1. This Civil Revision Petition, filed under Section 50(1) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the 'Karnataka Act'), has come up for disposal, before this Court, in view of the order of reference made by the learned Single Judge of this Court, on 18th November 1982. The order of reference states that the question for consideration is whether the legal representatives of the deceased tenant, in the case of anon-residential permises, have a right to prosecute the proceeding? Further since other cases involving the same question had been already referred to the Division Bench reference in this case became necessary.
2. The schedule premises is a non-residential one. One K. Abdul Subhan was running his business in glass-ware. The owner of the property appears to have bequeathed the property in favour of one Muddaveerappa, whose younger brother is one Chikkaveerappa. As Muddaveerappa is an insane person, Chikkaveerappa acted as his guardian. Chikkaveerappa sold this property to the respondent A. K. Sathyanarayana Setty, after obtaining permission of the District Judge, Bangalore, in Miscellaneous Case No.33 of 1971, in view of the provisions of the Hindu Minority and Guardianship Act. Respondent filedOriginal Suit Number 2387 of 1974 against Sri Subhan for recovery of rent. That was decreedon 27-11-1977. Regular Appeal Number 16 of 1978 was filed by Sri Subhan as against the said decree. That was disposed of on 5-12-1980, as per the certified copy of the judgment produced by Sri S. P. Shankar, learned counsel for the petitioners, for our perusal. One of the contentions raised by Sri Subham was that Chikkaveerappa had no right to alienate the property and therefore the respondent had not become the owner of the property, and as such there was no relationship of landlord and tenant between them. The trial court raised the following two issues :
'1. Whether the plaintiff proves that he is entitled to recover the suit amount from defendant as arrears cf rent as prayed for?
2. Do the defendants prove that they are not tenants of the suit property under the plaintiff?'
Issue Number 1 was held in the affirmative and issue No. 2 was held in the negative. In Regular Appeal Number 16 of 1978, the appellate court framed the following point also forconsideration.
'Whether the plaintiff has proved the relationship of landlord and tenant in respect of the schedule property between himself and the defendant ?'
The appellate court recorded an affirmative finding on this question. The respondent filed an eviction petition invoking clauses (a), (h) and (j) of the proviso to Section 21 (1) of the Karnataka Act against Sri Abdul Subhan, in H R C. No. 991 of 1975. He contended, in short, that he is running a wholesale business in pulses in a rented premises in Mamulpet where the suit schedule property also is situated, that premises isinadequate for him to run and expand his business and because of that reason he purchased the schedule premises to demolish and reconstruct it and start his business in the premises soreconstructed. He has made it clear in his petition that he required the schedulepremises reasonably and bonafide for the immediate purpose of erecting a new building in the place of the existing building and further the same is reasonably and bonafiderequired for his own occupation. We consider it appropriate to reproduce at this stage, what he has, in this behalf, averred in his petition.
'4 The petition schedule premises are reasonably and bonafide required by the petitioner for the immediate purpose of erecting a new building in the place of the existing building and the petitioner reasonably & bonafide requires the premises for the occupation of himself'
He has further on in para 6 of his petition, averred as follows:
'....the petitioner bonafide requires the premises for the immediate purpose of erecting a new building by demolishing the existing building and that petitioner would be occupying the construction to be erected....'
He has of course adverted to some other facts relating to issue of notice and so on in the petition.
3. Abdul Subhan, the respondent in the said petition, filed his statement of objections putting forth the very contentions, he had put-forth in Original Suit Number 2387 of 1974. He . also contended that Chikkaveerappa had earlier filed an eviction petition against him and had failed and therefore therespondent had been set up and further that the respondent did not reasonably and bonafide require the schedule premises for the purpose of immediate demolition and reconstruction; and also ior his occupation of the reconstructed premises. Abdul Subhan expired on 18-2-1976. That is during the pendency of the petition, in the trial court. Respondent-landlord filed I.A. No. 3 dated 27-2-1976, supported by his affidavit, praying that the present petitioners be brought on record, as the legal representatives of the deceased Abdul Subhan. If is evident that this application has been filed by virtue of the provisions in Section 51 (1) of the Karnataka Act. The petitioners were brought on record. They filed objections to I.A. No 3 They also filed their additional objections. The sum and substance of their objection is only reiteration of what Abdul Subhan had put-forth. It is, in our opinion, necessary to note at this stage that, in the affidavit filed by the respondent in support of LA. No. 3, he has clearly stated that there wasdevolution of estate in favour of the legal representatives of the deceased Abdul Subhan. We may observe, at this stage itself, that we are not binding down the respondent to this statement if such astatement is not, in fact, acceptable in law.
4. In the trial court, the respondent examined himself, produced certain documents, mainly the plan submitted by him to the Corporation of theCity of Bangalore, in regard to the new construction proposed to be put up by him and the licence granted by the Corporation, and so on. He also examined another witness P.W-2 Venkatachalapathy Setty, a consulting engineer. The petitioners examined three witnesses in support of their contentions.
