R. Kapilnath
Vs. Krishna [2002] Insc 542 (13 December 2002)
R.C.
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
The
suit premises are a residential house comprised in CTS Nos. 936 & 939 of
Ward II of Hubli City. The premises are owned by a temple a religious institution
but not under the management of the State Government. The adoptive father of
the respondent, Late Shankarbhat, was pujari and manager of the temple. The
appellant was inducted as a tenant in the suit premises by Late Shankarbhat.
Shankarbhat
has, through a registered deed of adoption, adopted the respondent as his son
who is presently pujari and manager of the temple. The appellant has been
paying rent to the respondent. It is not in doubt, nor in dispute, that
whatever be the ownership of the suit premises the respondent is certainly the
rent collector.
The
respondent claiming himself to be the owner of the premises filed a suit for
eviction of the tenant-appellant on the grounds available under Clauses (h) and
(p) of sub-Section (1) of Section 21 of the Karnataka Rent Control Act, 1961
(hereinafter 'the Act', for short). Availability of ground under clause (h) has
been negated while the Court of Munsif upheld the entitlement of respondent to
a decree under Clause (p). The appellant preferred a revision before the first
Additional District Judge, Dharwad under Section 50(2) of the Act and
subsequently a revision petition to the High Court under Section 115 of the
Code of Civil Procedure. Both have been dismissed conforming the decree for
eviction under Clause (p) abovesaid. The finding arrived at by all the courts
is that the tenant has built or acquired vacant possession of a suitable
building.
The
tenant has preferred the present appeal by special leave.
The
principal submission of Ms. Kiran Suri, the learned counsel for the appellant, centres
around an amendment made in the Act by Karnataka Act No.32 of 1994. It was
submitted by the learned counsel for the appellant that the suit premises
belong to a temple which is a religious institution. The Karnataka Rent Control
Act, 1961 was enacted inter alia to control evictions of tenants. The Act has a
wide application. However, sub-Section (7) of Section 2 provides that nothing
in this Act shall apply to certain premises specified in the several clauses therein.
One of the categories of the premises, excepted from the application of the
Act, was 'any premises belonging to a religious or charitable institution under
the management of the State Government'. By the Karnataka Rent Control
(Amendment) Act, 1994 (Act No.32 of 1994) which came into force with effect
from 18th May, 1994, the words "under the management of the State
Government" were deleted. The effect of the amendment is that while
earlier only the premises belonging to a religious or charitable institution
under the management of the State Government were exempted from the operation
of the Act now subsequent to the amendment, the scope of excepted category has
been enlarged so as to cover all premises belonging to a religious or
charitable institution without regard to the fact whether they are under the
management of the State Government or not. The proceedings for eviction of a
tenant under Section 21 of the Act are maintainable in a Court which, as
defined in Clause (d) of Section 3, is the Court of Munsif. So far as the suit
premises are concerned, the proceedings were initiated in the year 1986 in the
Court of Munsif. Revision petition before Additional District Judge was filed
in the year 1990 and came to be decided on 14th September 1995. During the pendency
of the revision, the 1994 Amendment came into force. The effect of the
amendment is that the suit premises were taken out of the operation of the Act
and therefore the Munsif lost jurisdiction to try a case for eviction over such
premises. The learned Additional District Judge ought to have taken note of
this change in law and directed the proceedings held before the Munsif to be a
nullity for want of jurisdiction in view of the change in law.
The
above submission of the learned counsel has been stated only to be rejected. It
is pertinent to note that the proceedings in the Court of Munsif had already
stood concluded by the time the amendment came into force. It is not disputed
that Amendment Act No.32 of 1994 has not been given a retrospective operation
and there is nothing in the Act to infer retrospectivity by necessary
implication.
The
Act has been specifically brought into force w.e.f. the 18th day of May, 1994.
The learned counsel for the appellant cited a number of decisions laying down the
law as to how an amendment in legislation brought into force during the pendency
of legal proceedings has to be given effect to. Without stating the decisions
so cited, suffice it to observe that all those decisions deal with substantive
rights having been created or abolished during the pendency of legal
proceedings and depending on the legislative intent and the language employed
by the Legislature in the relevant enactment, this Court has determined the
impact of the legislation on pending proceedings and the power of the Court to
take note of change in law and suitably mould the relief consistently with the
legislative changes. So far as the present case is concerned, the only
submission made by the learned counsel for the appellant is that the effect of
the amendment is to deprive the Court of Munsif of its jurisdiction to hear and
decide proceedings for eviction over such premises as the suit premises are. In
other words, it is a change in forum brought during the pendency of the
proceedings. The correct approach to be adopted in such cases is that a new law
bringing about a change in forum does not affect pending actions, unless a
provision is made in it for change over of proceedings or there is some other
clear indication that pending actions are affected.
(See
Principles of Statutory Interpretation, Justice G.P. Singh, 8th Edition, 2001,
p.442) We have already indicated that the Act does not bring about a change in
forum so far as the pending actions are concerned. Moreover by the time the
amendment came into force, the proceedings before the Munsif had already stood
concluded and the case was pending at the stage of revision before the
Additional District Judge. Further we find that an objection laying challenge
to forum's competence was not raised before the learned Additional District
Judge nor the objection was taken before the High Court in the civil revision
preferred by the appellant. It was not taken as a ground in the special leave
petition. It has been taken only by way of a separate petition filed
subsequently and seeking leave to urge additional grounds. Such an objection
cannot be allowed to be urged so belatedly. However, we have already held the
argument based on 1994 Amendment as of no merit.
It was
next submitted that though a petition for eviction under Section 21(1)(p) of
the Act can be filed by a landlord and it is not necessary that he must also be
the owner of the premises yet it is necessary that the petitioner must claim
himself to be only a landlord and not an owner. The learned counsel further
submitted that the respondent has claimed himself to be the owner of the
premises which claim is inconsistent with his being a mere rent collector on
behalf of the temple and so the claim for eviction at his instance should have
been refused. This submission too is wholly devoid of any merit. A petition for
recovery of possession of any premises can be filed by the landlord against the
tenant within the meaning of Section 21(1).
Clause
(h) of Section 3 includes in the meaning of 'landlord' any person who is for
the time being receiving or entitled to receive rent in respect of any premises
whether on his own account or on account or on behalf, or for the benefit of
any other person etc. It cannot be doubted nor has it been disputed that the
respondent is 'landlord' within the meaning of Section 3(h) abovesaid. Though
the appellant claimed himself to be an owner also so long as he has been found
to be a landlord he is entitled to maintain the action for eviction under
Section 21(1) (p). The plaintiff or petitioner may claim a higher right and may
succeed in proving only a smaller right or entitlement to relief but that would
not result in disentitling the plaintiff or petitioner from succeeding so long
as the smaller right successfully substantiated by him is enough in law to
entitle him to a relief against the defendant.
For
the foregoing reasons, the appeal is held to be devoid of any merit and liable
to be dismissed. It is dismissed with costs throughout. The decree for
execution shall not be available for execution for a period of four months from
today subject to the appellant clearing all the arrears of rent and filing the
usual undertaking __ both within a period of three weeks from today __ for
delivering vacant and peaceful possession to the landlord-respondent on the
expiry of the said period of four months and continuing to clear the arrears
falling due month by month till then.
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