Mr Gangadhar Nayak vs Mr Ananth G Pai
2023 Latest Caselaw 4713 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF JULY, 2023       R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          HOUSE RENT REV. PETITION NO.3/2019 (IO)

BETWEEN:

MR. GANGADHAR NAYAK
AGED 52 YEARS,
S/O LATE M. BABURAYA NAYAK
R/AT BHARATH BEEDI COMPOUND
KUDROLI-575003
MANGALURU.
                                             ... PETITIONER

          (BY SRI CHANDRANATH ARIGA, ADVOCATE)

AND:

1.     MR. ANANTH G. PAI
       S/O GANAPATHI PAI
       AGED 44 YEARS,
       R/AT BHARATH BAGH, KADRI,
       MANGALURU-575002.
       SNICE DECEASED BY LRS

1(a). SMT. SUMA ANATH PAI
      W/O LATE ANANTH G. PAI
      AGED ABOUT 46 YEARS

1(b) ANVITA ANANTH PAI
     D/O LATE ANANTH G. PAI
     AGED ABOUT 19 YEARS
                                2



     BOTH R/AT 3-30-2473
     KADRI ROAD
     BHARATH BAGH, KADRI
     MANGALURU-575 002.                  ... RESPONDENTS

          (BY SRI B.S.SACHIN, ADVOCATE FOR R1(a & b)

      THIS HRRP IS FILED U/S.115 OF CPC AGAINST THE
ORDER DATED 13.07.2018 PASSED IN HRC NO.21/2011 ON
I.A.NO.V PASSED BY THE PRL. CIVIL JUDGE, MANGALURU, D.K.,
AND THE ORDER DATED 20.12.2018 IN RENT REVISION
PETITION No.15/2018 PASSED BY THE III ADDL. DISTRICT
JUDGE, D.K., MANGALURU AND ETC.

     THIS HRRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 12.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:


                           ORDER

This HRRP is filed challenging the order dated 20.12.2018

passed in Rent Revision Petition No.15/2018 on the file of III

Additional District and Sessions Judge, D.K., Mangaluru and also

praying the Court to set aside the order passed on I.A.No.V in

HRC No.21/2011 on the file of the Principal Civil Judge,

Mangaluru, D.K.

2. The factual matrix of the case before the Trial Court

is that the respondent in this revision petition had filed the

eviction petition and the same is numbered as HRC No.21/2011

and sought for an order of eviction under the Karnataka Rent

Act, 1999 (for short 'the Act of 1999') on the ground that he

requires the premises to construct a godown and for expansion

of his business and the premises is also old one and it may

collapse at any time. The petitioner herein has filed the

objection statement denying the relationship between them

contending that there is no landlord and tenant relationship

between them and sought for an order of dismissal of the

petition and an interlocutory application has been filed invoking

Section 43 of the Act and the same was numbered as I.A.No.V.

An enquiry was held and the respondent herein examined as

PW1 and got marked the documents at Ex.P1 to P18 and the

petitioner herein has examined as RW1 and got marked the

documents at Ex.R1 to R8. The Trial Court after considering the

material on record held that there is a relationship of landlord

and tenant between the parties and rejected the application vide

order dated 13.07.2018. As against the said order, the revision

petition was filed under Section 46 of the Act of 1999 challenging

the order passed on I.A.No.V. The revision Court also dismissed

the said petition vide order dated 20.12.2018. Hence, being

aggrieved by the said order, the present revision petition is filed

under Section 115 of CPC.

3. The main contention of the revision petitioner herein

that both the Trial Court as well as the revisional Court have

committed an error in holding that there is a landlord and tenant

relationship between the parties but there is no existence of

such relationship between them and the respondent herein has

not produced any document of lease or rent receipt to prove the

said fact and there was no suggestion to the petitioner that there

exists a landlord and tenant relationship. Hence, both the

Courts have committed an error. It is contended that Rent Court

does not have jurisdiction to pass an order of eviction unless the

jural relationship of tenant and landlord is established and the

Trial Court and the revisional Court has not considered this

aspect and erroneously dismissed the application and revision

and hence, it requires interference.