5. The trial court has held after considering the case of the respondent, as falling within the ambit of Clause (h) of proviso to Section 21 (1) of the Karnataka Act on the ground that therespondent had satisfactorily established that he reasonably and bonafide required the schedule premises for his personaloccupation. Having concluded so, the trial court has clearly expressed in the course of its order, which is impugned, that in view of this conclusion there was no need for it to go into the question, that arises by virtue of Clause (j) of proviso to Section 21(1) of theKarnataka Act. The trial court, after recording so, has further on recorded a ridingas follows, at the end of para No- 11 :
'Therefore, I am of the opinion that the petitioner is successful inestablishing that his requirement to reconstruct this building is not only bonafide but is also reasonable for the court to grant the same.'
It has of course entered into the question of comparative; hardship and recorded its conclusion in favour of the respondent.
6. In paragraph-13 of the impugned order which is the last paragraph, the trial court has adverted to Section 3 (r) of the Karnataka Act which defines 'tenant' in the Karnataka Act and expressed that the legal representatives of a tenant who dies during the pendency of the proceedings, have no right to contest the petition.
7. Sri V. Tarakaram, learned advocate appearing on behalf of the petitioners, while arguing on merits, contended that in view of what the trial court has expressed in paragraph-13 of the impugned order, it is clear, that the trial court hasapproached the case with biassed mind and as such the findings are vitiated. We are not much impressed by this reasoning because we find from the order impugned that the trial court has, in the first instance, proceeded to analyse, appreciate and weigh the evidence adduced by the parties including the petitioner's at then come to the conclusion. We have no hesitation in holding that what the trial court has expressed in paragraph 13 of its order is by way of providing additional reasoning to support its conclusion in favour of the respondent.
8. As already pointed out, the premises in question is undisputedly a non-residential one, It was originally let outby the then owner to Abdul Subhan, whose legal representatives are the petitioners. Abdul Subhan expired during the pendency of the petition in the trial court. The petitioners were brought on record as legal representatives of Abdul Subhan, without any objection on either side. The petitioners not only took the very contentions put-forward by the deceased Abdul Subhan, but also buttressed them by filing additional statement of objections on their behalf. This situation takes us to the question of law with reference to the definition of 'tenant' in Section 3(r) of the Karnataka Act.
9. Section 3 (r) of the Karnataka Act reads as follows :
'3. Definitions: In this Act unless the context otherwise requires :-
(r) 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, car stand or slaughter-house or of rents tor shops has been framed out or leased by a local authority.'
We are not really concerned with that part of the definition which excludes certain categories from the definition of 'tenant'.
10. Plain reading of this provision makes out that three portions are contained in it. They are as follows :
(i) any person by whom or on whose account rent is payable by him, including -
(ii) surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant ; and
(iii) a person continuing in possession after the termination of the tenancy in his favour.
We do not encounter any difficulty in holding that a person satisfying the requirements of any of these three portions of the definition of 'tenant' becomes a tenant under the provisions of the Karnataka Act. Further on, there is no difficulty in noticing that only the second portion noted above deals with what is to happen on the death of a tenant.
11. In the decision in S.P. Hamidsha Chandshawala v.. Seshagiri Bhiku Pai and others, 1973 (1) Mysore Law Journal, 127(1) the second portion of the I definition came to be considered. Stress was laid on the word 'living' occurring in the second portion of Section 3(r) of the Karnataka Act. It was held that that portion of Section 3 (r) applies only to residential premises and not to non-residential premises.
12. As we are, in this case, concerned only with the non-residential premises and the contention that the legalrepresentatives of a tenant dying during the pendency of an eviction petition have no right to contest the petition or prosecute a revision petition, we do not, at this stage, consider it necessary to go into this aspect of the matter viz., whether the second portion of the definition relates only to residential premises.
13. The premises concerned in the said decision was a non-residential premises where a tea shop was being run. It was further held, in the said decision, that in view of the principles laid down by the Supreme Court in Anand Nivas Private Ltd., v. Anandji Kalyanji Pedhi and others, : 4SCR892 a statutory tenant has only a 'personal' right to remain in possession and he cannot enforce the terms of original tenancy and therefore no interest in the property would be vested in him and as such, his legal representatives would not have any interest in themselves, as having evolved on them on the death of the tenant and there-fore they would not be entitled to contestthe petition. Sec. 51(1) of the Karnataka Act was taken into consideration, to hold that on the death of a tenant during the pendency of an eviction petition, a landlord can continue the proceeding by bringing the legalrepresentatives of such a tenant on record, and therefore the landlord would be entitled to an order of eviction as there would be no right to contest in law available to the legalrepresentatives
14. This decision has been unheld in the decisions in Sundarraj M.V.by L.Rs -v.- Kamalamma, 1975 (2) Karnataka Law Journal, 459, Vishnu Narain -v.- Paplal Baldev & others, 1978 (1) Karnataka Law Journal, 212 and Lakshmi Hardware Stores & another.-v.- G. V. Srikantayya & another, 1983 (2) Karnataka Law Journal, 161. In all these decisions, the premises concerned happened to be non-residential premises.
