Karnataka High Court
Mrs. Velthoria Sequiera vs Sode Vadiraja Mutt on 16 March, 2021
Equivalent citations: AIRONLINE 2021 KAR 241, 2021 (2) AKR 453
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
R
DATED THIS THE 16TH DAY OF MARCH, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.30053 OF 2019 (GM-CPC)
BETWEEN:
MRS. VELTHORIA SEQUIERA,
W/O. GEORGE SEQUIERA,
AGED ABOUT 89 YEARS,
R/AT 3RD MAIN, 2ND CROSS,
HAYAGRIVA NAGARA,
KUNJIBETTU-576 102,
UDUPI TALUK.
(NOTE: PETITIONER NOT CLAIM
BENEFIT OF SENIOR CITIZEN)
... PETITIONER
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
SODE VADIRAJA MUTT,
UDUPI,
BY ITS HEAD & MATADHIPATHI,
SRI. VISHWAVALLABHA THEERTHA SWAMIER,
CAR STREET, UDUPI-576 101,
REP. BY GPA HOLDER,
MURALIKRISHNA,
AGED MAJOR,
S/O. K. VEDAVYASA BHAT,
WORKING IN SRI. SODE MUTT,
CAR STREET, UDUPI-576 101.
... RESPONDENT
(BY SRI.MADHUKAR DESHPANDE, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 28.05.2019 IN O.S.NO.80/2014 ON THE FILE
OF THE PRL CIVIL JUDGE AND JMFC, UDUPI PRODUCED AT
ANNEXURE-A AND IA NO.1 BE ALLOWED AS PRAYED FOR.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
2
ORDER
Petitioner being the defendant inter alia in a suit for possession & payment of arrears of rent in O.S.No.80/2014; the suit is being opposed by filing the Written Statement on 12.04.2014; her application in I.A.No.1 filed u/s.114 of Transfer of Property Act, 1882 having been negatived by the impugned order dated 28.05.2019, the learned Prl. Civil Judge, Udupi has declined to relieve her from the forfeiture of the lease; therefore petitioner is grieving before the Writ Court.
2. After service of notice the respondent-plaintiff- Mutt having entered appearance through its counsel vehemently resists the writ petition making submission in support of the impugned order & the reasons on which it has been predicated. Both the petitioner and the respondent have relied upon certain decisions in support of their respective stand.
3. Having heard the learned counsel for the parties and having perused the petition papers, this court declines to grant indulgence in the matter for the following reasons: 3
(a) The property in question belongs to the ownership of the Mutt; the husband of the petitioner during his life time had taken the same on lease vide registered Lease Deed dated 10.02.1967 for a period of 99 years on a yearly rent of Rs.50/-; the Deed stipulates interest at the rate of 6% per annum on the delayed payment of rent; all this is not in dispute.
(b) Pursuant to lease, a building is erected on the site by the original Lessee and that as per the agreed terms the Lessee has to quit the premises, is also not in dispute; presumably this long lease is for the purpose of having the constructed building so that after the expiry of the tenure, the respondent-Mutt shall put the same to the use of its pilgrims; petitioner has remained in the arrears of rent for years, is also not in dispute; accordingly a legal notice dated 09.03.2012 was issued by the respondent terminating the lease for non-payment of rents;
(c) To the above legal notice, petitioner got issued a reply dated 17.04.2012 contending that the office of the respondent-Mutt declined to accept the tender of rental amount since 2009 stating that the land has vested in the State Government under the provisions of the Karnataka 4 Land Reforms Act, 1961 and therefore petitioner cannot be found fault with; she also offered to pay Rs.300/- being the arrears of rent plus interest accruing thereon, through a Demand Draft; however, respondent refused to accept the said amount.
(d) After filing of the suit, as already mentioned above, petitioner entered her defence and filed the subject application seeking an order for relieving her from forfeiture of the lease; the same having been objected to, has been rejected by the learned trial Judge on the ground of lack of bona fide inasmuch as the subject offer is made by the petitioner very belatedly; the suit came to be filed in February 2014; suit summons was served on the petitioner on 03.04.2014; the Written Statement has been filed in April 2014; suit was posted for hearing on 09.06.2014;
issues have been framed on 11.10.2017; trial too has been half way through; and only at this stage the present application is filed; this chronology of events justifies the finding of the court below.
(e) Added to the above, petitioner has filed application in Form-7A seeking grant of the land under the provisions of the Karnataka Land Reforms Act, 1961; had 5 she been a scrupulous & sincere tenant, she would not have remained in arrears of rent for so many years; atleast after filing of the suit, she would have paid all the arrears of rent with interest & costs at the hearing of the suit ie., 09.06.2014 as rightly observed by the learned Judge of the court below.
