K SREENIVASA RAO Vs. K M NARASIMHIAH

JUDGEMENT

(1.) Civil Revision Petition No. 472/71 arises out of the case in H. R. C. 169/66 disposed of by the first Munsiff. Bangalore. Civil Revision Petition No. 546/71 arises out of the case in H. R. C. 172/66. These revision petitions are filed under Section 50 of the Mysore Rent Control Act, 1961. In both the cases, the tenants are the petitioners. In C. R. P. 472/71, the petitioner was a tenant of shop No. 92. Ealepet. Bangalore City, In C. R. P. 546/71, the petitioner was a tenant of an office room which was part of the first floor of the building bearing Municipal No. 89, situated in Balepet, Bangalore City, as described in the schedule to the petition. The landlord was in occupation ol a portion of the premises using the same for his residential purposes. The other portions of the building were lei out to eight tenants including the present petitioners, There were four shops in the ground floor and four rooms in the first floor. The landlord is the first respondent in C R. P. 472/71 and the sole respondent in C. R. P. 546/71. The second respondent in C. R. P. 472) 61 is in occupation of the shops No. 92 in the newly constructed premises as a tenant under the landlord from 21-1-1971. The landlord filed eight petitions H. R. C Nos. 169 to 176 of 1966. All the tenants appear to have initially contested. On 7-12-1967, five of the tenants gave up the contest. Subsequently on 25-7-1970 one more tenant also decided not to contest. Thereafter, it is only the petitioners in the above-said two revision petitions who contested the landlord's petitions. The landlord filed the petitions under Section 21 (1) (j) of the Act alleging that the building IB very old and that it needs urgent reconstruction after demolition. He also produced the licence issued by the Municipal Corporation along with the sanctioned plan. After five of the tenants gave up the contest, the landlord appears to have started demolition of the portion of the building which was in occupation of the tenants who gave up the contest. When matters stood thus, the two petitioners filed identical memos Into court on 12-8-1970. The memos read as follows:

(2.) According to the landlord, the portions of the building which were in occupation of these two tenants had collapsed and were not in existence on 12-8-1970. According to the tenants, the said portions of the premises had not collapsed, but were standing though not In a good condition. It is an admitted fact that subsequent to the order of the trial court the building has been reconstructed. The appellate court disposed of the appeals on 21-1-1971. On the same day, the landlord put the second respondent in C. R. P. 472/71 in possession of the new shop premises bearing No. 92. The said second respondent has been impleaded in this court. According to the affidavit filed by the landlord, he entered into the lease agreement between the second respondent and himself since he had agreed to let out the said premises to second respondent in case he succeeded in the appellate court. The lease deed dated 21-1-1971 has also been produced. Since the second respondent has been put in possession of part of the new building during the pendency of the proceedings, arising out of the landlord's petition under Section 21 (1) (j), the lease in favour of the second respondent in C. R. P. 472/71 is hit by lis pendens. Hence, the rights of second, respondent are subject to the order that will be passed in the present revision petition.

(3.) It is not disputed that the petitioners were statutory tenants on 12-8-1970. It has been held in, AIR1967 SC 1853 , (1968 ) GLR41 (SC ), [1967 ]3 SCR343 , Hiralal v. Kasturbhai that a statutory tenancy comes to an end only on the passing of an order of eviction under the Act or by the tenant giving up the tenancy himself. The question for consideration, therefore, is that since there was no order of eviction on 12-8-1970 whether the petitioners surrendered their tenancy. The fact that they handed over the key of the premises in court and it was accepted by the landlord in court is not disputed. The question is whether the handing over the key which in effect is handing over of possession by the tenant to the landlord, amounts to surrender of the tenancy. It is not in all cases where possession is handed over by the tenant to the landlord that a surrender takes place. The intention of the tenant in handing over possession to the landlord must be to surrender his tenancy. There may be cases where possession of the leased premises is handed over to the landlord on the understanding that the landlord may effect repairs to the premises leased and restore possession to the tenant after such repairs. Hence, it is the intention with which the possession is handed over by the tenant to the landlord that determines whether there is a surrender of the tenancy or not. It is contended on behalf of the landlord that though he had stated in his main petition that he was agreeable to put the tenants back in possession in the newly constructed premises and though he stated in his own evidence that he would restore possession to the tenants after reconstruction, he had filed the applications I. A. Nos. V and VI indicating that he no longer stuck to the said undertaking to restore possession to the tenants. I. A. V was for deleting that portion of the petition which stated that he undertook to restore possession to the tenants after reconstruction, I. A. No. VI was for deleting certain portions of the statement in his evidence in which he had stated that he would restore possession to the tenants. Both these I. As. had been rejected by the trial court on 25-7-1970. It is contended that though the tenants' memo stated that an order may be passed under Sub-clause (j) of Section 21 (1), the landlord never agreed to receive the keys on condition that the tenants would be restored to possession after reconstruction. It is no doubt true that there is nothing in the order sheet of 12-8-1970 to show that the landlord consented to the terms of the me-mos filed by the tenants. But the intention of the tenants in handing over possession of the keys in court is made clear by the terms of the memos filed by them. They have clearly stated that the building requires demolition and reconstruction and that they consent to the order being passed in terms of Sub-clause (j) of Section 21 (1) of the M. R. C. Act, and that an order may be passed accordingly. Hence, the Intention of the tenants in handing over possession was with a view to enable the landlord to demolish and reconstruct the premises leased to them reserving their rights of re-entry under the Act which flow from an order under Sub-clause (j). Hence, though the landlord was not a consenting party to the conditions laid down in the memos filed by the tenants, by the mere fact of surrender of possession, the tenants did not surrender their tenancies. The lower appellate court seems to have assumed that by the mere surrender of possession the tenants surrendered the tenancy as well.