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2003 DIGILAW 551 (KAR)

G. RAMACHANDRAN v. V. DORAISWAMY

2003-07-15

body2003
SRINIVASA REDDY, J. ( 1 ) IN these revisions preferred by the tenants, the legality and correctness of the order of the court-below passed in H R C Nos 10700/91 and H R C No 10701/91 are called in question By the common order passed in them, the court-below allowed the eviction petitions filed under Sec 21 (1) (h) of the Karnataka Rent Control Act, 1961 (the repealed Act for short) and rejected the petitions filed under Sec 21 (l) (a) (c) (d) of the repealed Act No revision is preferred against the dismissal of the eviction petitions filed on grounds other than clause (h) by the alleged legal representatives of the deceased landlord I use the term alleged because the petitioners very hotly dispute the claim of the present respondent in these revision petitions that she is the true legal representative of the deceased landlord. ( 2 ) BUT before I proceed to decide the revision petitions on merits, I must dispose of plethora of I As filed by the parties during the pendency of these revision petitions. ( 2 ) BUT before I proceed to decide the revision petitions on merits, I must dispose of plethora of I As filed by the parties during the pendency of these revision petitions. i) In HRRP 209/2000, eight I As have been filed I A2/2000 is for bringing on record the subsequent events filed by the petitioner The subsequent event relates to the filing of the suit by the corporation against the respondent The ownership of the premises in question is irrelevant consideration for determining the limited question of eviction of the tenant involved herein and if required for disposal of the petition this court can always take notice of the filing of the suit by the corporation as the same is not disputed by the other side I A 2 of 2000 is, therefore, dismissed ii) I A No 3 of 2000 is filed by the respondent-landlady for stopping further proceedings on the ground that the tenants are in arrears of rent It is dated 15-9-2000 On 25-9-2002 the Registrar (Judicial) has submitted a report on the direction of the court that the petitioners-tenants have paid all the rents due till the end of December, 2000 So, there is no merit in I A No 3 of 2000 and the same is dismissed iii) I A No 5 of 2000 is filed by the respondent-landlady for permitting her to produce documents by way of additional documentary evidence in order to bring the subsequent events The respondent-land lady wants to produce her enrollment certificate in Karnataka State Bar Council in proof of her need for additional requirement The enrollment certificate is an official document and there could be no valid objection for presenting it in support of her case for additional accommodation Therefore, I A No 5 of 2000 is allowed iv) I A. No 1 of 2001 is filed by the petitioner-tenant for bringing in additional evidence in the form of documents and also for taking into consideration the subsequent events The documents sought to be produced by the petitioner are the application filed by the respondent under Order 1, Rule 10 CPC on 17-3-2001 in O. S 15139/2000 and the order passed in Crl C C 15 and 16/2000 In my considered opinion, both these documents are totally irrelevant for purpose of deciding this revision Therefore, I A No 1 of 2001 is dismissed. v) I A No 2 of 2001 is filed seeking permission to amend the objections filed against the eviction petition by including the subsequent event of the corporation having filed a suit for declaration and possession of the site on which the petition premises is built The question whether the respondent is the actual owner of the premises in question or the corporation is the actual owner is an irrelevant consideration for purpose of deciding the petition for eviction as a landlord can maintain a petition for eviction against her tenant even if he or she is not the actual owner of the premises A landlord of a premises need not be the actual owner of it Therefore, I find no merit in I A No 2 of 2001 and the same is, accordingly, dismissed. vi) I A No 1/2003 is filed for dismissing the petition on the ground that she does not become the owner of the property as the Will executed by her father is hit by Ademption This is one of the issues that will be determined during the course of the final order to be passed in this revision on merits and therefore this I A will have to abide by the result of the revision petition. vii) I A 2/2003 is for taking note of the fact that the petitioner landlady is already in possession of a part of the petition premises and in addition she is also in possession of the premises vacated by ex-tenants Smt Maragadamma, Sri Nataraj and Smt Bhagyamma and, therefore, the ground under Sec. 27 (2) (r) is not open for being availed of by the respondent The prayer in this I A is directly related to the prayer in the main petition and, therefore, will be taken up for consideration at the time of final disposal of the eviction petition. viii) I A 3/03 is for expunging the order made by this court on 6-9 2000 to the effect that the order of the trial court on the question of relationship of landlord and tenant between the parties is binding and cannot be re-opened or re-agitated. viii) I A 3/03 is for expunging the order made by this court on 6-9 2000 to the effect that the order of the trial court on the question of relationship of landlord and tenant between the parties is binding and cannot be re-opened or re-agitated. A similar set of I A s have been filed in Revision Petition H R R P No 210/2000 There is no need to state in detail the I A s filed in H R R P No 210/2000 as I propose to dispose off the Revision Petitions finally on merits and the I A s will abide by the final result of the Revision Proceedings. ( 3 ) THE petition was originally filed by V Doraiswamy who was the landlord of the petition premises After his death during the pendency of the proceedings before the H R C