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2002 DIGILAW 51 (KAR)

MUKUNDA v. K. RADHAKRISHNA PAI

2002-01-18

M.F.SALDANHA

body2002
M. F. SALDANHA, J. ( 1 ) I have heard the learned Advocates on both sides. These two petitions are directed against the common order passed by the revisional court whereby the respondent's revision was allowed and the petitioner's revision was dismissed. ( 2 ) MR. Goulay, learned Counsel who represents the petitioner raised a preliminary issue viz. , that the revision filed by the respondent in the year 2001 challenging the adverse finding recorded by the Trial Court in the year 1990 under Section 21 (l) (p) of the Karnataka Rent Control Act, 1961 was hopelessly time-barred and that the lower Court ought to have upheld this bar and dismissed the petition at its very inception. He has relied on a decision of the Supreme Court in State of Gujarat v Patel raghav Natha and Others, wherein the Supreme Court had occasion while dealing with revision proceedings in that instance to point out that despite the fact that no specified period of limitation had been prescribed that a revision is not maintainable after a reasonable period of time has elapsed. The Supreme Court also has elaborated that consequences of entertaining belated revisions would be extremely harsh and disastrous to the opposite party and consequently, that the concept of a reasonable time frame is implicit. I need to clarify here that there are several distinguishing features, the first of them being that the Supreme court was dealing with a statutory provision under Section 211 of the bombay Land Revenue Act and one of the predominant reasons as stated by the Supreme Court why the principle was laid down was because the respondent would be adversely affected if the authorities were to be given a blank jurisdiction to exercise revisional powers at any belated stage. The facts of that case and the facts of the present case are entirely different. I do concede that there is considerable substance in the principle of law enunciated by the learned Counsel but, the question arises as to whether it would have universal application in all instances and furthermore, whether in the present case, at this stage after the revisional Authority has entertained the revision petition, the petitioner has accepted that position, argued the case, lost it and then comes to the High Court, it is permissible to go backwards and challenge the maintainability of that proceeding. To my mind, the petitioner is estopped from raising a plea at this point of time but, more importantly what needs to be seen is that we have a rather peculiar position here viz. , that it was the petitioner who had challenged the adverse verdict of the Trial Court and those proceedings were pending. Obviously it then came to the notice of the respondent or his Advocates that the adverse finding under Section 21 (l) (p) which had been recorded by the Trial court and ought to have been technically challenged, had not been done and it was more in the nature of a corrective that the revision was filed, which would have made a difference. Though the revision was filed in the first instance but, what virtually saves the respondent is the fact that the proceedings were in any case pending, the revisional Court was seized of the matter and it was almost on par with a situation wherein a litigant seeks the permission of the Court to raise an additional ground or an additional plea or an additional point of fact or law. Under the circumstances, to my mind, some dilution of the principle will have to be accepted and I see no reason why at this late stage this Court should uphold the plea that the respondent's revision was not maintainable. ( 3 ) THE second plea that has been canvassed by the petitioner's leaned Advocate arises out of the unholy confusion that has been created by the legislature by putting in the provision in Section 70 of the karnataka Rent Act, 1999 that in respect of pending proceedings, they will have to be disposed off under the provisions of the new Act. It would have been far more rational. , sensible and logical and to my mind, legal for the legislature to have applied sub-clause (1) of Section 70 to pending proceedings because, a serious anomaly does arise in several instances where the parties have litigated on the basis of provisions of a particular statute and they are required to virtually somersault by virtue of the change of the provisions of law. ( 4 ) MR. Goulay submitted vehemently that the basic plea on which the respondent had applied for restoration of possession is no longer available and consequently under sub-clause (c) it will have to be held that the proceeding abates. ( 4 ) MR. Goulay submitted vehemently that the basic plea on which the respondent had applied for restoration of possession is no longer available and consequently under sub-clause (c) it will have to be held that the proceeding abates. The respondent's learned Advocate has drawn my attention to the fact that this position does not hold good because according to him, the proceeding itself has concluded before the commencemeni of the new Act and consequently, that the order is saved. Without prejudice to this position, he has contended that the provisions of Section 27 (2) (r) will apply to the present proceeding and that consequently, he still is entitled to the relief. To my mind, the issue itself is really academic but, since Mr. Goulay has raised the point of maintainability, it wiil have to be held that the respondent is right virtually in respect of both the pleas that have been canvassed. Though this plea has been taken in the alternative, I do find that there is considerable justification in the defence pleaded. ( 5 ) VERY importantly, I need to briefly advert to the portion of the petitioner's evidence on which, the revisional Court has placed very strong reliance which conclusively indicates that a new residential premies standing in the name of the petitioner's wife Hemalatha was not only constructed but that it became occupational and the House warming Ceremony was conducted in about the year 1990 which is virtually 12 years back. Before the Trial Court the petitioner himself has admitted that their belongings which include even items like, television set, telephone etc. , have been shifted to those premises. The contention taken up by the respondent was that a technical plea was put forward by the petitioner and it was accepted by the Trial Court and it has also been reitered rather strongly by the learned Counsel before this Court that the earlier section prescribed that the alternate premises ought to have been acquired by the tenant and his submission is that if the premises have been acquired by the spouse, that the rigor of the section will not apply. ( 6 ) MY attention was drawn to the fact that in a given case, the supreme Court had upheld that plea, but what we need to see here is as to whether the facts of this case would justify the application of that concept. ( 6 ) MY attention was drawn to the fact that in a given case, the supreme Court had upheld that plea, but what we need to see here is as to whether the facts of this case would justify the application of that concept. It is not that husband and wife have been equated with that of one person in the eye of law but the evidence in this case clearly indicates that the husband and wife are living together, that the wife has no income of her own and consequently, that for all intents and purposes no distinction can be drawn between them by the Court. There are cases and cases, but the facts of the present case do not admit to such a distinction being made. It is very clear from the evidence extracted by the revisional Court that the present petitioner has acquired a suitable residential accommodation not recently, but as long as 12 years back and in this background, there is hardly any justification for any plea to be put forward on behalf of the petitioner on the facts of the present case. To my mind, these facts are gross and there can be few parallels of a more undeserving case than the present one. ( 7 ) HAVING regard to the aforesaid findings, I see no ground for interference whatsoever with the orders under revision. Both the petitions fail and stand dismissed. No order as to costs. ( 8 ) A fervent plea has been made by the petitioner's learned Counsel that as is normally done, the petitioner should be given some reasonable time to shift out of the premises which plea has been opposed by the respondent's Advocate on a variety of grounds. One is required to evaluate every case on the special facts and to mould the relief that is granted. In this case, it is very clear that nobody other than the petitioner is there and that too, it does appear to the Court that having got the residential premises elsewhere, that this premises is also being used. Under the circumstances, all that the petitioner will have to do is to vacate whatever all his belongings are there and hand over possession to the respondent. Time is granted to the petitioner to complete these formalities latest by 31-3-2002. Under the circumstances, all that the petitioner will have to do is to vacate whatever all his belongings are there and hand over possession to the respondent. Time is granted to the petitioner to complete these formalities latest by 31-3-2002. The petitioner will however have to file an undertaking before the revisional Court unconditionally agreeing to hand over the possession latest by 31-3-2002 and consequently confirming that no third party rights will be created nor will any third person be inducted in the premises nor will any other obstructionist proceedings be resorted to. In case if any such tactics are adopted, this Court will be constrained to straightaway take out proceedings under the Contempt of Courts Act. The undertaking to be filed within a period of two weeks from today. --- *** --- .