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PETITIONER: C.N. RUDRAMURTHY

       Vs.

RESPONDENT: K. BARKATHULLA KHAN & OTHERS

DATE OF JUDGMENT:       08/10/1998

BENCH: CJI, G.B. PATTANAIK, S. RAJENDRA BABU.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T Rajendra Babu, J. The  appellant  filed  a suit against Bhaskaran, the original tenant in occupation of a premises bearing No.  199 and 200 situated at  Brigade  Road  in  Bangalore  city  for recovery  of  possession  thereof  on the ground that he had defaulted in  payment  of  rent  and  had  sublet  the  same contrary to  law.    The  original tenant set up the defence that he had not sublet the  suit  premises  or  any  portion thereof,  but  had  only  entered  into  an agreement to run business on his behalf and he was not liable to be  evicted. The   original   tenant  died  on  8.1.1983  and  his  legal representatives were  brought  on  record.    They  filed  a written  statement  on 1.8.1984 contending that their father had  parted  with  possession  of  the  suit   premises   to respondent  No.1 and no decree could be passed against them. Respondent  No.1  was  impleaded  as  a  defendant   on   an application made  by him.  He contended that he had become a partner with Bhaskaran with the consent  of  the  appellants and partnership stood dissolved as on 10.12.1982 and thus he was a  tenant under the appellant directly.  His tenancy had not been terminated and, therefore, there was no  cause  for suit.   By  a decree made on 31.3.1993, the City Civil Court directed the eviction of the first respondent.    Respondent No.1 preferred an appeal against the said decree in the High Court.   This  appeal is against that order made by the High Court.  This appeal is against that order made by  the  High Court of Karnataka in that appeal filed by respondent No.1 In  the  High  Court  three  principal  points  were formulated for consideration :- (1) Whether the first respondent is a tenant? If  not,  what is his status? (2)  Whether  the  suit  is maintainable for ejection of the first respondent? (3) Whether the  first  respondent  is  entitled  for  mesne profits under Order XX Rule 10 of the C.P.C.? The first two points raised for consideration turned on  the question  whether  the  first respondent is a tenant or not? If he is a  tenant,  it  was  stated  that  the  matter  has necessarily to go before the Rent Control Court for eviction

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under   Section   21  of  the  Karnataka  Rent  Control  Act (hereinafter referred to as "the  Act").    However,  he  is liable for  eviction by virtue of a decree in the suit.  The Courts below to pay rents or  difficulty  in  answering  the third point  raised  for  consideration.   What is really in issue before us are the first two points. The High Court held  that  there  is  no  acceptable evidence  to  declare  the  first respondent as a tenant and thereby affirmed the conclusion reached by the trial  court. After examining the scope of Section 23 of the Karnatak Rent Act  which  forbids  creation  of sub-lease or assignment or transfer either whole or any part of the  demised  premises, the  learned  Judge was of the view that the original tenant allowed others to carry on the business in his  name  as  he was  unable  to  carry on the business by himself due to old age initially by inducting the first respondent as a partner of the firm and then in his own capacity as a owner  of  the business  concern  which was not an unknown mode of transfer of tenancy and, therefore, the first  defendant  was  not  a trespasser.   He, however, noticed that the first respondent was not inducted  with  the  consent  of  the  landlord  and therefore  his  possession becomes unlawful and he is liable to be evicted under the provisions of  Section  21(1)(f)  of the  Karnataka  Rent Control Act and no other conclusion was possible in this regard.  In view of that  finding  he  held that the Civil Court has no jurisdiction to pass an order of eviction  as  there  is  a  specific  provision  ousting the jurisdiction of the Civil Court to entertain  any  suit  for eviction of  a tenanted premises.  On that basis, he allowed the appeal and set aside the decree dame by the trial  court and  directed  the  parties  to work out their remedies in a Rent Court. In this background a contention was raised on behalf of  the  appellant  that  Section  31  of the Karnataka Rent Control Act enabled the filing of the suit as  the  rent  in respect of  the same was above Rs.500/- per month.  The High Court held that Section 31 of the Karnataka Rent Control Act had been declared invalid in Padmanabha Rao vs.    State  of Karnataka ILR  1986  Kar  2480.   The view expressed by this Court in Civil  Appeal  No.13754  of  1996  entitled  Shobha Surendar vs.  Mrs.   H.V.  Rajan and Others was also brought to the notice of the High Court which reads as follows :-         "In view of the decision of this Court  in         D.C.   Bhatia  and  others versus Union of         India 1995 (1) S.C.C.   104,  this  appeal         would  merit acceptance and accordingly we         accept the same, set  aside  the  impugned         orders  of the High Court and restore that         of  the  Trial  Court   with   regard   to         possession  of  the property in dispute as         well as entitlement of  the  appellant  to         contractual  rent  up  till  the  date  of         vacating for which item is being  allotted         hereby to the respondents." While considering the question whether the  decision of   this  Court  in  Shobha  Surendar  case  had  impliedly overruled  the  decision  of  the  Karnatak  High  Court  in Padmanabha Rao’s case, the High Court held that the decision laid down  in  Rattan Arya vs.  State of Tamil Nadu reported in (1986) 3 SCC 385, should be followed and the decision  in D.C.  Bhatia’s case had no application. In D.C.    Bhatia’s  case  (supra)  this  Court  was concerned with a provision under the Delhi Rent Control  Act and  Section  3(c)  made  it  clear  that  the  Act  was not applicable  to   any   premises   whether   residential   or

