T. v. L. SETTY VS B. C. V. SETTY — 1987 DIGILAW 14 (KAR)

P. A. KULKARNI, J. ( 1 ) THIS is a revision by the judgement-debtors against the order dated 24-3-1984 passed by the Munsiff, Chintamani, in Execution No. 16 of 1984 dismissing I. A. No. 3 filed by the judgement-debtors under O. 21, R. 29 C. P. C. ( 2 ) FOR the purpose of understanding the case, it is necessary to find out the facts leading to the filing of the execution petition and the filing of I. A. No. 3. The respondent in the present revision is the decree-holder. The present revision petitioners are the judgement-debtors. ( 3 ) THE parties have been referred to with reference to their position in the executing Court. ( 4 ) THE decree-holder filed a petition under S. 21 (1) (h) of the Karnataka Rent Control Act, 1961, in H. R. C. No. 28/77 against Vishwanathaiah Setty, the father of the present judgement-debtors. The said H. R. C. case was resisted by the judgement-debtors' father Vishwanathaiah Setty. Ultimately an order of eviction was passed in the said H. R. C case on 5-9-1980. Vishwanathaiah Setty being aggrieved by the order of eviction approached the District Judge, Kolar, with H. R. C. revision No. 63/80. During the pendency of the said revision in the District Court, the judgement debtors' father Vishwanathaiah Setty who had filed the said revision, passed away. The present judgement-debtors filed I. A. No. 5 in the said H. R. C. revision pending on the file of the District Judge, alleging that they were the L. Rs. of the deceased Vishwanathaiah Setty and also that the tenancy in question was not the individual or personal tenancy of Vishwanathaiah Setty and that the firm was the tenant of which the present judgement debtors were also the partners along with Vishwanathaiah Setty. The District Judge appears to have negatived in the said H. R. C. revision the contention of the judgement debtors that the tenancy was of the firm. He took also the view that even though the judgement-debtors are the legal representatives of Vishwanathaiah Setty, they had no right to contest the revision petition. But, however, he allowed the present judgement-debtors to come on record as the legal representatives of Vishwanathaiah Setty who was the tenant in the said H. R. C. case. He took also the view that even though the judgement-debtors are the legal representatives of Vishwanathaiah Setty, they had no right to contest the revision petition. But, however, he allowed the present judgement-debtors to come on record as the legal representatives of Vishwanathaiah Setty who was the tenant in the said H. R. C. case. The District Judge dismissed the revision on the ground that the legal representatives of the tenant in occupation of a non-residential premises were not entitled to contest the application. The said view taken by the District Judge was based on the various decisions of this Court. Taking that view the District Judge dismissed the H. R. C. revision No. 63/80. The present judgement-debtors being aggrieved by the said order passed by the District Judge in H. R. C. revision No. 63/80, approached this Court with C. R. P. No. 4124 of 1983 and it was also dismissed by this Court. Thereafter the decree-holder sued out the execution in Execution No. 16/84 against the present judgement-debtors in order to execute the eviction order which had become final, and sought for delivery of possession from the judgement-debtors. The execution petition was filed on 15-3-1984. Thereafter the judgement-debtors filed O. S. No. 48/84 against the present decree-holder on 19-3-1984 seeking the following reliefs :"for a declaration declaring that the plaintiff's partnership company is the tenant in respect of the schedule shop premises, under the defendant; (b) for declaring that the order of eviction passed in H. R. C. No. 28/1977 by the Munsiff, Chintamani, against Sri T. Vishwanathaiah Setty in his individual capacity is not binding on the plaintiff's firm; (c) for a perpetual injunction restraining the defendant from evicting the plaintiff's firm, on the basis of the eviction order passed in H. R. C. No. 28/77, dated 5-9-1980, Munsiff, Chintamani, and for such order relief or reliefs etc. , etc. ,"thereafter the present judgement-debtors who have filed the said suit, filed I. A. No. 3 under O. 21, R. 29 C. P. C. in Execution No. 16/84 requesting the executing Court to stay the further proceedings in the execution pending decision in the said suit. The court below after hearing all the parties, rejected I. A. No. 3 and refused to stay the further proceedings in the execution pending the decision of the said suit. The court below after hearing all the parties, rejected I. A. No. 3 and refused to stay the further proceedings in the execution pending the decision of the said suit. The judgement-debtors being