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Shiva Rao Vs. Cecilia Pereira - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 2301 of 1984
Judge
Reported inILR1985KAR2304; 1987(1)KarLJ182
ActsKarnataka Rent Control Act, 1961 - Sections 21(1); Code of Civil Procedure (CPC) , 1908 - Order 21
AppellantShiva Rao
RespondentCecilia Pereira
Appellant AdvocateK.R.D. Karanth, Adv.
Respondent AdvocateB.V. Acharya, Adv. for R1, 3 and 5
DispositionRevision petition dismissed
Excerpt:
.....is made operative by bringing it into force. a court or an authority cannot make an order or a decree for recovery of possession of a premises in favor of a landlord against the tenant because of the sub-section, in any suit or petition filed there for only to the extent either of them is pending without being decided upon till then. however, the anguage of the sub-section does not permit the placing upon it a construction which would suggest that an order or a decree for the recovery of possession of a premises made in favor of a landlord against the tenant by a court or an authority, before the coming into force of that sub-section, cannot subsequent to its coming into forge, be executed or given effect to by such a court or such an authority.... when sub-section (1) of..........meaning of section 2(1) even if there be any marginal obscurity.13. eviction of tenants. - (1) a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the punjab urban rent restriction act, 1947, as subsequently amended.the expression 'tenant' includes 'a tenant continuing in possession after the termination of the tenancy in his favor. it thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. the fact that a decree or any other process.....
Judgment:
ORDER

Venkatachala, J.

1. The short question, which arises for decision in this Revision Petition, is whether the prohibition under sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act') imposed on a Court that no order or decree for the recovery of possession of any premises shall be made in favor of the landlord against the tenant, prohibits such Court from executing its order or decree made to the same effect and became final,before coming into force of that provision respecting the area where the premises is situated.

2. The material facts, which have formed the basis for the petitioners raising the above question for the first time in this Court, are :

As far back as in the year 1962, Respondents 1 to 6 instituted in the Court of Munsiff at Mangalore, a suit for recovery of possession of a parcel of non-agricultural land from the petitioners, who were tenants thereof. A decree for recovery of possession was ultimately made in that suit by that Court on 306-1972 in accordance with the directions in the Judgment rendered by this Court in the year 1970 when the matter had been brought up before it in a regular second appeal. In the year 1980, that decree was sought to be executed before the same Court in Execution Case No. 70/1980, on its file. During the pendency of that execution case, the provisions in Parts IV and V of the Act, it was undisputed, came into operation in the area of Paduvu village where the land concerned in the decree under execution, is situated. However, by the order now under revision made by the said executing Court in the execution proceeding, it has directed the petitioners (Judgment Debtors) to deliver possession of the land to the Respondents (Decree Holders) in the terms of the decree under execution.

3. Shri K.R.D. Karanth, Learned Counsel for the petitioners, contended that the executing Court ('Court below') by the order under revision should not have directed the petitioners to deliver to the Respondents possession of the land concerned in its decree while purporting to execute that decree, after coming into force of the provisions in Parts IV and V respecting the area where that land was situate. He elaborated his contention stating that when the landconcerned in the decree was a premises covered by sub-section (1) of Section 21 in Part IV of the Act, the Court below should have seen that the prohibition contained in that sub-section to the effect that no order or decree for recovery of possession of any premises shall be made by any Court or other authority in favor of the landlord against the tenant, prohibited it from ordering delivery of possession of the land from the petitioners-tenants. He sought to support the said contention by relying upon a decision of this Court in Manjulu Ramakrishna Naik - v. - Umesh Sridhar 1977 (1) KLJ 445 and another decision of the Supreme Court in Mani Subrat Jain vs. Raja Ram Vohra : [1980]2SCR141

4. On the contrary, Shri B.V. Acharya, Learned Counsel for the Respondents, contended that sub-section (1) of Section 21 of the Act did not come in the way of the Court below directing delivery of possession of the land respecting which a decree for recovery of possession had been made by it and had become final before the coming into force of the provisions in parts IV and V of the Act respecting the area where the land concerned was situate.

5. It is these rival contentions that have necessitated the rendering of a decision on the question adverted to at the outset.

6. Sub-section (1) of Section 21 of the Act reads ;

'Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favor of the landlord against the tenant.'

7. An analysis of sub-section (l) above makes it obvious that it prohibits a Court or other authority from making any order or decree for the recovery of possession of a premises in favor of the landlord against the tenant, despite any other law or contract permitting such a Court or such other authority to make an order or a decree in that regard.

