JUDGMENT
H.N. Narayan, J.
1. This appeal is directed against the judgment and decree dated 31.3.1993 passed in O.S.No. 91 of 1976, renumbered as O.S.1262 of 1980 on the file of the VI Addl.City Civil Judge, Civil Station, Bangalore. The Suit was initially filed against the 1st defendant – A. Bhaskaran for a judgment and decree to vacate and deliver possession of the suit schedule property which is a non-residential hotel premises in the prime location in Bangalore viz., Brigade Road and for recovery of a sum of Rs. 6,000/- as damages being arrears of rent from 1.1.1976 to 31.5.1976 at the rate of Rs. 1000/- p.m., for enquiry for future rent under Order 20 Rule 12 CPC, for further directing the 2nd defendant who subsequently impleaded himself as 2nd defendant to vacate and deliver vacant possession of the schedule property to the plaintiff and also an enquiry against him for future mesne profits with costs and such other reliefs.
2. This matter has a chequered long career having regard to the proximity of this Court to the Trial Court and also subject of dispute involved in the suit. The suit was initially filed in the year 1976 before the Court of Civil Judge, Civil Station, Bangalore, which was later transferred to the file of the City Civil Judge after establishment of the City Civil Court and renumbered in the year 1980. From 1976 to 1993 for over a period of 17 long years, the parties approached this Court for over half a dozen times in different proceedings questioning the legality and correctness of various orders passed by the Trial Court on their behest. It has thus become a long drawn battle initially between the plaintiff and the 1st defendant which was later took over by the 2nd defendant who was allegedly inducted by the 1st defendant, as contended by the 2nd defendant, and who had trespassed into the premises as contended by the plaintiff.
3. To understand this controversy, let me start with the case of the plaintiff as pleaded by him before the Court below. It is the case of the plaintiff that he was the full and absolute owner of the suit property bearing two municipal numbers 199 and 200 situate at Brigade Road Civil Station, Bangalore. The 1st defendant occupied it as a tenant on a monthly rent of Rs. 1000/-, it being a monthly tenancy, both the premises were treated as one unit for the purpose of lease. It was leased for non-residential purposes. The 1st defendant was running a bar and restaurant under the name and style of “M/s Basco’s Bar and Restaurant”. It is also the evidence of the plaintiff that the 1st defendant was a defaulter in payment of rents. The 1st defendant also subject the show-window attached to each of the demised premises. He has not been making use of the schedule premises” for the purpose for which it was let viz., for running a bar and restaurant. The defendant is thus making a wrongful gain to himself. He has violated the provisions of Section 108 of the Transfer of Property Act and has rendered himself liable to be evicted from the schedule premises. The plaintiff has also made a claim for personal use and occupation of the premises and a quit notice determining the tenancy has not been complied with. Hence, the suit.
4. The 1st defendant in his written statement has made an attempt to deny the title of the plaintiff. However, he admitted the tenancy of the premises. According to him, he continued to be the tenant of the schedule premises at the time of filing his written statement. It was contended by him that schedule portions A and B demised to him did not form one unit. They were considered as having been leased separately though for the convenience of payment of rents they were treated as one unit. He has also questioned the maintainability of the suit on the ground that the rent of each of the schedule premises A and B is Rs. 500/-. The suit for eviction under general law is not maintainable.
5. The 1st defendant has admitted that he was running a bar and restaurant in the name and style of M/s Basco’s Bar and Restaurant. However, he has denied the other allegations of subletting etc., According to him the rents were initially fixed by the Rent Controller long prior to the lease in his favour and therefore he is not entitled for the rent at the rate of Rs. 500/- each. It is also his contention that there was no talk of understanding between the plaintiff and the 1st defendant that he should not sublet the premises. As such in the absence of any condition prohibiting subletting, the defendant is entitled to do so if he so desired. However, he has denied subletting of any portion of the premises. It is his case that in view of his advancing age and indifferent health, entered into an agreement with one Mistree to run the business on his behalf. The said Mistree is not a sub tenant and no question of subletting arises. It is further contended that even if it conceded for the sake of argument that the said Mistree was a sub tenant this would not in the circumstances of the present case render the defendant liable to be evicted from the schedule premises. The 1st defendant has also denied the personal requirement of the plaintiff for his self occupation. He has also denied his claim for damages and for determination of mesne profits. He therefore prayed the Court below to dismiss the suit.