aggrieved by the said order dated 24-3-1984 passed by the executing Court in Execution No. 16/84, have approached this Court with the present revision. ( 5 ) THE learned counsel Shri Datar for the revision petitioners submitted that the order of eviction passed in the H. R. C. case had become inoperative, ineffective and inexecutable, as the Supreme Court had set aside the decisions of this Court that the legal representatives of a tenant in occupation of a non-residential premises could not resist the order of eviction at all. Shri Datar relied on Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 in support of the said contention. The Supreme court held that the statutory tenancy even in respect of a commercial premises was heritable and the heirs of a statutory tenant were entitled to same protection against eviction as afforded to the tenant under the Act. While laying down the law in the said Gian Devi's case, the Supreme Court overruled its previous decision reported in Ganapat v. Sashikant, AIR 1978 SC 955 . Now the law on this point has been made clear by the said decision of the Supreme Court that the heirs of a statutory tenant in occupation of a commercial premises are entitled to the same protection against eviction as afforded to tenants under the Rent Control Act. Therefore even the legal representatives of the deceased tenant in respect of a commercial premises, are now entitled to claim protection against eviction just as any other tenant under the Act. Therefore the view taken by this Court that the legal representatives of the statutory tenant in occupation of a commercial premises are not entitled to resist the eviction, does not hold the field at all. Therefore the view taken by this Court that the legal representatives of the statutory tenant in occupation of a commercial premises are not entitled to resist the eviction, does not hold the field at all. ( 6 ) SHRI Datar then contended on the strength of the said decision that the order of eviction passed in H. R. C. No. 28/77 had become inoperative, ineffective and inexecutable as the revision filed by Vishwanathaiah Setty in the District Court and as the revision filed by the present judgement-debtors in this Court, were dismissed on the ground that the legal representatives had no right to contest the eviction petition at all in respect of a commercial premises. A copy of the plaint in O. S. No. 48/84 has been produced before me. It is mentioned in para 6 of the plaint as :- "the plaintiff further submits that the defendant who is no other than the brother-in-law of Shri T. Vishwanathaiah Setty, instituted an eviction proceeding in H. R. C. No. 28/77 on the file of the Munsiff, Chintamani, against Shri T. Vishwanathaiah Setty in his individual capacity seeking recovery of possession of the schedule shop premises without disclosing his right in respect of the schedule shop premises as a landlord. " again at the fag end of para 6, it is again averred as :-"the Court of the Munsiff, Chintamani, however, held that the defendant the landlord of the schedule shop premises and in that view passed an order of eviction against Shri T. Vishwanathaiah Setty in his individual capacity by his order dated 5-9-1980. "in para 7 of the plaint, it has been averred as :-"but unfortunately when the matter was pending consideration, Sri T. Vishwanathaiah Setty passed away and thereafter the sons of Sri T. Vishwanathaiah Setty who are the partners of the plaintiff's firm filed an application under O. 22, R. 2 read with R. 10 of the Code of Civil Procedure, seeking to implead themselves as not only the legal representatives of the deceased Sri T. Vishwanathaiah Setty but also as partners of the plaintiff firm having a right to contest the revision petition. "the plaintiff further averred as :-"the learned District Judge upon a consideration of the application, allowed the application and hence the plaintiff's partners were brought on record in the said revision petition. "the plaintiff further averred as :-"the learned District Judge upon a consideration of the application, allowed the application and hence the plaintiff's partners were brought on record in the said revision petition. "in para 8 of the plaint, it is averred as :-"the plaintiff therefore submits that the order made by the learned District Judge was only on the question of interpretation of the legal representatives to contest the proceedings and hence was not a final order on merits. "in para 10 the plaintiff submits as :-"the plaintiff submits that the order of eviction made in H. R. C. No. 28/77 is not binding on the plaintiffs partnership company and even otherwise the eviction order is directed against Sri T. Vishwanathaiah Setty in his individual capacity. " (Underlining is mine ). ( 7 ) I have already set out above the case made