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CASE NO.: Appeal (civil)  2303-2308 of 2005

PETITIONER: N.S VISWANATHA SHETTY

RESPONDENT: K.R. SHIVASWAMY & ORS.

DATE OF JUDGMENT: 31/03/2005

BENCH: P. VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT: J U D M E N T

O R D E R

(Arising out of SLP)Nos.18964-18969/2004)

Delay condoned.

Leave granted. The appellant herein is the owner of three shops  situate in Kollegal Town, which is a town municipal council  constituted as such under the Karnataka Municipalities Act, 1964.   The appellant filed eviction petitions under the Karnataka Rent  Control Act, 1961 (since repealed) for eviction of the  respondents-tenants on the ground of bona fide need for personal  occupation.  Eviction was ordered by the learned Munsif.  The  District Judge, Mysore confirmed the eviction order on a revision  filed by the aggrieved tenants under Section 50(2) of the said  Act.  Thereupon, the respondents filed further revisions before  the High Court of Karnataka under Section 115 of the Code of  Civil Procedure.  During the pendency of revisions in the High  Court, the Karnataka Rent Act, 1999 came into force on and from  31st December, 2001. Before the revision petitions were taken up  for hearing, the learned counsel appearing for the tenants filed a  Memo stating that the premises in question was situate in a town  municipal council area and, therefore, it was excluded from the  purview of the Karnataka Rent Act, 1999 and by virtue of Clause  (c) of sub-Section (2) of Section 70 of the said Act, the entire  proceedings at whatever stage they were, stood abated.   Accepting the submission made by the learned counsel for the  tenants, the learned Single Judge held that the eviction  proceedings stood abated.  The learned Judge then observed that  it would not come in the way of the landlord’s right to initiate  proceedings for eviction under any other law in force.  The review  petitions filed by the appellant-landlord were also dismissed with  an observation that in view of the location of the premises (in the  town municipal area), "no useful purpose will be served even if it  is held that only revision proceedings would abate and not the  entire proceedings having regard to Clause (c) of sub-Section (2)  of Section 70".  After the dismissal of the review petitions, the  special leave petitions giving rise to the present appeals were  preferred by the land-lord.   The learned counsel for the appellant submits that the  assumption of the High Court that the new Act had no application  to the premises  situate in town municipal area and, therefore,  the proceedings stood abated under Clause (c) of Section 70(2)  of the Act of 1999 is not correct.  According to him, the  expression ‘City Municipal Council’ encompasses within its scope

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the town municipal council as well.  This contention was not  pursued in view of the alternative submission made by the  appellant’s counsel seeking remand of the case to the High Court  on a different ground.   The respondents filed revision petitions before the High  Court under Section 115 of C.P.C. inasmuch as they already  availed of the remedy of revision to the District Judge as provided  for by Section 50(2) of the Act of 1961.  Such revisions filed  under Section 115 C.P.C., according to the learned counsel, are  not in any way hit by the Repeal and Savings provision contained  in the new Act and, therefore, the revision ought to have been  decided on merits.  The observations made by the Division Bench  of the Karnataka High Court in M/s. Mercury Press & Ors. vs.  Ameen Shacoor & Ors. ILR 2002 KAR 2304 are relied upon in  this context.  It was observed therein : "iii)   The proceeding that get abated under  Section 70(2)(c) are only proceeding  initiated under the provisions of the  Old Act.  It the proceeding pending is  not initiated under the Old Act (as for  example a suit for recovery of rents  under Section 26 of CPC or a revision  proceeding under Section 115 CPC,  then obviously, Section 70(2)(c) will  not apply."  

It is also the contention of the learned counsel for the  appellant that the law laid down in the aforesaid decision was not  kept in view while passing the impugned orders.  Elaborating this  contention the learned counsel for the appellant further submits  that irrespective of the applicability of the new Rent Act to the  buildings in question, the revision petitions ought not to have  been thrown out relying on Clause (c) of sub-Section (2) of  Section 70.  It is brought to our notice that the special leave  petition filed against the judgment of the Division Bench referred  to supra was dismissed in limine.  The correctness of the ruling of  the Division Bench has not been questioned before us.  The  learned counsel for the respondents could not seriously resist the  request for remand realizing the fact that the impugned order did  not refer to the decision in Mercury Press case.  In the  circumstances, we are of the view that it would be just and  expedient to set aside the impugned order and remit the revision  petitions to the High Court for fresh disposal so that the matter  could be decided afresh in the light of the principles laid down in  Mercury Press (ILR 2002 KAR 2304) and on merits, if  necessary.  

The appeals are, accordingly, allowed without  expressing any view on the merits of the case.