6. Upon these pleadings the Trial Court initially framed 12 issues on 13.4.1977 and additional issues on 4.3.1982.
7. On 23.1.1984, the 2nd defendant filed an application under Order 1 Rule 10 CPC before the Court below to implead himself as additional defendant and that application having been allowed by the Trial Court, the plaintiff challenged the same in this Court in revision which was dismissed. The 2nd defendant thereafter was permitted to be brought on record and allowed him to file the written statement. He has initially questioned the maintainability of the suit on the question of jurisdiction. He has claimed tenancy under the plaintiff himself and that he entered into the partnership with the 1st defendant with the prior consent of the plaintiff after paying substantial consideration and that he purchased the business from the 1st defendant with the consent of the plaintiff and he has been carrying on this hotel business as a partnership concern and therefore he has become a lawful tenant under the plaintiff, in respect of the suit schedule premises with effect from 10.12.1982, the date of which partnership between the 1st defendant and 2nd defendant was dissolved. It was also his contention that the plaintiff successfully evaded to execute a formal lease deed even though undertaken by him after the death of Bhaskaran on 9.1.1983 with the motive of extracting more rent than the fair rent fixed as aforesaid. It was also his contention that he is not liable for eviction as there was no termination of tenancy. It is upon these grounds, the 2nd defendant also requested the Court below to dismiss the suit.
8. The 1st defendant died during the pendency of the suit i.e., on 9.1.1983. His L.Rs. viz., his wife and children were brought on record. They filed the written statement virtually supporting the contentions raised by the 2nd defendant. It is also contended by them that possession of the suit schedule property was not with them and they are not answerable to the claim made in the suit as their father had virtually sold the business to the 2nd defendant. Thereafter additional issues came to be framed on 11.3.1983, 21.2.1985, 11.3.1985, 4.4.1987, 28.5,1990 and 3.9.1990. From the careful perusal of long list of issues framed by the Trial Court, this Court can only state that the issues had been framed in the suit unmindful of controversies and the questions for determination in terms of Order 14 Rules 1 to 4. Issues that arose for consideration before the Trial Court are as follows:-
1. Whether the plaintiff proves that premises bearing Municipal No. 199 and 200 Brigade Road, Civil Station, Bangalore were together leased as one unit to the defendant on a monthly rent of Rs. 1000/-? Or
Whether as contended by the defendant, the above two premises were separately leased to him on a monthly rent of Rs. 500/- each?
2. If the alternative issue No. 1 is held in the affirmative, whether this Court has no jurisdiction to try the suit?
3. Whether the defendant proves that he agreed to pay Rs. 1000/- per month as rent on account of coercion and undue influence brought to bear upon him?
4. Whether the defendant proves that he is liable to pay rent of Rs. 110/- and each on the above two premises as contended by him?
5. Whether the plaintiff proves that he terminated the tenancy of the defendant from 1.6.76 by issue of a void quit notice dated 1.5.76?
6. Whether the plaintiff is entitled to recover vacant possession of the suit schedule premises from the defendant?
7. Whether the plaintiff is entitled to recover Rs. 5000/- towards arrears of rent for the period from 1.2.76 to 31.5.76 from the defendants?
8. Whether the plaintiff is entitle to recover Rs. 1000/- to wards damage for use and occupation of the premises by the defendant for the month of June, 1976?
9. Whether the plaintiff is entitled to future mesne profits from the date of suit till the date of recovery of possession?
10. Whether the suit is not maintainable?
11. Whether there is no cause of action for the suit?
12. To what reliefs is the plaintiff entitled?
13. Whether the defendant has subject the suit premises as alleged?
14. Whether the plaintiff is entitled to relief of possession?
15. What amount is due to plaintiff towards arrears of rent and mesne profits upto date of suit?
16. What relief?
17. Whether the legal representatives of first defendant can take up the defence taken up by deceased first defendant? If not what is the effect? Whether second defendant proves that he entered into partnership with first defendant on 1.10.81 for running the business of Bar and Restaurant with permission of plaintiff as alleged? If so, whether second defendant cannot defend the suit as succession-in-interest of first defendant?
18. Whether second defendant further proves that by dissolution of partnership by the deed dated 10.12.82 he has become the sole owner of the business and entitled to defend the suit?
19. Whether the partition deed dated 1.10.81 and 10.12.82 are genuine and binding on plaintiff?
20. Whether there has been fixation of fair rent not exceeding Rs. 500/- p.m. and therefore the suit is not maintainable in this Court as contended by second defendant?
21. Is this suit no longer maintainable in view of the exclusion of jurisdiction of Civil Courts to pass a decree for ejectment of a tenant, on account of the striking down of Section 31 of the Karnataka Rent Control Act, 1961 by the Hon’ble High Court of Karnataka?
22. Whether the plaintiff is entitled to a decree for possession of the plaintiff schedule premises as contended by him?
23. Whether the second defendant has become the tenant is respect of the plaint schedule premises as contended by him?
24. Whether the plaintiff is entitled to recover mesne profits from the second defendant? If so, from what date and at what rate?
25. Whether this Court has jurisdiction to entertain the present suit?
26. Whether the suit is not valued properly and whether the Court fees paid is not correct?
9. In support of the suit claim, plaintiff relied on his own evidence and got marked 27 documents. The 2nd defendant was examined as Dw.1 and relied on the evidence of 4 witnesses. He got marked 18 documents on his side. The Trial Court has heard the matter for a considerable period of time. It has answered issues 1, 5, 6, 7, 8, 9, 13, 14, 15, 22 and 24 in the affirmative and rest in the negative holding that the Court has jurisdiction to try the suit. Hence, the plaintiff was entitled for judgment and decree.
10. The legality and correctness of the judgment and decree of the Court below is assailed in this appeal by the 2nd defendant. At a particular stage, this Court in a Civil Revision Petition directed the Trial Court to decide issues 23 and 25 as preliminary issues. Thereafter, the Trial Court sought permission of this Court to dispose of the entire suit after giving findings on all issues which was granted by this Court. The main question according to the Trial Court as referred to in para 9 of the judgment was whether the 2nd defendant became a tenant in respect of the suit schedule premises as contended by him. In fact, the entire attention of the Trial Court appeared to have been diverted to this important question and all other issues were treated formally in the hands of the Trial Court.
12. In this appeal Sri Ramdas Learned Counsel for the appellant contended that as rightly opined by the Trial Court, the main question for consideration in this appeal is whether the 2nd defendant is a tenant under the plaintiff or whether he is a sub tenant. He wants this Court to draw inference from Ex.D1 the deed of partnership dated 1.10.1981 entered into by the 1st defendant with him and also from Ex.D10 the letter from the bank that the plaintiff gave consent for transfer of tenancy in favour of the 2nd defendant. According to him, the oral evidence of DWs.1 to 5 has corroborated these two documents and therefore the appellant was inducted as a lawful tenant with the consent of the landlord and therefore, according to him the suit under general law for ejectment of tenant is not maintainable. It is also his contention that the Trial Court having regard to these facts has also held that the 2nd defendant is a sub tenant and there was some confusion in the mind of the Trial Judge to describe the 2nd defendant as also a trespasser. It is his contention that the Trial Court was hasty in its decision to come to a definite conclusion regarding two questions viz., whether the 2nd defendant was a sub tenant or a trespasser and whether the Trial Court had jurisdiction to try the suit at all. According to him, on both the counts, the Trial Court has erred definitely and it has failed to take a definite decision.
13. Sri Mohandas N. Hegde, Learned Sr. Counsel for the respondent – plaintiff has submitted that the evidence on record does not support the claim of the 2nd defendant that he was inducted as a tenant by consent of the plaintiff. The partnership deed and the dissolution deed are self serving documents which do not even make an attempt to show that he was inducted as a tenant by the plaintiff. There is nothing on record to show that the 2nd defendant has become a sub tenant as the Karnataka Rent Control Act, 1961 (“the Act” for short) has nowhere defined a sub tenant of any premises and therefore he justified the finding of the Trial Court that the 2nd defendant was a trespasser and the suit for ejection under the general law of the land is perfectly maintainable. Therefore, the argument of the Learned Counsel virtually centers around this very important aspect. Therefore, the points that arise for consideration in this appeal are:
1. Whether the 2nd defendant – appellant is a tenant? Alternatively what is his status?
2. Whether the suit is maintainable for ejection of the 2nd defendant?
3. Whether the plaintiff is entitled for mesne profits under Order 20 Rule 10 CPC?
4. What order?
14. Before taking up these main points for consideration, it is necessary to refer to some of the other residuary contentions raised in the suit. It is not difficult for me to decide these questions in view of the submission made by the Learned Counsel that there is not much of controversy regarding those questions.
