K. SRINIVASA RAO v. K.M. NARASIMHAIAH GOPAL KRISHNA

Citation: [1989] 1 S.C.R. 577

Court: Supreme Court of India

Bench: M.H. KANIA, L.M. SHARMA

Case summary

The order of the High Court is challenged before us in this appeal. The High Court inter alia held that the decree passed by the learned Munsiff under Section 21(1)(j) of the Karnataka Rent Act was not a decree passed by consent but was a valid decree passed by a competent...

Judgment text

The Judgment of the Court was delivered by KANIA, J. This is an appeal against a judginent of a learned Single Judge of the Karnataka High Court by Special Leave granted under Article 136 of the Constitution. Respondent No. 1 is the landlord and K. Gopal Krishna to whom notice was given by this Court and has appeared pursuant thereto is H. the person who was inducted as a tenant by respondent No. 1 in the said premises immediately on an appeal by respondent No. I being allowed by the First Additional District Judge, Bangalore as set out hereinafter. We direct that K. Gopal Krishna be joined as respondent No. 2 in the appeal. The appellant was one of the eight tenants in the building be- .. ) longing to the respondent No. I, in respect of a shop admeasuring 9' x 17'. The shop of the appellant was one of the four shops on the ground floor of the building facing Belepet Main Road, Bangalore City. The other premises in the said building comprised four office premises on the first floor.

The respondent No. I filed eight eviction petitions in the Court of the Ist Munsiff, Bangalore seeking eviction of the tenants in the said building on the ground that the building was bona fide -required by him for the immediate demolition and reconstruction as contemplated under Section 21(1)(j) of the Kamataka Rent Control Act, 1961 (hereinafter referred to as "the Karnataka Rent Act"). In the eviction petition against the appellant, respondent No. I specifically stated that the appellant might occupy the premises corresponding to the original tenement in the new building after it was built. It may be mentioned that subsequently, respondent No. I filed an application for amending the averment in the eviction petition to delete the words 'corresponding portion'. He also filed an application for leave to withdraw his offer set out earlier. Both these applications were rejected.

The appellant and one other tenant filed memoranda consenting to a decree being passed in pursuance of Section 21(1)(j) of .. the Kamataka Rent Act. Pursuant to the memorandum filed by the appellant, wherein it was stated that the key was also handed over to the landlord, the court passed an order allowing the eviction petition , against the appellant under Section 21(1)(j) of the Karnataka Rent -1. k Act. After the reconstruction of the building was commenced, the appellant gave a notice to respondent No. I of his intention to occupy the corresponding shop in the new building and stated that he was agreeable to pay the fair rent in respect of the said shop as contemplated under Section 27 of the Karnataka Rent Act. It may be mentioned that, in the meantime, respondent No. 1 got the plans of the proposed new building altered from time to time and in these revised plans dimensions of the shops proposed to be constructed in the new ! ""' building were altered.

In the meantime, curiously enough, respondent No. 1 who had got the eviction decree filed an appeal in the Court of the First Additional District Judge, Bangalore, challenging the eviction decree in terms of section 21(1)(j) of the Karnataka Rent Act passed by the First Munsiff, Bangalore on the ground that the said K. S. RAO v,. K. M. NARASJMHAIAH [KANIA, J. ] 581 decree had been passed by consent and the court had no jurisdiction to pass any decree by consent under Section 2l(l)(j) of the Kamataka Rent Act. This appeal was allowed by the learned Additional District Judge. Immediately on the appeal being allowed, respondent No. 1 inducted respondent No. 2 as the tenant in a shop in the new or reconstructed building reasonably corresponding to the shop occupied . by the appellant in the old building and respondent No. 2 started business therein in the name and style of Sri Cutpiece Centre. The appellant preferred a Revision Petition to the High Court· against this decision.