15. As already made clear by us, in one of the preceding paragraphs, we do not consider it necessary to go into the question, whether the second portion of the definition of 'tenant' in Section 3 (r) of the Karnataka Act applies only to-'residentialpremises'. The question that really arises for our consideration is, whether on the death of a tenant of a non-residential premises any estate devolves on his legal representatives. In other words whether a tenant of a non-residential premises has any interest in the premises i.e., the property, so as to bring about application of devolution of estate in favour of his legal representatives, on his death.
16. As already pointed out, the decision in Hamidsha's case (1) is based on the decision of the Supreme Court in Anand Nivas case (2). The Bench which rendered this decision, was adorned by three learned judges of the Supreme Court. One learned judge rendered a dissenting judgment. Provisions in Sections 12(1), 13, 14 and 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as the 'Bombay Act') came up for consideration by the Bench, The premises in question was part of a building named 'Anapd Bhavan' in the town of Ahmedabad, which had been granted by the trustees of the trust viz., 'Anandji Kalyanji Pedhi' to one Maneklal, for five years, commencing from March 5, 1950 Their Lordships did not go into the question, whether Section 5(11), particularly Section 5(11)(c), wherein the word 'tenant' is defined under the Bombay Act, applies only to residential premises. The Supreme Court laid down, that a person remaining in possession, after the termination of tenancy, becomes a 'statutory tenant' and therefore he has only a right to remain in possession and it does not confer any interest in the property. This decision was relied upon in the decision in Calcutta Credit Corporation Limited And Another -v.- Happy Homes (Private) Limited., : 2SCR20 , Three learned Judges of the Supreme Court adorned this Bench. Again, in the decision in J. C. Chatterjee and others.-v .- Shri Sri Kishan Tandon And Another, : 1SCR850 the decision in Anand Nivas Case (2) came to be relied upon. This time, the Bench was adorned by two learned judges of the Supreme Court.
17. The decision in Anand Nivas case (2) and the decision in J.C. Chatterjee and Others (7) came to be considered, in thedecision in Damadilal and Others -v .- V. Farashram And Others, : AIR1976SC2229 . Three Learned Judges of the Supreme Court adorned this Bench. The Bench was considering the question, whether a tenant, as per the definition of the Madhya Pradesh Accommodation Control Act (hereinafter referred to as the M. P. Act) is in fact a statutory tenant and therefore has only a right to remain in possession and further whether he has any interest in the property so as to make it heritable in law. It is in our view necessary to narrate the salient facts of the case.
18. Damadilal, Sheo Prasad and Tirath Prasad, who were the members of the Hindu Joint Family, brought a suit for ejectment against their tenants Begamal and Budharimal under Clauses (a) and (f) of Section 12(1) of the M.P. Act in respect of anon-residential premises wherein Begamal and Budharmal were running business. Clauses (a) and (f) of Section 12 (1) of the M. P. Act read as follows :
'Sec. 12. Restriction on eviction of tenants :-
(1) Notwithstanding anything to the contrary contained in any other law or contracts no suit shall be filed in any Civil Court against a tenant for hiseviction from any accommodation except on one or more of the following grounds only, namely.
(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date of which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;
xx xx xx(f) that the accommodation let for non-residential purposes is required benefice by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit theaccommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.'
At this stage itself, in our opinion, it is convenient to quote Section 2(1) of the M. P. Act, laying down one of the definitions of 'tenant' in the Act. It is as follows:
'......a person by whom or on whose account or behalf the rent of any accomodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made'.
It is necessary to note that the 'tenant' defined in the last category in theafore-mentioned definition is in paramateria with the third portion in Section 3(r) of the Karnataka Act,
19. To continue the salient facts in Damadilal's case, : AIR1976SC2229 , that the suit was dismissed by the trial court. The two landlords preferred an appeal and the appellate court allowed the appeal The two tenants preferred a second appeal in the High Court. One of the tenants viz. Budharmal died on or about January 27, 1966, during the pendency of the second appeal. His legal representatives were brought on record and substituted in his place without objection. The High court allowed the second appeal and restored the decree passed by the trial court. The landlords took up the matter to the Supreme Court.
20. As we are concerned with only one question of law, which we have enunciated, we consider it appropriate, to divert to the contention raised before the Supreme Court, in regard to that question of law only. The proposition was, that Begamal and Budharmal both of whom had no heritable interest in the demised premises, and on their death right to prosecute the appeal in the High Court had not survived to their legal representatives. The Supreme Court, after taking into consideration, the decision rendered earlier by the Supreme Court in Anand Nivas case(2) and J.C. Chattarjee's case, : 1SCR850 and also the aforementionedprovisions of the M. P. Act has kid down as follows in paragraph 11 of the decision.
' We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what is rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed however that with thedetermination of the tenancy the estate must necessarily disappear and the statute can only preserve his status ofirrevocability and not the estate he had in the premises in his occupation. It is not possible to claim that the 'Sanctity' of contract cannot be touched by legislation. It is therefore necessary to examine the-provisions of the Madhya Pradesh Accommodation Control Act, 1961, to find out whether the respondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.'