15. There is no dispute that the suit premises consists of two tenaments bearing Corporation No. 199 and 200 at Brigade Road, Civil Station, Bangalore. The agreed rent was Rs. 1000/- and that the 1st defendant was a tenant under the plaintiff on a monthly rent. Section 31 of the Act is struck down by this Court on 1.7.1986. The benefit of Section 31 of the Act therefore was not available to the parties as on 1.7.1986. Therefore, it must be held that the suit against the 1st defendant or his L.Rs. was clearly not maintainable as on the date of striking down of Section 31 of the Act. The question whether the suit as brought out against the defendant is maintainable will be taken up at a later stage.
16. Irrespective of the result of the suit or appeal, the 2nd defendant who claims to be in possession of the premises is liable to pay rents or damages, as the case may be at the rate of Rs. 1000/- p.m. It is submitted during the course of the argument by the Learned Counsel for the appellant that he has deposited rents up to date. In that event, the plaintiff is entitled for the same without determining mesne profits under Order 20 Rule 10 CPC. It is wholly unnecessary to direct the parties again to agitate their rights in the Court below for over years. Therefore, if this Court declares the 2nd defendant as a trespasser, he is liable for eviction by virtue of a decree in the suit. If he is held to be a tenant or a sub tenant, the plaintiff has necessarily to go before the Rent Court under the provisions of Section 21 of the Act. The legal representatives of the 1st defendant have virtually given up their claim or liability on the ground that after the death of their father, they have no subsisting interest in the suit property, and they are not answerable for all the claims made by the plaintiff. It is undisputed that the 1st defendant continue to be a tenant till the date of dissolution dt. 10.12.1982. Therefore, the L.Rs. of the 1st defendant are answerable for any liability of their father and the plaintiff is always entitled to recover arrears of rent from the estate of the deceased. The 2nd defendant who claims exclusive possession of the premises is liable for rents or damages from 10.12.1982. Therefore, it is not difficult for the Court to affirm all those issues rendered by the Trial Court.
17. In view of the discussion made above, the 3rd point has necessarily to be answered in the affirmative and irrespective of the status of the 2nd defendant, he is liable to pay rents or damages from 10.12.1982.
18. Points 1 & 2 :- There is no dispute that the premises is a tenanted premises. The evidence on record disclose undisputedly that evidence on record disclose undisputedly that the plaintiff is shown to be the owner of many tenanted non residential premises situated at Brigade Road. The grievance of the plaintiff for filing a suit for ejection are that he was a defaulter in payment of rents. He has been making use of the premises for the purpose which was not agreed to by the parties and that he has inducted a sub tenant in a portion of the demised premises.
19. The 1st defendant has disputed all these allegations. According to him he has not sublet any portion of the premises. He
has only appointed an agent or a licensee to run his hotel business. It is also his contention that there was no contract to the contrary not to induct any tenant or sub tenant as the case may be to the premises without the consent of the landlord. We find from the discussion made by the Trial Court that the 1st defendant has not at all inducted any sub tenant till 1981. In fact there was no attempt on the part of both the parties to show whether one Mistree was acting for and on behalf of the 1st defendant in running his business who was a sub tenant or his manager or his licensee. It was a fact which is not disputed that the 1st defendant was old and was unable to maintain his hotel business. We are not aware of the understanding between the 1st defendant and his licence viz., Mistree.