(f) It is pertinent to reproduce the text of Section 114 of the T.P. Act reads as under:
"114. Relief against forfeiture for the non- payment of rent - Where a lease of immovable property has determined by forfeiture for non- payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
This provision enacts the rule of equity, where a lease of immovable property has been determined by forfeiture on the ground of non-payment of rent and the lessor files a suit for ejectment, the court has discretion to relieve the lessee of the consequences of such forfeiture, if at the hearing of the suit he pays or tenders the rental arrears with interest and costs, or furnishes such security as the 6 court thinks fit; this provision is bit in variance with the English law inasmuch as there, equity can be invoked not only during the pendency of the suit but also within six months of the execution of the decree of ejectment by virtue of sec.210 of Common Law Procedure Act, 1852, as it then was; the relief under this section can be granted to the lessee even at the appellate stage, if other conditions are complied with vide Apex Court decision in LALA PRADUMAN KUMAR Vs. VEERENDRA GOYAL, LAWS (SC) 1969-3-30.
(g) The text & context of Section 14 require bona fide on the part of the tenant who has been remaining in arrears of rent; if that is lacking, a tenant cannot be permitted to seek refuge under the umbrella of this provision; otherwise this provision runs the risk of being used as an instrument of unconscionability to defeat the accrued right of re-entry accruing to the landlord; in deciding whether there is bona fide, facts & circumstances of the case need to be kept in view; the Apex Court in NAMDEO LOKMAN LODHI Vs. NARMADA BAI, 1958 SCR 1009 observed as under:
"... in exercising the discretion (under Section 114 of the Transfer of Property Act) each case must be judged by itself; the delay, the conduct of the 7 parties and the difficulties to which the landlord has been put should be weighed against the tenant. ... It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands; if the conduct of the tenant is such that it disentitles him to relief in equity, then the court's hands are not tied to exercise it in his favour."
(h) In the case at hands, the petitioner lacks bona fide as rightly held by the court below because she has filed the application in Form-7A seeking grant of the land under Section 77A of the Karnataka Land Reforms Act, 1961 as amended; nothing prevented her even then, from making payment of arrears of rent particularly when the rate of rent is apparently frugal ie., less than Rs.5/- per month; even rental arrears are equally frugal ie., about Rs.300/- or so, in all; despite that the petitioner chose to remain in arrears, admittedly having built a huge building worth more than Rs. 20 Lakh, according to her own estimation; this shows the incongruity on the part of the petitioner in somehow squatting on the property of the respondent without complying with the agreed covenants of tenancy.
(i) The decision in LALA PRADUMAN KUMAR supra, relied upon by learned counsel for the petitioner does not come to his aid, it's facts being miles away from 8 those of the case at hands; there was no lack of bona fide on the part of the tenant in that case; therefore, relief against forfeiture of tenancy was accorded by the courts in their discretion to the said scrupulous tenant and that came to be affirmed by the Apex Court as well; a perusal of the decision shows that the tenant had remained in arrears only for a short period of two years unlike here; he had promptly made the payment of arrears and much more money, than due; there was no culpable conduct attributable to him, which demonstrably lies at the threshold of the petitioner herein, as dealt with in the succeeding paragraph; it has been said by Lord Hallsbury more than a century ago in Quinn Vs. Leathem, 1901 A.C. 495, 506, that a case is an authority for the proposition it lays down in the given fact matrix and not for all that which logically follows from what has been laid down.
(j) The stand of the petitioner that after the amendment to the 1961 Act, the land has vested in the State, is no justification for not paying the rent; admittedly, she had not claimed occupancy by filing Form 7 u/s 48A of the Act ; added to this, these words are put into the mouth of the landlord, which sounds unusual & 9 strange; a tenant should conduct himself consistent with the vinculum juris of tenancy and comply with the covenants thereof; he should not do anything repugnant thereto; in the instant case admittedly, petitioner has applied for the grant of tenanted property by filing Form - 7A u/s.77A of the Act;
(k) It is true that Section 114 of the T.P. Act gives right to apply for such a grant; merely because a tenant can so apply, it cannot be readily inferred that his act of remaining in arrears of rent on that ground should be treated as bona fide; an act contrary to law can never be bona fide; however, an act which is not contrary to law may still lack bona fide, depending upon the circumstances of a case; for an act being bona fide, one has to show that it is done in good faith ie., with honesty, sincerity & genuineness, and without any element of culpability; from this inarticulate premise, the learned judge of the court below opined against the petitioner 'thou art weighed and found wanting'; a writ court exercising a limited supervisory jurisdiction constitutionally vested under article 227 cannot run a race of opinions with the court below which in its discretion 10 exercised in accordance with the rules of reason & justice, has denied relief to the unscrupulous petitioner.
In the above circumstances, this writ petition being devoid of merits is liable to be dismissed, and accordingly it is, costs having been made easy.
The Registry to transmit the amount in deposit to the court below forthwith, for holding the same subject to outcome of the suit.
Sd/-
JUDGE Snb/