Karnataka High Court
G. Balasundaram S/O Late G. Nagaraja ... vs M. Eahwaraiah S/O M. Rachaiah on 7 June, 2007
Equivalent citations: 2007(6)KARLJ331, AIR 2008 (NOC) 197 (KAR.) = 2007 (6) AIR KAR R 292, 2007 (6) AIR KAR R 292
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. The unsuccessful landlord has come up with this revision petition under Section 115 CPC. to set aside the order dated 23.9.2006 passed by the Principal District Judge, Bellary in HRC. Revision No. 15/2005 dismissing the order dated 6.11.2005 passed by the Prl. Civil Judge (Jr.Dn) Bellary in HBC. NO. 6/2004.
2. The main grounds urged by the revision petitioners are that the Revisional court has totally misinterpreted the law laid down by this Court in the case of Manohar Tuljaram v. Yallabha Ramagopal, . There is no contract of agreement entered into between. the parties with regard to adjustment of the arrears of rant payable by the respondent-tenant. So in the absence of such an agreement, the Court cannot say that the amount borrowed toy the landlord can be adjusted towards the rent due by the respondent. The provisions of Section 27(2)(a) of K.R. Act of 1999 reads that:
unless the respondent-tenant deposits the rent within the period stipulated in the order, he has no right to challenge the same.
Therefore, the order passed by the learned District Judge is not maintainable and liable to be set aside.
3. Heard the arguments of the learned Counsel fox the revision petitioners and learned Counsel fox the respondent.
4. It is contended by Sri Gods Nagaraj, learned Counsel for the revision petitioners that the respondent is a tenant under the revision petitioner in respect of premises No. 64(4), ward No. III, Kalamma Street, Bellary measuring East-West 7.2 feat and North-South 16.5 feat. It is contended that the respondent has agreed to pay rant of Rs. 2200/- per month and he has not disputed the jural relationship of landlord and tenant. When the respondent has not taken such a contention in the reply notice, he cannot contend before the trial court or the revisional court that since the landlord has borrowed some amount and subsequently he has obtained judgment and decree from the competent Civil Court, therefore he is entitled to adjust the arrears of rent to the decretel amount. Further it is contended that the revision petitioner has issued two notices dated 25.1.1999 and 26.9.2003 and in the reply given by the respondent, he has contended that the revision petitioner has borrowed some amount and executed on Demand Promissory Note and ha has filed a suit against him for recovery of the said amount, and obtained a decree and judgment from the Civil Court against the petitioner-landlord. But it is contended by the revision petitioner that the arrears due by the respondent cannot be adjusted to the decree passed by the Civil court subsequent to the order of eviction passed by the trial court. Therefore, the learned District Judge has wrongly interpreted, and misread the decision reported in I.L.R. 1969 KAR 968 referred to supra. It is further submitted that the revision petitioner has challenged the decree and judgment passed in O.S. No. 293/97 in R.A.No. 126/2006. The said appeal is still pending. Therefore, the District Judge namely the Revisional court is totally wrong in coming to the conclusion that the respondent who has already obtained a decree is entitled to adjust the rent from the decretal amount. It is further contended that if the respondent has obtained decree against the revision petitioner, he is at liberty to execute the decree and recover the amount. Therefore, the order passed by the learned District Judge is totally incorrect. In fact, it is contended that under Section 27(2)(a) of the K.R. Act the tenant is bound to comply the orders passed by the trial Court but he has not deposited any arrears of rant before filing revision under Section 46(1) of the Karnataka Rant Control Act. Section 46(1) is a mandatory provision. The District Judge has not given any finding about non-deposit of rent within one month and the interim order of stay was granted by the District Judge only on 20.12.2005. Therefore, the order under revision suffers from legal infirmity and is liable to be set aside.
5. In support of these contentions, learned Counsel for the revision petitioner relied on the following decisions:
(a) (Manohar Tuljaram v. Vallabha Ramagopal) wherein this Court has held that:
The plea because the accounts between the tenant and landlord were not settled, he did not pay the rent, he has no legal sanctity. The payments due from landlord, on some other accounts, cannot be adjusted in rants.
