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2002 DIGILAW 333 (KAR)

SUNDARI ACHARTHI v. N. SHANKARA BANGERA

2002-05-31

M.F.SALDANHA

body2002
M. F. SALDANHA, J. ( 1 ) THE petitioner before me is the original tenant against whom a proceeding had been instituted under Section 21 (l) (h) of the Karnataka rent Control Act, 1961 by the respondent who was the then landlady. The Trial Court dismissed the suit principally because, the Court was not satisfied with regard to the status of the respondent who had contended that she was a tenant with one Leelavathy and the Court held that there were certain discrepancies with regard to the production of the rent receipts as also with regard to the so-called agreement between the parties and that therefore, the landlady had no case made out for the grant of the relief. The landlord filed a revision against the order of the Trial Court and the learned Principal District Judge, Dakshina Kannada in Rev. (Rent) No. 107 of 1993 reversed the decision of the Trial court. The Revisional Court was essentially satisfied that the landlord had made out a bona fide case for recovery of possession and consequently, decreed the suit. The present house rent revision petition has been directed against that order. ( 2 ) ORIGINALLY, when the petition first came up for hearing, the respondent-landlord through his learned Advocate put forward some offer with regard to the grant of time to vacate but, the petitioner was not agreeable to accept the offer, as her essential submission was that the petitioner is entitled to succeed on merits in the present petition. The main submission canvassed is that by virtue of the repeal of the earlier Rent act and also by virtue of the provisions of Section 70 of the Karnataka rent Act, 1999 that this Court would have to decide the petition on the basis of the provisions of law as are now applicable. It is true that certain changes have taken place as far as this field of legislation is concerned and it is possibly for this reason that the Legislature has desired that even in respect of certain categories of pending proceedings the new provision should apply. In keeping with this principle, Mr. Rao, learned Counsel who represents the petitioner submitted that the Court would have to apply the provisions of Section 27 (2) (r) of the present Act which reads as follows. In keeping with this principle, Mr. Rao, learned Counsel who represents the petitioner submitted that the Court would have to apply the provisions of Section 27 (2) (r) of the present Act which reads as follows. "27 (2) (R) that the premises let are required whether in the same form or after reconstruction or rebuilding, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation: provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition". To this extent the learned Counsel is right in his submission. Mr. Rao, thereafter, submitted that while applying these provisions, the court will have to look to the record of the present case because there is a clear-cut finding under two heads as far as the Trial Court is concerned in favour of the present petitioner or in other words against the landlord. The first of these is with regard to the non-mention of the door number of the premises and more importantly, the non-production of some of the relevant rent receipts and as far as this aspect is concerned, the first Revisional Court has given sufficiently good and valid reasons for having not agreed with the Trial Court. In my considered view, the grounds on which the present respondent was non-suited by the Trial court under this head were totally unjustified and the Revisional Court was well-within its rights in having held that the non-mention of the door number and the non-production of some of the rent receipts was inconsequential principally because, the respondent had examined the landlady who has in terms deposed to the fact that the respondent had been her tenant since the year 1991. The second head of challenge revolves around the fact that the so-called agreement between the respondent and the landlady Leelavathy is ostensibly dated 1-12-1991 and it has been pointed out that the stamp paper has been purchased only on 10-12-1991. The second head of challenge revolves around the fact that the so-called agreement between the respondent and the landlady Leelavathy is ostensibly dated 1-12-1991 and it has been pointed out that the stamp paper has been purchased only on 10-12-1991. This is a circumstance which the Trial Court held to be fatal as far as the respondent is concerned but the first Revisional Court has once again reconsidered the whole issue and has come to the conclusion that this circumstance would still not come in the way of a relief being granted to the respondent. To my mind, this is not a case in which the respondent is before the Court to prove or establish tenancy in which case, the Court may examine the facts with the pros and cons. The limited plea that the respondent is required to justify revolves around the fact that the respondent does not own or possess any other suitable premises, that the respondent is staying in some rented premises and that there is justification in the submission that the landlord should be restored the premises that belongs to him for his own occupation. Factually there is a very clear-cut finding recorded by the Revisional Court which to my mind does not require any interference with and the so called discrepancy with regard to the agreement etc. , is once again, to my mind, not something that goes to the root of the matter and anything that could come in the way of disqualifying the respondent from the relief. ( 3 ) THE most substantial head of challenge emanates from the next submission canvassed viz. , that the proviso to Section 27 (2) (r) prescribes that in respect of transferred premises an application under the section shall not be entertained unless the period of one year has elapsed since the date of transfer. Mr. Rao submitted that the suit in question was instituted in November 1991 by the respondent-landlord even though the landlord only acquired the premises on 20th February, 1991. The submission was that admittedly 12 calendar months or one year had not elapsed since the date on which the premises had been acquired through transfer and that consequently, the proviso would present a legal bar to the maintainability of the suit. The submission was that admittedly 