8. It has now to be seen as to when the prohibition imposed under sub-section (l) upon a Court or an authority in the matter of making an order or a decree for the recovery of possession of a premises, operates against either of them. From a plain reading of the sub-section, it becomes obvious that the prohibition contained therein operates prospective, that is, after the sub-section is made operative by bringing it into force. Therefore, when once the sub-section becomes operative, the Court or other authority, as the case may be, is prohibited from making an order or a decree for the recovery of possession of a premises in favor of a landlord against the tenant. It is so because the point of time after which a Court or an authority is prohibited from making an order or a decree for the recovery of possession of a premises could only be subsequent to the coming into operation of the sub-section. Hence, a Court or an authority cannot make an order or a decree for the recovery of possession of a premises in favor of a landlord against the tenant because of the sub-section, in any suit or petition filed therefor only to the extent either of them is pending without being decided Upon till then. However, the language of the sub-section does not permit the placing upon it a construction which would suggest that an order or a decree for the recovery of possession of a premises made in favor of a landlord against the tenant by a Court or an authority, before the coming into force of that sub section, cannot subsequent to its coming into force, be executed or given effect to by such a Court or such an authority.

9. However, Shri Karanth, relying upon the decision of this Court in Manju Ramakrishna Naik (supra) and thedecision of the Supreme Court in Mani Subrath Jain (Supra), sought to sustain his contention that the prohibition to make an order or decree for the recovery of possession from a tenant under the sub-section, extends to the execution of theorder or decree which might have been made earlier and become final.

10. The question, which arose for consideration by this Court in Manju Ramakrishna Naik's case, was whether a decree for the recovery of possession of a premises from a tenant could have been made by a Civil Court after the coming into force of Parts IV and V of the Act, despite the prohibition contained regarding making of decree or order for recovery of possession of a premises from the tenant under sub-section (1) of Section 21 of the Act. Afterexamination of that question, this Court held that the bar enacted in sub-section (1) of Section 21 of the Act since affected the very power of the Court to make a decree or order for recovery of possession by the land lord, the Trial Court was bound to have taken notice of the same at the time it was called upon to make the decree and dismissed the suit. I have already pointed out while discussing the scope of sub-section (l) of Section 21 of the Act, that such would be the legal position. In the instant case, the Court below has not made any decree or order for recovery of possession of a premises from a tenant after the coming into force of sub-section (1) of Section 21 of the Act, so as to attract the application of the ratio of the decision of this Court for interfering with such decree or order. What the Court below, in the present case, has done by the order under revision is to merely give effect to its decree for recovery of possession of a premises from the tenant, which decree had been made by it and become final long before the coming into force of sub-section (1) of Section 21 respecting the area where the land concerned in the decree is situate. Hence, 1 find that the said decision of this Court cannot in any way support the contention advanced by Sri Karauth.

11. In Mani Subrath's case (supra), the Supreme Court was concerned with the question, whether a Civil Court,which has made a compromise eviction decree for recovery of possession of a premises, can execute that decree after the coming into force of the provisions of the East Punjab Urban Rent Restriction Act, having regard to Sections 2 (i) and 13 (1) thereof. In para-6 of its decision, the Supreme Court has referred to Sections 2 (i) and 13 (1) of that Act and their effect, thus :

'Section 2(i) reads :

'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favor, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart stand or slaughter house or of rents for shops has been framed out or leased by a municipal, town or notified area committee ;

In this context, we may also read Section 13(1) which is integral to and makes impact upon the meaning of Section 2(1) even if there be any marginal obscurity.

13. Eviction of tenants. - (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended.

The expression 'tenant' includes 'a tenant continuing in possession after the termination of the tenancy in his favor. It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession. The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not, terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause. Even here, we may mention by way of contrast that Subudhi's case related to a statute where the definition in Section 2 (5) of that Act expressly included 'any person against whom a suit for ejectment is pending in a Court of competent jurisdiction' and more pertinent to the point specially excluded 'a person against whom a decree or order for eviction has been made by such a court'. We feel no difficultyin holding that the text, reinforced by the context, especially Section 13, convincingly includesextents against whom decrees for eviction might have been passed, whether on compromise or otherwise.'

12. The argument of Shri Karanth was that the definition of the tenant under Section 3 (r) of the Act since includes 'a person continuing in possession of a premises aftertermination of the tenancy in his favor' as found in the case of definition of a tenant in Section 2 (i) of the East Punjab Urban Rent Restriction Act, 1949, this Court should hold that sub-section (1) of Section 21 of the Act covers cases of extents against whom an order or decree for recovery of possession of a premises had been made before that provision came into force, as had been held by the Supreme Court in relation to Section 13 (1 )of that Act in Mani Subrath Jain's : [1980]2SCR141 ; case (supra).

13. If the Supreme Court had held that it is only because the definition of 'tenant' in Section 2(i) of the East Punjab Urban Rent Restriction Act included a person continuing in possession after the termination of tenancy, Section 13 (1) of that Act included (took within its ambit) ex tenants against whom decrees for eviction might have been passed, Shri Karanth's argument would have had some force. But, the Supreme Court, in reaching the conclusion that Section 13 (1) of that Act convincingly includes persons against whom decrees for eviction might have been passed, has relied upon the express language in Section 13 (1) of that Act, the same having been considered as integral to and making impact upon the meaning of Section 2 (0, which provided that a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of that Act. That is how the Supreme Court has approached the matter, becomes clear from paragraph-4 of its Judgment wherein it is stated thus;

'The semantic sweep of Section 2(i) in our Act, by clear contrast takes in a wider group and we have no indication in that judgment whether a provision like Section 13 which makes the restriction applicable also to decrees was present in the Act there debated.'

