Vs. K. Barkathulla Khan & Ors  INSC 490 (8 October 1998)
G.B. Pattanaik, S. Rajendra Babu. Rajendra Babu, J.
appellant filed a suit against Bhaskaran, the original tenant in occupation of
a premises bearing No. 199 and 200 situated at Brigade Road in Bangalore city
for recovery of possession thereof on the ground that he had defaulted in
payment of rent and had sublet the same contrary to law. The original tenant
set up the defence that he had not sublet the suit premises or any portion
thereof, but had only entered into an agreement to run business on his behalf
and he was not liable to be evicted.
original tenant died on 8.1.1983 and his legal representatives were brought on
record. They filed a written statement on 1.8.1984 contending that their father
had parted with possession of the suit premises to respondent No.1 and no
decree could be passed against them.
No.1 was impleaded as a defendant on an application made by him. He contended
that he had become a partner with Bhaskaran with the consent of the appellants
and partnership stood dissolved as on 10.12.1982 and thus he was a tenant under
the appellant directly. His tenancy had not been terminated and, therefore,
there was no cause for suit. By a decree made on 31.3.1993, the City Civil Court directed the eviction of the first
respondent. Respondent No.1 preferred an appeal against the said decree in the
High Court. This appeal is against that order made by the High Court. This
appeal is against that order made by the High Court of Karnataka in that appeal
filed by respondent No.1 In the High Court three principal points were
formulated for consideration :-
Whether the first respondent is a tenant? If not, what is his status?
Whether the suit is maintainable for ejection of the first respondent?
Whether the first respondent is entitled for mesne profits under Order XX Rule
10 of the C.P.C.?
first two points raised for consideration turned on the question whether the
first respondent is a tenant or not? If he is a tenant, it was stated that the
matter has necessarily to go before the Rent Control Court for eviction under Section 21 of the Karnataka Rent Control
Act (hereinafter referred to as "the Act"). However, he is liable for
eviction by virtue of a decree in the suit. The Courts below to pay rents or
difficulty in answering the third point raised for consideration. What is
really in issue before us are the first two points.
High Court held that there is no acceptable evidence to declare the first
respondent as a tenant and thereby affirmed the conclusion reached by the trial
examining the scope of Section 23 of the Karnatak Rent Act which forbids
creation of sub-lease or assignment or transfer either whole or any part of the
demised premises, the learned Judge was of the view that the original tenant
allowed others to carry on the business in his name as he was unable to carry
on the business by himself due to old age initially by inducting the first respondent
as a partner of the firm and then in his own capacity as a owner of the
business concern which was not an unknown mode of transfer of tenancy and,
therefore, the first defendant was not a trespasser. He, however, noticed that
the first respondent was not inducted with the consent of the landlord and
therefore his possession becomes unlawful and he is liable to be evicted under
the provisions of Section 21(1)(f) of the Karnataka Rent Control Act and no
other conclusion was possible in this regard. In view of that finding he held
that the Civil Court has no jurisdiction to pass an
order of eviction as there is a specific provision ousting the jurisdiction of
the Civil Court to entertain any suit for eviction of
a tenanted premises. On that basis, he allowed the appeal and set aside the
decree dame by the trial court and directed the parties to work out their
remedies in a Rent
this background a contention was raised on behalf of the appellant that Section
31 of the Karnataka Rent Control Act enabled the filing of the suit as the rent
in respect of the same was above Rs.500/- per month. The High Court held that
Section 31 of the Karnataka Rent Control Act had been declared invalid in Padmanabha
Rao vs. State of Karnataka
ILR 1986 Kar 2480.
The view expressed by this Court in Civil Appeal No.13754 of 1996 entitled Shobha
Surendar vs. Mrs. H.V. Rajan and Others was also brought to the notice of the
High Court which reads as follows :- "In view of the decision of this
Court in D.C. Bhatia and others versus Union of India 1995 (1) S.C.C. 104, this
appeal would merit acceptance and accordingly we accept the same, set aside the
impugned orders of the High Court and restore that of the Trial Court with
regard to possession of the property in dispute as well as entitlement of the
appellant to contractual rent up till the date of vacating for which item is
being allotted hereby to the respondents." While considering the question
whether the decision of this Court in Shobha Surendar case had impliedly
overruled the decision of the Karnatak High Court in Padmanabha Rao's case, the
High Court held that the decision laid down in Rattan Arya vs. State of Tamil Nadu
reported in (1986) 3 SCC 385, should be followed and the decision in D.C.
Bhatia's case had no application.
D.C. Bhatia's case (supra) this Court was concerned with a provision under the
Delhi Rent Control Act and Section 3(c) made it clear that the Act was not
applicable to any premises whether residential or non-residential whose monthly
rent exceeds three thousand rupees which is akin to the provision under Section
31 of the Karnataka Rent Control Act. In Shobha Surendar's case the High Court
had proceeded to rely upon Padmanabha Rao's case; when the matter was brought
to this Court though no specific reference was made to Padmanabha Rao's case,
this Court stated that the law laid down in D.C. Bharia's case would be
applicable, it was not open to the High Court to state that it would prefer to
follow the decision in Rattan Arya's case. Indeed it is a matter of judicial
discipline that required that when this Court states as to what the law on the
matter is, the same shall be binding on all the Courts within the territory of
India. This mandate of Article 141 of the Constitution is not based on any doctrine
of precedents, but is an imprimatur to all courts that the law declared by this
Court is binding on them. If that is so, it was not open to the High Court to
consider the effect of the decisions in Rattan Arya's case, its scope, what was
decided therein and whether there could be any distinction between that
decision and the decision rendered in D.C. Bhatia's case. The clear
pronouncement made by this Court in Shobha Surendar's case was that D.C.
