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2010 DIGILAW 960 (KAR)

Pradeep v. Vijayakumar

2010-09-06

ANAND BYRAREDDY

body2010
Judgment :- 1. Heard the learned counsel for the petitioners and the learned counsel for the respondents. The petitioners are aggrieved by the rejection of an application filed under Section 113 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”, for brevity), 2. The background to the case is as follows:- The respondents herein are the Trustees of a Charitable trust seeking eviction of the present petitioners, who are the tenants of the suit premises. Since the year 1974, The petitioners have repeatedly raised the question of maintainability of the proceedings, firstly, under the Karnataka Rent Control Act, 1961 (hereinafter referred to as the ‘1961 Act, for brevity) and thereafter claiming that the provisions of the Karnataka Rent Act, 1999 (hereinafter referred to as the ‘1999 Act’ for brevity) was applicable. Since the respondents herein had instituted an eviction petition under the Karnataka Rent Control Act, 1961, it was contended that the said Act did not apply to the premises in question, in view of the provisions of Section 2(7)(iii) of the 1961, Act. This controversy having reached this Court, however with the Karnataka Rent Act,1999 having come into force by that time, this Court, while allowing the petition, held that the 1999, Act, did not apply to the property, as the respondents herein were claiming as Trustees of the property, which belonged to the Trust and hence on a reading of Section 2(3) (ii) of the 1999 Act, held that proceedings under Karnataka Rent Act, 1999 did not lie, insofar as the property is concerned. 3. Accordingly, the respondents having thereafter instituted a suit for ejectment and the same having been decreed, the petitioners sought to contest the same in appeal, in the ground that there was an anomaly between Section 2(2)(ii) and Section 27(2)(s) of 1999 Act. 4. Ton address this controversy, it would be useful to extract the content of Section 2 of the 1999 Act, which read as follows:- 2. Application of the Act-(1) Chapters 1 to III and Chapters V to VIII of this Act shall apply to areas specified in the First schedule. .(2) Chapters I and IV shall apply only to areas specified in the Second Schedule. Application of the Act-(1) Chapters 1 to III and Chapters V to VIII of this Act shall apply to areas specified in the First schedule. .(2) Chapters I and IV shall apply only to areas specified in the Second Schedule. .(3) Nothing contained in this act shall apply – .(a) to any premises belonging to- .(i) the State Government or the Central Government or a local authority; .(ii) a Muzarai ore religious or charitable institution; (iii) a Wakf ……………………………………………………………… ……………………………………………………………… etc,. It would also be useful to extract the relevant portion of Section 27, which reads as follows;- 27. protection of tenants against eviction-(1) notwithstanding anything to the contrary contained in any other law or contract, no order decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant, save as provided in sub-section (2). (2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- (a)…………………………………………. (b)…………………………………………. (c)…………………………………………. (d)…………………………………………. (e)…………………………………………. (f)…………………………………………. (g)………………………………………… (h)………………………………………… (i)…………………………………………. (j)…………………………………………. (k)………………………………………….. (l)…………………………………………… (m)…………………………………………. (n)………………………………………….. (o)………………………………………….. (p)………………………………………….. (q)………………………………………….. (r)…………………………………………… (s) that where the landlord is a trustee of any Public Charitable Trust, the premises are required for occupation for the purpose of the trust; (t)……………………………………………… 5. It is in the face of these provisions, that the petitioners had raised an issue that the said provisions are contradictory to each other, in that, sub-section(2) prescribes that the Act shall not apply to the property of a charitable trust, whereas there is provision for eviction of tenant by a Trustee of a Public Charitable Trust. It is contended that since the respondents are claiming as Trustees of a trust property and are seeking eviction, unless the anomaly is answered, the suit will either have to be dismissed or as the 1999 Act does appear to apply to the suit property, it requires to be explained. In this background, the petitioners had filed an application in IA.IV in the appeal raising this issue. The Appellate Court had held that there is no ground made out for reference of the matter to this Court under Section 113 of the CPC, in view of the categorical tenor of Section 2 (2) (ii) of the 1999 Act. In this background, the petitioners had filed an application in IA.IV in the appeal raising this issue. The Appellate Court had held that there is no ground made out for reference of the matter to this Court under Section 113 of the CPC, in view of the categorical tenor of Section 2 (2) (ii) of the 1999 Act. It is that which is sought to be questioned before this Court. 6. The learned counsel for the petitioners, while emphasizing that there is a serious anomaly between the aforesaid provisions, would further contend that since an “Institution“ and a “Trust” are totally different entitles and as a Trust is not capable of acting otherwise than through its Trustees, it follows that the present suit for ejectment was filed by the Trustees and therefore the mere expression used that the Act does not apply to a Charitable institution, while to the contrary. Section 27 also provides for eviction of a tenant by a Trustee, there is a serious anomaly, which still remains unanswered and the Appellate Court merely having held, that having regard to the tenor of Section 2 of the 1999 Act, there is no such infirmity is incompletely answered, as the Appellate Court has not chosen to refer to Section 27 and give any possible explanation nor has assigned reasons in holding to that effect. 