In the said revision petition, the appellant has joined as respondent No. 2, K. Gopal Krishna. The said revision petition was allowed by the High Court. The High Court inter alia held that the decree passed by the learned Munsiff under Section 21(1)(j) of the Karnataka Rent Act was not a decree passed by consent but was a valid decree passed by a competent court after application of mind. In respect of the objections raised by respondent No. 2, it was held by the High Court that since the demolition and reconstruction were in pursuance of an order of eviction passed under sub-clause (j) of Section 21(1) of the Karnataka Rent Act, there cannot be any doubt that the' landlord is liable to place the tenants in vacant possession of the reconstructed building as provided in the Act.

It was' further held that since the lease in favour of the second respondent came into existence and the second respondent occupied the new building during the pendency of the proceedings arising out of the landlord's eviction petition under Section 21(1)(j) of the Karnataka Rent Act, the rights of the second respondent are subject to the rights of the original tenants conferred on them under Sections 27 and 28 of the Karnataka Rent Act. (See: Sreenivasa Rao v. Narasimhiah, [1972) 1 Mysore Law Journal p. 490). · .. ,. : question was as to whether he was entitled to a comparable shop. On the facts of the present case, it can be seen that the original shop occupied by him admeasured 17' x 9' and was ffafcing the Belept Main i·~· Road. The shop which respondent No. 1 has o ered to the appellant was only admeasuring 11' 6" x 8' 6" and was not facing the Belepet Main Road but was on the rear of the new building.

We fail to see how this shop can be considered as comparable to shop originally occupied ·-t( by the appellant. Moreover, it is not as if comparable shops were not available. In fact, respondent No. 1 constructed several shops of 9' x 16' facing the Belepet Main Road, one of which he has given in a hurried manner, as set out earlier, to respondent No. 2, probably with . "a view to forestall the claim of the appellant. In these circumstances, 1 we fail to see how the appellant could be compelled to accept the shop offered by respondent No. 1, which is in no way comparable. The provisions referred to earlier clearly suggest that, at the least, the "'«' appellant was entitled to a shop as reasonably corresponding to the original shop occupied by him as the circumstances would permit. It may be clarified here that it is not the appellant's case that he is entitled to an identical shop but that he was entitled to a comparable , shop. It was submitted by Mr.

Kaushik, learned counsel for respondent'No. 2 that as far as the shop given to him is concerned, which is claimed by the appellant, he has already_ obtained tenancy of the said ~ . shop from respondent No. 1 and there is no reason why his tenancy~~ should be disturbed. It is urged by him that there are a number of similar shops constructed by respondent No. 1-landlord facing the Belepet main Road and there is no reason why his shop should be picked out for being given to the appellant. In our view, whatever might be the merits of this submission, it is not open now to respon- ; dent No. 2 to make this submission or resist the claim of the appellant. Respondent No. 2 was joined as a party in the revision petition disposed by a Division Bench of the Mysore High Court as set out earlier, ~: which was between the same parties and which decision in which we have already discussed to in some detail earlier (reported in Sreenivasa Rao v. Narasirnhiah, [19721 1 Mysore Law Journal p. 490).

In that case, the High Court held that the rights of respondent No. 2 are subject to the hghts ofihe original tenants conferred upon them under Sections 27 and 28. This decision has not been challenged· by respondent No. 2 in any proceedings and has now become final as against him. In view of this, it is not open to him now to raise any of the contentions which he has sought to raise. It was open to him to make any submmission which he wanted to make in that case or to file an appeal against the judgment in so far as it adversely affected him but he has not chosen to do so and it is not now open to him to raise these contentions. We are of the view that the appellant is entitled to be handed over the possession of the shop occupied by respondent No. 2.

Before parting with the case, we may mention that the learned counsel for the appellant referred to a couple of decisions given by High Courts holding thai und<er provisions similar to those we have discussed earlier, a tenant is not entitled to identical premises in the newly constructed building, but in the view which we have taken, as set out earlier, these decisions are of no relevance. In the result, the appeal is allowed with costs against respondent No. 1 and respondent No. 1 is directed to put the appellant in possession of the said shop occupied by respondent No. 2 as a tenant and respondent No. 2 is directed to hand over his shop for the aforesaid purpose. There will be no order as to costs as between the appellant • and respondent No. 2. G. N. Appeal allowed.