defendant 4 is in Part II. That Part contains provisions for the fixation of standard rent and also for ejectment of a tenant. Sections 12 and 13 are the two provisions under which a tenant may be ejected. Section 12 deals with a case where the tenant is in default of payment of the rent due to the landlord, and Section 13 provides for the eviction of the tenant in certain other cases.

8. The question is whether if a person has a right to a decree for eviction under Sections 12 and 13 or under either of them and is also entitled to a relief in respect of the property which is governed by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act under another enactment like the Transfer of Property Act, those rights are only enforceable in two separate proceedings brought for that purpose and whether they could not be combined in one and the same proceedings. I see no principle on which any one can say that a plaint in a suit which can be brought under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 should not ask for a relief which the plaintiff can claim under another enactment unless there is something in the Bombay Rents Hotel and Lodging House Rates Control Act prohibiting the inclusion of such claim in such suit. Far from there being any prohibition, there is, in my opinion, something in Section 13(1)(a) which makes it abundantly clear that a relief which can be claimed by the plaintiff under the Transfer of Property Act can very well be claimed even in a suit brought under the Bombay Rents, Hotel and Lodging House Rates Control Act. That clause reads :

13. (1) 'Notwithstanding anything contained in this Act (but subject to the provisions of section 15), a landlord shall be entitled to recover possession of any premises if the Court is satisfied --

(a) That the tenant has committed any act 'Contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882;'

Any other view such as the one which. Mr. Rajasekharamurthy asks me to take might lead to extremely inconvenient results. If A sells a property to B and there is a tenant C on that property, in a case like the present one, B will have to institute at least three suits for recovering possession of the property purchased by him; one would be a suit against A under the ordinary law; another against C likewise, and a third against C under a special law. Surely it is impossible for any one to sustain any such extreme proposition. In the present case, defendants 1 to 3 on the one hand and defendant 4 on the other impeached the sale deed executed in favour of the plaintiff as an enforceable document. The substance of the contention raised by these two sets of defendants was, in my opinion, almost the same. Why the plaintiff should institute one suit against defendants 1 to 3 and another suit against defendant 4 for the enforcement of his right to possession under the sale deed, is what I do not find easy to understand.

Then again why if a suit could be brought against defendants 1 to 3 and defendant 4 for possession if the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 had not been enacted, a third suit should be brought against defendant 4 under that enactment for working out the rights conferred on the plaintiff by Section 13(1)(g), is difficult to understand. It seems to me that in a case like this, it would be very convenient for all the parties that all the questions arising in the suit should be tried in one and the same proceeding.

The first question to be decided would be whether the sale deed on which the plaintiff depended records a valid sale, and if that issue is held in favour of the plaintiff, the second would be whether the plaintiff requires the premises for his own bona fide occupation and whether a decree for eviction against defendant 4 should be made. It would be, in my opinion, extremely unreasonable to insist upon the plaintiff bringing two separate sets of suit for that purpose which would only result in dilatoriness and delay. In my opinion, far from there being any multifariousness in the suit, it is the order of the court below which will result in multiplicity of proceedings.

9. This revision petition is allowed, the order made by the Court below is set aside and a direction is issued to it that it should now try the suit and dispose of it on merits and according to law after recording findings on all the issues framed in the case.

10. The costs of this revision petition will be costs in the cause and will abide the eventual result in the case.


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