20. During the pendency of the suit, the 2nd defendant impleaded himself as a party to the suit one year after the death of the 1st defendant. After the 2nd defendant filed his written statement, plaintiff was obliged to amend his plaint. He called the 2nd defendant as a trespasser or an imposter and therefore he was liable to be evicted. Hence, the plaintiff has clearly disputed the status of the 2nd defendant as a tenant. According to him he is a trespasser. It is pertinent to note that the plaintiff has nowhere in his pleadings or at the time of trial has stated at what stage the 2nd defendant has entered possession of the premises. It is the contention of the 2nd defendant that he was inducted as a lawful tenant by the 1st defendant with the consent of the plaintiff himself. According to him DW.1 entered into a partnership with the 2nd defendant under Ex.D1 dt.1.10.1981 and this was done only with the consent of the plaintiff and after 3 years, the 1st defendant was unable to continue as a partner with him, he sold the entire business to the 2nd defendant again with the consent of the plaintiff and that the plaintiff accepted an offer of Rs. 1,00,000/- as the goodwill for continuing the business by the 2nd defendant and that he has taken the cash of Rs. 40,000/ – and demand draft was issued under Ex.D10. The plaintiff evaded to accept this amount on the ground that he wanted to consult his brother who was at Madras at that time, and thus he evaded to accept the money and failed to execute a regular lease deed. Ultimately, he refused to do so after the death of the 1st defendant and he demanded Rs. 4,00,000/- as advance and Rs. 10,000/- as rent. In proof of this defence, the 2nd defendant has relied on Exs.D1, D4 and D10 and the oral evidence of DWs.2 to 5. DWs.2 to 5 have no doubt supported the claim of the 2nd defendant that they were present when the talks took place and that the plaintiff has agreed to accept the 2nd defendant as his tenant on payment of Rs. 1,00,000/-as goodwill or advance with the same rent. They have also spoken to the conduct of the plaintiff in not readily agreeing to execute the lease deed as agreed upon. These witnesses have been cross examined at length. However, it is difficult to find whether the oral evidence can be accepted in the absence of evidence of the 1st defendant himself. Therefore the determining factors are the documents themselves. Rerusal of Ex.D1, the deed of partnership entered into by the 1st defendant with the 2nd defendant cannot be considered as a self serving document at all. This document bears the signature of the 1st defendant. Moreover, the LRs. of the 1st defendant have also virtually adopted the defence of the 1st defendant. They have also referred to the partnership entered into by the 1st defendant with the 2nd defendant. There is no doubt that a reference at page 9 of the deed permit the 2nd defendant to run Basco’s Bar and Restaurant as a sole proprietor and that the landlord has also agreed to recognise the 2nd defendant as tenant and that there is no such agreement in affirming of the partnership. Though the defendant have incorporated these provisions in the partnership deed, have failed to obtain the consent of the plaintiff in the said deed. There is nothing on record to show that they have sent a copy of this partnership deed to the plaintiff and obtained his permission and therefore, it cannot be held now that the defendants have entered into this partnership with the consent of the plaintiff nor there is any implicit or express consent of the plaintiff to start this business in the partnership.
21. Ex.D3 is a notice dated 1.11.1982 from 1st defendant to the 2nd defendant expressing his intention to withdraw from his partnership and on 10.12.1982 there was a deed of dissolution of partnership. The reasons are obvious. The worsening health of the 1st defendant persuaded him to give up his partnership with the firm and allowed 2nd defendent to continue as a sole proprietor. The way the partnership came into existence, the terms of the partnership themselves clearly disclose that the 2nd defendant was inducted for monetary benefits by the 1st defendant. The deed of dissolution no doubt shows that the 1st party has transferred and sold his share in the business to the 2nd party by way of transfer of running concern and has executed an agreement of transfer dt.10.12.1982 in favour of the second partner/party. The right of the 1st party to transfer his business rights to the 2nd defendant is not in dispute nor is it questioned therein. The question is whether the plaintiff has affirmed his consent to this understanding between the defendants. Even here also the defendants have failed to obtain the signature of the plaintiff as a token of consent. Therefore, as rightly held by the Trial Court, the 2nd defendant cannot be declared as a tenant. There is no acceptable evidence oral or documentary to accept this contention. Therefore, I have no doubt in my mind that the 2nd defendant was not inducted as a lawful tenant by the plaintiff.
22. The next question is what is status of the 2nd defendant. Whether he be called as a trespasser or a sub tenant.
23. Learned Counsel for the appellant has relied on Black’s Law
Dictionary, v. Edition 1347 and Stroud’s Judicial Dictionary, IV Edition
2827. In Black’s Law Dictionary the meaning of trespass is given as
under:
“Trespass”. An unlawful interference with one’s person, property or rights. At common law, trespass was form of action brought to recover damages for any injury to one’s person or property or relationship with another.”
Trespass comprehends any which damages another persons’s reputation or property.
The same dictionary has defined ‘forcible trespasser’ as an intruder.
