ivil Appeal No 1017 of 1975
From the Judgment and Order dated 10101974 of the Karnataka High Court in Civil Revision Petition No 187 of 1974
NB Datar and Ravi P Wadhwani for the Appellant
PR Ramasesh SS Padmaraj Naresh Kaushik and Ms Lalitha Kaushik for the Respondents
Respondent No 1 is the landlord and K Gopal Krishna to whom notice was given by this Court and has appeared pursuant thereto is 580 the person who was inducted as a tenant by respondent No 1 in the said premises immediately on an appeal by respondent No 1 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 build ing belonging to the respondent No 1 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 1 filed eight eviction petitions in the Court of the 1st 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 211j of the Karnataka Rent Control Act 1961 hereinaf ter referred to as the Karnataka Rent Act
In the evic tion petition against the appellant respondent No 1 spe cifically stated that the appellant might occupy the prem ises corresponding to the original tenement in the new building after it was built
1t may be mentioned that subse quently respondent No 1 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 211j of the Karnataka 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 211j of the Karnataka Rent Act
After the reconstruction of the building was commenced the appellant gave a notice to respondent No 1 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 con structed 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 211j of the Karnataka Rent Act passed by the First Munsiff Bangalore on the ground that the said 581 decree had been passed by consent and the court had no jurisdiction to pass any decree by consent under Section 211j of the Karnataka 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 Cut piece 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 211j of the Karnataka Rent Act was not a decree passed by consent but was a valid decree passed by a competent court after appli cation 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 211 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 211j 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 Sreeni vasa Rao vs Narasimhiah 1972 1 Mysore Law Journal p 490
Subsequent to this order of the High Court allowing the revision petition of the appellant the appellant filed an application under Sections 27 and 28 of the Karnataka Rent Act before the Trial Court for permitting him to occupy the said shop premises which had been given by respondent No 1 in the possession of respondent No 2 as a tenant
The Trial Court allowed this application filed by the appellant and held that the appellant was entitled to get the said shop occupied by respondent No 2 which admeasured 9  x 16  in place of the old one
On revision by the impugned order the High Court set aside the order passed in favour of the appellant taking the view that the appellant was not enti tled to claim the shop occupied by respondent No 2 and respondent No 1 the landlord was only required to give to the appellant a tenement that is any tenement in the newly constructed 582 building
The appellant claims to be entitled to be put in possession of the shop admeasuring 9  x 16  facing the Belepet Main Road occupied by respondent No 2 whereas respondent No 1 has offered to the appellant only a shop behind this shop admeasuring 11  6 x 8  6 which is not facing the main road namely the Belepet Main Road
It is this claim of the appellant which was accepted by the Trial Court but rejected by the High Court on revision
The order of the High Court is challenged before us in this appeal
In order to appreciate the contentions raised by the appellant we may set out the relevant provisions of the Karnataka Rent Act
Section 21 of the said Act protects tenants against eviction
The relevant portion of the said section runs thus 21
Protection of tenants against eviction
1 Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant Provided that the court may on an application made to it make an order for the recovery of possession of a premises on one or more of the following grounds only namely X X X X j that the premises are reasona bly and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished X X X X Section 27 of the said Act runs thus 27
Tenant s right to give notice to the landlord of his intention to occupy tenement in new building
Where decree for eviction has been passed by a Court 583 on the ground specified in clause j of the proviso to subsection 1 of Section 21 and the work of demolishing the premises and of the erection of a new building has been com menced by the landlord the tenant may within six months from the date on which he delivered vacant possession of the premises to the landlord give notice to the landlord of his intention  to occupy the new building on its completion on the following conditions name ly a that he shall pay to the landlord the fair rent in respect of the building X X X X The rest of the provisions of this Section are not material for our purpose
Sub section 1 of Section 28 of the said Act runs thus 28
Landlord to intimate the tenant date of completion and tenant s right to occupy the new building
1 On receipt of notice from the tenant under section 27 the landlord shall not less than three months before the date on which the erection of the new building is likely to be completed intimate the tenant the date on which the said erection shall be completed
On the said date the tenant shall be entitled to occupy the building
X X X X In the case before us the decree against the appellant was passed under the provisions of Section 211j of the Karnataka Rent Act
The appellant tenant gave notice of his intention to occupy the tenement in the new building as required under the provisions of Section 27 of the said Act
This is the undisputed position
In view of this under the provisions of Section 28 of the said Act the appellant became entitled to occupy a tenement in the new building
The only question before us is as to what is the nature of the tenement to which he is entitled
There is nothing specific in this connection in the language of sub section 1 of Section 28
