SHANKAR RAO v. KHAJA SHABEERUDDIN — 1996 DIGILAW 268 (KAR)

A. B. MURGOD, J. ( 1 ) THIS revision petition under Section 115, C. P. C. is directed against the order dated 18-9-1992 passed in Execution Petition no. 22 of 1991 by the Munsiff, Basavakalyan, dismissing the objections of the petitioner with regard to the maintainability of the execution petition and directing the petitioner to hand over vacant possession of the premises to the decree-holder by ordering issue of warrant for delivery. ( 2 ) THE facts giving rise to the Revision Petition are that the decree-holder Khaja Shabeeruddin instituted Original Suit No. 142 of 1972 against the petitioner-defendant 1 and two others for recovery of possession of the premises alleging that the premises was leased out to the petitioner under lease agreement Exhibit p-1. The suit was dismissed on 30-3-1977. In the appeal Regular appeal No. 53 of 1977 taken before the civil Judge, Bidar, the learned civil Judge allowed it and decreed the suit in favour of the plaintiff directing the petitioner and respondent 7 to deliver possession. This decree was passed on 22nd March, 1979. The second appeal against the judgment and decree of the learned civil Judge was preferred in Regular Second Appeal No. 376 of 1979 which came to be disposed of on 17-7-1991 confirming the decree of the First Appellate Court. When the decree obtained as stated above was put into execution by the legal representatives of the original decree-holder in Execution Petition No. 22 of 1991 before the Munsiff, Basavakalyan, the petitioner and his co-judgment debtor appeared and petitioner put-forth the contention that he was tenant in possession of the premises and the decree made by the Civil Court against him for eviction of the tenanted premises was inexecutable as the provisions of the karnataka Rent Control Act, 1961 had been applied to basavakalyan in the year 1984 and therefore the landlord had to obtain an eviction order as provided under the provisions of the karnataka Rent Control Act, 1961 and therefore his contention was that the execution petition was not maintainable and the decree was inexecutable as the same was void. These contentions were disputed and the learned Munsiff by his order dated 18th september, 1992 considered the objections of the petitioner and taking into consideration the defence put-forth by him in the trial Court he came to the conclusion that the petitioner was not a tenant in possession and he was not a tenant under the karnataka Rent Control Act and there was no relationship of landlord and tenant between him and the decree-holder as contended by the petitioner and in that view he overruled his objections and passed the impugned order of delivery of possession by issuing delivery warrant. ( 3 ) THE petitioner in this Court has submitted that it was the case of the decree-holder-respondent right from the institution of the suit Original Suit No. 142 of 1972 that the petitioner-defendant 1 was lessee in possession under the registered lease agreement Exhibit P-1 an there is no dispute about the applicability of the Karnataka Rent Control Act, 1961 to Basavakalyana town in which the disputed property is situated in the year 1984, by amendment of the Karnataka Rent control Act by Act 17 of 1983 and the Civil Court could not have proceeded to pass a decree for eviction and the decree in question being without jurisdiction is void and inexecutable and therefore the order of the learned Munsiff. is unsustainable and the execution petition is not maintainable. The learned Counsel for the decree-holder disputes the submissions and contends that the second appeal was pending before the High Court from 1979 till 1991 for well over a period of 12 years and during this period when the provisions of the Karnataka Rent Control Act, 1961 were made applicable to Basavakalyan Town in 1984 the petitioner did not put forth any contention in that behalf before the High Court when the appeal came to be heard and disposed of on 17-7-1991. He next submitted that to set up a plea of tenancy, it was necessary for the petitioner to be in possession of the premises as tenant and throughout his defence he stated that he has not been in possession and therefore the plea of tenancy does not ensure to his benefit. He next submitted that to set up a plea of tenancy, it was necessary for the petitioner to be in possession of the premises as tenant and throughout his defence he stated that he has not been in possession and therefore the plea of tenancy does not ensure to his benefit. He also submitted that there is a difference between suits for recovery of possession based on title and those instituted for eviction of tenants on the basis of lease agreement and according to him, his decree under execution in question arises out of a suit based on title. He further submitted that the common law concept of tenancy recognised in Transfer of Property Act is further dealt with under the Karnataka Rent Control Act, 1961 a special enactment and the landlord having concurrent remedies under general law as well as the Karnataka Rent Control Act proceeded to choose a remedy under general law and has so obtained a decree for eviction and therefore his right to execute the same is permitted under the general law and the contention to the contrary in that behalf is without any basis. It is submitted that under the Karnataka Rent Control Act, no new right is created and the landlord's right to act under