It is in this connection that the Supreme Court took into consideration the definition of 'tenant' in the M.P. Act, as found in Section 2(1) of the Act. It has already been excerpted. We have also pointed out that the last portion in the afore-mentioned definition is inparamateria, with the third portion of the definition of tenant in Section 3(r) of the Karnataka Act, so far as it relates to a person continuing in possession after the termination of histenancy. It is this part of the definition that has been taken into consideration by the Supreme Court, as is clear from what the Supreme Court has held in paragraph-12 of the decision immediately after excerpting the definition Clause 2(1) of the M. P. Act. It is as follows :
'The definition makes a person continuing in possession after thedetermination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.'
(Underlining is ours)
An attempt was made to argue that the afore-mentioned decision of the Supreme Court, lays down the law so far as the definition of the tenant as found in the M. P. Act is concerned and is not applicable to the definition in Section 3(r) of the Karnataka Act. We do not see any force in this contention because the Supreme Court was considering the question where a person continued to be in possession, of the premisesconcerned, after the termination of the tenancy, when the said person was made a tenant by the said statute in Section 2(1). Though it amounts to repetition, we point out here again that the third portion of Section 3 (r) of the Karnataka Act defines such a person as tenant. Therefore such persons become tenants in view of this provision in the concerned statute. When that is so, all the tenants so made tenants by the definition clauses in the particular statutes will be tenants because they are made to be tenants by the statutes. When the third portion of Section 3(r) of the Karnataka Act is inparameter with what has been considered by the Supreme Court in Damadital's case, : AIR1976SC2229 it has to be held that such a tenant will be a tenant on par with a tenant under a contract and the incidents of such a tenancy and a contractual tenancy will be the same. Therefore, it follows, that a person who is a tenant under the first portion of Section 3(r) of the Karnataka Act as well as second and third portion of Section 3(r) of the Karnataka Act will have the same incidents which a tenant under a contract has.
21. This position will be made more clear, when an illustration is taken into consideration, particularly applying theprovisions of the Karnataka Act. Part-II of the Karnataka Act deals with lease of buildings. This Part commerce's with Section 4 and ends with Section 13 of the Karnataka Act. This part provides for intimation of vacancy to the Rent Controller by the landlord, and making the same incumbent and also for the actions to be taken by the Controller regarding vacant premises and allotment of the same, to persons applying for allotment. Section 10 is worthwhile noting. It lays down, that on the service of an order of allotment made by the Controller, the person, to whom the premises has been allotted, shall be deemed to be a tenant of the landlord, with effect from the date on which the possession of the building is delivered to such authority or person, that too, at the rate of rent specified in such order, the other terms of tenancy being such, as may be agreed upon between the land-lord and the tenant or in default of an agreement, as may be determined by the Controller.
22. In the case on hand, there are no such agreed terms of tenancy, between respondent and Abdul Subhan. This is not a premises allotted to Abdul Subhan by the Rent Con roller. It is not a case of any of the parties that the premises was allotted to Abdul Subhan, by the Rent Controller. Therefore, there are no terms available as determined by the Rent Controller. But, it is important to note, that anallotte, of a premises is, in law, deemed to be a tenant of the landlord, with effect from the date of delivery of possession of the building. That necessarily means, that this provision adds to the definition of tenant, in Section 3 (r) of the Karnataka Act, making such an allottee also a tenant. As already pointed out, Section 4 of the Karnataka Act makes it incumbent on every landlord to report the vacancy of a building to the Controller. Further on, it provides, that any landlord who contravenes this provision shall, on conviction be punishable with fine, which may extend to Rs.1000/-. Proviso to Section 2(2) of the Act lays down that Parts 11 and III of the Karnataka Act, shall not apply to any building constructed after 1st August 1957, for a period of five years from the date of construction of such building.
23. We may now proceed to narrate the illustrative facts. 'A' constructs a non-residential building in Bangalore. He leases it out to 'B' on entering into a contract with him. 'A' requires the premises reasonably and bonafide for his personal occupation viz., to run his own business, during the subsistence of the contract. He files an application for eviction invoking Clause (h) of proviso to Section 21(1) of the Karnataka Act; in view of the non obstante clause, which removes the impediment of the subsisting contract from his way. During the pendency of such an application, the tenant 'B' dies and his legal representatives are brought on record. In view of the provisions contained in Part-II, particularlySections 4 and 10, and Section 2 contained in Part-I of the Karnataka Act, it follows, that in law, the contract entered into by 'A' and 'B' was not unlawful, being a contractual tenancy, interest in the property passed on to the legal representatives of lessee. This is a well settled principle Therefore, when 'B' dies during thependency of the eviction petition, he dies having an interest in the property which passes on to his legal representatives. This is one of the incidents of the contractual tenancy. Therefore, it cannot, by any means, be permitted to be contended, that there won't be any devolution of an interest, in the estate, after the death of 'B' in favour of his legal representatives ; it cannot be held otherwise, because 'B' also satisfies the definition of the tenant appearing in the first portion of Section 3 (r) of the Karnataka Act. There-fore, the understanding of incidents of such a tenant, defined under Section 3 (r) of the Kamataka Act, will have to be, on the principle laid down by the Supreme Court, in the case ofDamadilal and others, : AIR1976SC2229 . If not a serious anomaly will have to be countered.