Bhatia's case was applicable with reference to Section 31 of the Karnataka Rent
Control Act and, therefore, in view of that decision, the High Court's decision
was upset in another matter where the High Court had followed the Padmanabha Rao's
case. In effect, Padmanabha Rao's case stood impliedly overruled.
it was not at all open to the High Court to have tried to explain the decision
of this Court and ought to have implicitly followed the decision of this Court.
The law declared by this Court is clear that the D.C.Bhatia's case was
applicable to the provisions of Karnataka Rent Control Act. So it was not open
to the learned Judge to take any other view in the matter. Thus we are of the
view that the direction issued by the High Court to the parties to work out
their remedies under the Rent Control Act is not at all correct.
learned counsel for the respondents submitted that there has been no decision
of this Court directly stating that the law declared by the High Court in Padmanabha
Rao's case was not correct and, therefore, the view taken in Padmanabha Rao's
case may be examined by us and we may either uphold the view expressed therein
or take another view though such a course was not open to the High Court. We do
not think such an exercise is necessary when this Court applied its mind to the
facts of the case, the law declared by this Court in D.C.Bhatia's case and
applied the same with reference to the provisions of the Karnataka Rent Control
Act. If there has to be any change in the policy, it is certainly open to the
Legislature to intercede it and make appropriate law in that regard. Therefore,
this argument advanced on behalf of the learned counsel for the contesting
respondent does not appeal to us.
another argument was pressed upon us to the effect that when a provision of law
in an enactment has been declared to be invalid and when the Supreme Court
declares the law with reference to another enactment of similar nature, it
would not be open to the High Court to say that the decision of this Court
should be taken to have been overruled or upset the decisions rendered by the
High Court declaring the law to be invalid. This principle has no application
in the present case at all because this Court itself considered the effect of
D.C. Bhatia's case with reference to the provisions of the Karnataka Rent
Control Act and applied the same thereto and thereafter declared what the law
should be. Though this Court did not specifically referred to the decision in Padmanabha
Rao's case, it is needless to say that the same stood overruled because the law
declared by this Court was contrary to what was stated in Padmanabha Rao's
case. Therefore that argument also is not sound and needs to be rejected.
submitted that if we take the view that Section 31 of the Karnataka Rent Act is
valid in view of D.C.Bhatia's case, then the enactment will keep out of its
purview large number of premises inasmuch as the rent payable in respect of
commercial premises in Bangalore will certainly be more than Rs. 500/- per
month. We have given our careful consideration to this aspect of the matter.
upon the decisions in Malpe Vishwanath Acharya vs. State of Maharashtra 1998 (2) SCC 1, Rattan Arya vs.
State of Tamil Nadu 1986(3) SCC 385, Motor General Traders vs. State of A.P.
1984(1) SCC 222, Synthetics and Chemicals Ltd. & Ors. vs. State of U.P.
& Ors. 1990(1) SCC 109, Sant Lal Bharti vs. State of Punjab 1988 (1) SCC
366, it was submitted that with passage of time and change of circumstances the
continued operation of an Act which was valid were enacted may become invalid
as being arbitrary and unreasonable. Though Karnataka Rent Control Act was
enacted in the year 1961 and was to lapse by the end of 10 years time, it has
been extended from time to time in the same form in which it was enacted
originally or with some modification wherever it was necessary. We cannot
imagine that the Legislature was not aware or conscious of the fact as to the
rents prevalent in the city of Bangalore or in other parts of the State in
respect of non-residential premises. Perhaps, the Legislature thought it was
necessary to give protection of the Act to only very poor tenants who pay rent
less than Rs.500/- per month considering the fact that tenants in other
premises are economically of superior class and can withstand the maneuvers of
a landlord however powerful he may be. If that was the policy of the law, we do
not think as stated in D.C. Bhatia's case, it was open to the Court to have
declared the same to be invalid.
result, we are of the view that the decree passed by the trial court is to be
restored by setting aside the order made by the High Court and we order
appeal, therefore, stands allowed. However, considering all aspects of the
matter, we are of the opinion that the first respondent be given some reasonable
time to vacate the premises and which in this case wed consider will be a
period upto 30th of June, 1999 subject to the filing of usual undertaking
within four weeks from today. In the event such an undertaking is not filed
before this Court, it would be open to the appellant to seek for immediate
eviction in addition to the condition that he shall vacate the premises and
deliver the same on or before 30th of June, 1999.
APPEAL NO. 5040 OF 1998 ARISING OF SPECIAL LEAVE PETITION (CIVIL) NO. 4557 OF
view of the decision rendered by us in Civil Appeal arising out of Special
Leave Petition (C) No. 6836 of 1996, the view taken by the High Court has got
to be upheld and this appeal deserves to be dismissed. However, the appellant
is granted time to vacate the premises on or before 30th of June, 1999 upon his
furnishing the usual undertaking in this Court within four weeks from today.