4. The counsel for the revision petitioner vehemently

contend that both the Courts have committed an error in holding

that there is jural relationship between the parties in the

absence of documentary evidence to establish the same hence,

the said Courts ought not to have pass such an order. There is

not even admission in this regard except stating that 'the

landlord' and the same does not convey and establish the jural

relationship between the parties. Both the Courts mainly

concentrated on the evidence of RW1 wherein he admitted that

the petitioner is the son of landlord Sri Ganapathi Pai and the

same is not an admission wherein the relationship between the

petitioner and the landlord is disputed and not admitted the

ownership and tenancy and hence, the very approach of both the

Courts is erroneous.

5. Per contra, the learned counsel appearing for the

respondent would vehemently contend that the second revision

is not maintainable since the impugned order is also a revision

under Section 46 of the Act of 1999 and the revision against the

revision order is not maintainable. The counsel also vehemently

contend that both the Courts have taken note of the admission

of RW1 and the revisional Court also extracted the admission of

RW1 while passing an order in paragraph 17 and discussed the

facts in paragraph 18 and rightly comes to the conclusion that

there exists a jural relationship between the parties and this

Court cannot find fault with the order of the Trial Court as well

as the revisional Court.

6. The counsel in support of his arguments, relied upon

the judgment of this Court reported in (1987) 0 SUPREME

[KAR] 101 in the case of M M YARAGATTI vs VASANT

decided on 04.10.1987 and brought to notice of this Court

wherein it is clearly held that in view of the judgments of the

Apex Court in the case of VISHESH KUMAR vs SHANTI

PRASAD reported in 1980 AIR (SC) 0 892 and AUNDAL

AMMAL vs SADASIVAN PILLAI reported in 1987 AIR (SC) 0

203, a revision under Section 115 of CPC does not lie to the

High Court from a revisional order made by District Judge under

sub-section (2) of Section 50 of the Karnataka Rent Control Act,

1961 and also held that in view of the latest two judgments of

the Apex Court, the law laid down in KRISHNAJI VENKATESH

SHIRODKAR's case is no more a good law and hence, the

counsel contend that the second revision is not maintainable

before this Court.

7. The counsel also relied upon the judgment of the

High Court of Orissa reported in LAWS (ORI)-2022-3-127 in

the case of KAILASH CHANDRA PANDA vs STATE OF

ORISSA and in paragraph 9 it is held that while referring to the

language of Section 115 of the Code of Civil Procedure (Uttar

Pradesh Amendment) Act, 1978 which is almost in pari materia

with the provision of Section 115 of "the Code" as in force in

State of Odisha so far as the use of phrase "other proceeding" is

concerned, the Supreme Court pronounced clearly that the

decisions of the District Courts rendered in appeal or revision are

beyond revisional jurisdiction of High Court.

8. The counsel also relied upon the judgment of this

Court reported in 2015 (2) AIR [KAR] (R) 417 in the case of

AVINASH LAL CHANDANI S/O LATE HEMANDAS vs P A

NIRANJAN S/O LATE SRI P S ASWATHANARAYANA decided

on 20.01.2015 wherein this Court held that revisional powers to

correct factual errors if appreciation of evidence done by

subordinate Court is apparently improper or incorrect leading to

injustice. High Court as revisional Court can re-assess evidence

if it is either ignored or misinterpreted or law has been

misapplied to facts of particular case or otherwise, the Court

cannot exercise the revisional power.

9. The counsel also relied upon the judgment of this

Court reported in 2015(3) KLJ 641 in the case of SANDHYA K

R AND OTHERS vs S RUKMINI decided on 17.04.2015

wherein also it is held that tenants admitting that they were

tenants of vendor's vendor, held transferee becomes owner upon

transfer of ownership of premises. Tenant cannot dispute

transferee/landlord's right to maintain eviction petition. Tenants

cannot invoke Section 43. And brought to notice of this Court

paragraph 8 wherein also discussed that the tenant cannot

dispute the right of the transferee landlord to maintain an

eviction petition under Rent Act or to claim rent. Attornment by

the tenant is unnecessary to confer validity to the transfer of the

lessor's rights. The counsel referring this judgment would

vehemently contend that in the cross-examination, RW1

categorically admits that the petitioner is the son of the landlord

and hence, finding given by the Trial Court is proper and

revisional Court also taken note of the same and dismissed the

revision. Hence, no merit in the second revision petition.