24. In the decision in V. Dhanapal Chettiar -v .- Vasodai Animal, : 1SCR334 a seven member Bench of the Supreme Court has laid down, while dealing with the question of issue of noticeterminating the tenancy as per the provisions of Section 106 of the Transfer of Property Act, that it is unnecessary and a mere surplusage to say that a notice of termination of the lease or tenancy should be issued when a landlord brings an action for eviction under the provisions of the Rent Acts of this country. Further on, in paragraph-6 of the said decision, the Supreme Court has held as follows :
'In many cases the distinction on between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by elaborate discussion, in your opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap hisrelationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law.'
25. The statement of Jaw relating to the tenant so enjoying all the rights of a lessee, as available in the above cited excerpt, particularly with reference to the distinction between thecontractual tenant and the statutory tenant, as adverted to by their lordships, is the same as laid down in Damadilal's case(8).
26. On the question whether the law laid down by the Supreme Court in Anand Nivas case(2) or the law laid down in Damadilars case(8), so far as it deals with the above concerned principle of law, we have to hold, that the law laid down in the decision in Damadilal's case(8), which is a later decision, is binding on this court, in view of the full Bench decision of this Court in Govinda Naik G. Kalaghatigi v. West Patent Press Co. Ltd. and other, : AIR1980Kant92 .
27. In view of this position, we are clearly of opinion, that there is no need to consider the decision rendered by a learned Single Judge of this Court in the decision in Sunder Raj M. V. by L. Rs v. Kamalamma, reported in 1975 (2) Karnataka Law Journal, Page 459, as the same has been rendered prior to the Supreme Court ruling which is reported in : AIR1976SC2229 .
28. This takes us to the decision of the learned Judge of this Court in the decision in Vishnu Narayan V. Paplal Baldev & Ors (4). The facts concerned in this decision are that an order of eviction had been passed against a tenant of a non-residential premises. That tenant had preferred an appeal in the Court of the District Judge, Belgaum, in H. R. C. Appeal No. 75 of 1972. It may be noted here that at that point of time, right of appeal was provided by the statute. The tenant expired during the pendency of the appeal. The legal representatives of the tenant came on record. The Additional District Judge held that the legal re presentives of the tenant could not be allowed to contest the proceeding on merits and in that view dismissed the appeal. His order is dated 19-4-1975, that is prior to the decision of the Supreme Court in Damadilal's case(8) This Court held that the only point to be considered was whether it was competent for the legal representatives of the deceased tenant, against whom a decree had been passed, to contest the proceedings on merits.
29. In the decision in question, reference has been made to the decisions in S.P. Hamidsha's case(1) and Sundar Raj's case(3). It was contended by the learned counsel appearing on behalf of the legal representatives that in view of the decision of the Supreme Court in Damadilal's case(8) the legal representatives had a right to contest the appeal and the Additional District Judge was not right in law to dismiss the appeal on that score. This contention has been rejected on the following reasoning appearing in paragraph-4.
'The learned counsel appearing for the revision petitioner, however, invited my attention to a ruling of the Supreme Court in the case of Damadilal -V.- Parasharam(A.I.R. 1970 S.C. 2229). Therein their Lordships of the Supreme Court, discussing the provisions of M. P. Accommodation Control Act, have observed that the concept of Statutory tenancy prevailing in England cannot be bodily lifted into the provisions of our Act and that the meaning of the term should be understood in the light of the provisions made in the Legislation in our country. The provision of the M.P. Accommodation Control Act, defining the term 'tenant' is quoted in the decision. That does not provide for transmission of the statutory tenancy as such. In the Karnataka Act, Section 3(r) defines the term 'tenant' and inter alia it provides for the transmission of the statutory tenancy. It states 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family upto the death of the tenant. It positively states that only the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family is entitled to the protection of transmission. It clearly excludes a non-residential premises. That being so, the ruling of the Supreme Court cited before me would not in any way help to further the case of the Revision Petitioner.'
30. What has been overlooked is, in our opinion plain; that in the M. P. Act, with which the Supreme Court was concerned in Damadilal's case (8) no provision, for transmission of tenancy in regard to non-residential premises has been made. In the Karnataka Act also no provision for transmission of tenancy in regard to the non-residential premises has been made. If at all such a provision can be said to have been made, it is only with regard to the residential premises in the light of the decision of this Court in the decision in S. P. Hamidsha's case(1), which has been adverted to by the learned Single Judge in the case concerned. When that is so, the distinction Put forth does not, in our opinion, with due respect to the learned Judge, really exist. In the decision in Lakshmi devi Hardware Stores' case(5) we find that the provision in Section 3(r) and Section 51 of the Karnataka Act have been adverted to. We consider it necessary, at the outset, to quote Section 51 of the Karnataka Act. It reads as follows :
51. 'Proceedings by or against legal representatives:-
(1) 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 his legal representative.
(2) Where any application, appeal or other proceeding would have been made, preferred or taken under this Act by or against any person, such application, appeal or other proceeding may , in the event of his death be preferred or taken by or against his legal representatives.'
