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2006 DIGILAW 269 (KAR)

KASHIPATHI v. FAKIRGOUDA HUCHAPPA PATIL

2006-03-13

K.RAMANNA

body2006
ORDER This is a writ petition filed by petitioners 1 and 2 under Article 226 of the Constitution of India to quash the order dated 31-1-1995, passed in H.RC. No. 190 of 1984, on the file of the Principal Munsiff, Bijapur vide Annexure-E. 2. The brief facts of this case are that the petitioners 1 and 2 are brothers. They are running a joint family firm namely, Kirana Merchant in the name and style of "S.S. Swamy". Respondents 1 to 6 are the landlords of the petition schedule premises which is a non-residential building bearing CTS No. 898, situated in Ward No. ITI, Bijapur City and they are paying monthly rent of Rs. 30/- to the said premises in which they are running the business. They are paying the rent regularly and there is no arrears of rent as on today but the respondents have filed the petition under Section 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the KRC. Act') along with an application under Section 29(4) of the KRC. Act for a direction to the petitioner-tenant to pay a sum of Rs. 4,950/- towards the arrears of rent and subsequent rents falling due for every month, on the 10th of succeeding month; for stopping further proceedings and also for a direction to put the respondents in vacant possession of the suit premises. After appearance, the Principal Munsiff, Bijapur passed an order on LA. No. I filed under Section 29(4) of the KRC. Act, 1961 and allowed the said application. All further proceedings in the said case were stopped and the petitioner-tenants were directed to handover vacant possession of the petition schedule premises. Being aggrieved by the said order, the petitioners have come up with the instant writ petition. 3. The respondent 4 herein filed a detailed objection contending that the petition filed by the petitioners is barred by time and the writ petition is liable to be dismissed since the present petition filed by petitioners is by suppressing material facts. 4. The petitioners filed H.R.R.P. No. 229 of 2005 under Section 115 of the CPC. In that petition there was a delay of 376 days and the delay was not condoned in the said revision petition and the revision petition came to be disposed of granting time to vacate the premises and handover the same on 31-12-2005. 4. The petitioners filed H.R.R.P. No. 229 of 2005 under Section 115 of the CPC. In that petition there was a delay of 376 days and the delay was not condoned in the said revision petition and the revision petition came to be disposed of granting time to vacate the premises and handover the same on 31-12-2005. After disposal of the said revision petition, petitioners filed an application before the District Judge under Section 151 of the CPC to extend the time for vacating the said premises by another five months. After hearing both the parties, the Revisional Court extended the time till 15-1-2006 to vacate the premises in question and the petitioners have not stated anything with regard to the delay in filing the revision petition. Since the petitioners were in arrears of rent to the tune of Rs. 4,950/-, the respondents filed application under Section 29(4) of the Karnataka Rent Control Act stating that the petitioners have not paid rents from 1973 to 1983, amounting to Rs. 4,680/-. So after hearing both parties, the Trial Court has allowed the LA. filed by the petitioners directing the respondents to vacate the premises. So against the said order, the petitioners herein filed a revision petition before the District Court in Rent Revision No. 10 of 1995 and during the pendency of the revision petition, Rent Control Act came to be amended in 1999 and came into force on 31-12-2001. As per Section 70(2)(c) of the Karnataka Rent Act the revision petition came to be abated vide Court order dated 8-1-2004. Therefore the petitioners preferred the revision petition before this Court in H.R.R.P. No. 229 of 2005 which was also disposed of and the order passed by the H.R.C. Court on 31-1-1995 became executable and the respondents have already filed an execution petition and the said execution petition was posted for final orders. In the meanwhile, the petitioners filed this writ petition and obtained stay by suppressing the facts. The petitioners have willfully disobeyed the order passed by this Court which amounts to contempt of Court and the petitioners have adopted tactics of filing the petition after petition for the same cause of action which amounts to abuse of process of law. Hence prayed for dismissal of the writ petition. 5. Heard the arguments of the learned Counsel for the petitioners and the learned Counsel for the respondents. 6. Hence prayed for dismissal of the writ petition. 5. Heard the arguments of the learned Counsel for the petitioners and the learned Counsel for the respondents. 