by the plaintiff in the said suit. Therefore the facts mentioned in the plaint which have been extracted above, go to show that the plaintiffs want to contend in the said suit that the tenancy was of the firm itself and that it was not the individual tenancy of Vishwanathaiah Setty and that the eviction order was passed against Vishwanathaiah Setty treating him as the only tenant of the petition premises. In the lengthy plaint running into nearly 8 pages, the plaintiffs have not even whispered that the order of eviction passed had become inoperative, ineffective or inexecutable on the ground that the subsequent view taken by the Supreme Court entitled even the legal representatives of the statutory tenant in occupation of the commercial premises to the same protection as any other tenant under the Rent Control Act. They have not mentioned in the plaint to the said effect and they have not even sought prayer in the suit that the decree had become inoperative, ineffective and inexecutable on the ground that the legal view which permeated the eviction order in the H. R. C. case had been subsequently disapproved by the Supreme Court. The facts mentioned by the plaintiff in the said suit are that the tenancy in question is not the individual tenancy of their father Vishwanathaiah Setty. According to them, the tenancy was of the firm of which they and their father were the partners. The facts mentioned by the plaintiff in the said suit are that the tenancy in question is not the individual tenancy of their father Vishwanathaiah Setty. According to them, the tenancy was of the firm of which they and their father were the partners. On the basis of these allegations, they have sought the main relief in the suit for a declaration that the plaintiffs' partnership is the tenant in respect of the schedule shop premises under the defendant and for a declaration that the order of eviction passed in H. R. C. No. 28/77 by the Munsiff against Vishwanathaiah Setty in his individual capacity, is not binding on the plaintiffs' firm. Therefore the whole basis of the suit is that the plaintiffs want to claim that they are the tenants of the suit premises and therefore the order of eviction passed in the H. R. C. case against Vishwanathaiah Setty in his individual capacity, does not bind them. Therefore the basis of the suit is entirely different. ( 8 ) SHRI Datar referred me to C. I. T. B. Mysore v. Seetharam, (1980) 2 Kant LJ 319. It reads as :-"where the High Court remanded a case with the specific direction that the market value of the property acquired under Mysore City Improvement Act should be fixed on the basis of the final notification and that view was overruled by the Supreme Court in another case, which held that the value of the property should be determined with reference to the earlier notification. Held, the Court had to follow the law as laid down by the Supreme Court. Neither the parties nor was the Court bound by the judgement of the High Court in its remand order. "if any relief had been sought by the judgement-debtors in O. S. No. 48/84 that the order of eviction passed in H. R. C. No. 28/77 had become inoperative, ineffective or inexecutable, on account of the view taken by the Supreme Court reported in Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 , the said decision might have some bearing on the facts of the case. ( 9 ) SHRI Datar then referred me to M/s. Shenoy and Co. v. Commercial Tax Officer, ILR (1985) 2 Kant 2077. ( 9 ) SHRI Datar then referred me to M/s. Shenoy and Co. v. Commercial Tax Officer, ILR (1985) 2 Kant 2077. The principle laid down in the said Supreme Court decision is as :-"a bach of 1590 Writ Petitions challenging the constitutional validity of Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale therein Act, 1979 (Karnataka Act No. 27 of 1979) allowed by High Court, by common judgement, set aside by Supreme Court upholding the validity of the Act, in the only appeal by State of Karnataka against one Writ Petitioner. Pursuant thereto action initiated by State Government, challenged by the Original Writ Petitioners on the ground no appeal having been filed against them Mandamus issued by High Court enured to their benefit. Writ petitions and appeals were dismissed on the view taken by State would have been invalid but for saving provision in repealing Act notwithstanding judgement of Supreme Court upholding validity of Act. Question arose as to whether the judgement of the Supreme Court declaring the validity of the Act was binding on all others not parties before Supreme Court. Held : a mere reading of Article 141 brings into sharp focus in expanse and its all pervasive nature. . . . . To contend that this conclusion (upholding the validity of the Act) applies only to the party before this Court is to destroy the efficacy and integrity of the judgement and to make the mandate of Article 141 illusory. By setting aside the common judgement of the High Court, the Mandamus issued by the High Court is rendered ineffective not only in one case but in all cases.