court his daughter Smt Meera Mukund has come on record as his legal representative Learned Counsel for the petitioner-tenant challenges the order of the court-below mainly on three grounds viz, 1) there is no relationship of landlord and tenant as between the parties, 2) the need of the respondent is fully met as she has come to possess two other portions of the petition premises which were in the occupation of other two tenants and 3) the right to sue does not ensure to the benefit of the present respondent as the requirement pleaded by late V Doraiswamy was not for the benefit of the present respondent and, therefore, a fresh petition has to be filed in that regard. ( 4 ) I have heard the arguments of learned counsel on both sides at length. ( 5 ) FOR the sake of convenience I take up the second and third grounds urged by learned counsel Mr Rama Rao in his challenge to the impugned order as the submission rests purely on facts According to learned counsel, the petition filed by V Doraiswamy could not have been persisted with by Meera Mukund as the requirement now pleaded by her is not the same as the one pleaded by her father late V Doraiswamy The requirement as pleaded by late V Doraiswamy is contained in para 8 of the eviction petition and it reads. The petitioner submits that his daughter Smt Meera Mukund, was residing in a rented premises with her husband in Domlur and in the year 1993 the said Smt Meera Mukund and her husband shifted to another rented premises in Kalhalli area itself and resided for a period of five years in the said rented house and the in the year 1996 Smt Meera Mukund and her husband and her child shifted to the main portion in the building to which the petition schedule portion is abutting and now, in the said main portion, the petitioner and his wife and the petitioners daughter Smt Meera Mukund and the petitioners son-in-law Sri Mukund and his grand son of the petitioner are living The petitioners daughter is working in Indian Bank and the accommodation for the petitioner and his family members is only one small Hall, Kitchen and a small bed room and it is not sufficient for the petitioner and his family members The portion in occupation of the respondent is abutting to the said abutted portion separated by a wall and if the respondent is evicted, a door can be very conveniently opened in the said wall and it can be annexed to the portion in which the petitioner and his family members are residing now with great difficulty due to paucity of accommodation the pleadings to the above effect in the original petition puts to rest the argument advanced by learned counsel for the petitioner Mr Rama Rao that the eviction petition as originally filed by late V Doraiswamy would not survive for the benefit of Smt Meera Mukund as such a contention cannot be permitted to be urged in the face of the clear averments contained in the petition From the pleadings excerpted hereinabove it becomes obvious that the cause pleaded by V Doraiswamy is no different from the cause that is now pleaded by Smt Meera Mukund The cause pleaded by V Doraiswamy in the eviction petition as it was originally filed was that the petition premises were required by him to accommodate his daughter, her husband and their son who are suffering on account of paucity of accommodation The petitioner by bringing forth certain subsequent events is only seeking to reinforce and enlarge the requirement originally pleaded by her father on her behalf as during the pendency of this revision proceedings she has enrolled herself as a Member of the Bar and intends to establish her office in the petition premises If there were to be no pleading at all in the eviction petition in respect of the requirement of Meera Mukund, the contention of Mr Rama Rao could have been appreciated Therefore, this plea is not available to the petitioner to knock down the impugned order as incorrect or illegal. ( 6 ) THE next ground urged by learned counsel Mr Rama Rao is that Ms Meera Mukund having come into possession of premises vacated by two other tenants her requirement is fully met and nothing more remains to be adjudicated upon in these revision petitions in order to determine her need for accommodation and the revision has to be dismissed in terms of Sec 27 (2) (r) of the present Act as she has come into possession of suitable accommodation during the pendency of these proceedings. The entire premises measures 29 feet by 50 feet and of which two portions are in occupation of the petitioners herein The need to satisfy for which the eviction petition was filed by late Doraiswamy has undergone a metamorphosis, in that, another dimension is added to it by the fact of Meera Mukund becoming a practicing advocate which necessarily would jack up her need for accommodation This fact coupled with the fact that her doctor brother spends the week-ends in their house is a pointer to the paucity of accommodation that would prevail despite her coming into possession of two other portions which were in the occupation of other tenants Considering that petition premises situate on a 29 feet by 50 feet plot is divided into so many portions and presently two portions are in possession of the tenants who are the revision petitioners herein, it is difficult to concur with the learned counsels argument that the realisation of the vacant possession of two other portions would fully satisfy her requirement and therefore her claim which is the subject-matter of the present revision petitions would no longer survive for consideration and in the light of this subsequent development the revision petitions have to be allowed, is too far-fetched and cannot be accepted especially in the light of the changed circumstance that Meera Mukund is a practicing lawyer now and she desires to establish her office also in the petition premises Therefore, the eviction order passed by the court-below cannot be interfered with on this ground. ( 7 ) THAT takes me to the point of law urged by