6. During the course of arguments, learned Counsel for the petitioners Sri Hebballi contended that the premises in question is a non-residential one which exceeds more than 14 sq. mtrs. It is contended that the petitioners have challenged the order passed by the Munsiff in the H.R.R.P. only under Section 29(4) of the Karnataka Rent Act of 1961. During the pendency of the said H.R.R.P. new Rent Act came into effect from 31-12-2001. Therefore, on 31-12-2001 the proceedings which were pending on the file of the District Judge came to be abated as per Section 70(2)(c) of the said Act. It is submitted that the H.R.R.P. filed by the petitioners before this Court in H.R.R.P. No. 229 of 2005 came to be dismissed. As a last remedy, petitioners 1 and 2 herein have come up with the instant writ petition. It is contended that the writ petition is very much maintainable under Article 227 of the Constitution of India. In support of this contention, the learned Counsel for the petitioners has relied on the following decisions.- (a) B. Prakash Chand v S. V. Gyanchand Jain1, wherein the Division Bench of this Court held that when the revision is pending before the District Judge and new Act came into force, thereafter though proceedings filed in revision petition under Section 70(2)(c) of the Karnataka Rent Act, the earlier order passed in H.R.C. becomes final and conclusive and becomes enforceable. The only remedy available to the tenant is to file a writ petition under Article 226 of the Constitution of India. In the instant case when the revision petition filed by the petitioners before the District Judge under Section 50 of Karnataka Rent Control Act was pending, the New Act came into force. Therefore, there is no other way except to challenge the order passed by the H.R.C. Court under Article 227 of the Constitution of India before this Court. In the instant case when the revision petition filed by the petitioners before the District Judge under Section 50 of Karnataka Rent Control Act was pending, the New Act came into force. Therefore, there is no other way except to challenge the order passed by the H.R.C. Court under Article 227 of the Constitution of India before this Court. (b) As far as res judicata is concerned, learned Counsel for the petitioners relied on a decision in Sushil Kumar Mehta v Gobind Ram Bohra (dead) through L.Rs2, para 26 wherein it is held as follows.- "If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 of the CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. . . . But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. . . . . Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the Court inheritently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction". Further it is contended by the learned Counsel for the petitioners that the order is passed by the H.R.C. Court without framing appropriate points for consideration. The respondents had filed H.R.C. petition under Section 21(1)(a) and (h) along with I.A. No. I under Section 29(4) of the Karnataka Rent Control Act without determining what was the arrears of rent due by the petitioners. The respondents had filed H.R.C. petition under Section 21(1)(a) and (h) along with I.A. No. I under Section 29(4) of the Karnataka Rent Control Act without determining what was the arrears of rent due by the petitioners. No show-cause notice was issued calling upon the petitioners to pay the said arrears of rent but straightaway directed the petitioners to vacate and handover possession of the said premises to the respondents which is highly illegal. Further it is contended that the respondents have not raised any objection before the revisional Court namely the District Judge under Section 115 of the CPC. When it is contended earlier that the petitioners herein had filed a H.R.R.P. under Section 115 of the CPC, now the respondents cannot take such a contention that this Court has no jurisdiction to invoke Article 226 of the Constitution. In support of this contention, learned Counsel for the petitioner relied upon a decision in Smt. Kishori Devi v Lala Ram Narain Salgal1, wherein it has been held as follows.- ''Where no contention was raised by the appellant before the High Court as to its competence to deal with the case under Section 115 of the Civil Procedure Code the Supreme Court would be loath to entertain that objection for the first time in an appeal with special leave. If the High Court had appraised of the defect in its jurisdiction, the High Court would have considered that question. The High Court's power of revision is complementary to the power of superintendence over all Courts and Tribunals under Article 227 and this was preeminently a case in which even if the High Court had no jurisdiction under Section 115 of the Civil Procedure Code, the High Court would have been justified in action under Article 227 of the Constitution". Therefore, the respondents cannot take up such a contention before this Court when the High Court is having jurisdiction under Article 