- A Writ of Mandamus was predicated upon the view that the "high Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners. The Act was subsequently declared constitutionally valid by this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of this law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgement of this Court. The Act, therefore, was under an eclipse, for a short duration; but with the declaration of this law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgement of this Court. If the law so declared invalid is held constitutionally valid, effective and binding by the Supreme Court, the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on every one and it is, therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed - The judgement of this Court in the Hansa Corporation's case is binding on all concerned whether they were parties to the judgement or not. There is no inconsistency in the finding of this Court in Joginder Singh's case ( AIR 1963 SC 913 ) and Makhanlal Waza's case ( AIR 1971 SC 2206 ). The ratio is the same and appellants cannot take advantage of certain observations made by this Court in Joginder Singh's case. " ( 10 ) THE principle laid down by the Supreme Court is that if a Writ of Mandamus had been issued by the High Court on a batch of petitions on the ground that the Act was ultra vires and constitutionally invalid and if thereafter only one of the writ petitioners approached the Supreme Court and the State does not choose to file appeals in the other writ petitions, the declaration of the Supreme Court that the view of the High Court declaring the Act to be ultra vires is bad and that the Act was constitutional, would be binding on the other persons also against whom the State did not choose to file the appeals. This principle laid down by the Supreme Court is altogether based on different facts. In this case, as already shown above, the plaintiffs have not sought for a declaration that the order of eviction had become bad on the ground that even the legal representatives of the statutory tenant in occupation of the commercial premises were entitled to the protection against eviction. In this case, as already shown above, the plaintiffs have not sought for a declaration that the order of eviction had become bad on the ground that even the legal representatives of the statutory tenant in occupation of the commercial premises were entitled to the protection against eviction. But the facts pleaded by the plaintiffs in this case are that the tenancy is not the individual tenancy of Vishwanatha Setty, and that it is the tenancy of the firm itself of which they and Vishwanatha Setty were the partners. They have not attacked the order of eviction on the ground that it has become bad on account of the subsequent law laid down by the Supreme Court in 1985. Therefore, the principle laid down in M/s. Shenoy and Co. v. Commercial Tax Officer, ILR (1985) 2 Kant 2077 and C. I. T. B. Mysore v. P. R. Seetharam, (1980) 2 Kant LJ 319 would not have any application to the facts of the present case. ( 11 ) WHEN the plaintiffs themselves have not sought a declaration in the suit that the order of eviction passed in the H. R. C. case has become inoperative, ineffective or inexecutable in view of the principle laid down by the Supreme Court in 1985, it would not be open for them to resist the execution which is sued out only to execute the order of eviction passed in H. R. C. No. 28/77. ( 12 ) FURTHER I. A. No. 5 which was filed in H. R. C. Revision No. 63/80 deserves some attention at this stage. A copy of the order passed by the District Judge in H. R. C. Revision No. 63/80 on I. A. No. 5, has been produced before me at this stage. It reads as :-"i. A. No. 5 is an application under Sec. 151 C. P. C. filed by the LRs. A copy of the order passed by the District Judge in H. R. C. Revision No. 63/80 on I. A. No. 5, has been produced before me at this stage. It reads as :-"i. A. No. 5 is an application under Sec. 151 C. P. C. filed by the LRs. of T. Vishwanathaish Setty, praying for permission to prosecute the proceedings as they are entitled even otherwise independently, of the deceased T. Vishwanathaiah Setty, being partners as mentioned in the cause title as amended after the death of T. Vishwanathaiah Setty as the petitioners have been brought on record as surviving partners who have a right to sue and sued having regard to the provisions of Order 22 Rule 10 of C. P. C. read with Rule 35 of the Karnataka Rent Control Act, and further seeking permission to file additional objections annexed