Case: B.P. Achala Anand Vs. S. Appi Reddy

1. Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by Courts, transforms into justice. The definition of justice mentioned in Justinians Corpus Juris Civilis (adopted from the Roman jurist Ulpian) states Justice is constant and perpetual will to render to everyone that to which he is entitled. Similarly, Cicero described justice as the disposition of the human mind to render everyone his due. The law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be re-interpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts. Lord Denning once said:Law does not standstill; it moves continuously. Once this is recognized, then the task of a judge is put on a higher plain. He must consciously seek to mould the law so as to serve the needs of the time2. The facts which are either not disputed, or, are, at this stage, beyond the pale of controversy, may briefly be noticed. The appellant Smt. B.P. Achala Anand (hereinafter Smt. Achala for short) was the legally wedded wife of H.S. Anand-respondent No. 2. Their relationship got estranged so much so that in the year 1983 H.S. Anand deserted his wife Smt. Achala. The matrimonial home was a tenanted premises owned by respondent No.1. H.S. Anand left behind his wife with the children in the tenanted premises and walked away to reside in a lodge. In the year 1991, proceedings for dissolution of marriage by decree of divorce seem to have been initiated between the estranged couple. On 3/12/1998 the marriage stood dissolved by a decree of divorce based on mutual consent. That was an unhappy ending so far as the matrimonial relationship is concerned. However, what transpired between the couple has given a complex turn to an otherwise simple landlord-tenant litigation which we are called upon to deal with in this appeal.  3. The premises forming part of dispute in the present litigation is situated on the ground floor of a property bearing No. 522, Upper Palace Orchards, Bangalore. H.S. Anand had taken the ground floor of the building on tenancy from the landlord-respondent No.1. The rent of the premises was fixed at Rs. 300/- which was later on revised and enhanced to Rs. 600/- and then to Rs. 700/- (the rate which the Trial Court has found proved on evidence). The ground floor premises consisted of one verandah, one hall, two bedrooms with attached toilet, kitchen, bathroom, another toilet and corridor with overhead water supply and other incidental facilities. The tenant H.S. Anand resided in the premises with his family members including his wife Smt. Achala.  4. The tenanted premises were badly in need of repairs and in April 1991, consequent upon a mutual agreement arrived at between the landlord and the tenant, a major portion of the ground floor-tenanted - premises was handed over by the tenant to the landlord for the purpose of carrying out repairs and the tenant continued to retain and enjoy the verandah, one bedroom and an attached toilet. However, the repairs, as were agreed upon, were not carried out.  5. On 28/11/1991, the landlord served a notice upon the tenant H.S. Anand and initiated proceedings for eviction from the suit premises on the grounds available under Clauses (a) and (h) of sub-section (1) of Section 21 of the Karnataka Rent Control, Act, 1961 (hereinafter the Act for short). The tenant was alleged to be in arrears of rent and was, therefore, called upon to clear the same within a period of two months from the date of the service of the notice in this regard. It was also alleged that the landlord and his wife were old-aged couple and now-a-days residing in some adjoining premises not their own and needed bona fide the ground floor premises for their own occupation. The tenant-H.S. Anand appeared in the Court of Small Causes and defended the suit. However, it seems that on account of strained relationship between him and his wife and, further as he had discontinued his residence in the tenanted premises, he was not serious in contesting the suit and consequently, in the event of a decree for eviction being passed, the family members including the appellant-Smt. Achala, the deserted wife, ran the risk of being thrown away from the tenanted premises which happened to be the matrimonial home. Briefly stating these facts, the appellant moved an application under Order I Rule 10 of the Code of Civil Procedure (for short the Code) seeking her own impleadment in the eviction proceedings so as to defend against the eviction. The trial court, by order dated 30.01.1993, rejected the application.  