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non-residential  whose  monthly  rent exceeds three thousand rupees which is akin to the provision under  Section  31  of the Karnataka  Rent  Control Act.  In Shobha Surendar’s case the High Court had proceeded to rely upon  Padmanabha  Rao’s case;  when  the  matter was brought to this Court though no specific reference was made to Padmanabha Rao’s  case,  this Court stated  that  the law laid down in D.C.  Bharia’s case would be applicable, it was not open to the  High  Court  to state  that it would prefer to follow the decision in Rattan Arya’s case.  Indeed it is a matter of  judicial  discipline that required that when this Court states as to what the law on  the  matter  is,  the  same  shall be binding on all the Courts within the territory  of  India.    This  mandate  of Article 141 of the Constitution is not based on any doctrine of  precedents,  but is an imprimatur to all courts that the law declared by this Court is binding on them.  If  that  is so, it was not open to the High Court to consider the effect of  the decisions in Rattan Arya’s case, its scope, what was decided therein and whether there could be  any  distinction between  that  decision  and  the  decision rendered in D.C. Bhatia’s case.  The clear pronouncement made by  this  Court in Shobha  Surendar’s  case was that D.C.  Bhatia’s case was applicable with reference to Section  31  of  the  Karnataka Rent  Control  Act and, therefore, in view of that decision, the High Court’s decision was upset in another matter  where the High  Court  had followed the Padmanabha Rao’s case.  In effect, Padmanabha Rao’s  case  stood  impliedly  overruled. Thus, it was not at all open to the High Court to have tried to  explain  the  decision  of  this Court and ought to have implicitly followed the decision of this  Court.    The  law declared  by  this Court is clear that the D.C.Bhatia’s case was applicable to the provisions of Karnataka  Rent  Control Act.   So  it  was not open to the learned Judge to take any other view in the matter.  Thus we are of the view that  the direction  issued  by  the High Court to the parties to work out their remedies under the Rent Control Act is not at  all correct. However,   learned   counsel   for  the  respondents submitted that there has been  no  decision  of  this  Court directly  stating that the law declared by the High Court in Padmanabha Rao’s case was not correct  and,  therefore,  the view  taken  in  Padmanabha Rao’s case may be examined by us and we may either uphold the view expressed therein or  take another  view  though such a course was not open to the High Court.  We do not think such an exercise is  necessary  when this Court applied its mind to the facts of  the  case,  the law  declared by this Court in D.C.Bhatia’s case and applied the same with reference to the provisions of  the  Karnataka Rent  Control  Act.  If  there  has  to be any change in the policy, it is certainly open to the Legislature to intercede it and make appropriate law in that regard. Therefore,  this argument  advanced  on behalf of the learned counsel for the contesting respondent does not appeal to us. yet  another  argument  was  pressed  upon us to the effect that when a provision of law in an enactment has been declared to be invalid and when the Supreme  Court  declares the  law  with  reference  to  another  enactment of similar nature, it would not be open to the High Court to  say  that the  decision  of  this  Court  should be taken to have been overruled or upset the decisions rendered by the High  Court declaring the  law  to  be  invalid.   This principle has no application in the present case at all  because  this  Court itself considered  the  effect  of  D.C.  Bhatia’s case with reference to the provisions of the  Karnataka  Rent  Control Act  and  applied  the  same thereto and thereafter declared