However a fair commonsense reading of the provisions of sub section 1 of Section 28 would show that a tenant against whom eviction decree has been passed under Section 584 211j and who has given notice as contemplated under Section 27 of the Act would be entitled to a tenement in the new building which could be said to be reasonably comparable to or to reasonably correspond to the tenement in respect of which the decree was passed
It appears to us that the learned Judge of the High Court who delivered the impugned judgment has based it on the consideration of a question which really was not material namely whether the appellant was entitled to get an identical shop in the new building whereas the real 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 admeas ured 17  x 9  and was facing the Belepet Main Road
The shop which respondent No 1 has offered 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 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 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 appel lant 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 respond ent No1 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 respondent No 2 to make this submission or resist the claim of the appel lant
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 vs Narasim hiah 1972 1 Mysore Law Journal p 490
In that case the High Court held that the rights of respondent No 2 are 585 subject to the rights of the 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 submission 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 that under 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 re spondent 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 re spondent No 2
GN Appeal al lowed


Summary:
The deceased was seen in flames on the first floor of her in laws house crying for help within five days of her marriage with the younger brother of the respondent
While neighbours rushed to her rescue and extinguished the flames the inmates of the house did not render any such help
The respondent who was on the first floor was seen coming down the stairs
The deceased succumbed to the burn injuries in the hospital on the same day
In her dying declaration recorded by the Executive Magistrate she stated that when she was preparing tea in the kitchen her saree caught fire accidently
The parents of the deceased suspected foul play by her in laws and lodged a report with the police
An investiga tionof the case revealed that the deceased had met hostile atmosphere soon after her marriage
The parents gave state ments that the in laws demanded unreasonable dowry which could not be complied with and that at the wedding ceremony they had behaved badly on the payment of insufficient dowry
Her brother who had gone to bring her back home was not permitted to meet her
The maid servant sent along with her was also sent back
The respondent and his father were charge sheeted under section 306 read with section 34 IPC
The trial court came to a prima facie conclusion that it was not a suicide but homici dal death
Accordingly a charge under section 302 IPC was framed against the respondent
The respondent s father was however discharged
561 The High Court dismissed the revision petition of the State against the respondent s father
Wile accepting the respondent s revision it took the view that the fact that the accused was passive was of no consequence that it all depends upon the mental response and reaction of an individ ual whether he faces the risk and attempts to extinguish the flames or quietly watches the incident that it does not show that the accused actively committed the act of burning or actively added the commission of suicide and held that the charge under section 302 against him was not made out and there was not even a case against him to frame charge under section 306 IPC
The appellant a social welfare organisation and the State preferred appeals to the Supreme Court
On the question Whether the High Court was justified in interfering with the charge framed by the trial court against the respondent and whether it was necessary to put his father also on trial with the material on record
Partly allowing the criminal appeals HELD 1
The High Court was not justified in interfering with the charge framed by the trial court against the re spondent accused
The trial court had considered every material on record in support of the charge framed
It had also given reasons why a charge under section 302 IPC was warranted against the respondent even though the police had charge sheeted him under section 306 IPC Section 227 Cr
PC which confers power to discharge an accused was designed to pre vent harassment to an innocent person by the arduous trial or the ordeal of prosecution
The power has been entrusted to the Sessions Judge who brings to hear his knowledge and experience in criminal trials
If he after hearing the parties frames a charge and also makes an order in support thereof the law must be allowed to take its own course
State of Bihar vs Ramesh Singh  and Union of India vs Prafulla Kumar Samal  Anr  at 234 35 referred to
Self restraint on the part of the High Court should he the rule unless there is glaring injustice staring the Court in the face
In the 562 instant case it had discharged the respondent mainly rely ing on the dying declaration as if it has been conclusively proved to be the true and faithful version of the deceased
It did not advert to the report of the Chemical Analyser in which he found kerosene residue on each and every garment of the deceased and the post mortem report which indicated that besides burn injuries the deceased had sustained contu sions on the back shoulders which might have been caused with a blunt round object
The events that preceded the death of the deceased also did not receive any considera tion
The statements of brother father and the maid servant of the deceased have been ignored
The respondent was seen coming down from the staircase when the deceased was crying for help
The manner in which he went on at that time if true did not bring him credit
The approach made by the High Court therefore cannot be accepted
569C 566H 567A C 4
Although it was the moral obligation of respondent s father as manager of the family to protect the deceased and safeguard her life and he had failed to perform that obliga tion that by itself without anything more is not sufficient to frame a charge against him
The discretion exercised by the trial court in discharging him was therefore correct
569E