H SHIVA RAO Vs. CECILIA PEREIRA

JUDGEMENT

(1.) This is an appeal by special leave from the judgment and order of the High Court of Karnataka dated 4th June, 1985. In order to appreciate the controversy, it is necessary to bear in mind some brief facts. In this case judgment in R. S.A. No. 835 of 1965 was passed on 27th August, 1970 for possession of the premises situated in Pandavu village. 30th June, 1972 appears to be the date of the decree for possession. On 15th February, 1980 an execution petition was filed by the respondent in the Court of Munsif, Mangalore, Karnataka. On 6th December, 1980, objections to the Execution Petition were filed. At that time Pandavu village where the suit premises in dispute was situated was not within the Mangalore Municipality and as such Karnataka Rent Control Act, 1961 (hereinafter called the Act) was not applicable in Pandavu village. On 18th July, 1983 the said Act was amended by Karnataka Act 17 of 1983 whereby all areas within the limits of the cities under the Karnataka Municipal Corporation Act and an area of 3 Kilometers therefrom were brought under the purview of the Rent Control Act, that is to say Parts IV and V of the Rent Act were applicable to the area in question. A notification was issued on 27th October, 1983 under Section 4(l) read with Section 501(A) of Karnataka Municipal Corporation Act, according to which the whole area comprising Pandavu Town Municipality was included in Mangalore City Corporation. On 23rd June, 1984 an order was passed by the Munsif, Mangalore for issue of delivery of warrant. Thereafter on 20th July, 1984 a Civil Revision Petition was filed in the High Court of Karnataka. In the said petition an order was passed on 4th June, 1985. A Review Petition filed against this order was dismissed by the High Court on 16th July, 1985. That is how the appellant has come up in this appeal.

(2.) The appellant was a tenant in the premises where he was residing and was also running a tea shop. The only short question which arises in this appeal is whether in view of sub-section (1) of Section 21 of the Act the decree was executable, because subsequent to the decree for possession the Act has been made applicable to the area in question. The facts are noted before. The provisions of sub-section (1) of Section 21 upon which arguments were advanced before us are as follows:-

(3.) Thereafter the provision of sub-section enumerates the grounds upon which an order might be made for recovery of possession, inter alia, including arrears of rent, bona fide requirement of the landlord etc., being the usual grounds upon which such applications were permissible in various Rent Acts in the country. It was contended that the order under revision should not have directed the petitioners to deliver possession because the decree vested certain rights upon the landlord. It is, therefore, necessary to appreciate the significance of the effect of Section 21 of the Act. It is, therefore, necessary to properly construe sub-section (1) of Section 21 of the Act. In this connection one has to bear in mind the definition of tenant. Sub-section (1) of Section 21 provides that no order or decree shall be made in favour of the landlord against the tenant. Section 3(r) defines the tenant as a person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a local authority. It has to be borne in mind that the definition of tenant under the Act does not include any person against whom a decree for possession has been passed or against whom the decree for execution for possession has been executed. The High Court was of the view that sub-section (1) of Section 21 prohibits the Court from making any order or decree for recovery of possession in favour of landlord irrespective of any other law or contract between the parties. The High Court concluded that any order of eviction passed before the coming into operation of the Act does not become inoperative after coming into operation of the sub-section. It only prevented passing of any order or decree for eviction after coming into operation of the Act except on the specified grounds mentioned in the proviso to sub-section (1) of S. 21 of the Act. The sub-section does not prevent the execution of the order after coming into operation of the Act, of any order or decree passed before the coming into operation of the Act.