24. In Stroud’s Judicial Dictionary, trespass is defined as follows:
(1) Trespass’ signifies any transgression of the law under treason felony; or misprision of either.”
(2) “A trespass is an injury committed with violence; and this violence may be either actual or implied; and the law fill simply violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person, or tangible and corporeal property of the plaintiff. Of actual violence an assault and battery is an instance; of implied, a peaceable but wrongful entry upon the plaintiff’s
The meaning of trespass in New Webster’s Dictionary, “trespass” means wrongful entry upon the lands of another.”
24. A tenant is defined in Section 2(r) of the Act. A sub-tenant as such is not defined in the Act, but Section 21(1)(f) specifically refers to eviction of a tenant if the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of subletting, assignment or transfer to which the provisions of Section 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force. Section 22 of the Act determines the position of a sub-tenant. Section 23 further provides that a tenant not to sub-let or transfer after commencement of this part. It specifically provides that it shall not be lawful after coming into force of this Part, for any tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein.
25. The Court has to make its endeavour to find out whether the 2nd defendant entered the premises by virtue of the transfer of business in his favour by the 1st defendant under Exs.D1 and D4 or whether he entered the premises unlawfully without the permission of either the owner or the tenant.
26. Plaintiff called him impostor, as a person who assumes the character or name of another individual for the purpose of deception one who imposes dishonestly on others. In other words, plaintiff’s allegation is that the 2nd defendant who entered the shoes of the 1st defendant under the guise of the partnership deed and dissolution deed, wanted to claim himself as a tenant of the premises under the plaintiff.
27. I have extracted the relevant provisions of the Act which came into force in the year 1961. Section 23 clearly forbids creation of any subletting whole or any part or to assign or transfer in any other manner his interest therein. Having regard to the conduct of the 1st defendant initially in allowing others to carry on the business in his name as he was unable to carry on the business by himself due to old age and ill health, he thought of making some money at that stage by inducting the 2nd defendant initially as a partner of the firm and then in his own capacity as a proprietor of the said business concern. This mode of transfer of tenancy is not unknown in this Country. We cannot consider the possession of the premises on such circumstances a trespass. The Learned Counsel for the appellant in fact has relied on a decision of this Court in RAMAKRISHNA GOVINDA HANMASHET AND ORS. v. BELGAUM BIDI BEPARI SINGH AND ORS 1977(2) KLJ 64. in support of his contention that lease to firm and dissolution and one partner continuing is not subletting. The ratio laid down is inapplicable to the case on hand for the simple reason that there is no lease of the premises by the landlord. They have also referred to the decision in BAL KISHAN v. OM PARKASH AND ANR . The said decision is also inapplicable to this case as the question before the Supreme Court was whether an order of eviction of legal representatives of the tenant and sub tenant was proper. There was no dispute about that proposition as the question was decided by the competent Court viz., the rent Court. Therefore, from this evidence, one can conclude that the 1st defendant has inducted the 2nd defendant for monetary benefit. Since he was inducted without the consent of the landlord, his possession becomes unlawful, he is liable to be evicted under the provisions of Section 21(1)(f) of the Act. No other conclusion is possible having regard to the evidence placed by the parties before the Court. Therefore, I hold that the 2nd defendant – appellant is a sub tenant. I answer point No. 1 accordingly.
28. In the light of my finding on point No. 1, the Civil Court does not get jurisdiction to pass an order of eviction. A tenant or a sub tenant can only be evicted in accordance with the Act. There is a specific ouster of jurisdiction of the Civil Court to entertain any suit for eviction of a tenanted premises. Therefore, I hold that the Civil Court has no jurisdiction to entertain the suit for eviction. I answer point No. 2 in the affirmative.
29. I have scrutinised the judgment of the Trial Court. The Trial Judge was not firm in his findings. He was assilating to hold the 2nd defendant either a trespasser or a sub tenant. This is apparent on the very finding recorded by the Trial Judge. Therefore, the judgment and decree of the Trial Court granting the decree of eviction is passed without jurisdiction and is liable to be set aside.