227 of the Constitution. The scope of Article 227 of the Constitution is very wide on the said point. The Counsel for the" petitioners also relied on another decision of the Apex Court in Surendra Nath Bibra v Stephen Court Limited2. Since the petitioners have no remedy to challenge the order passed by the H.R.C. Court on I.A. No. I filed under Section 29(4) of the KR.C. Act, the petitioners have come up with this writ petition which is maintainable. Since the petitioners have no remedy to challenge the order passed by the H.R.C. Court on I.A. No. I filed under Section 29(4) of the KR.C. Act, the petitioners have come up with this writ petition which is maintainable. However, the learned Counsel for the petitioners submitted that since the H.R.C. Court has not followed the procedure namely Section 29(1), (2) and (3) of the Act before passing order under Section 29(4) of the Rent Control Act, the writ petition is maintainable. Further learned Counsel for the petitioners submitted that unless there is an order under Section 21(2) of the Karnataka Rent Control Act, 1961, straightaway an order under Section 29(4) of the Act cannot be passed. In support of this contention, he relied on a decision in Venkatagiri Jois v M. Sathyanarayana and Others\ wherein it has been held by this Court that: "Reading the provisions of sub-section (2) of Section 21 and of Section 29 together, it would be manifest that in all cases where eviction is prayed for on the ground that the tenant had failed to pay the arrears of rent, it would not be open to the Court to pass an order of eviction under sub-section (4) of Section 29 unless an order has been passed in the course of proceedings, under sub-section (2) of Section 21 and the tenant has failed to deposit the arrears of rent within one month from the date of the order and has also failed to pay the subsequent rent from month to month either by the aggreed date or by the fifteenth of each succeeding month. In cases where eviction is prayed for on other grounds and the tenant contests the application for eviction, the provisions of Section 29 will be applicable and an order under sub-section (4) can be passed if there has been a failure on the part of the tenant to comply with the provisions of sub-section (1) of that Section. In cases where eviction is prayed for on other grounds and the tenant contests the application for eviction, the provisions of Section 29 will be applicable and an order under sub-section (4) can be passed if there has been a failure on the part of the tenant to comply with the provisions of sub-section (1) of that Section. It may be also noted that where there is a dispute between the landlord and the tenant about the amount to be deposited or paid, it is obligatory on the Court under sub-section (3) to determine summarily the rent which should be so paid or deposited; it is only on such determination and on the failure of the tenant to comply with the provisions of sub-section (1) that an order under sub-section (4) can be passed by the Court". Therefore the order passed by the Trial Court is illegal and the writ petition is maintainable under Article 227 of the Constitution. Further it is contended that when there is dispute with regard to payment of rent, Court has to determine the arrears and give time to the tenant to pay rent and the arrears as per Section 29(3) of the Act but in the instant case the Trial Court has not passed an order either under Section 21(2) or under Section 29(3) of the Act but straightaway passed the order under Section 29(4) of the KRC. Act of 1961 which is incorrect and is liable to be quashed. In support of this contention, learned Counsel for the petitioners has relied on a decision of this Court in G.K. Zamrud v Dawood2, wherein it has been held as follows.- "When there is a dispute as regards the amount of rent due to be paid, it is the duty of the Court to make an enquiry and determine what actually is the amount of rent that is to be paid or deposited. In the present case, the landlord stated that the tenant was due in certain sum of money and the tenant on the other hand denied that he is due in any sum. In that view, the provisions of Section 29(3) was attracted. It was the duty of the Court to have found out as to whether there was any rent due. In that view, the provisions of Section 29(3) was attracted. It was the duty of the Court to have found out as to whether there was any rent due. If it is found that the rent was due when it was necessary to direct the payment of the amount and if there is failure to payor deposit the rent as aforesaid then the Court has to proceed under Section 29(4) ofthe Act". Finally learned Counsel for the petitioners submitted that before passing any order under Section 29(4) of the Act, the H.RC. Court is bound to go stage by stage as required by the procedure to be followed by the Court and since no such procedure has been adopted before passing an order under