Back
2012 Supreme(Kar) 271
High Court of Karnataka
A.S. PACHHAPURE
Mary George Dead By Children Paul George Brahma Kulam & Another
Versus
N.D.H. Enterprises, A Co-Ownership In Respect Of Estate Of Late N.D. Hanumantarayappa Rep, By Its Co-Owners H. Maruthi & Others
House Rent Revision Petition No.469 of 2004 C/W House Rent Revision Petition No.510 of 2004
Decided on : 20-04-2012
For the Petitioners:M.A. Humayun, M.G. Javeed Ahmed Khan, Advocates.
For the Respondents:P.D. Surana, Lachman M. Sanjaya Bhatia, S. Venkatesha Rao, Advocates.
Headnote:KARNATAKA RENT ACT, 1999 - Sections 5 & 70(2) (b): [A.S. Pachhapure, J] Applicability - Death of tenant before coming into force of Act - Petition for eviction filed when old Act of 1961 was in force which defined tenant which includes surviving spouse or daughter or son or father or mother of deceased tenant living with tenant upto his death and thereafter - Held, Such persons would continue to be tenant even after new Act came into force. Order of eviction by trial Court under Section 5 of new Act holding that upon death of tenants legal representatives could occupy premises only for period of five years which had expired is not legal.
KARNATAKA RENT ACT, 1999 - Sections 46 : [A.S. Pachhapure, J] Revisional powers of High Court - Trial Court rejected eviction petition under Section 27(2) (r) but, however ordered allowed under Section 5 - Revision against order of eviction-Finding rejecting prayer for eviction on ground of Section 27(2) (r)-Cannot be challenged in revision-Moreso, as such finding was challenged while submitting arguments though eviction order was passed eight years ago-Further, right accrues in favour of tenants by lapse of time to retain their possession of petitioner’s premises as request of landlord for eviction was rejected-Similarly, tenant in one of rent cases was not party before High Court.
KARNATAKA RENT CONTROL ACT, 1961 - Section 21(1)(h) and 21(1)(i): [A.S. Pachhapure, J] Petition filed under Section 21 of the Old Act - Order of Trial Court passed under Section 5 of the New Act - Court ordering petitioner-tenant to handover vacant possession - Revision against - Held, If the death of tenant occurred after the New Act came into force, Section 5 of the Act would restrict the right to inheritance of tenancy for a period of five years. Therefore, as the death of the original tenant in both these petitions was prior to the commencement of the New Act, the legal representatives acquire a right as a tenant under the Old Act itself and therefore, the provisions of Section 5 of the New Act cannot be made applicable to these proceedings. A perusal of the provisions of the New Act does not reveal the said proviso retrospective and therefore, the order of eviction passed by the Court below on the ground under Section 5 of the New Act is both erroneous and illegal. From whatsoever angle the matters are looked into, the landlord is not entitled to seek reversal of the finding so far as the ground under Section 21(1)(h) and 21(1)(j) of the Old Act., i.e., Section 27(2)(r) of the New Act is concerned.
CODE OF CIVIL PROCEDURE, 1908 - Order 41, Rule 33: [A.S. Pachhapure, J] Held, Power vested with Court of appeal under Order 41, Rule 33 cannot be exercised by revisional Court in revision petition.
1. These revision petitions are directed against the orders passed by the Court below ordering the petitioners to hand over vacant possession of the schedule premises under Section 5 of the Karnataka Rent Act, 1999 (hereinafter called as ‘the New Act’).
2. The parties will be referred as per their rank before the Trial Court to avoid inconvenience.
3. The petitioners herein are the tenants of “clusters” bearing Corporation Nos.10 and 11, Mission Road, Bangalore-27, whereas, the respondent is a co-ownership enterprise named as “NDH Enterprises” represented by its P.A.Holders,. The Clusters bearing Corporation Nos.10 and 11 were owned by Sri.N.D. Hanumantharayapa and on his death, his wife, sons and daughter succeeded to the estate and to avoid practical difficulties in managing the said properties, they formed a co-ownership under the name and style “NDH Enterprises”. They filed the petitions before the Court below alleging that the petitioners herein (the respondents before the Court below) were the tenants on monthly rental of Rs.50/-and rs.23/-respectively. The said Clusters were more than 8090 years old and as they were in a dilapidated condition, the petitioners intended to demolish the structure and put up a Hotel complex as the petition premises is in a commercial locality and running the business on behalf of NDH Enterprises. Hence, the petitions were filed under Section 21 (1) (h) (j) of the Karnataka Rent Control Act, 1961 (hereinafter called as ‘the Old Act’).
4. The tenants filed their objections denying the allegations made and contended that the need put forth by the petitioners is malafide and that there is no need to demolish the construction and put up a hotel complex. On these grounds, they sought for the dismissal of the petitions.
5. These two petitions were clubbed with HRC 561 and 562/1999 and common evidence was led. Both the power of attorney holders of the petitioners were examined as PWs.1 and 2 and the documents Esx.P.1 to P.28 were marked. The tenants were examined as RWs. 1 to 4 and Ex.R.1 the power of attorney was admitted in evidence. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record held that the petitioners have not proved the requirement of the premises on the ground under Section 21 (1) (h) (j) of the Old Act (under Section 27 (r) of the New Act) and the petitions were dismissed, on the ground under aforesaid provisions are concerned. But, it held that the provisions of Section 5 of the New Act is applicable and as there was the death of the tenants and the LRs could occupy the premises only for a period of five years, granted eviction under Section 5 of the New Act, as the period of five years had expired. Aggrieved by the eviction order under Section 5 of the New Act, the tenants have approached this Court in revision.
6. I have heard the learned counsel for both the parties. The points that arise for any consideration are:
1. Whether the Trial Court committed error in directing the eviction of the tenants under Section 5 of the New Act?
2. Whether this Court in the revision petitions filed by the tenants could exercise the revisional powers to assail the validity of the findings of the Court, rejecting the request for eviction under Section 27 (2) 9r) of the New Act is concerned?
3. Whether the petitioners have made out any grounds to call for interference in the orders of eviction passed by the Trial Court?
7. It is the contention of the learned counsel for the petitioners that the provisions of Section 5 of the New Act cannot be invoked as the death of the tenants in both the cases was prior to the commencement of the New Act and the legal representatives on record would be the tenants as defined under the provisions of the Old Act. Hence, they contend that the Trial Court was not justified in granting eviction under Section 5 of the New Act. It is their further contention that so far as the dismissal of the petitions under