We may also reiterate that Section 51(1) of the Karnataka Act has been adverted to, in the decision in S. P. Harmdsha's case (1). No reference has. been made to Damadilal's case(8), in the decision in Laxtmi Hardware Stores. Even the decision of V. Dhanpal Chettiar's case, reported in : 1SCR334 , has not been adverted to. Therefore, the reasoning, found in these decisions, has necessarily proceeded on the principles available in the decisions in Amand Nivas case (2), S P. Hamidsha's case(1) and so on. Hence, we do not find it necessary to consider the reasoning contained in this decision, in relation to the principle of law, on the question whether a tenant under a Rent Act, particularly in regard to a non-residential premises, has any interest in the property so as to make that interest heritable. It therefore follows, and we so hold, that the Jaw kid down in this decision, is no longer a good law, on this question.
31. What remains to be considered is the effect of section 51 of the Karnataka Act. We have already pointed out that this provision has been adverted to in the decision in S. P. Hamidsha's case (1). The facts of the case have already been narrated by us, in one of the proceeding paragraphs in short. The reasoning on the application of the provisions in Section 51(1) of the Karnataka Act has been also stated by us in that very paragraph. To reiterate, the reasoning in our opinion, proceeds as follows; when the tenant dies during the pendency of the proceeding, the proceeding does not abate, as the landlord is enabled to bring the legal representatives of the tenant on record, because of the provisions in section 51 (1) of the Karnataka Act. When that is so the proceeding has to continue as provided in the said provisions. But when the legal representative has no interest to protect he has to suffer a decree for eviction. At the cost of repetition, we state that in this decision also the premises concerned was a non-residential premises,
32. Plain reading of Section 51 (1) of the Karnataka Act makes it manifest that it applies to all cases of death of a person, a pending proceeding. That person may be a landlord or a tenant. In the event of such death his legal representative / representatives is enabled to continue the proceeding. If it is a death of the res-pondent, the petitioner is enabled to continue the proceeding against the legal representative of the respondent and if it is the death of the petitioner, the legal representative of the petitioner is enabled to continue the proceeding against the respondent. The law as laid down in S.P.Haraidsha's case (1) makes it appear as if Section 51 (1) is applicable only to a case in which a tenant respondent dies and that too in an eviction proceedings only. The legal representatives in Section 51 of the Karnataka Act cannot be considered so have different status, for the purpose of Section 51 (1) of the Act on the one hand and for the purpose of Section 51 (2) of the Act on the other. It goes without saying that such an understanding would be repugnant to all the principles of interpretation of statutes.
33. 'Legal representative' is not defined in the Karnataka Act. By virtue of Section 141 of the Code of Civil Procedure, the definition of legal representative available in Section 2(11) of the Code of Civil Procedure, will have to be taken into consideration. Rule 35 of the Karnataka Rent Control Rules framed in exercise of the power of the State Government under Section 59 of the Karnataka Act, makes it abundantly clear that so far as the procedure is concerned the provisions of the Code of Civil Procedure would be applicable. Rule 30 of the said rules deals specifically with bringing on record the legal representatives of a deceased person in a proceeding under the Karnataka Act. Rule 30 makes provisions of Order 22 of the Code of Civil Procedure applicable. When the position in law is such, there is no other way but to understand that a legal representative or representatives so brought on record on the death of a person, may be a petitioner or a respondent, under the Karnataka Act who will have the same status as the legal representative contemplated in general law. Therefore such a legal representative has the right to continue the proceeding at least on the basis of the averments made by the deceased whom he represents legally. That aspect of the law has been totally ignored in all the decisions rendered by this Court.
34. In this very connection, it is our considered opinion, that considerable weight has to be attached to Section 51(2) of the Karnataka Act. Plain reading of Section 51(2) of the Act, makes it crystal clear, that a legal representative has been conferred with an additional power or right, over and above that of a legal representative, in general law enjoys. A legal representative of a deceased person is, by virtue of Section 51(2) of the Karnataka Act, enabled even to make an application prefer an appeal or take any proceedings which would have been made by a deceased person, whether he be a landlord or a tenant. In other words, he can initiate or institute proceedings which the deceased tenant could have done. Certain important rights also have been conferred on a tenant by the Karnataka Act. Such rights, for the purpose of elucidation, are found in Section 14, 43 and 27 of the Karnataka Act. Incase, where a landlord has withdrawn or cut off the essential amenities in regard to a non-residential premises occupied by a tenant, a tenant has under this Act a right to move the Court under Section 43 (2) of the Act. Such a tenant could have made such an application but if he dies before he could have made such an application, by virtue of Section 51 (2) of the Karnataka Act, it is possible, for a legal representative of such a lent ant to make that application i.e., the application which the deceased tenant would have filed, in case, he were to be alive. An attempt was made to argue that Section 51 (2) while permits a legal representative to file such an application, it does not vest him with any right. The simple fact, that the legalrepresentative has the power under Sec. 51 (2) of the Act, to make an application which the deceased tenant would have filed, in case he were to be alive, shows that there is no force in this argument. That application is in exercise of the right accrued to the deceased tenant. That right is made actionable by a legal representative, because of Section 51 (2) of the Karnataka Act. In other words, that right is, in law, transmitted to the legal representatives, just as there is transmission of tenancy to the specified persons in regard to the residential premises, as found in second portion of Section 3(r) of the Karnataka Act. In none of the decisions, reordered by this court, is this aspect taken into consideration, on the reading of Section 51 of the Karnataka Act. when the position in law is so, it does not hold to reason, that a legal representative of a. deceased person is to be brought on record, particularly when the deceased is a tenant of a non-residential premises, only to be thrown out of record or taking away his right. He has a right to continue and contest the proceedings according to law. Hence we cannot agree with the principle laid down in the afore-cited decisions rendered by this Court. W e hold that the law as laid down by those decisions of this Court is no longer good law, so far as non-residential premises are concerned. Our attention is drawn to a judgment of a S. C. reported in Ganpat-badha v. Shashikant (AIR 1958 S. C. 955) and it was contended that the concept of habitability, was to be confined to residential premises, in favour of spouse, mother, father, son and daughter as provided in the second category of tenants, in 3(r) of the Karnataka Act. It was contended that Sec. 5(1 l)(c) of the Bombay Act is in para materia with Section 3(r) and therefore the said ruling concludes the matter, it is difficult to accept this contention; in the said ruling, the Supreme Court while reversing the judgment of Bombay High Court in : AIR1976Bom288 has no doubt held that the word tenant in Section 5(11)(c) of the Bombay Act is applicable to residential premises only; in coming to this conclusion one circumstance, which has weighed with the Court is the amendment introduced to the Act, providing for transmission of tenancy, separately, in respect of residential and non-residential premises. What is manifest is that the concept of habitability or transmission of tenancy is recognized in the care of Statutory Tenants, in respect of residential and non-residential premises, if it is so provided in the legislation. There is nothing in the said ruling which militates against the concept of devolution or transmission of interest, in respect of Statutory Tenancies either for residential or non-residential premises. Indeed that question was not put in issue. Admittedly there is no provision corresponding to Section 51 of the Karnataka Act in the Bombay Act. The law laid down in Damadilal's case remains unaffected What is achieved by amendment, in the Bombay Act, is ia a way contained in Section 51 of the Karnataka Act. Therefore the said decision does not affect our conclusion.
35. This takes us to the merits of the case because the petitioners viz., the legal representatives of Abdul Subhan have a right to contest and therefore have a right to prosecute this revision petition.
36 Sri B. Neelakanta, Learned Advocate appearing on behalf of the respondent-landlord contended, at the outset, that even if it is, in view of Section 51(1) of the Act, held that a legalrepresentative has a right to prosecute this revision petition, that right is circumscribed by certain limitations. He adumbrated his argument, by stating that, such a legal representatives can only request or ask the court to look into the matter, in order to find out, whether there is any lacuna in the order passed by the Trial Court and that they have no right, in law, to contend that this Court should go into the merits of the case as is done in exercise of the jurisdiction and powers under Section 50(1) of the Act. He, by way of illustration argued that if the relief prayed for by the landlord is one and the trial court has granted some other relief, the legal representative of the deceased tenant, in such a case, can point out that aspect to the Court and the Court has the power to interfere with that order. We are restricting our-selves to one of the illustrations cited by Sri B. Neelakanta before us; as it is, in our opinion, not necessary to advert to the other illustrations. That aspect will be clear, when we proceed to consider, the case on the basis of the averments and contentions of the parties.
37. We have already in detail stated in some of the preceding paragraphs as to what are the averments of the respondent-land-lord as petitioner before the trial court and what are theobjections of Abdul Subhan, the deceased tenant and as to the same contentions Put forth by the petitioners. We have also stated, how the trial court has proceeded to deal with the material placed before it while disposing of the petition filed by the respondent-landlord and granting relief to the landlord under Clause(h) of proviso to Section 21(1) of the Karnataka Act.
38. As it was contended by the deceased tenant and his legal representatives, that the respondent was not the landlord and as the Trial Court has rejected that contention, we find itappropriate, to advert to that aspect and then proceed to the other aspects. We have also shown that the same contention had been raised in Original Suit Number 2387 of 1974 and the Trial Court rejected the contention and recorded a finding in favour of therespondent and lord. One of the points raised for determination by the Appellate Court in Regular Appeal Number 16 of 1978 filed against the judgment and decree passed inO.S. No. 2387 of 1974 has been excerpted by us. In appeal also the finding has gone against the tenant Abdul Subhan and in favour of the respondent-landlord. Section 11 of the Code of Civil Procedure applies on all fours Therefore, the Trial Court, was right in rejecting this contention of the deceased tenant Subhan and further taken up by the petitioners. It is no longer open to the petitioners to contend that Abdul Subhan was not a tenant under therespondent and there was no relationship of landlord and tenant between the respondent and Abdul Subhan.