10. In reply to the arguments of the respondent's

counsel, the counsel for the petitioner relied upon the judgment

reported in 1987 (SUPP) SCC 321 in the case of

SHYAMARAJU HEDGE vs U VENKATESHA BHAT AND

OTHERS decided on 25.09.1987. The counsel referring this

judgment would vehemently contend that the Apex Court in

paragraph 13 taking note of the case of VISHESH KUMAR and

AUNDAL AMMAL dealing with provisions of different statutes

and held that there is a direct decision of this Court in the case

of KRISHNADAS BHATIJA which has already been quoted.

This Court, dealing with the very provision after its amendment

in 1975 and the very question which now falls from consideration

was before this Court. In KRISHNAJI's case, the decision of

this Court had been relied upon as a binding authority and it was

concluded that the High Court has powers to entertain a revision

under Section 115 of the CPC against the revisional order of a

District Court. The counsel also brought to notice of this Court

paragraph 14 wherein it is held that no justification has been

pointed out by the High Court why that should be discarded. It

is one of the essential requirements of the administration of

justice that judgments rendered by superior Courts and

particularly with the approval of the Apex Court should not be

frequently changed so as to unsettle settled positions. The fact

that the State legislature has not thought it necessary to amend

the law and set at naught KRISHNAJI or BHATIJA is indicative

of the position that this Court had not taken a wrong view of the

legislative intention. In these circumstances, we fell advised not

to enter into an analysis of the provisions of the Act for a fresh

look at the matter and prefer to follow BHATIJA. And further

observed that we have not felt it necessary to examine whether

the ratio of AUNDAL AMMAL is binding or requires

reconsideration in the presence of BHATIJA in the field as a

direct authority and held that Full Bench decision in

KRISHNAJI'S case holds the field and hence, prayed the Court

to held that second revision is maintainable.

11. Having heard the respective counsel appearing for

the parties and also the principles laid down in the judgments

referred supra and the grounds urged in the revision petition,

the points that would arise for consideration of this Court that:

1. Whether the present revision petition is

maintainable against the order of revision of the

District Court under Section 115 of CPC?

2. Whether both the Courts have committed an

error in dismissing the application filed under 43

of the Karnataka Rent Act?

3. What order?

Point No.1

12. Admittedly, there is no dispute with regard to the

fact that this revision petition is filed invoking Section 115 of

CPC against the order of the revision passed by the District Court

dated 20.12.2018 and in the said revision, the District Court

comes to the conclusion that the petitioner herein has not made

out any grounds to interfere with the impugned order of the Trial

Court. Being aggrieved by the said order, the present revision

petition is filed. The main contention of the respondent counsel

that second revision petition is not maintainable and in support

of his contention, relied upon judgment of the YARAGATTI's

case referred supra wherein this Court in paragraph 11 discussed

with regard to filing of a revision under Section 115 of CPC

against the order of the District Judge cannot be envisaged. The

scheme of the Act does not warrant a conclusion that two

revisions are permissible and also referring the judgments of

VISHESH KUMAR and AUNDAL AMMAL held that a revision

under Section 115 of CPC does not allow to the High Court from

the revision order made by a District Judge and held that law

laid down in KRISHNAJI VENKATESH SHIRODKAR's case is

no more a good law. The Apex Court considered the case of M

M YARAGATTI and the same was overruled and affirmed

KRISHNAJI VENKATESH SHIRODKAR's case and also

distinguished VISHESH KUMAR and AUNDAL AMMAL's case

which has been relied upon by this Court and hence, the

judgment quoted by the respondent in YARAGATTI's case

cannot be relied upon in view of the overruling of the same. The

counsel also relied upon the judgment of the Orissa High Court

but when the Apex Court held that second revision is

maintainable, the principles laid down in the Orissa High Court

also cannot be relied upon.

13. This Court would like to extract paragraphs 13 and

14 of SHYAMARAJU HEGDE's case as herein below.

"13. As against the two authorities of this Court, namely, the cases of Vishesh Kumar and Aundal Ammal dealing with provisions of different statutes, there is a direct decision of this Court in the case of Krishnadas Bhatija which has already been quoted. This Court was dealing with the very provision after its amendment in 1975 and the very question which now falls for consideration was before this Court. In Krishnaji's case the decision of this Court had been relied upon as a binding authority and it was concluded that the High Court has powers to entertain a revision under Section 115 of the Code of Civil Procedure against the revisional order of a District Court. It is conceded that the impugned provision which was being considered by this Court in Krishnadas Bhatija case continues to be the same.

Though the decision rendered in Bhatija case by this Court is not a detailed one, the conclusion on the point is clear and admits of no ambiguity. The Full

Bench in the impugned judgment clearly went wrong in holding that the two Judge Bench of this Court referred to by it had brought about a total change in the position and on the basis of those two judgments Krishnaji case would be no more good law. The decision of a Full Bench consisting of three Judges rendered in Krishnaji case was binding on a Bench of equal strength unless that decision had directly been overruled by this Court or by necessary implication became unsustainable. Admittedly there is no overruling of Krishnaji's decision by this Court and on the analysis indicated above it cannot also be said that by necessary implication the ratio therein supported by the direct authority of this Court stood superseded. Judicial propriety warrants that decisions of this Court must be taken as wholly binding on the High Courts. That is the necessary outcome of the tier system. We may briefly refer to the observations of the Lord Chancellor in Cassell & Co. Ltd. v. Broome where the Lord Chancellor administered a warning by saying:

... I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the

Court of Appeal, to accept loyally the decisions of the higher tiers.

This has been approved by this Court on more than one occasion. Added to the above is the provision of Article 141 of the Constitution which unequivocally states that the law declared by this Court shall be binding on all courts within the territory of India. In the facts and circumstances of the case, the High Court should not have taken onto itself, the responsibility of saying that its earlier Full Bench judgment based upon a decision of this Court in the circumstances indicated above had lost its binding authority in view of two other judgments rendered in different situations and setting. We are really not in a position to appreciate the manner in which a coordinate bench of the High Court has chosen to overrule an earlier judgment of that court.

14. On the view we have taken, it must follow that we too are bound by the decision taken by this Court in Krishnadas Bhatija case. Krishnaji's case was rendered under the Karnataka Rent Control (Amendment) Act, 1975 and has held the field for over a decade. No justification has been pointed out by the High Court why that should be discarded. It is one of the essential requirements of the

administration of justice that judgments rendered by superior courts and particularly with the approval of the Apex court should not be frequently changed so as to unsettle settled positions. The fact that the State legislature has not thought it necessary to amend the law and set at naught Krishnaji or Bhatija is indicative of the position that this Court had not taken a wrong view of the legislative intention. In these circumstances we feel advised not to enter into an analysis of the provisions of the Act for a fresh look at the matter and prefer to follow Bhatija. We make it clear that we have not felt it necessary to examine whether the ratio of Aundal Ammal is binding or requires reconsideration in the presence of Bhatija in the field as a direct authority."

14. Perused the aforesaid paragraphs wherein the Apex

Court in paragraph 13 held that in KRISHNAJI's case, the

decision of this Court had been relied upon as a binding

authority and it was concluded that the High Court has powers to

entertain a revision under Section 115 of the CPC against the

revisional order of a District Court and also further observed in

paragraph 14 relying upon both KRISHNADAS BHATIJA's case

and KRISHNAJI's case was rendered under the Karnataka Rent

Control (Amendment) Act and has held the field for over a

decade and further observed that no justification has been

pointed out by the High Court why that should be discarded and

further observed that it is one of the essential requirements of

the administration of justice that judgments rendered by

superior Courts and particularly with the approval of the Apex

Court should not be frequently changed so as to unsettled

settled positions. The fact that the State legislature has not

thought it necessary to amend the law and set at naught

KRISHNAJI or BHATIJA is indicative of the position that this

Court had not taken a wrong view of the legislative intention. In

these circumstances we feel advised not to enter into an analysis

of the provisions of the Act for a fresh look at the matter and

prefer to follow BHATIJA. It is further observed that we make it

clear that we have not felt it necessary to examine whether the

ratio of AUNDAL AMMAL is binding or requires reconsideration

in the presence of BHATIJA in the field as a direct authority and

hence, held revision is maintainable and the Apex Court also set

aside the judgment of the Karnataka High Court and declared

that the earlier Full Bench decision in KRISHNAJI's case holds

the field and hence, the very contention of the counsel for the

respondent that second revision cannot be maintainable cannot

be accepted. Hence, I hold that second revision petition under

Section 115 of CPC is maintainable as against the revisional

order passed by the District Court. Hence, I answer this point as

affirmative.