thereon to the petition under Sec. 21 of the K. R. C. Act. "after taking evidence, the District Judge has stated in para 14 of the said order as :-"it is undisputed that the premises is a non-residential premises, where according to the petitioner it was let out to late Vishwanathaiah Setty in his independent capacity as a tenant. It is further disclosed as per the partnership deed Exhibits P1 and P2 this premises was used to run a partnership business by the deceased and his sons who are the L. Rs. in this petition and receipts Exs. P4 to P9 from 10-10-74 to 16-8-76 issued in the name of T. Vishwanathaiah Setty and Co. , and later T. Vishwanathaiah Setty and Sons, and all the receipts bearing the sign of T. Vishwanathaiah Setty. Though it should be construed that late Vishwanathaiah Setty was running a partnership firm, he has not urged before the trial court that the tenancy rights belonged to his family and not personally to him. , and later T. Vishwanathaiah Setty and Sons, and all the receipts bearing the sign of T. Vishwanathaiah Setty. Though it should be construed that late Vishwanathaiah Setty was running a partnership firm, he has not urged before the trial court that the tenancy rights belonged to his family and not personally to him. "the District Judge has further stated in the same para as :-"since the premises was leased to the deceased Vishwanathaiah Setty exclusively and any arrangements made by him to run his business as a partnership firm as his personal and unless it is recognised by the landlord permitting them to occupy the premises in the name of the partnership firm, any arrangement made between the parties will not change the character of the original tenancy which was leased exclusively to Vishwanathaiah Setty, to use the premises for non-residential purpose and immediately after the death of this statutory tenant of a non-residential building extinguishes his rights to assign the same to his L. Rs. or any person to continue his tenancy. " ( 13 ) THE present plaintiffs had adduced evidence on I. A. No. 5 in the said H. R. C. Revision. The District Judge after consideration of the material, negatived the contention of the plaintiffs that it was a tenancy of the firm. It also negatived the contention of the judgement-debtors that they were also the tenants of the commercial premises in question. The District Judge in unequivocal terms in the course of the order on I. A. No. 5, has stated that it was that individual tenancy of Vishwanathaiah Setty. If it is so, then the contention of the learned counsel Shri Datar that the order of eviction passed in the H. R. C. case had become inoperative, ineffective and inexecutable in view of the subsequent decision of the Supreme Court in Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 , cannot be given any weight at all at this stage as the suit filed by the plaintiffs is based on altogether different facts. ( 14 ) IT may be that the principle of law on the basis of which H. R. C. Revision No. 63/80 on the file of the District Judge was dismissed, and the principle of law on the strength of which C. R. P. No. 4124 of 1983 was dismissed by this Court, is not approved by the Supreme Court. But so long as the order of eviction passed is not challenged on the basis of the decision rendered in Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 , the argument of the learned counsel Shri Datar at this stage, does not merit to be accepted at all. ( 15 ) I would not like to say anything about the merits of the suit filed by the present judgement-debtors. But, however, in view of the fact that the suit is based on altogether different facts and in view of the fact that the order of eviction passed in the said H. R. C. case is not challenged on the basis of the principles laid down in Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 , the order passed by the court below rejecting I. A. No. 3, does not need any interference. ( 16 ) IN the result, the revision is dismissed. ( 17 ) NO costs in this revision. ( 18 ) AT this stage, the counsel appearing for the revision petitioners submitted that the judgement-debtors would like to take the matter to the Supreme Court and that in order to enable them to approach the Supreme Court, the order passed by this Court may be suspended for three months. When the party feels not satisfied with the order passed by this court and when he wants to approach a superior court, I think that he should not be denied an opportunity to approach the Supreme Court. Therefore in order to enable the judgement-debtors to approach the Supreme Court, the order passed by this Court should be stayed till the end of February, 1987. It is made clear that the stay of the order would not be further extended after the end of February, 1987. Order accordingly. --- *** --- .