Bhajrangalal Agarwal (D) by LRs. Vs. Channappa Hatpaki (D) by LRs.
EmailAppeal: Civil Appeal No. 7155 of 1998
(Arising out of SLP (C) No. 11653 of 2000)
(Arising out of SLP (C) No. 11653 of 2000)
Petitioner: Bhajrangalal Agarwal (D) by LRs.
Respondent: Channappa Hatpaki (D) by LRs.
Apeal: Civil Appeal No. 7155 of 1998
(Arising out of SLP (C) No. 11653 of 2000)
(Arising out of SLP (C) No. 11653 of 2000)
Judges: SYED SHAH MOHAMMED QUADRI & S.N. PHUKAN, JJ.
Date of Judgment: May 12, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Order 22, Rule 9 with Limitation Act, 1963 – Section 5 – Condona-tion of delay and bringing LRs on record – Tenant suffering eviction order – Revision against order of dismissal of revision before Additional District Judge – During pendency, tenant dying – Proceedings abated – LRs of tenant moving for setting aside abatement and bringing them on record – Delay of 95 days – Appli-cation dismissed without condoning and also on grounds that LRs of tenant in non-residential building have no right – Delay ex-plained that they never knew that tenanted premises was subject matter of revision and that as soon as they came to know of it, they had taken steps. Held that appellants had shown sufficient cause. Hence, delay condoned. On other ground also, view of the High Court that LRs of tenant of non-residential building have no right, already held to be not a good law in Gantusa H. Baddi (JT 2000 (5) SC 277). Hence, order set aside and revision petition restored for decision. (Paras 4 to 7)
Cases Reffered:
1. Gantusa H. Baddi v. Meerabai G. Pai reported in (JT 2000 (5) SC 277) (Para 5)
JUDGEMENT:
ORDER
1. Leave is granted.
2. Appellants 1(a) to 1(e) are the legal representatives of ap-pellant no. 1, late Bhajrangalal Agarwal, who died during the pendency of the revision before the High Court. He had obtained on rent the suit premises, a non-residential building, of which late Channappa Hatpakki, respondent no. 1 was the landlord. His legal representatives are respondents 1(a) to 1 (d). The appell-ants have challenged the legality of the order of the High Court passed in Civil Petition No. 162 of 2000 dated February 23, 2000 in this appeal. (Hereinafter the parties will be referred to as ‘tenant’ and the ‘landlord’).
3. The tenant had suffered an order of eviction from the court of learned Principal Munsiff, Hubli in H.R.C.No. 254 of 1983 dated March 7, 1987. Against the said order, he filed a revision before the First Additional District Judge, Dharwad being Revision (Rent No. 49/87). It was dismissed on October 21, 1992. It was against that order that the aforementioned revision was filed by the tenant before the High Court. During the pendency of the revision petition, the tenant, revision petitioner, died on April 19, 1999. The revision stood abated for the legal representatives of the tenant were not brought on record within the period of limi-tation. Appellants 1(a) to 1(e) filed applications to set aside abatement and to bring them on record as the legal representa-tives of the deceased tenant. There was delay of 95 days in filing the said applications. The explanation for the delay was that they had no knowledge that the business premises in which their father was carrying on the business was the subject matter of revision before the High Court and that as soon as they came to know of it on 9.12.99 when they were brought on record in the execution petition filed by the landlord, they made further enquiries, took necessary steps and filed the applications on January 9, 2000. There was thus a delay of 95 days in filing the applications. The High Court by the impugned order, declined to condone the delay and also held that in case of non-residential premises the legal representatives had no right to come on record.
4. Insofar as the condonation of delay is concerned, in our view, the tenants/appellants have shown sufficient cause to justify condonation of delay and accordingly we set aside the order of the High Court on that aspect and condone the delay of 95 days.
5. In view of the judgment of this Court in Gantusa H. Baddi v. Meerabai G. Pai reported in (JT 2000 (5) SC 277 = 2000 (4) SCC 586), holding that the view expressed by the Karnataka High Court that the legal representatives of a non-residential premises have no right to prosecute the eviction proceedings is not a good law. The second ground in the impugned order cannot also be sustained. This Court held as follows:
“The provisions of the Karnataka Rent Control Act directly came up for consideration before a Bench of this Court in the case of Vishnu Narayan Gadskari v. Paralal Baladev Uza. Relying upon the aforesaid Constitution Bench decision and bearing in mind the definition of “tenant” in Section 3(r) of the Karnataka Act, the Court held that the tenant continues to have an estate or inter-est in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. In the latter decision in Venkatesh Thimmaiah case neither the decision of the Constitution Bench, referred to supra, has been noticed nor the earlier two Judge Bench decision of this Court on the provisions of the Karnataka Act has been noticed and relying upon the decision of the Karnataka High Court, without any analysis of the provisions of the Act, the conclusion of the forums below that the premises in question being non-residential, the right of tenancy therein is not her-itable has been upheld. In view of the law laid down by the Constitution Bench as well as the earlier decision of this Court in Vishnu Narayan Gadskari case we have no hesitation to hold that the latter decision in Venkatesh Thimmaiah case has not been correctly decided. In the absence of any contrary provisions in the Act, it must be held that the tenancy in respect of a non-residential premises under the Karnataka Rent Control Act is heritable. The conclusion of the High Court to the contrary, therefore, cannot be sustained.”
6. It follows that the order relied upon by the High Court in dismissing the revisions is no longer good law and, therefore, the order impugned has to be set aside on that ground.
7. For the aforementioned reasons, the impugned order of the High Court is set aside. The revision is restored to the file of the High Court and the case is remanded back to the High Court for disposal in accordance with law.
8. The appeal is accordingly allowed. But in the circumstances of the case, we make no order as to costs.
9. Since the matter is pending from 1987, we have no doubt that the High Court will dispose of the revision expeditiously.
1. Leave is granted.
2. Appellants 1(a) to 1(e) are the legal representatives of ap-pellant no. 1, late Bhajrangalal Agarwal, who died during the pendency of the revision before the High Court. He had obtained on rent the suit premises, a non-residential building, of which late Channappa Hatpakki, respondent no. 1 was the landlord. His legal representatives are respondents 1(a) to 1 (d). The appell-ants have challenged the legality of the order of the High Court passed in Civil Petition No. 162 of 2000 dated February 23, 2000 in this appeal. (Hereinafter the parties will be referred to as ‘tenant’ and the ‘landlord’).
3. The tenant had suffered an order of eviction from the court of learned Principal Munsiff, Hubli in H.R.C.No. 254 of 1983 dated March 7, 1987. Against the said order, he filed a revision before the First Additional District Judge, Dharwad being Revision (Rent No. 49/87). It was dismissed on October 21, 1992. It was against that order that the aforementioned revision was filed by the tenant before the High Court. During the pendency of the revision petition, the tenant, revision petitioner, died on April 19, 1999. The revision stood abated for the legal representatives of the tenant were not brought on record within the period of limi-tation. Appellants 1(a) to 1(e) filed applications to set aside abatement and to bring them on record as the legal representa-tives of the deceased tenant. There was delay of 95 days in filing the said applications. The explanation for the delay was that they had no knowledge that the business premises in which their father was carrying on the business was the subject matter of revision before the High Court and that as soon as they came to know of it on 9.12.99 when they were brought on record in the execution petition filed by the landlord, they made further enquiries, took necessary steps and filed the applications on January 9, 2000. There was thus a delay of 95 days in filing the applications. The High Court by the impugned order, declined to condone the delay and also held that in case of non-residential premises the legal representatives had no right to come on record.
4. Insofar as the condonation of delay is concerned, in our view, the tenants/appellants have shown sufficient cause to justify condonation of delay and accordingly we set aside the order of the High Court on that aspect and condone the delay of 95 days.
5. In view of the judgment of this Court in Gantusa H. Baddi v. Meerabai G. Pai reported in (JT 2000 (5) SC 277 = 2000 (4) SCC 586), holding that the view expressed by the Karnataka High Court that the legal representatives of a non-residential premises have no right to prosecute the eviction proceedings is not a good law. The second ground in the impugned order cannot also be sustained. This Court held as follows:
“The provisions of the Karnataka Rent Control Act directly came up for consideration before a Bench of this Court in the case of Vishnu Narayan Gadskari v. Paralal Baladev Uza. Relying upon the aforesaid Constitution Bench decision and bearing in mind the definition of “tenant” in Section 3(r) of the Karnataka Act, the Court held that the tenant continues to have an estate or inter-est in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. In the latter decision in Venkatesh Thimmaiah case neither the decision of the Constitution Bench, referred to supra, has been noticed nor the earlier two Judge Bench decision of this Court on the provisions of the Karnataka Act has been noticed and relying upon the decision of the Karnataka High Court, without any analysis of the provisions of the Act, the conclusion of the forums below that the premises in question being non-residential, the right of tenancy therein is not her-itable has been upheld. In view of the law laid down by the Constitution Bench as well as the earlier decision of this Court in Vishnu Narayan Gadskari case we have no hesitation to hold that the latter decision in Venkatesh Thimmaiah case has not been correctly decided. In the absence of any contrary provisions in the Act, it must be held that the tenancy in respect of a non-residential premises under the Karnataka Rent Control Act is heritable. The conclusion of the High Court to the contrary, therefore, cannot be sustained.”
6. It follows that the order relied upon by the High Court in dismissing the revisions is no longer good law and, therefore, the order impugned has to be set aside on that ground.
7. For the aforementioned reasons, the impugned order of the High Court is set aside. The revision is restored to the file of the High Court and the case is remanded back to the High Court for disposal in accordance with law.
8. The appeal is accordingly allowed. But in the circumstances of the case, we make no order as to costs.
9. Since the matter is pending from 1987, we have no doubt that the High Court will dispose of the revision expeditiously.