Point No.2

15. Now, the facts of the case on merits is concerned, it

is the contention of the respondent/tenant that there exists no

jural relationship between the parties as landlord and tenant and

he also filed an application under Section 43 of the Act of 1999

and the same was dismissed by the Trial Court and the revisional

Court also confirmed the same. The main contention of the

petitioner herein that there is no document of lease or having

paid the rent to establish the jural relationship between the

parties. No doubt, in view of the principles laid down in the

judgments referred supra by the counsel for the respondent, it is

clear that the scope of the revision is very limited as held in the

judgment of SANDHYA K R as well as AVINASH LAL

CHANDANI (referred supra) and also it is held that it is

improper on the part of the revisional Court to re-appreciate the

evidence and only High Court can re-assess the evidence if it is

either ignored or misinterpreted or law has been misapplied to

facts of particular case. But in the case on hand, it has to be

noted that both the Courts have taken note of the admission

given by RW1 in his cross-examination and the same is

discussed by the Trial Court while rejecting I.A.No.V and in

paragraph 12, the Trial Court taken note of the evidence of PW1

as well as RW1 and in the cross-examination, RW1 clearly

admitted that petitioner is the son of landlord Ganapathi Pai, he

is the owner of the schedule premises and also he admitted that

there is 16 houses in the Bharath Bidi compound and he also

admitted that revenue documents are in respect of schedule

premises is in the name of the petitioner and also he admitted

that Ex.P12 is in respect of schedule property which is standing

in the name of the petitioner as stated in the settlement deed

and the petitioner is the owner of the schedule premises which is

residing by the respondent and also taken note of Section 43 of

the Act of 1999 and also relied upon the judgment reported in

2015 (3) KLJ 432 in the case of S SOMASUNDARAM vs

RUKMINI wherein it is held that the petitioner admitting that he

was tenant under the previous owner, when once the ownership

is transferred, transferee becomes the owner of the premises,

tenant cannot dispute the right of transferee landlord to maintain

an eviction petition and hence, dismissed the application.

16. It is also important to note that the revisional Court

also considered the grounds urged in the revision and also

admission given by RW1 in his cross-examination whereas RW1

categorically stated that the petitioner in the HRC petition is the

son of his landlord Ganapathi Pai and comes to the conclusion

that the petitioner cannot deny the jural relationship between

the parties and given the definite finding that the said contention

cannot be accepted. If he is not a tenant, why he gave an

answer that the petitioner is the son of the landlord Ganapathi

Pai and the same has not been explained. When such admission

is extracted and considered by both the Courts, this Court sitting

under Section 115 of CPC cannot re-appreciate the evidence

available on record. This Court can exercise the revisional

jurisdiction only if it is found that the order of the revisional

Court suffers from legality or correctness.

17. The contention of the petitioner counsel that the very

admission that the petitioner in HRC petition is the son of his

landlord Ganapathi Pai does not amounts to an existence of jural

relationship between the parties. The said contention cannot be

accepted. I have already pointed out that no explanation with

regard to the fact that if he is not a tenant, why he admitted that

the father of the petitioner is the landlord. Hence, this Court

sitting under Section 115 of CPC cannot re-assess the evidence

when both the Courts have considered the admission of RW1

thus, there is no misinterpretation or misapplied the law. Hence,

I do not find any force in the contention of the counsel for the

revisional petitioner that both the Courts have committed any

error. Hence, I answer this point as negative.

18. The HRC petition is of the year 2011 and the same is

pending for consideration for more than a decade. Hence, it is

appropriate to direct the Trial Court to dispose of the same

within a period of three months from today.

Point No.3

19. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed. It is held that the

present revision petition under Section 115 of CPC is

maintainable.

The Trial Court is directed to dispose of the matter within a

period of three months from the date of receipt of copy of this

order.

Sd/-

JUDGE

SN