30. In the result, the appeal is allowed. The judgment and decree of the Trial Court is set aside. This matter has consumed sufficient time. In the light of these findings by this Court, the plaintiff has to go before the Rent Court. It is not unreasonable to drag the plaintiff to approach the Rent Court even after 21 years. However, it is inevitable under the circumstances, parties some times have to undergo this ordeal of facing the trial again. But there is one way of cut short this ordeal of trial. There is no defence available at this stage for the 2nd defendant even to putforth in HRC proceedings. He is a sub tenant. He has to be evicted in accordance with law provided under the Act. Therefore, if the landlord files an application for eviction under Section 21(1)(f) of the Act, the 2nd defendant cannot be allowed to raise any other plea except the one of sub tenant. In this background, it becomes only formal to the Rent Court to hear both the parties after filing of their pleadings to pass an order. Since only that Court has got jurisdiction to pass the order of eviction, the parties will necessarily have to subject themselves to that Court. If any petition is made by the land lord for eviction, the Rent Court may dispose of the matter as expeditiously as possible, but not later than six months.
However, the parties are directed to bear their own costs.
31. After the judgment was pronounced in the appeal, the Learned Counsel for respondent-5 Mr. Mohandas N Hegde mentioned in the Court that the Judgment in PADMANABHA RAO’s case has been over ruled by the Supreme Court in D.C. BHATIA v. UNION OF INDIA and therefore, the Civil Court has no jurisdiction to deal with the matter in question and the issue determined by this Court on the submission made by them during the course of the arguments has to be reviewed.
32. The Learned Counsel for the appellant Sri Ramdas has filed his counter opposing the said submission. It is contended by him that the decision of this Court in Padmanabha Rao’s case still holds good and that the decision is not over ruled either impliedly or explicity by a judgment of a larger Bench of this Court or by the Supreme Court. On the other hand, the said decision has been expressly referred to and reiterated by the Supreme Court in the case of B.G. KUMARAVELU v. KANAKARATHNAM CHETTY 1996(1) SCC 673. He further contended that the Supreme Court in the said case had an occasion to consider the correctness or otherwise of the decision of Padmanabha Rao’s case viz. as to whether the suit for eviction was maintainable in view of Section 31 of the Karnataka Rent Control Act struck down whether the Civil Court has jurisdiction to try the said suit. It is further contented that as regards the decision of the Supreme Court in civil appeal No. 13574/1996, it is contended that the decision was only interparties and is not a binding under Article 141 of the Constitution of India. It is his further contention that Division Bench of this Court in Padmanabha Rao’s case has relied upon the ruling of the Supreme Court in RATTAN ARYA v. STATE OF TAMILNADU
and has correctly decided the question of law and there is no ground to revise or review the finding of this Court.
33. I have given my careful consideration to these contentions.
34. During the course of the argument of the appeal, the Learned Counsel for the parties proceeded on the basis of a decision rendered by this Court in Padmanaba Rao’s case and therefore, there was no occasion for this court to consider the question now canvassed by Mr. Mohandas Hegde, Learned Counsel for respondent-5.
35. In Padmanabha Rao’s case the petitioners were the tenants of non-residential premises in the city of Bangalore and elsewhere in the state. They questioned the constitutional validity of Section 31 of the Karnataka Rent Control Act which means exemption from the provisions of Section 21 of the Act and other sections in the said part. Section 31 of the said Act reads as follows: “Exemption in respect of certain buildings”: Nothing contained in this Part shall apply to a non-residential building the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees.
Provided that the exemption under this Section shall not apply:
i) to any building taken on lease by a public authority or by an educational institution; or ii) to any building occupied by more than one tenant each paying a monthly rent not exceeding five hundred rupees or an annual rent not exceeding six thousand rupees."
The grievance of the petitioners that there is a discrimination between the residential and non-residential premises was accepted by the Court. The bench of this Court mainly relied on the ratio of the judgment in RATTAN ARYA v. STATE OF TAMILNADU wherein the validity of Section 30(ii) of the Tamilnadu Buildings (Lease and Rent Control) Act 1960 as amended in the year 1973 making the protective provisions of the Act inapplicable to residential premises, the monthly rental of which was Rs. 400/- or more, was challenged. The Supreme Court in that case held that even on the basis that a rational basis for classification existed in the year 1973, when the Section was amended, in view of escalation of rents between 1973 and 1986, the classification had become unrealistic and irrational. It is, further held that it is for this reason, it can be stated that though the original classification was made on a rational basis and it had nexus to the object sought to be achieved, by efflux of time, not only the classification has become unreasonable but it has also ceased to have nexust to the object sought to be achieved. Applying the ratio in Rattan Arya’s case Section 31 of the Act is struck down on the ground that it is violative of Article 14 of the Constitution.
