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`NON-REPORTABLE'
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.16453 OF 2006
B.Y.Narasimha Prasad ... Petitioner
Versus
M.Veerappa & Anr. ... Respondent
JUDGMENT
AFTAB ALAM,J.
This petition for special leave to appeal arises from an eviction
proceeding. The 2nd Additional Small Causes Judge, Bangalore, held
that the eviction petition (HRC No.422/99) filed against respondent
no. 1 was not maintainable under the Karnataka Rent Act, 1999
because the proceeding was instituted within the period of 15 years
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since the suit house was subjected to substantial renovation and
additional construction as provided under Section 2(3) (f) of the Act.
In revision, the High Court affirmed the view taken by the trial court
vide order dated 22 June, 2006 in House Rent Revision Petition
No.554 of 2005. The petitioner seeks leave to file appeal against the
High Court order.
The facts of the case are brief and may be stated thus. The suit
premises belonged to one Shankar Narayan Rao (now deceased). He
inducted respondent No.1 as a tenant in the house in the year 1976. At
that time it was a single storey house without any garage as an
appurtenance. In the year 1988, on the request of the tenant, another
storey was added and a garage was also constructed on the ground
floor. Respondent No.1 then came to occupy as tenant, the entire
premises, that is to say, the ground floor and the newly added first
floor and the garage on a monthly rental of Rs.2500/-.
In 1999, Shankar Narayan Rao filed a petition under the
Karnataka Rent Control Act, 1961 seeking the eviction of respondent
No.1 on a number of grounds. Respondent no.1 resisted the eviction
proceeding and filed his written statement, inter alia, stating that
additional construction/renovation of the house in the year 1988 was
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done at his expense and in that connection he had incurred the cost of
Rs.6,50,000/-.
The Karnataka Rent Control Act was repealed and it was
replaced by the Karnataka Rent Control Act, 1999 with effect from
December 2001. At that time the proceeding was pending before the
trial court.
In the same year Shankar Narayan Rao died and the present
petitioner and respondent No.2 got themselves substituted in his place
to prosecute the eviction proceeding. Respondent No.2 is the widow
of Shankar Narayan Rao and the petitioner claims to be his adopted
son.
In course of the proceeding before it the trial court seems to
have noticed the plea taken by respondent No.1 that the additional
construction/renovation of the house was done in the year 1988 at a
cost of Rs.6,50,000/-. On the basis of the evidences already on record
he further found that the aforesaid amount was in excess of 75% of
the valuation of the house and hence, the suit premises had undergone
substantial renovation/construction within the meaning of Section 2
(3) (f) of the Act that stipulated that to such a premises no provision
of the Rent Control Act, 1999 would apply for a period of 15 years
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from the date of completion of construction or substantial renovation.
The eviction petition in question, was filed in 1999, i.e., clearly
within the period of 15 years from the date of completion of
additional construction/substantial renovation of the suit premises and
was, therefore, not maintainable under the Act.
The petitioner challenged the order of the trial court in revision
before the High Court. At this stage, the dispute which was till then
only bipartite, being between the tenant on the one side and the
petitioner and the second respondent on the other assumed a tripartite
dimension. The widow of Shankar Narayan Rao who after the death
of her husband had initially joined the petitioner in prosecuting the
eviction proceeding changed her stand. A petition was filed on her
behalf in the trial court stating that she came to know about a will
allegedly created in favour of the petitioner, which according to her
was a fake. She also disputed the petitioner’s claim of adoption by
Shankar Narayan Rao and prayed for dismissing the eviction
proceeding. It was in those circumstances that in the revision filed by
the petitioner before the High Court she was impleaded as the second
respondent along with the tenant being the first respondent. The High
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Court, as noticed above, dismissed the revision and affirmed the order
passed by the trial court.
Learned counsel appearing in support of the Leave Petition
submitted that the question of maintainability of the proceeding was
not even raised by respondent No.1, the tenant, and there bring no
such plea the trial court was in error in dismissing the petition as not
maintainable. He further submitted that the suit house could not be
said to have undergone construction/substantial renovation within the
meaning of the explanation to Section 2(3)(f) of the Act. Learned
counsel also submitted that at any rate on 21 November, 2005, the
date on which the trial court dismissed the eviction petition, the 15
years period was already over. The bar of Section 2(3)(f) was thus
lifted in connection with the suit house and there was no legal
impediment before the court to proceed in the matter. In support of
the last submission, he relied upon a decision of this Court in Sudhir
G.Angur & Ors. V. M. Sanjeev & others, 2005 (8) Scale 762.
We are not impressed by any of these submissions. What was
the cost of construction or the value of the single storey house that
was originally let out to respondent No.1 and what was the cost of
construction of the first floor and the garage and whether or not the
suit house had undergone substantial renovation/additional
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construction within the meaning of Section 2(3)(f) of the Act are pure
questions of fact. On the basis of the evidences led before it, the trial
court found and held that the cost incurred in the additional
construction/renovation was in excess of 75% of the value of the
original single storey house. The finding of the trial court has been
affirmed by the High Court. The finding is based on evidence
brought before the court and it, therefore, does not warrant any
interference by us. Further, once it was established that the suit house
had undergone additional construction/substantial renovation within
the meaning of Section 2(3)(f) of the Act the question of
maintainability of the proceeding became a jurisdictional issue and
the court was legally bound to address it regardless of whether or not
any objection was raised by the other side. The trial court was,
therefore, perfectly justified in considering whether or not it had the
jurisdiction and the competence to proceed in the matter. The Trial
Court did so and found that the proceeding was not maintainable
before it.
We are also unable to accept the contention that the date on
which the order was passed the 15 years period was over and the
proceeding had thus became maintainable. We are of the view that the
decision in Sudhir G.Angur has no application to the facts of the case.
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The maintainability of the proceeding was to be decided with
reference to the date on which the Rent Control Act, 1999 came into
force and not the date on which the order was passed by the trial
court. A proceeding that was incompetent on the date the Act came
into force would not revive merely because it remained pending
before the court.
Counsel for the petitioner lastly submitted that the intent of
section 3(2)(f) was to give some benefit to the landlord and further
that the proceeding would not abate under Section 70(2)(c) of the
Act. We find no force in the submission. It is indeed true that
Section 2(3) (f) is beneficial to the landlord but then it was for the
land lord, Narayan Shankar Rao to withdraw the proceeding on
coming into force on the 1999 Act in terms of Section 2(3)(f) and to
proceed against the tenant under the general law governing the
landlord and tenant relationship. That course having not been adopted
the proceeding under the Rent Control Act was clearly not
maintainable and was rightly dismissed by the trial court.
We thus find no merit in this special leave petition and it is
dismissed accordingly.
We may note here that the High Court has left it open to the
petitioner or the 2nd respondent (the widow of Narayan Shankar Rao)
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to file a fresh eviction petition on the ground that by the end of
December 2003 the 15 years period was over. The direction of the
High Court in that regard would remain undisturbed by the dismissal
of the Special Leave Petition.
…………………………..J.
[Harjit Singh Bedi]
…………………………..J.
[Aftab Alam]
New Delhi,
July 21, 2008.