Section 29(4) has passed the impugned order. Therefore, the writ petition is maintainable and in support of this contention, learned Counsel for the petitioners relied on a decision in Abdul Rasheed v Syed Mohamed1, wherein this Court held that: "Section 29 speaks of four different stages, (1) determination of arrears; (2) giving time to the tenant to pay; (3) giving opportunity to show cause in default; and (4) in the event of the tenant to failing to show cause, ordering stopping of proceedings and direct him to put the landlord in possession. A composite order is an error in violation of Section 29(1) to (4). The only remedy left to the tenant to get the order corrected is by a revision to the High Court". Therefore, the writ petition filed by the petitioners is maintainable and prayed for quashing the impugned order passed on I.A. No. I by the H.RC. Court. 7. On the other hand, the learned Counsel for the respondents submitted that the petitioners have suppressed the very fact about the disposal of the revision petition filed by the petitioners before this Court. The writ petition filed by the petitioners is barred by limitation. After the Trial Court passed the order, the petitioners had challenged it before the District Judge in RR No. 10 of 1995 before the District Court and since the case was abated, the petitioners have challenged the said order before this Court under Section 115 of the 'Code of Civil Procedure in H.RRP. After the Trial Court passed the order, the petitioners had challenged it before the District Judge in RR No. 10 of 1995 before the District Court and since the case was abated, the petitioners have challenged the said order before this Court under Section 115 of the 'Code of Civil Procedure in H.RRP. No. 229 of 2005 and no separate application was filed by the petitioners to condone the delay of 376 days in filing the petition and the said H.RRP. filed before this Court came to be disposed of and time was fixed for the petitioners to vacate the premises. Annexure-R1 is the order dated 28-6-2005 passed in H.RRP. No. 229 of 2005. Further, it is contended that while dismissing the revision petition under preliminary stage, the petitioners-tenants were granted time till 31-12-2005 to vacate and deliver the vacate possession. When once the petitioners have challenged the order by way of a revision before this Court, they cannot file a writ petition after seeking extension of time to vacate the premises. Therefore, the present writ petition is liable to be dismissed. Further it is contended that in order to seek extension of time to vacate the premises, an affidavit came to be filed before this Court but the petitioners have suppressed the very fact. In the affidavit filed by the petitioner in H.R.R.P. No. 229. of 2005 the petitioner has stated as follows.- "That we are carrying on Kirana Business since more than 50 years in the petition schedule premises and the said premises are the only main source to earn our livelihood. This Court has . granted six months' time for vacating the suit premises. In the meantime, the marriage of my brother's daughter i.e., daughter of petitioner l(b) was settled and even the date of marriage was fixed on 21-12-2005. In the meanwhile, one of the relative expired. Therefore, this Hon'ble Court be pleased to extend the time for vacating the suit premises by another 5 months". When once the petitioners themselves have sought for time to vacate the premises, they have no locus standi to file a writ petition before this Court under Article 227 of the Constitution of India. In support of this contention, learned Counsel for the respondents relied on a decision in Shankar Ramachandra Abhyankar. v Krishnaji Dattatraya Bapatl, wherein it has been held as follows.- . ,. In support of this contention, learned Counsel for the respondents relied on a decision in Shankar Ramachandra Abhyankar. v Krishnaji Dattatraya Bapatl, wherein it has been held as follows.- . ,. "Section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies to it. It is 'only if by dismissal of the revision petition the order of the Subordinate Court bas not merged in that of the High Court that it may be open to a party to invoke the extraordinary writ jurisdiction of that Court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in a writ petition when a petition for revision under Section 115 of the Civil Procedure Code, against the same order has been dismissed. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it 'would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court". He has relied on another decision of the Hon'ble Supreme Court in Atma Ram v Shakuntala Rani2, regarding deposit of rent, which reads as follows.- . "Deposit of rent by tenant - in case of non-acceptance of same by landlord provision providing procedure to be followed in such a contingency - In view of the said provision, held, it would not be open to tenant to resort to any other procedure Appellant-tenant not having complied with the procedure laid down in the said provision must be held to be in default-deposit made under the provisions of another statute was of no avail". Therefore, the learned Counsel for the respondents submits that the present writ petition is liable to be dismissed as the petitioner has already challenged the order of the Trial Court in the revision petition namely H.R.R.P. No. 229 of 2005 and this revision petition came to be dismissed, time was granted and subsequently time was extended. Therefore, the writ petition is liable to be dismissed. 8. Therefore, the writ petition is liable to be dismissed. 8. It is an undisputed fact that respondents are the owners of the petition schedule premises and the petitioners are paying monthly rent of Rs. 30/-. The respondents have filed a petition under Section 21(1)(a) and (h) of the Karnataka Rent Control Act, 1961 for non-payment of rents. It is also an undisputed fact that respondents have filed an application under Section 29(4) of the Act to stay all further proceedings in H.R.C. No. 190 of 1984. So after hearing both the sides, the Principal, Munsiff, Bijapur, allowed I.A. No. I and consequently it has ordered to stay all further proceedings and directed the petitioners-tenants to vacate and hand over vacant possession of the petition schedule premises to the respondents on or before 1[28th February, 19951. It is . also an undisputed fact that the petitioners assailing the said order on LA. No. I passed by the Principal Munsiff, Bijapur on 31-1-1995 filed a revision under Section 50 of the Rent Control Act in Rent Revision No. 10 of 1995 before the II Additional District Judge, Bijapur. During the pendency of the said rent revision, the Karnataka Rent Act came into force on 31-12-2001. Therefore, the entire proceedings pending before the Revisional Court viz., District Court stood abated under Section 70(2)(c). The petitioners herein approached this Court in H.R.R.P. No.229 of 2005 challenging the order passed by the Principal Munsiff in H.R.C. No. 190 of 1984, LA. No. Ion 31-1-1995 and the order passed by the II Additional District Judge, Bijapur on 8-1-2004. But this Court already held in the rent revision that there was no merit in the rent revision, therefore, the said revision came to be dismissed at the stage of preliminary hearing itself. However, the petitioners were directed to vacate and deliver vacant possession of the petition schedule premises to the respondents within 2[28-2-1995] and also directed to pay the rents regularly and not to sublet the schedule premises to any other person; the respondents-landlords are entitled to recover the arrears of rent, if any, which was deposited by the petitioners. But in the meanwhile the very petitioners have filed LA. No. I of 2006 before this Court with a prayer to extend the time to vacate the petition schedule premises on the same ground. Accordingly, LA. But in the meanwhile the very petitioners have filed LA. No. I of 2006 before this Court with a prayer to extend the time to vacate the petition schedule premises on the same ground. Accordingly, LA. No. I of 2006 filed by the petitioners was disposed of by granting time till 15-1-2006, to vacate and handover vacant possession of the premises to the respondents-landlords. In the meanwhile the petitioners have come up with this writ petition to quash the impugned order dated 31-1-1995 passed in H.RC. No. 190 of 1984. 9. The materials on record clearly indicates that the petitioners have challenged in this writ petition the very same order passed in H.RC. No. 190 of 1984, which was already challenged under Section 115 of the Code of Civil Procedure in H.RRP. No. 229 of 2005 before this Court. After exhausting the remedy they have again approached this Court by way of petition which amounts to res judicata. He cannot be again permitted to challenge the very same order, by way of a writ petition. It is also seen that the petitioners after dismissal of the H.RRP. No. 229 of 20,-,5, the time was extended by this Court by allowing I.A. No. I till 15-1-2006. Moreover the petitioners have not shown bona fides with regard to the arrears of rents, when the petition filed by the respondents under Section 21(1)(a) and (g) for recovery of arrears of rents. The petitioners have totally denied that there are any arrears of rents payable to the respondents. So subsequently during the pendency of the writ petition, the petitioners have filed a memo stating the they have deposited the rents through R. Os. on 27-7-1999 amounting to Rs. 4,000/and odd. Since the petitioners have not shown prima facie material to quash the order passed by the Principal Munsiff, Bijapur, the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. However, the petitioners are directed to vacate and hand over vacant possession of the petition schedule premises to the respondents, within 30 days from the date of disposal of this writ petition.