39, It is pertinent at this stage, to find out what status in law, the petitioners have, after coming on record as legalrepresentatives of the deceased tenant, of a non-residential premises; the position in law is already supplied readymade by the Supreme Court in the decision in Damadilal's case(8). The Supreme Court ultimately held in the said decision, that the legal representatives of the deceased tenant inherit the right to estate of the deceased as... in law such a right is heritable. It is on that basis, the first contention, already adverted to, was rejected. It thereforefollows, that the legal representatives, would themselves become tenants and more so in view of Section 51(2) of the Karnataka Act. Hence, it has to be further held, that it is not open to the petitioners to contend that there is no relationship of landlord and tenant between them and the respondent.
40. Though the respondent-landlord prayed for eviction of the tenant, on the averments, that he reasonably and bonafiderequired the schedule premises, for demolition and reconstruction ; and further he reasonably and bonafide required the soreconstructed premises for his personal occupation, the Trial Court has refrained from considering the questions, arising out of the application of Clause (j) of proviso to Section 21 (1) of theKarnataka Act, and granted the relief to the respondent-landlord under Clause (h) of the proviso to Section 21(1) of the KarnatakaAct. This aspect of the matter is made clear, at the commencement of paragraph-11 in the impugned order. It is to beremembered that all the averments made by the respondent-landlord had been denied and challenged by the then tenant Abdul Subhan and also by his legal representatives-the present petitioners. There-fore, the landlord was put to the strict proof of the facts averred by him In fact he has made efforts to prove the facts averred by him by examining himself and producing documents pertainingto sanction of plan by the Authorities of the Corporation of the the City of Bangalore, in regard to the building he proposed toconstruct after demolishing the same and also the documents relating to his financial ability for investing in the construction of of the proposed building. In this connection itself, the material on record in regard to the floor area of the shop premises he is occupying as a tenant and the floor area he proposes to build in the new construction for housing the shop has tobe, in our opinion, borne in mind. The material available is that the schedule premises is 17 ft x 17 ft and the shop portion of the proposed new construction measures 14 x 32ft. The evidence of the respondent landlord is to the effect that he proposed to construct a two storeyed building, ground floor measuring 14 x 32ft housing his shop, the first floor to run his office and the second floor to house the guest quarters. It is undisputed that he is in possession of a godown, wherein he has been stocking his goods. It isavailable in his evidence that the account available would show that hehad at one time or the other stocked more than thousands bags in the godown. This material leaves no doubt in our mind, that the onus is heavy on the respondent-landlord to establish his bonafides in regard to his personal occupation also.
41. As the averment of the landlord, that he requires the schedule premises immediately for demolition and reconstruction, has been denied and challenged by the tenant and then the legal representatives viz. the petitioners, and as the bonafides of the landlord in demolishing the existing structure and reconstructing the schedule premises is also challenged, he has to establish those facts and also to point out that he has produced material in proof of those facts. We make it clear that it should not be understood that we hereby mean that when a landlord prays for eviction of a tenant on the ground available to him under Clause (h) of the proviso to Section 21 (1) of the Karnataka Act and he infact intends to occupy the premises after gettingpossession of the same under Clause-(h) by demolishing the same and constructing a building according to his own taste: ingredients of Clause (j) of proviso to Section 21(1) of the Karnataka Act would in law come into operation. We are aware of the position in law that a landlord seeking eviction of the tenant under Clause-(h) ofproviso to Section 21(1) of the Karnataka Act, has also the right, after securing possession of the concerned premises, to demolishand reconstruct it and then occupy the so reconstructed building. We have clarified this position in view of the fact that SriNeclakanta brought, to our notice the decision of this Court in Smt. Rohinibai v.. Vishnuraurthy(11). This is a decision rendered by a Division Bench
42. We are pointing out here how the Trial Court ought to have proceeded in view of the contentions of the parties and the points that arise for determination. As the respondent-landlord has averred that he reasonably and bonafide requires the schedule premises for immediate demolition and reconstruction, in the first instance, and then he reasonably and bonafide requires the premises, so reconstructed, by him for his personal occupation and as the then tenant Abdul Subhan and thereafter after his legal representatives-petitioners, have also challenged those averments the respondent landlord, as already made clear, was put to strict proof of the facts particularly in, regard to his bonafides, on these two counts. The Trial Court, by refraining to go into the merits of the case to find out whether the landlord had established that he reasonably and bonafide intended to demolish and reconstruct the schedule premises, has gone on to decide only on the question of his bonafides, regarding his personal occupation, we hold that the approach of the Trial Court, under the facts and circumstances of the case, is wholly erroneous. The principle of law laid down by this Court in the a forecasted decision Smt. Rohinibai- v. - Vishnu Murthy, ILR 1980 (1) Karnataka, 340 has no application to the facts of this case. The Trial Court has failed in its duty to consider this aspect and record its finding orconclusion. Hence it has to be called upon to do so.
43. We, therefore, allow the revision petition, set aside the impugned order and remit the matter back to the Trial Court with a direction to reregister the case in its original number and dispose of the same according to law, from the stage at which it stood after the close of evidence. In case an application is madebefore the Trial Court that any party or both the parties would like to adduce additional evidence, the Trial Court isat liberty to consider such a request and then proceed to dispose of the case. No order as to costs under the circumstances.