14. Sub section (1) of Section 21 of the Act when does not extend its restriction to orders or decrees for recovery of possession already made, as found in Section 13 (1) of the East Punjab Urban Rent Restriction Act, it is difficult to hold that sub section (1) of Section 21 of the Act should be construed as including a restriction relating to execution of an order or a decree for recovery of possession of a premises from a tenant made before the coming into force of that provision of the Act.

15. Sub-section (l) of Section 21 of the Act prohibits any Court or authority from passing a decree or an order in favor of a landlord and against a tenant for the recovery of possession of a premises in the area to which Part -V of the Act is extended, only when such decree or order had not been passed before Part-V was so extended, is the just and reasonable construction to be placed upon it, derives full support from the view taken by a Bench of Five Judges of the Supreme Court regarding the ambit of an analogous provision in Section 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in S.B.K. Oil Mills - v. - Subhash Chandra : [1962]2SCR159 which reads :

'A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.'

16. The view taken by the Supreme Court on the ambit of the above provision reads thus :

'Section 12(1) enacts that the landlord shall not be entitled to recover possession, nor 'no suit shall be instituted by the landlord to recover possession.' 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 pendingwith Part II comes into force and those to be filed subsequently.'

17. From the view so expressed by the Supreme Court on., the ambit of Section 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it could be safely concluded that the language of sub-section (1) of Section 21 of the Act does not permit placing upon it the petitioners Counsel's suggested construction that a Court or Authority referred to therein is prohibited from executing any order or decree for the recovery of a premises from a tenant which had been made and become final before the coming into force of that provision.

18. As to why it is inexpedient to place the construction suggested by the petitioners' Counsel respecting sub-section (1) of Section 21 of the Act, becomes obvious from the views expressed by the Supreme Court regarding a Civil Court's decree, in Sundar Das - v. - Ram Prakash : [1977]3SCR60 . There, it was concerned with a case where a decree for eviction made by the Trial Court and ultimately affirmed by the High Court and became final, was under execution. Before that decree could be executed, Section 3 of the Delhi Rent Control Act, 1958, came to be amended by Act 4 of 1963, which added the following proviso to it:

'Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy.'

The Supreme Court, while repelling the contention raised before it that an executing Court executing the eviction decree of a Civil Court, which had already become final between the parties, should decline to execute that decree despite the introduction of the proviso to Section 3 of the Delhi Rent Control Act, adverted to before, has succinctly pointed out as to what is the sanctity attached to such decree in law and when its sanctity becomes vulnerable to attack before the executing Court and when that executing Court can decline to execute the decree thus :

'3. Now, the law is well settled that an executing Court cannot go behind the decree nor can it question its legality or correctness. But, there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the' Court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the, competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or beheld upon and even at the stage of execution or even in collateral proceedings. The Executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decrees, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh V. Chaman Paswan, : [1955]1SCR117 and Hiralal Patni V. Kali Nath, : [1962]2SCR747 . It is, therefore, obvious that in the present case, itwas competent to the Executing Court to examine whether the decree for eviction was a nullity on the ground that the Civil Court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity; the Executing Court could declare it to be such and decline to execute it against the Respondent.

4. The position which obtained when the suit for eviction was instituted by the appellant against the respondent was that Section 3, as it stood prior to its amendment by Act 4 of 1963, was in force and that excluded the applicability of the Delhi Rent Control Act, 1958, to premises belonging to the Government.... But, as point out above, Section 3 was amended with retrospective effect by the introduction of the proviso and the question is whether the introduction of the proviso with retrospective effect had the effect of rendering the decree for eviction null and void.'

19. The Supreme Court, no doubt, in the facts of the: said ease, upheld the High Court's view that the decree under execution should be regarded as a nullity because of the retrospective operation of the proviso added to Section 3 of the Delhi Rent Control Act. However, from this it follows that the Supreme Court, but for the said proviso introduced retrospectively, could not have held the Civil Court's decree, which had become final, a nullity and an in executable decree. In the present case, there is nothing in the language employed in sub-section (1) of Section 21 of the Act, which would suggest that the Civil Court whichhas made the decree and which had become final, should by its operation (sub-section's operation), be regarded as a: Court which has made the decree without inherent jurisdiction to entertain the suit in which it has made that decree.

20. For the foregoing reasons, my answer to the question raised at the outset is that the prohibition under sub-section (1) of Section 21 of the Act imposed on a Court that no order or decree for the recovery of possession of any premises shall be made in favor of the landlord against the tenant, does not prohibit such Court from executing its order or decree made to the same effect and become final, before coming into force of that provision respecting the area where the premises is situated.

21. In the result, this Civil Revision Petition is dismissed however, without costs.


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