the Learned Counsel for the petitioners touching the relationship of landlord and tenant According to Mr Rama Rao there is no relationship of landlord and tenant Firstly, he submits that Doraiswamy was not the owner of the petition premises and the actual owner is the Bangalore City Corporation and, therefore, the Will executed by late Doraiswamy would not bestow the ownership of the premises on her as the same is hit by ademption Ademption has been explained in Sec 152 of the Indian Succession act, 1925 The provision reads s 152 Ademption explained -If anything which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the legacy is adeemed, that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the operation of the will ( 8 ) BASED on Sec 152 of the Indian Succession Act, 1925 Mr Ramarao contends, now that it is shown by the judgment and decree passed in O S No 10815/1986 that the property did not belong to Doraiswamy and the corporation is the owner of the petition premises, she does not derive any right under the will and, therefore, she cannot sue in her capacity as the owner or landlord of the premises The contention of Learned Counsel does not appeal to me in the least because a landlord of a premises need not be the owner thereof in order to sustain an eviction proceedings The law on the point is no longer res integra as it has been reiterated by several decisions that a landlord of the premises need not be the owner of the premises More over in these proceedings Meera Mukund has come on record not as owner of the petition premises but as the legal representative of Doraiswamy and the right of Meera Munkund who is the daughter of late Doraiswamy to represent him in these proceedings can never be doubted nor questioned given the fact that all attempts made by the petitioners in that regard have come to nought The position in law is succinctly brought out by the observations of this court in KALLAPPA RAMA LONDA v SHIVAPPA NAGAPPA APARAJ, AIR 1995 KARNATAKA 230 wherein a similar issue was raised by a landlord who disputed the tenancy right of the respondent in the said case The observations on the point, read another aspect in this case that is to be adverted to is that the landlord did not raise any objections at the time when the impleading applicant moved the Court with an application to come on record as legal representative to continue the proceedings but rather gave his consent to the application being allowed on 19-9-1989 Legal representative continued the proceedings Landlord has not questioned the findings before higher forum It is only in the year 1994, the landlord became activated and moved the Court to decide the question of maintainability on the ground that the impleading applicant cannot continue the proceedings as L R of deceased-tenant since she is not one of the persons enumerated in Section 3 ( r) to come on record as tenants successor in interest That decision given by a Court at an earlier stage of a case is binding at a later stage is well settled though interlocutory judgments are open for adjudication by an appellate authority in an appeal against final judgment ( 9 ) THE position in this case is no different though the petitioners herein refused to recognise Meera Mukund as the legal representative of late Doraiswamy By a series of orders passed by this court culminating in a final order passed by Mohamed Anwar J, as he then was, the matter was set at rest Referring to the earlier orders passed by this court on the aspect of relationship of landlord and tenant between the parties, the final order passed by Mohamed Anwar J runs thus therefore, by the aforestated orders of this Court passed in the aforesaid revisions that were filed by the petitioner-tenant against the finding of the trial court on the preliminary issue on the question of existence of the jural relationship of tenant and landlord between the parties with respect to the petition premises and (against its other Interim orders) it stands conclusively established that the petitioner-tenant is the tenant with respect to the petition premises under the respondent-landlord and that the latters eviction petitions filed before the Court below under various grounds of sub sec (1) of Sec 21 (1) of the Act was maintainable in law This binding decision of the trial Court operates as res-judicata against the petitioner-tenant and he cannot be permitted in law and is not permitted to re-open and re-agitate the said issue point on any pretext, whatsoever In that view of the matter the decision on which petitioners counsel intended to rely is of no avail to the petitioner ( 10 ) THE above order has become final as the same was not taken up in appeal by the petitioners to a higher forum for challenging the finding What is the effect of such an interlocutory order passed by a court while determining the jural relationship between the parties in an eviction proceedings is aptly brought out by the observations of the Apex Court in SATYADHYAN GHOSAL v DEORAJIN DEBI, AIR 1960 S C 941 (at pp 943,944) which read the principle of res-judicata applies also as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceeding to similar effect is the principle enunciated by the Apex Court in PRAHLAD SINGH v COL SUKHDEV SINGH, AIR 1987 S C 1145 (Head Note) which curiously has been relied upon by learned counsel Mr Rama Rao, himself The enunciation reads it is well settled that the decision given by a Court at an earlier stage of a case is binding at a later stage though interlocutory judgments are open for adjudication by an appellate authority in an appeal against the final judgment Where the ex parte decree passed in the petition for eviction based on ground of default in payment of rent was set aside on finding that the landlord had agreed to withdraw the petition and accept rent from the tenant, the continuance of the eviction petition thereafter by disregarding the finding recorded in the proceedings for setting aside the ex parte decree was