the general law or Rent Control Act is not affected. ( 4 ) IT is not disputed that the provisions of the Karnataka Rent Control Act, 1961 were made applicable to Basavakalyan town in the year 1984 and the property in respect of which eviction order is passed is situated in Basavakalyan. The second appeal filed by the petitioner in Regular Second Appeal No. 376 of 1979 was pending at that time and it was disposed of in the year 1991 and the petitioner did not raise any contention with regard to the defence available under the Karnataka Rent Control Act when the appeal was disposed of. The submission on behalf of the petitioner is that the petitioner was not aware of the enforcement of the provisions of the Karnataka Rent Control act, 1961 in Basavakalyan Town when the second appeal was heard and disposed of and he therefore did not instruct his counsel in that behalf at that time. Therefore the plea in that behalf was not raised before the High Court while the second appeal came to be disposed of. Therefore the plea in that behalf was not raised before the High Court while the second appeal came to be disposed of. But he submits that he can raise such plea at the time of execution of the decree and in that behalf he relies on decision of this Court in Smt. Suman v Vithal rama Powar and Another. In this case also the decree for eviction obtained from the Civil Court was sued out in Civil court and at that time the judgment-debtor contended that the decree was a nullity and therefore inexecutable as the provisions of the Karnataka Rent Control Act had been made applicable to chikodi Town in which the premises was situated during the pendency of the appeal in the first Appellate Court. In that suit also no defence under the provisions of the Karnataka Rent control Act was raised either in the first Appellate Court or in the second Appellate Court where the decree for eviction was confirmed and which decree was put into execution. In the executing Court the judgment-debtor, for the first time raised the plea with regard to inexecutability of the decree on the ground that the Civil Court had lost jurisdiction to pass decree for eviction and the decree so passed was a nullity and it was only the Court functioning under the Karnataka Rent Control act which could have passed a valid decree. The plea of the decree-holder which was similar to the plea put forth by the decree-holder in the present revision petition was negatived by this Court. In Suman's case this Court ruled that in view of the bar of the suit created by the amended Section 47, a party cannot file separate proceedings or suit, challenging the decree on the ground that the Court which passed the decree had no jurisdiction. Therefore the decree was passed without jurisdiction. Therefore the Executing Court is the only proper forum in which such a plea could be raised and it should properly adjudicate such a plea, and when the decree is prima facie void ab initio, the question of applicability of res judicata does not arise at all because it is no decree at all. Therefore the Executing Court is the only proper forum in which such a plea could be raised and it should properly adjudicate such a plea, and when the decree is prima facie void ab initio, the question of applicability of res judicata does not arise at all because it is no decree at all. The decision effectively repels the contention of the decree-holder in respect of failure on the part of the petitioner to raise the defence available under the provisions of the Karnataka Rent Control Act while the second appeal Regular Second Appeal No. 376 of 1979 came to be heard and disposed of on 17-7-1991. ( 5 ) THE next contention of the decree-holder is that to set-up the plea of tenancy, it must be shown that the petitioner was in possession of the premises as tenant and that the plea of tenancy does not enure to the benefit of the petitioner as he had throughout pleaded that he was not in possession of the premises in question. The finding recorded by the learned munsiff that there was no relationship of landlord and tenant between the petitioner and the decree-holder was read out at that stage. It may be noticed here that it is the case of the decree-holder that the petitioner was tenant in possession under the registered lease agreement Exhibit P-1. The learned Counsel for the petitioner pointed out that the opening sentence in paragraph 7 of the plaint states that the petitioner is in actual possession of the premises. Ignoring this plea, it is not open to the decree-holder to contend before this Court that the petitioner is not in possession of the premises and therefore he is not a person having possession and he is therefore not a person who can avail the benefit of tenancy in terms of definition of 'tenant' under clause (r) of Section 3 of the Karnataka Rent Control Act, 1961. The judgment of the High Court in Regular Second Appeal 376 of 1979 is persued and it is seen that the High Court also considered the question with regard to proof of relationship of landlord and tenant between the decree-holder and the petitioner and upheld the finding of the lower Appellate Court that there existed such relationship of landlord and tenant. Therefore the learned Munsiff in the execution proceedings committed a grave error in proceeding to record a finding that there existed no relationship of landlord and tenant between the decree-holder and the petitioner and upheld the finding of the lower Appellate