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2004(6) Supreme 599
SUPREME COURT OF INDIA
(From Karnataka High Court)
R.C. Lahoti, CJI, G.P. Mathur & C.K. Thakker, JJ.
M/s. Mahendra Saree Emporium -Appellant
versus
G.V. Srinivasa Murthy -Respondent
Civil Appeal No. 6296 of 1998
Decided on 27-8-2004
Counsel for the Parties :
For the Appellant : A. Subba Rao and Chandra Mohan, Advocates.
For the Respondent : P.R. Ramasesh and Ms. Vandana Jalan, Advocates.
Held : The jurisdiction conferred on this Court by Article 136 of the Constitution is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by Court or Tribunal in any case or matter and the jurisdiction can be exercised in spite of other specific provisions for appeal contained in the Constitution or other laws. This article confers on the Supreme Court special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of justice demand interference by the Supreme Court (Para 9)
Abatement kills the right to sue and has the effect of unceremoniously terminating the pending legal proceedings without adjudication on merits. It has to be strictly construed and applied only to such cases to which its applicability is undoubtedly attracted. Excepting where an otherwise legislative intention is expressly or by necessary implication deducible, a provision for abatement of pending proceedings shall abate only such proceedings as were pending on that day and at that stage and not the original proceedings which had already stood concluded but were reopened by a superior forum for the purpose of examining legality or propriety thereof. We are, therefore, of the opinion that the State Legislature enacting the New Act could have provided for the suit itself which originated under the local law to abate on the date of coming into force of the New Act but that the Legislature has not chosen to do. The Legislature could not have provided, nor has it provided, for the jurisdiction of this Court under Article 136 being taken away or curtailed in any manner whatsoever and rightly so. The appeal would, therefore, survive unabated for adjudication on merits. (Paras 13 and 14)
(ii) Karnataka Rent Control Act, 1961-Section 21(1)(f)-Eviction petition on ground of sub-letting-Non residential premises-Premises were taken on rent for conducting individual business-Later the business has been converted into a partnership business-Tenant s two brothers, one brother s wife and one uncle s son are included in the partnership-Whether there has been sub-letting of premises within the meaning of Section 21(1)(f) of 1961 Act-(No).
Held : In the present case there is un-rebutted evidence available on record to show that the family of the tenant consists of sixteen members which includes cousins as well. The family is joint and depends for its livelihood on the business run in the suit premises. The tenant has not parted with possession in favour of any stranger. The brothers, a wife of one of the brothers and a cousin have entered into partnership with the tenant for the purpose of carrying on the pre-existing business in the suit premises. There is no evidence adduced and no material available on record to draw an inference that the tenant has dissociated himself from the business activity leaving for the partners alone to carry on the business or that the so-called partners are in exclusive possession of the premises having no relationship with the tenant and the partnership is nothing but a camouflage for parting with by the tenant of the possession or right to use the tenancy premises in favour of the persons in possession. The High Court was not right in holding a case of sub-letting having been made out simply because the sole propriety business was converted into a partnership business. (Para 17)
JUDGMENT
R.C. Lahoti, CJI-Respondent, G.V. Srinivasa Murthy is the owner-cum-landlord of the suit premises, non-residential in nature. M/s Mahendra Saree Emporium was a sole proprietary concern - now a partnership firm, sued as the tenant and is the appellant before us. On 21.7.1987 proceedings for eviction were initiated by the landlord against the tenant on the ground alleged to be available under clause (f) of sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961, hereinafter, the 1961 Act or the Old Act , for short. It is not disputed that the premises were taken on rent under Lease Deed dated 16.12.1968 executed by Jugraj, father of Indrachand. The business in the name and style of M/s. Mahendra Saree Emporium was always conducted by Indrachand, who was minor on 16.12.1968 when the tenancy commenced. Later the business has been converted into a partnership business. Indrachand s two brothers, one brother s wife and one uncle s son are included in the partnership. According to the landlord, the tenant has unlawfully sublet the premises. According to him, the premises were for an individual s business and entering into partnership amounts to a ground for eviction under Section 21(1)(f) of the 1961 Act which provides for the tenant being evicted if "the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein". The learned Rent Controller found the ground for eviction not made out and directed the eviction petition to be dismissed. The landlord preferred a revision under sub-Section (1) of Section 50 of the 1961 Act. A learned Single Judge of the High Court has, vide his order dated 25.9.1998, reversed the finding of the Rent Controller and held the ground for eviction made out and directed the tenant to be evicted. On 13.11.1998, the tenant filed this petition seeking special leave to appeal. The leave has been granted.
2. During the pendency of the petition, the Karnataka Rent Act, 1999 (hereinafter referred to as the 1999 Act or the New Act ) has been enacted and has come into force with effect from 31.12.1999. The 1961 Act has stood repealed. Sections 69 and 70 of the New Act provide as under :
"69. Transfer of pending cases.-On the commencement of this Act,-
(1) all cases pertaining to matters in respect of which the Controller shall have jurisdiction under this Act and pending in the Court under the Karnataka Rent Control Act, 1961 shall stand transferred to the Controller and the Controller may proceed to hear such cases either de-novo or from the stage it was at the time of such transfer.
(2) All cases pertaining to matters in respect of which the Court shall have jurisdiction under this Act and pending before the Controller under the Karnataka Rent Control Act, 1961 shall stand transferred to the Court and the Court may proceed to hear such cases either de-novo or from the stage it was at the time of such transfer.
70. Repeal and Savings.-(1) The Karnataka Rent Control Act, 1961 (Karnataka Act 22 of 1961) is hereby repealed.
(2) Notwithstanding such repeal and subject to the provisions of section 69, -
(a) all proceedings in execution of any decree or order passed under the repealed Act, and pending at the commencement of this Act, in any Court shall be continued and disposed off by such Court as if the said enactment had not been repealed;
(b) all cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority in accordance with the provisions of this Act.
(c) all other cases
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