36. In D.C. BHATIA v. UNION OF INDIA interpretation and constitutional validity of Section 3(c) of the Delhi Rent Control Act, 1958 was called in question. Section 3 of the Act lays down : “3. Act not to apply to certain premises – Nothing in this Act shall apply;
(a) to any premises belonging to the Government:
(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government”
Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority, the provision of this Act shall apply to such tenancy.
(c) to any premises, whether residential or not, whose monthly rent exceeds three thousand and give hundred rupees; or (d) to any premises constructed on or after the commencement of the Delhi Rent Control Amendment Act, 1988, for a period of ten years from the date of completion of such construction."
The main contention of the appellant before the Supreme Court was that the provisions of Sub-section (c) of Section 3 is ultra vires of Article 14 of the Constitution. Inter related contentions were also raised in the matter before the Supreme Court. Reliance was placed before the Supreme Court to the ratio laid down in RATTAN ARYA’S case. It was pointed out by the Supreme Court at para 36 of the judgment that “the main controversy in Rattan Arya case was about the discrimination between residential and non-residential buildings. Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was struck down on the ground that the argument based on protection of the weaker section of the community was entirely inconsistent with the protection given to tenants of non-residential premises”. Commenting upon the observations made in Rattan Arya case, it observed that “this observation has to be understood in the context of the facts of this case and also the provisions and the objects of the Tamilnadu Act which were under consideration in that case. Reasonableness of taking away the protection of the Act from residential premises whose rent exceeded Rs. 400/- while continuing to give full protection to the non-residential premises, was under challenge. The object of the Act, as was emphasised in the Judgment, was to give protection to the weaker section of the community and the various provisions of the Act were enacted to prevent the unreasonable eviction of tenants in the State of Tamilnadu. It was in that context observed that the ceiling of Rs. 400/ – imposed in 1973 had become unreal in 1986.
37. But, in so far the Delhi Rent Control Act is concerned, it is observed that the amendment made to Delhi Rent Control Act is for a different purpose altogether. The various objects, as set out earlier in the judgment, include brining about a balance between the interests of landlords and tenants and also giving a boost to housebuilding activity. Therefore, the supreme Court has distinguished the ratio laid down in Rattan Arya case on the facts of that case. It is pertinent to remember that both Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and Section 31 of the Karnataka Rent Control Act was considered. There was discrimination in the matter of giving protection to persons occupying residential houses and non-residential houses which is not the case in Delhi Rent Control Act. Therefore, the ratio laid down by the Supreme Court in D.C. BHATIA Case, in my opinion, is not applicable.
38. In so far as the judgment of the Supreme Court in B.G. KUMARAVELU v. KANAKARATHNAM CHETTY 1996(1) SCC 673 it is not a decision which deals with the question in controversy though a issue was framed and decided by the lower Court regarding the jurisdiction of the Court under Section 31 of the Karnataka Rent Control Act. Neither that question was canvassed in the Supreme Court for its consideration nor the Supreme Court has considered that question. Therefore, in my opinion, the judgment has no bearing on the question in controversy.
39. In so far as the civil appeals 20754 of 1996 and 6073 & 6074 of 1997 are concerned, the Supreme Court has disposed of the matters mainly relying upon the decision in D.C. BHATIA case and the it has not laid down any law in those cases.
40. The question whether the conclusions reached by the Court without discussions or reasons is binding under Section 141 of the constitution is, in fact, considered by the Supreme Court in STATE OF UP v. SYNTHETICS AND CHEMICALS LTD . The discussion is found at para 41 of the said judgment in the following words: “Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind”. (Salmond on Jurisprudence 12th Edn., p.153). In Lancaster Motor Company (London) Ltd., v. Bremith Ltd., the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and
without any citation of the authority’. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, ‘precedents sub-silentio and without argument are of no moment’. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of have a binding effect as is contemplated by Article 141.
41The Supreme Court has not laid down any law in these civil appeals. Therefore, in my opinion, the law laid down by this Court in Padmanabha Rao’s case affirmed by the Supreme Court in Rattan Arya’s case still holds good. The contentions raised in this behalf are therefore, disposed of accordingly. Appeal is allowed in terms already stated.