Court that there existed such relationship of landlord and tenant. Therefore the learned Munsiff in the execution proceedings committed a grave error in proceeding to record a finding that there existed no relationship of landlord and tenant. Therefore the learned Munsiff in the execution proceedings committed a grave error in proceeding to record a finding that there existed no relationship of landlord and tenant between the decree-holder and the petitioner and this finding of the learned Munsiff is contrary to the judgment and decree made by this Court in the Second Appeal in Regular Second appeal No. 376 of 1979. The learned Munsiff in so proceeding has committed a grave error of jurisdiction and propriety. ( 6 ) THE learned Counsel for the petitioner has placed strong reliance on H. Shiva Rao and Another v Cecilia Pereira and others, in which the Supreme Court ruled that an order or decree of eviction of a tenant passed prior to the date when the rent Control Act was made applicable to the area in question cannot be executed against the tenant after the Act was made applicable to the area in question. It is further held that if the provisions of the Act are construed to the contrary the same will not further the purpose of the legislation and on the other hand will do violence to the language or would be contrary to the literal meaning. In Shiva Rao's case also the facts are almost similar. The plea of inexecutability of the decree obtained for eviction from the Civil Court was put forth by the defendant- tenant on the ground that subsequent to the enforcement of the provisions of the Karnataka Rent Control Act, the Civil Court could not have passed inexecutable decree. In Shiva Rao's case also the facts are almost similar. The plea of inexecutability of the decree obtained for eviction from the Civil Court was put forth by the defendant- tenant on the ground that subsequent to the enforcement of the provisions of the Karnataka Rent Control Act, the Civil Court could not have passed inexecutable decree. As in this case the decree for possession was confirmed in the second appeal in the year 1970 by the High Court in respect of the property situated in pandav village to which area the provisions of the Karnataka rent Control Act, 1961 were made applicable by amending karnataka Act No. 17 of 1983 on 18th July 1983 though the karnataka Rent Control Act, 1961 was not applicable to the pandava village when the suit was instituted in the Munsiff court. The execution was sued out in February, 1980. Section 21 of the Karnataka Rent Control Act, 1961 stated that 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 favour of the landlord against the tenant except on the specified ground mentioned in proviso to sub-section (1) of Section 21 and the sub-section did not prevent the execution of any order or decree passed before the coming into operation of the Act. In para 4 at page 249 of H. Shiva Rao's case, supra, the Court has observed as under:"it was held by this Court in Mani Subrat Jain v Raja Ram vohra1, dealing with Section 2 (1) of East Punjab Urban rent Restriction Act which defines 'tenant' more or less in similar term as the present Act that in view of such a definition of the 'tenant' in Rent Control Act, the fact that by the time the Act came into force a decree or any other process extinguished the tenancy under the general law of real property does not terminate the status of a tenant so long as he continues in possession and his possession cannot be terminated except as provided for in the Rent Control act. It is well-settled legal principle that Rent Control legislations being beneficial to the tenant have to be given a liberal interpretation. It is well-settled legal principle that Rent Control legislations being beneficial to the tenant have to be given a liberal interpretation. While ordinary substantive rights should not be held to be taken away except by express provision, or clear implication in the case of Rent Control act, it being a beneficial legislation the provision which confers. immunity to the tenant against eviction by the landlord though prospective in from operates to take away the right vested in the landlord by a decree of a Court which has become final, unless there is express provision or clear implication to the contrary". Placing reliance on the observation that "a decree or any other process extinguished the tenancy under the general law of real property does not terminate the status of a tenant so long as he continues in possession", it was submitted on behalf of the decree-holder that on his own showing the petitioner was not in possession on the date of suit as per the defence put-forth by him in his written statement and therefore it is not open to him at the execution stage to contend that he is in possession of the premises and he is therefore entitled to protection under the provisions of the Karnataka Rent Control Act. No doubt the petitioner contended in his written statement that he was not in possession and respondent 7 was in possession as tenant under decree-holder's brother who was impleaded as defendant 3. It is seen from the judgment of the High Court that the brother of the decree-holder who was defendant 3 gave up this contention in the lower Appellate Court and the lower Appellate Court proceeded on the basis that the decree-holder was the owner of the property. The lower Appellate Court as also the High Court found that the petitioner was in