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what the  law  should  be.    Though  this  Court  did   not specifically  referred  to  the decision in Padmanabha Rao’s case, it is needless to say that the  same  stood  overruled because  the law declared by this Court was contrary to what was stated  in  Padmanabha  Rao’s  case.    Therefore   that argument also is not sound and needs to be rejected. It  is  submitted  that  if  we  take  the view that Section 31 of the Karnataka Rent Act is  valid  in  view  of D.C.Bhatia’s  case,  then the enactment will keep out of its purview large  number  of  premises  inasmuch  as  the  rent payable  in respect of commercial premises in Bangalore will certainly be more than Rs.  500/- per month.  We have  given our  careful  consideration  to  this  aspect of the matter. Relying upon the decisions in Malpe Vishwanath  Acharya  vs. State of  Maharashtra 1998 (2) SCC 1, Rattan Arya vs.  State of Tamil Nadu 1986(3) SCC 385,  Motor  General  Traders  vs. State of  A.P.    1984(1)  SCC 222, Synthetics and Chemicals Ltd.  & Ors.  vs.  State of U.P.  & Ors.  1990(1)  SCC  109, Sant Lal  Bharti  vs.   State of Punjab 1988 (1) SCC 366, it was submitted that  with  passage  of  time  and  change  of circumstances  the  continued  operation of an Act which was valid were enacted may become invalid as being arbitrary and unreasonable.  Though Karnataka Rent Control Act was enacted in the year 1961 and was to lapse by the  end  of  10  years time,  it  has  been  extended from time to time in the same form in  which  it  was  enacted  originally  or  with  some modification wherever  it  was necessary.  We cannot imagine that the Legislature was not aware or conscious of the  fact as  to  the  rents  prevalent in the city of Bangalore or in other parts of  the  State  in  respect  of  non-residential premises.  Perhaps, the Legislature thought it was necessary to  give protection of the Act to only very poor tenants who pay rent less than Rs.500/- per month considering  the  fact that  tenants in other premises are economically of superior class and can withstand the maneuvers of a landlord  however powerful he  may  be.  If that was the policy of the law, we do not think as stated in D.C.  Bhatia’s case, it  was  open to the Court to have declared the same to be invalid. In  the  result,  we are of the view that the decree passed by the trial court is to be restored by setting aside the order made by the High Court and we  order  accordingly. The appeal, therefore, stands allowed.  However, considering all  aspects  of  the matter, we are of the opinion that the first respondent be given some reasonable time to vacate the premises and which in this  case  wed  consider  will  be  a period  upto  30th  of  June,  1999 subject to the filing of usual undertaking within four weeks  from  today.    In  the event such an undertaking is not filed before this Court, it would  be  open  to  the  appellant  to  seek  for immediate eviction in addition to the condition that he  shall  vacate the premises and deliver the same on or before 30th of June, 1999. CIVIL  APPEAL  NO.  5040  OF  1998  ARISING OF SPECIAL LEAVE PETITION (CIVIL) NO. 4557 OF 1998. In view of the decision  rendered  by  us  in  Civil Appeal arising out of Special Leave Petition (C) No. 6836 of 1996,  the view taken by the High Court has got to be upheld and this appeal  deserves  to  be  dismissed.  However,  the appellant  is  granted  time  to  vacate  the premises on or before 30th of June, 1999  upon  his  furnishing  the  usual undertaking in this Court within four weeks from today.