7. While the learned counsel for the respondents would assert that there is no anomaly at all. Section 2 clearly lays down that the Act does not apply to a charitable institution and it is a charitable institution, which was the plaintiff in the present case, as the Trustees were not claiming that the suit property was their own property, but were merely before the Court as Trustees on behalf of the Trust. Section 2 clearly lays down that the Act does not apply to a charitable institution and it is a charitable institution, which was the plaintiff in the present case, as the Trustees were not claiming that the suit property was their own property, but were merely before the Court as Trustees on behalf of the Trust. It is contended that insofar as Section 27 (2) is concerned, the question is squarely answered by the decision of this Court in the case of Abdul Khader, since deceased by his L.R. Vs Dandu Mariyamman Temple Trust, by its Trustees, Bangalore and Others, ILR 2004 KAR 1299, wherein this Court has explained that from a plain reading of clause (s) of Section 27(2), it is clear that it refers to property belonging to the trustee of a Public Charitable Trust, but not the property of the trust itself, and hence in the present case on hand, it was not the property of a trustee that was the subject-matter, but the property belonging to the trust. There is therefore a clear difference between the property belonging to a Trust and the property belonging to the Trustee personally, which may be a ground for seeking eviction of a tenant under the Act. Therefore, there is no anomaly, which requires to be addressed. In any event, Section 113 of the CPC of the CPC is an enabling provision for a Subordinate Court to approach this Court seeking reference of the matter to this Court for its opinion and hence the Appellate Court having held that there is no anomaly, which requires to be addressed, cannot be questioned. 8. While by way of reply, the learned counsel for the petitioners would yet submit that since the Trust always acts through its trustees. Section 27 (2) is would apply and it could seek eviction only under the Act, but Section 2 being a bar the anomaly exists. 9. In the light of these rival contentions, it would be also necessary to extract Section 113 of CPC, which reads as follows:- 113. Reference to High Court-Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit. Reference to High Court-Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit. [Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act. Ordinance or Regulation or of any provision contained in an Act. Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act. Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court. Explanation-In this section, “Regulation” means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the Central Clauses Act of a State. 10. It is seen that the question of a reference being made to this Court under Section 113 of CPC, as rightly pointed by the learned counsel for the respondents, which is an enabling provision, gives any Court the discretion to state a case for the opinion of the High Court, if it pertains to a question of the validity of any Act or any provisions contained in an Act and the determination of which is necessary for the disposal of the case. Though the petitioners had not raised any such issue before the Trial Court, it would not bar raising of such an issue before the Appellate Court. The Appellate Court, however, having summarily rejected the application, while holding that there is no anomaly which requires the Court to state a case and to refer the same for the opinion of this Court, may fall short of the expectation of the petitioners, who may have even raised this question, merely to procrastinate the proceedings. It was, however, for the Court to have answered this question of a so-called anomaly that has been raised. 11. In the opinion of this Court, however, there is no anomaly to be found. It was, however, for the Court to have answered this question of a so-called anomaly that has been raised. 11. In the opinion of this Court, however, there is no anomaly to be found. It is clear that under Section 2, the Act would not apply to a Charitable institution, be it a Trust or such other entity. The contention that a “Trust” and an “Institution” are different as sought to be pointed by the learned counsel for the petitioners, is again not entirely correct. The nomenclature is not relevant. The characteristics of an “Institution” and a “Trust” may even be different. Yet it would not depart from that a Trust is certainly and institution and therefore, it can safely state that a Charitable institution which is a Trust would also be covered under the provisions of Section 2 of the Act. 12. Insofar as, the so-called anomaly between Section 2 and section 27(2) (s) which is sought to be pointed out, is again not the correct proposition. The above clause definitely deals with the property of a trustee, which if in the trustee’s intention, is required for the use of a Public Charitable Trust, of which he is a trustee, it does not follow that the reference is to property of the trust. The obvious intention of is, that property which is in occupation of a tenant, if required for the purpose of a Public Charitable Trust, the owner who is incidentally a trustee, can bring a petition for eviction on that ground. That is the language and purport of sub-section (2) of Section 27 of 1999 Act. There is no difficulty in holding that there is an anomaly to be seen as between the provisions, as sought to be urged by the petitioners. Though the Lower Appellate Court has not state a case for the opinion of this Court, the above is the opinion of this Court on the issue. 13. Accordingly, the petition stands rejected. Having regard to the long drawn out proceedings that have taken place, it is appropriate that the Appellate Court expedite the disposal of the appeal.