(b) (Myoon Construction Ltd. v. state of Karnataka and Anr.) (C) I.L.R. 2003 KAR page 630 (Ananda Kumar B. Pirgal v. A.K. Gangadharan) which reads as follows:
The Court-below has found that even after receipt of the notice he has defaulted in payment of rents and even as on the date of the petition the Court-below found that the respondent-tenant was in arrears. As the tenant had neither paid nor tendered the whole of the arrears of rent within two months from the data on which a notice of demand for payment had been served on him by the landlord, the landlord is entitled to recover possession of the premises from him subject, however, to the second, proviso to Sub-clause (a) of Sub-section (2) of Section 27 of Act 34 of 2001 which reads as follows:
Provided further that where in a proceeding for eviction of a tenant on the ground specified in this clause, the tenant is to be evicted, the Court shall make an order directing the tenant to vacate the premises unless he pays to the landlord or deposits into Court within one month of the date of order, an amount calculated at the rate at which it was last paid, for the period for which the arrears of rent and other charges were legally recoverable from him, including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made.
6. As against this, learned Counsel for the respondent Smt. K. Sija Jose submitted that the revision petitioner herein is a landlord. He filed the eviction petition after the respondent filed two suits for recovery of the amounts borrowed by the revision petitioner and in the eviction petition the revision petitioner has suppressed the facts that he has borrowed the amounts and he had executed two On Demand Promissory Notes in favour of the respondent. Therefore, the trial Court has not considered this aspect while passing the order of eviction filed by the revision petitioner under Section 27(2)(a) of the K.R. Act. Therefore, the respondent herein who has challenged the same before the District Judge and the District Judge has rightly considered that if any accounts pending between the parties were not settled, then the tenant is entitled to adjust the arrears of rent to the amount due by the landlord. Therefore, the learned District Judge rightly observed in paragraph 20 of the Order under challenge and distinguished the non-applicability of the decisions. It is contended that the decisions railed upon by the learned Counsel for the revision petitioner reported in I.L.R. 1989 KAR, page 968 is more favourable to the respondent than the revision petitioner. Therefore, the revision petition is liable to be dismissed on the ground that the petitioner who has suffered judgment and decree before the Civil Court has not filed any appeal against the decree passed in O.S.No. 299/97. The decree passed in another suit has been challenged by the revision petitioner before the Civil Court. The revision petitioner has preferred an appeal against the judgment and decree passed in O.S.No. 293/1997 but not against O.S.No. 138/1997. Therefore, the decisions referred to by the learned Counsel for the revision petitioner are not at all applicable to the facts of the case on hand and the learned District Judge is right in allowing the revision petition filed by the respondent by setting aside the order of eviction passed by the trial Court. It is further contended that the tenant is entitled to adjust rent payable to the landlord if the amount borrowed by the landlord has not been settled. If any decree has been passed, the respondent-tenant is entitled to adjust the same. Hence, learned Counsel for the respondent prays for dismissal of the petition.
7. Having heard the arguments of both parties, the point that arises for consideration and determination is:
Whether the Order under challenge is incorrect, illegal and suffers from legal infirmity? if so, what order?
8. The undisputed facts are that the revision petitioner is the landlord and the respondent is a tenant in respect of premises No. 64/4, III ward, Kalamma Street, Bellary. According to the revision petitioner, the respondent has agreed to pay monthly rent or Rs. 1200/- for running a petty shop in the premises. He is in occupation of the premises right from 1995. He has paid the rents upto 1.8.1995. Thereafter he, failed to pay the rents. Therefore, demand notice came to toe issued as per Ex.P-2. In view of the specific contention taken by both parties, it could be said that there is no dispute with regard to jural relationship of landlord and tenant. With regard to payment of arrears of rent from 1.9.1995 is concerned, the contention of the revision petitioner is that the respondent is due in arrears of rent from 1.9.1995 to 30.12.1998. No doubt legal Notice Ex.P-2 came to be issued and accordingly the respondent herein has given a reply that amounts were borrowed by the revision petitioner on executing two On Demand Promissory Notes. It is clear from the materials placed on record that the revision petitioner herein again got issued a second notice dated. 26.9.2003 calling upon the respondent to pay the arrears of rant from 1.9.1995 till day but while giving the reply notice Ex.P-3 the respondent has taken a contention that the revision petitioner has borrowed amount. A similar contention was taken before the court-below about the amount borrowed by him. By the time revision petition came to be filed, two suits ware already filed by the respondent in the year 1994. The contention of the learned Counsel for the respondent is that the filing of the eviction petition HRC.No. 6/2004 is a subsequent development with the sole intention to delay recovery of the decretal amount by the respondent. There is no bar in filing the eviction petition for recovery of the rent by the landlord even though the notice EXs.P-2 and P-3 were issued in the years 1999 and 2003. It is the choice of the landlord when to file eviction petition for recovery of arrears of rant or to evict the tenant on other grounds. Therefore, the contention of the learned Counsel for the respondent does not hold water. It cannot be accepted.
9. So far as the order passed by the learned District Judge with regard to the accounts between the tenant and landlord were not settled is concerned, he has misread the Headnote as well as paragraph 14 of the judgment. This Court held that, the plea, that because the accounts between the landlord and tenant were not settled he did not pay the rent has no legal sanctity and the law as culled out by the Apex Court in the decision (Tukaram Ramachandra Mane (dead) by L.RS v. Bajaram Bapu Lakule (dead) by L.Rs) has been quoted. The first sentence of paragraph 14 of the judgment clearly indicates the payment of money on some other account cannot be adjusted towards the rents due. In clear terms it has been held by the Apex court in the subsequent judgment that:
Every tenant is obliged to pay or tender rent to the landlord within. 15 days of the month to which the rent relates.
But in the instant case though the rent fell due on 1.10.1995 he has not paid rent from the month of 1.9.1995 up to the data of filing of eviction petition or until the eviction petition was disposed of. Both the Apex Court and this Court held that the tenant is not entitled to say to adjust the advance amount if any paid by him or the amount borrowed from the tenant towards arrears of rent. The judgment and decree passed by the Civil Court against the revision petitioner has been stayed in RA.No. 126/2006 by the Civil Judge (Sr. On). If the respondent succeeds in the appeal, than he is entitled to recover the amount through whatever mode of recovery. But the judgment and decree if any passed in OS.No. 136/1997 against the revision, petitioner, he is entitled to execute the warrant and recover the amount.
10. Therefore, considering the facts and circumstances of the case, the eviction petition filed by the landlord, under Section 27(2)(a) of K.R. Act seeking eviction of the tenant for nonpayment of rent when the landlord is successful in proving the case about arrears of rent by the respondent, the judgment and order of eviction passed by the trial court ought to have been confirmed by the learned District Judge. Before filing the revision petition, an unsuccessful tenant is bound to deposit the arrears of rent which is mandatory but the learned District Judge has not considered this aspect of the matter about the deposit of rent at the time of filing the revision. Section 45 of the K.R. Act, 1999 reads as follows:
DEPOSIT AND PAYMENT OF RENT DURING THE PENDENCY OF PROCEEDINGS FOR EVICTION:
No tenant against whom an application fox eviction has been made by a landlord under Section 27, shall be entitled to contest the application before the Court under that section or to prefer or prosecute a revision petition under Section 46 against an order made by the Court on application under Section 27 unless he has paid or pays to the landlord or deposits with the court or the District Judge or the High Court, as the case may be, all arrears of rent and other charge a due in respect of the premises upto the data of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the Court or the District Judge or the High Court, as the case may be.
In the instant case, learned District Judge has not followed the provisions of Section 45 of the K.R. Act 1999 to insist the tenant to deposit the arrears of rent. Therefore, considering the facts and circumstances of the case and the law laid down by this Court as well as the Apex court in the aforesaid decisions, the Order under challenge passed by the learned District Judge is totally incorrect and illegal and is liable to be sat aside.
11. Accordingly, the revision petition is allowed. The Order passed by the Prl. District Judge, Bellary in HRC. Revision Petition No. 15/2005, dated 23.9.2006 is hereby set aside and the order of eviction passed by the civil Judge (Jr.Dn) in HRC.No. 6/2004, dated 8.11.2005 is hereby confirmed. However, three months' time is granted for the respondent to vacate and hand over possession of the premises to the landlord. To that effect, he shall file an affidavit within two weeks undertaking to hand over possession of the petition schedule premises on or before 7.9.2007. Revision petitioner is entitled to recover the rent due by the respondent as per due process of law.