illegal The finding that the landlord had agreed to withdraw the suit and receive the rent from the tenant was a finding which was binding on the landlord at later stages of the proceeding The eviction petition was therefore liable to be dismissed learned counsel, it appears, is carried away by the observations made at page 1147 to the following effect it was however clarified that it did not mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again though the para began with these observations the matter was clarified further and the law on the point made crystal clear by the subsequent observations that followed it They read we are not also concerned here with orders of an interlocutory nature such as orders granting temporary injunction, appointing receiver etc, which do not purport to decide the rights of the parties finally In the present case, in the proceeding to set aside an ex parte order, the Court recorded an express finding that the landlord had agreed to withdraw the suit and receive the rent from the tenant That was a finding which was binding on the landlord at later stages of the proceeding He could have questioned the finding before the appellate authority and the High Court in the appeals preferred by the tenant He did not choose to do so In fact he could not do so as he had earlier thought it prudent not to enter the witness box though he put the question in issue in the proceeding to set aside the ex parte order by contesting the statement of the tenant In the circumstances we allow the appeal, set aside the judgments of the High Court and subordinate Tribunals and dismiss the petition for eviction. ( 11 ) THEREFORE, the petitioners are estopped from raising this issue once again as the order which was finally passed on this aspect was never questioned by him and, therefore, that finding as to the relationship of landlord and tenant between the parties has achieved finality and cannot be brought in issue again in these proceedings. ( 11 ) THEREFORE, the petitioners are estopped from raising this issue once again as the order which was finally passed on this aspect was never questioned by him and, therefore, that finding as to the relationship of landlord and tenant between the parties has achieved finality and cannot be brought in issue again in these proceedings. The decision in RAMESHWAR DAYAL v BANDA (DEAD) THROUGH HIS L RS AND ANOTHER, (1993) 1 SCC 531 cited by learned counsel Rama Rao does not support his proposition that what has been decided by a court at the interlocutory stage and has become final can be gone into again when the matter is decided finally The ratio of the decision in the said case is on a different point altogether He also relied on SATYADHYAN v SMT DEORAJIN DEBI, AIR 1960 S C 941 wherein their Lordships observed but an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decree or order it cannot be lost sight of the fact that when the eviction court rejected the claim of the petitioner on the question of relationship of landlord and tenant the matter was brought up in revision before this court and it is here that it was finally decided Therefore, the principle that is laid down in Satyadhyan, supra, is of no assistance to the petitioners because the revisional remedy was available to them and they had exhausted it in their endeavour to prove the non existence of relationship of landlord and tenant In this regard he also cited DODDAPPA v SHARNAPPA, Mys L J 1959 488 wherein a Division Bench of this Court, observed held, the error committed by the Court was an accidental one apparent on the face of the record and could be corrected under Sec 152 C P C A mistake arising by oversight on the part of the judge could be corrected under Sec 152 C P C an order passed by this Court in exercise of its revisional jurisdiction finally settling a preliminary issue which has to be essentially determined before the proceedings could go on before the H R C Court can never be equated with a mistake apparent on the face of the record The decision rendered in Doddappa, supra, is in a totally different context and can never be relied upon for supporting the proposition advanced by Mr Rama Rao He also cited the decision in S N BANERJI v K L and S Co, A. I R 1941 Privy Council 128 wherein it is observed that, one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors An order of eviction passed against a tenant by a Court after deciding the petition on merits cannot be termed as an injury caused to the tenant Every cause claims its martyr and if the law, necessitated by practical considerations, hurts a few it cannot be helped by the Court The maxim Actus curiae neminem gravabit (An act of the court shall prejudice no man) is the simple answer to this submission of Mr Rama Rao. ( 12 ) WHILE on this point it would be useful to refer to the statement touching the question of inheritance made in Salmonds jurisprudence 11th edition, page 482 inheritance is some sort of a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria personal fulfill, he owns, exercises and fulfils in the person of a living substitute To this extent and in this fashion it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed and his property duly disposed of his representative among the living is no longer called for in the present case the legal representative is proceeding in substance with the claim originally made by the deceased landlord in a manner appropriate to the character of a legal representative and she cannot be non-suited on some flimsy ground as the courts approach should be to advance substantial justice. ( 13 ) THUS on consideration of all aspects urged by the petitioners herein, I decline to interfere with the impugned orders of eviction and accordingly dismiss both the revisions However, the petitioners herein are granted three months time to vacate and hand over vacant possession of the premises in question to the respondent landlord Parties are directed to bear their own costs. --- *** --- .