12 calendar months or one year had not elapsed since the date on which the premises had been acquired through transfer and that consequently, the proviso would present a legal bar to the maintainability of the suit. In other words, what is now submitted is that applying the proviso to Section 27 (2) (r) that this Court must uphold the submission that the suit which was filed in the year 1991 was not maintainable only because, the limitation period had not expired. ( 4 ) THE respondent's learned Advocate submitted that this interpretation is unjustified. It was his contention that where the Legislature has now prescribed that a period of one year is required to elapse before an application can be entertained, that it would only apply to proceedings that are instituted under this Act and that this would have no application to the proceedings that have been instituted under the earlier statute. Mr. Shetty's submission was that the earlier section did not contain any such proviso and that the suit as filed by the respondent was perfectly justifiable and maintainable under the old statute. Consequently, his submission was that while the Court is required to look at the ingredients of Section 27 (2) (r) as far as factors such as the time frame is concerned, that this last aspect which is contained in the proviso shall only be confined to fresh proceedings instituted at this point of time and cannot provide a retrospective bar. ( 5 ) MR. Rao's submission in reply was that where the Legislature has prescribed in Section 70 (2) (b) that the proceeding shall be governed by the provisions of the new Act, that the obvious legislative intent was that even provisions such as the aspect of bar of limitation etc. , would have to be construed on the basis of the present statutory provisions. ( 6 ) AS far as the last argument is concerned, what I need to record is that in the first instance the proviso does not provide a bar to a legal proceeding but, it would only provide for a situation whereby the provisions of section 27 (2) (r) should not be hurriedly misused. ( 6 ) AS far as the last argument is concerned, what I need to record is that in the first instance the proviso does not provide a bar to a legal proceeding but, it would only provide for a situation whereby the provisions of section 27 (2) (r) should not be hurriedly misused. The whole object of prescribing a time frame of one year after the date of transfer is in order to avoid clandestine transactions to parties who will then immediately institute the proceedings against the tenants even though the original landlord could not have or may not have had the capacity to do so. The real test would come up insofar as the Court would only be precluded from granting a relief unless that period has elapsed and secondly, if a suit is instituted before the timeframe has elapsed, all that the Court would have to do is to categorise it as premature but, that this does not mean that the suit is non, cst in law. The same suit if filed after the period of 12 months is over would still be maintainable and having regard to this position, what the Court needs to look at is as to how the provision will have to be applied in respect of the proceedings that have been filed earlier. Where the proceeding was perfectly maintainable as the law then stood, it cannot be called into question by virtue of a provision that has been given retrospective application; its maintainability, therefore, cannot be called into question. All that the Court will have to do while applying the principles of interpretation of statutes that are well-defined in such situations is to ensure that in any event, while applying Section 27 (2) (r) that the provisions are respected insofar as the time period of 12 months is given effect to. What one needs to take note of is that the Legislature has not prohibited the grant of a relief under section 27 (r) but, it has only provided for the cushion time of one year during which the relief should not be granted. Under the circumstances, to my mind, since already eleven years have elapsed, the proviso in question will not prescribe any bar as far as maintainability of the present proceedings are concerned. Under the circumstances, to my mind, since already eleven years have elapsed, the proviso in question will not prescribe any bar as far as maintainability of the present proceedings are concerned. Also, there is considerable substance in the submission put forward by the respondent's learned Advocate when he points out that as far as the proviso is concerned, that it would only have application to fresh proceedings that are instituted under the provisions of Section 27 (2) (r) and that it would not prescribe any bar as far as the earlier proceedings are concerned. On merits, I see no ground 011 which any interference can be called for as far as the revisional order is concerned. ( 7 ) THE house rent revision petition accordingly fails and stands dismissed. The earlier interim order to stand vacated. In the circumstances of the case, there shall be no order as to costs. ( 8 ) WITHOUT prejudice to the submissions canvassed, Mr. Rao submits that the petitioner is an aged lady who has a handicapped son and that she is facing several personal difficulties. His request is that the Court should grant some reasonable time to vacate. Mr. Shetty on behalf of the respondent submits that there is equal hardship on his client's side who in addition to his other problems has suffered a stroke and is at present in hospital. He has consequently opposed the grant of any further time. ( 9 ) IN view of the facts and circumstances of the case and particularly since it would be necessary for the petitioner to find an alternate accommodation which is not an easy job in these difficult times, the time to vacate is extended upto 31st December, 2002. However, if the petitioner desires to avail of this time then an undertaking will have to be filed before the Trial Court unconditionally undertaking to handover the vacant and peaceful possession latest by 31-12-2002, to pay up the amounts that fail due by way of rent during the interim period and more importantly, not to induct any third parties or create any third party rights during the interim period. The extension of time is conditional on the filing of this undertaking before the Trial Court which will have to be done within an outer limit of four weeks from today. --- *** --- .