possession as tenant under the registered lease agreement Exhibit P-1. This finding of the lower appellate Court as confirmed by the High Court cannot be lost sight of. The decree-holder's case that the petitioner was in possession of the premises as on the date of the institution of the suit as averred in paragraph 7 of the plaint cannot also be ignored. This finding of the lower appellate Court as confirmed by the High Court cannot be lost sight of. The decree-holder's case that the petitioner was in possession of the premises as on the date of the institution of the suit as averred in paragraph 7 of the plaint cannot also be ignored. It is no more open to the decree-holder to ignore this material on record and contend that the petitioner is not in possession and he therefore cannot put-forth the plea of "tenant in possession under the provisions of the Karnataka Rent Control act, 1961". Since this admission on the part of the decree holder is against his own case, all through from the Trial Court, the argument submitted before this Court stands rejected automatically. ( 7 ) THE learned Counsel for the petitioner also placed reliance on the decision in West Coast Paper Mills v Mrs. Indira Rao. In this case the question considered was with regard to sustaining the decree for ejectment passed by the Civil Court after striking down of Section 31 of the Karnataka Rent Control Act, 1961. After referring to various decisions, the Court ruled that the decree of the Trial Court in the light of the striking down Section 31 of the Act during the pendency of the appeal cannot be sustained because the provisions of Part V of the Act have become applicable to the premises and it was only the Court acting under the Karnataka Rent Control Act, 1961 can pass a valid ejectment decree. This decision also considers the decision in Vineet Kumar v Mangal Sain Wadhera1, in para 21 onwards of the judgment. The submission that the principles enunciated in these decisions are not applicable to the case on hand is unacceptable. It may be noted that the suit of the decree-holder was based on the registered lease-agreement for possession of the premises from the petitioner and it is a suit for possession by the landlord against the tenant and not a suit for recovery of possession on the basis of title as such. Though the Trial Court framed Issue No. 7 with regard to proof of title by plaintiff, in the course of the judgment, it recorded a finding that such an issue did not survive for consideration. Though the Trial Court framed Issue No. 7 with regard to proof of title by plaintiff, in the course of the judgment, it recorded a finding that such an issue did not survive for consideration. The decree challenged by the petitioner is inexecutable and it is not a decree made in a suit based on title, where the defendant had denied the title of the plaintiff. The learned Counsel relied upon the decision in raja Ram Kumar Bhargava (dead) by L. Rs. v Union of India which in paragraph 9 deals with exclusion of Civil Court's jurisdiction. The decision states that a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement, provided, without expressly excluding the Civil Courts' jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. Relying on this observation it is contended that the tenancy right is common law right recognised under the general law contained in Transfer of Property Act and this tenancy right is again dealt with in special enactment of the Karnataka Rent control Act, 1961 and under these provisions of law, the landlord has got concurrent remedies and it is for him to choose the forum and the decree obtained from the Civil Court by him is contended to be executable. It is also pointed out that this decision in Raja Ram Kumar Bhargava's case, supra, is not considered in West Coast Paper Mills case, supra and therefore it is contended that the decision in West Coast Paper Mills cannot be applied to the facts of this case. These submissions are not acceptable. The Karnataka Rent Control Act, 1961 is enacted for the benefit of tenants and it is an ameliorative piece of legislation and it placed certain restrictions on the rights of the landlords. It does not enlarge the rights of the landlords. The special provisions contained in Section 21 of the Karnataka Rent control Act, 1961 place restrictions on the landlord and permits the landlord to obtain a decree for eviction only on the grounds stated in the proviso to sub-section (1) of Section 21 of the Act. Therefore the contention that the landlord has got concurrent remedies and he has got the choice of forum is unacceptable. Therefore the contention that the landlord has got concurrent remedies and he has got the choice of forum is unacceptable. Therefore, the contentions put-forth on behalf of the landlord decree-holder are unsustainable and the findings of the learned munsiff that there existed no relationship of landlord and tenant between the decree-holder and the petitioner and that the petitioner was not entitled to the benefit of bar of jurisdiction created to pass a decree by the Civil Court against the tenant otherwise than in accordance with the provisions of the karnataka Rent Control Act, 1961 are bad in law and are set aside. Hence, the revision petition succeeds and the objections of the petitioner to the inexecutability of the decree for possession are upheld. The decree is held to be void and inexecutable and the execution petition stands dismissed. --- *** --- .