TaxTMI 
TaxTMI 
2004 (8) TMI 686
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....er the business has been converted into a partnership business. Indrachand's two brothers, one brother's wife and one uncle's son are included in the partnership. According to the landlord, the tenant has unlawfully sublet the premises. According to him, the premises were for an individual's business and entering into partnership amounts to a ground for eviction under Section 21(1)(f) of the 1961 Act which provides for the tenant being evicted if "the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein". The learned Rent Controller found the ground for eviction not made out and directed the eviction petition to be dismissed. The landlord preferred a revision under sub-Section (1) of Section 50 of the 1961 Act. A learned Single Judge of the High Court has, vide his order dated 25.9.1998, reversed the finding of the Rent Controller and held the ground for eviction made out and directed the tenant to be evicted. On 13.11.1998, the tenant filed this petition seeking special leave to appeal. The leave has been granted. During the pendency of the petition, the Karnataka Rent Act, 1999 (hereina....
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.... be applicable as if the said enactment had been repealed and re-enacted by this Act." It is not disputed that the area of the suit premises, which are non-residential in nature, exceeds 14 sq.metres and, therefore, in view of the provisions contained in clause (g) of sub-section (3) of Section 2 of the 1999 Act, the provisions of the 1999 Act do not apply to the suit premises. On May 1, 2002 a Bench (Coram of two) of this Court formed an opinion that if the premises would have been one to which the 1999 Act is applicable, then under Section 70(2)(b) the hearing would have continued and the case disposed of in accordance with the provisions of the New Act but that was not the case here and, therefore, the case attracted the applicability of Section 70(2)(c) and hence directed the proceedings to stand abated. The decision is reported as Mahendra Saree Emporium Vs. G.V. Srinivasa Murthy, (2002) 5 SCC 416. On a review petition preferred by the landlord, vide order dated February 21, 2003 the order dated May 1, 2002 was recalled and the appeal was directed to be listed for hearing in view of the question of law centering around the interpretation of Section 70 of 1999 Act arising for ....
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....itrary and discriminatory. It will be reasonable to read clause (a) to include therein the decrees or orders passed before 31.12.1999 as pending in execution inasmuch as they were awaiting execution when the New Act came into force. (iii) All cases or proceedings other than those in which decrees or orders have already been passed or which are pending at the stage of trial, appeal or revision and which were initiated under the 1961 Act are covered by clauses (b) and (c). Such cases are divisible into two categories: a) Premises to which 1999 Act applies: The cases and proceedings initiated under the 1961 Act in respect of such premises to which the 1999 Act is also applicable, shall continue to be heard and disposed of whether at the stage of trial (subject to the provisions contained in Section 69 of the 1999 Act) or in appeal or revision, but the substantive law which would govern the decision in such cases and proceedings shall be the one contained in the 1999 Act. Thus, Section 70(2)(b) has to be read with Section 69 so far as cases or proceedings at the stage of trial are concerned. b) Premises to which 1999 Act does not apply: All cases and proceedings initiated under the ....
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....eedings from the operation of the 1999 Act and allowed them to be governed by the 1961 Act. That would have been the position of law even if sub-Section (3) of Section 70 of the 1999 Act would not have been expressly enacted. The next question is as to the applicability of the provisions contained in clauses (b) and (c) of sub-section (2) of Section 70 of the New Act to the proceedings pending before this Court in exercise of the jurisdiction conferred by Article 136 of the Constitution of India. It was submitted by Shri A. Subba Rao, the learned counsel for the appellant that the expression 'cases and proceedings' should be so interpreted as to hold that on commencement of the New Act, the case itself, i.e. the proceedings for eviction of tenant, initiated by landlord, though under the Old Act, stand abated on the commencement of the New Act leaving nothing for this Court to decide. However, Shri Ramasesh, the learned counsel for the respondent would not agree. His submission is two-fold. He submits, firstly, that the legislature has not intended the case for eviction itself to abate; what would abate is the proceedings pending in this Court. Meaning thereby, submitted S....
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.... A. Subba Rao, the learned counsel for the appellant, submitted that Section 70 of the New Act legislatively enacts the doctrine of statutory abatement as distinguished from abatement of civil proceedings by death or otherwise caused by an event or happening which is non-statutory. Reliance was placed on a series of four decisions, namely, Ram Adhar Singh Vs. Ramroop Singh and others (1968) 2 SCR 95, Chattar Singh and others Vs. Thakur Prasad Singh (1975) 4 SCC 457, Satyanarayan Prasad Sah and others Vs. State of Bihar and another (1980) Supp. SCC 474 and Mst. Bibi Rahmani Khatoon and others Vs. Harkoo Gope and others (1981) 3 SCC 173. All these cases deal with statutory abatement consequent upon a notification under the State Consolidation of Holding legislation having been issued. A perusal of these decisions shows that the provisions of the State legislation which came up for consideration of the Court provided for the original case, wherefrom the subsequent proceedings had originated, itself to stand abated on the commencement of such legislation and/or on the issuance of the requisite notification thereunder, without regard to the stage at which the proceedings were pending. I....
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....eeding" would go to show that suits, regular appeals therefrom, as provided under the ordinary law, and applications for revision alone are intended. It is inconceivable that if the legislature had intended to include within the ambit of "proceeding" an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms. Their Lordships opined that under the scheme of the Act it was reasonable to hold that the legislature clearly intended to include only the hierarchy of appeals under the Civil Procedure Code and not an appeal or a petition under Article 136 of the Constitution. Fazal Ali, J., in his concurring opinion, held that if the intention was to extend the benefit to appeals for special leave it should have been so stated clearly. The benefit conferred by Section 13A of the Act does not extend even to the execution proceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been provided not by the State Legislature but by the Constitution itself. Abatement kills the right to sue and has the effect of unceremoniousl....
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....he premises as also assignment or transfer in any other manner of the lessee's interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the Rent Control Legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller the burden of proving the availability of the ground is cast on the landlord, i.e. the one who seeks eviction. In Krishnawati Vs. Hans Raj, (1974) 2 SCR 524, reiterating the view taken in Associated Hotels of India Ltd. Delhi Vs. S.B. Sardar Ranjit Singh, (1968) 2 SCR 548, this Court so noted the settled law ___ "the onus of proving sub-letting is on the landlord. If the landlord prima facie shows that the occupant, who was in exclusive possession of the premises, let out for valuable consideration, it would t....
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....rship firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for there cannot be a sub-letting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub- letting. In Parvinder Singh Vs. Renu Gautam & Ors., (2004) 4 SCC 794, a three-Judges Bench of this Court devised the test in these terms ___ "if the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, maybe along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect metho....