6. The appellant preferred a revision petition in the High Court. Obvious as it is, the revision petition preferred by the appellant was contested by the landlord-respondent No. 1 submitting that it being a landlord-tenant dispute, the appellant- wife had no right to be joined as a party to the proceedings and further that the rent being substantially in arrears, the case for eviction was already made out and impleadment of the appellant would only prolong the proceedings. The High Court vide its order dated 02/12/1993 (Civil Revision Petition No. 1309/1993) noted the submission of the parties and passed an order which can be termed an equitable one. Legality or otherwise of the contentions raised by the parties in the High Court was left open, the revision petition was allowed and the trial courts order dated 30/01/1993 was set aside. The appellant was permitted to be brought on record as defendant No. 2 in the original case subject to her depositing a sum of Rs. 10,000/- towards payment of arrears of rent. The High Court did not express any opinion as to the status of the appellant as tenant or otherwise which issue was left open to be decided by the trial court. The fact remains that the appellant did deposit an amount of Rs. 10,000/- towards the arrears of rent claimed by the landlord and it appears that the amount has been withdrawn by the landlord without prejudice to his rights. The appellant has, thereafter, contested the suit.  7. The trial court disposed of the suit on 04/12/1998. The trial court held that H.S. Anand-respondent No. 2 was the tenant. A case for eviction under Section 21(1)(a) of the Act was not made out in the opinion of the trial court. However, a case for partial eviction under Section 21(1)(h) was made out. The trial court directed partial eviction of the two defendants (i.e. H.S. Anand and his wife Smt. Achala) from that portion of the premises over which the tenant had surrendered possession to the landlord and allowed the tenant to continue in the front portion, namely, bedroom, hall, verandah, toilet etc. as to which accommodation the eviction petition was directed to be dismissed.  8. Feeling aggrieved, the landlord preferred a revision petition in the High Court which has been disposed of by the judgment impugned herein. It will be useful to notice in brief the findings arrived at by the High Court which are as follows. According to the High Court ___There is no relationship of landlord and tenant between the landlord and Smt. Achala. The tenancy vested only in H.S. Anand who had given away the contest. He was served with a prior notice of demand. The rent was Rs. 700/- per month. The provisions of Section 21(2) of the Act were not complied with and therefore, the question of extending protection under Section 21(2) did not arise and the tenant was liable to be evicted under Section 21(1)(a)So far as the ground for eviction under Section 21(1)(h) is concerned, the High Court has not discussed the evidence in very many details but seems to have been persuaded to hold against the landlord on the ground that the first and second floor of the premises fell vacant but were not occupied by the landlord and were rather let out which is a pointer to the lack of bona fides. Even the back portion of the ground floor premises which was got vacated from the tenant was not put to any use for satisfying the alleged need of the landlord. The High Court set aside the order of partial eviction under Section 21(1)(h) and instead directed the tenant to be evicted under Section 21(1)(a) of the Act. It may be noted that neither the tenant H.S. Anand nor Smt. Achala, the wife had challenged the order for partial eviction passed by the trial court and it became final. Smt. Achala has, feeling aggrieved by the judgment of the High Court, preferred this appeal by special leave. The tenant - H. S. Anand has not filed any appeal.

Reasoning:
12. The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance ___ which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending ___ by collusion, connivance or neglect ___ or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertaining any such prayer. But the existence of such a right flows from what has been stated hereinabove and must be recognized. Persons residing with the tenant as members of his family would obviously be aware of the litigation and, therefore, it will be for them to act diligently and approach the court promptly and in any case before the decree of eviction is passed as delay defeats equity. Such a prayer or any dispute sought to be raised post- decree by a member of family of the tenant may not be entertained by the court20. This indicates that the right of residence is a part of the right to maintenance and in which case in the absence of an order by the matrimonial court in the proceedings for divorce, she would not be able to set up a claim in respect of the house even as against her husband, leave alone the landlord of her husband22. It has been held in India that right to maintenance arises out of the status as a wife and not by way of a contract or otherwise. In Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and another, AIR 1925 Madras 75732. We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord respondent No. 1 that Smt. Achala, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 landlord. We cannot agree. We feel that the appellant was rightly in the facts and circumstances of the case permitted by the High Court to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband33. So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted34. In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in the High Court a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. Achala, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord.