1. Sri D.L.N. Rao, the learned Advocate, had appeared on behalf of the Caveator in R.S.A. No. 659 of 1984 on 21-8-1984. He undertook to appear for respondents in R.S.A. Nos. 660 and 661 of 1984 also. The Court after recording this under-taking, directed the office to show his name as appearing for the respondents in R.S.A. Nos. 660 and 661 of 1984 and further directed to post the said two appeals with R.S.A. No. 659 of 1984 and granted an order of stay in all the three appeals. Sri. D.L.N. Rao now states that he has filed his Vakalat on behalf of respondent in R.A.S. Nos. 660 and 661 of 1984.
2. Sri K.S. Savanur, appearing on behalf of the appellants in these matters and Sri D.L.N. Rao, requested that in view of the substantial question involved in these appeals being common and further in view of the fact that the Supreme Court as in Lakshmi Narayan Guin -- Niranjan Modak, settled the said question, these appeals be heard for final disposal. Hence arguments have been heard.
3. The Respondent in these three appeals is the same. She filed O.S.No. 150/1981, O.S. 149 of l981 and O.S.No. 151 of 1981 for ejectment of the appellants from the premises, concerned as the Karnataka Rent Control Act, was not1. : 2SCR202 applicable at that time. A common judgment was passed by the Principal Munsiff, Hospet on 1-10-1983 decreeing the suits. The present appellants preferred Regular Appeal No. 37, Regular Appeal No. 36 and Regular Appeal No. 38 of l983 respectively against the said Judgment and decree in the Court of the Civil Judge, Hospet. During the pendency of the appeals, the Karnataka Act No. 17 of 1983 amending the provisions of the Karnataka Rent Control Act, came into force with effect from 31st Dec. 1982. By virtue of theamendment Schedule II referred to under Section 2(3) of the Act was also amended. Because of this amendment Parts IV and V of the Act were made applicable to the areas within the limits of the Town Municipalities also. Part V of the Act commences with Section 21 of the Act, which provides protection to tenants against eviction. This subsequent change in the law led to an argument before the Civil Judge that Section 21 not being retrospective in itsoperation, the Civil Courts continued to have jurisdiction to deal with such suits and pass decrees for eviction particularly when the suits had been instituted when Parts IV and V of the Act were not made applicable to such areas.
4. The learned Civil Judge has stated in paragraph 13 of his judgment that the suit properties are admittedly situated within the T.B. Dam Area, which falls within the Municipal jurisdiction of Amaravati Town. He has proceeded on the undisputed position that in view of the aforesaid amendment parts IV and V of the Act were made applicable to the area in which the suit properties are situated with effect from 31-12-1982. It is hereby made clear on 31-12-1982 the suits were still pending on the file of the Principal Munsiff, Hospet as; the Principal Munsiff, Hospet, has disposed of these suits by his common judgment and decree dated 1-10-1983.
5. It is also seen that this Act was published in the Karnataka Gazette Extraordinary on 18th July, 1983. It appears that this position of the change in law had not been brought to the notice of the Trial Court and that it was taken up for consideration only in the appellate Court.
6. The learned Civil Judge, has in the course of his Judgment referred to three decisions rendered by this High Court. The first decision referred to is Parvathi Bai v. Damodar Anant Hegde, 1965 (1) Mys L.J. 100. This decision has been rendered by a Single Judge. It has laid down that Section 21 of the Mysore Rent Control Act, is not retrospective in operation. The next decision referred to isBheemappa Hanumanthappa v. Nagaraj alias Shivanagappa, 1966 (1) Mys L.J. 664. This decision is rendered by a Division Bench. But in the said decision the question on hand has not been specifically settled. The last decision referred to by the Learned Civil Judge is A.V. Ibrahim v. Mandepanda Cariappa, 1971 (1) Mys. L.J. 453. It has been laid down as follows.:
'Proceedings instituted and pending in Courts prior to the extention of Parts IV and V of the Mysore Rent Control Act, 1961 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 the Courts having the power to hear appeals fromthose orders and decrees, as if Parts IV and V of the Act have not been extended to the area.Section 21(1) of the Act does not bar further proceedings in such pending suits going on in those Courts-'
It has also laid down as follows :
'The question whether Section 21 of the Act can be taken into consideration by the Court while making a decree in such pending suits left open.'
It is relying on these decisions the Learned Civil Judge has dismissed the appeals.
7. One decision rendered by a Division Bench of this Court has not been brought to the notice of the learned Civil Judge. That decision is U.F.M. Manju Ramakrishna Naik v. U.F.M Umesh Sridhar Shanbagh, ILR (Karnataka) 1977 (2), 997. This decision has been rendered on 15th April, 1977 while the earlier Bench Decision in 1971(1) Mysore Law Journal 453 was rendered on 22-4-1971. The decision in Shah Bhoja Raja's case, : 2SCR159 has been referred to in U.F.M. Manju Ramakrishna Naik's decision. The question now on hand has been specifically dealt with. It has been held as follows :
'The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub-section applies equally to suits pending when Part IV and V conies into force and those to be filed subsequently. Theconclusion must follow that the present suit cannot be decreed in favour of the respondent. The Courts below have no jurisdiction to decree the suit.'
Note : The sub-section referred in sub-section (1) of Section 21 of the Karnataka Rent Control Act.
In the said decision, the respondent filed a suit seeking a decree for possession of a shop situated in Honnavar town on 5th November 1962. At the time of instituting the suit parts IV and V of the Karnataka Rent Control Act, 1961, were not applicable to Honnavar. During the pendency of the said suit, from 1st June 1963 the provisions were extended to that area. After such amendment, the defendant contended that suit was not maintainable in the face of the express provisions enacted in sub-section 1 of the Section 21 of the Act. The Trial Court rejected the plea. On appeal the same was confirmed.
8. I am certain that if this decision had been brought to the notice of the learned Civil Judge, the learned Civil Judge would have proceeded to follow this decision.
9. The Supreme Court has in Lakshmi Narayan Guin v. Niranjan Modak while dealing with Section 13(1) and (6) of W.B. Premises Tenancy Act (12 of 1956),which is analogues to Section 21(1) of the Karnataka Rent Control Act, took the following facts into consideration. A decree for eviction had been passed by the Trial Court against the tenant under theprovisions of the T.P. Act. A statute giving protection to the tenants against eviction came to be extended to the concerned area, during the pendency of the decree for eviction, The Supreme Court held that change in law pending an appeal should be taken into account. Therefore, Section 13(1) of the Act could be invoked by a tenant against the Trial Court decree. The decree for eviction had been passed by the Trial Court and confirmed in appeal. The High Court set aside the decrees after allowing the second appeal filed by the tenant and dismissed the suit. The decree passed by the High Court was affirmed by the Supreme Court in the said decision. It is to be stated that the law laid down by this Court in U.F.M. Manju Ramakrishnanaik v. U.F.M. Umesh Sridhar Shanbagh, is the correct position in law in view of the Supreme Court having settled the question as stated above.
In the result, these appeals succeed. Hence the appeals are allowed. The Judgments and decrees passed by the two Courts below are set aside. The three suits filed by therespondent are dismissed.