Karnataka High Court
Manohar Tulajaram vs Vallabha Ramagopal on 28 October, 1988
Equivalent citations: ILR1989KAR968
ORDER
Murlidher Rao, J
1. This is a revision petition under Section 115 C.P.C. against concurrent findings of fact. Petitioner is a tenant and he is a tailor, by profession. Respondent-landlord sought eviction of the premises under Clauses (a) and (h) of Section 21(1) of the Karnataka Rent Control Act. Tenancy is admitted. The landlord alleged that tenant is not regular in payment of rents; he had to pay arrears of Rs. 290/- upto 1-12-1979, and subsequently he had not paid the tenants at all. Landlord gave notice on 17-11-1980; though it was served, it was not replied.
2. The tenant contended that the premises are leased on annual rental basis. In practice the landlord, who used to get his clothes stiched, was adjusting the tailoring charges, towards the rents. He alleged that on 24-4-1980, he had handed over Rs. 200/- to Ramshetji; on 14-7-1980, he had handed over Rs. 200/- to Mota Shetji; on 10-11-1980, he had handed over Rs. 400/-to Mota Shetji; similarly he had given Rs. 100/- to Satyanarayana. Landlord had to pay Rs. 300/- towards his tailoring charges. Towards the tailoring charges due from Shankrappa Ambigar, he had to pay a sum of Rs. 100/-; similarly a sum of Rs. 60/- is due from landlord for another item of tailoring. He asserted no rents are due for the years 1979-80, 1980-81; for the year 1982, excess amount is with the landlord. Thus he owes no amount towards the rents. On the contrary, a sum of Rs. 160/- is to be paid by landlord. Thus he pleaded discharge by way of set off.
3. On these pleadings, Principal Munsiff and 1 additional JMFC, raised points for determination, as found in para 8 of his Judgment dated 29-3-1984. The learned Judge dismissed the claim of landlord under Clause (h) i.e., bona fide and reasonable requirement. On the claim under Clause (a), he passed a conditional order directing tenant to pay or deposit Rs. 290/- and further directed him to pay rent at Rs. 50/- per month from 1-12-1979 to 30-6-1981, within one month. In default of payment, the tenant was directed to vacate.
4. During the pendency of the proceedings, the Court recorded a finding that it was a monthly tenancy and the rent was Rs. 50/-. The tenant's plea, based on his diary Ext.R-3, was disbelieved. But the Judge held that there was sufficient cause for non-payment of rents.
5. As against this order, the landlord filed revision petition 26/1984 before the District Judge, Bijapur. The learned District Judge confirmed the order of trial Judge only in respect of the claim under Clause (h) of Section 21(1). He set aside the conditional order passed under Clause (a) and remitted the case to the Court below to consider the applicability of Sub-section (2) of Section 21. The finding regarding existence of sufficient cause was also set aside. The order of District Judge is dated 24-8-1985.
6. After remand, the tenant got himself further examined. He stated that he had instructed his lawyer to give a reply to the notice sent by the landlord. He further stated that a sum of Rs. 290/- was not paid because the accounts between him and the landlord had not been settled. In cross-examination he admitted that this plea of non-payment, due to non-settlement of accounts, was not taken in the original statement of objections.
7. The learned trial Judge, following the law laid down in M.R. ANANT SWAMY v. PUTTANNA 1974(1) KLJ 221 held that the tenant was in arrears; there was no sufficient cause for non-payment. The Court allowed the eviction petition under Section 21(1)(a) of the Karnataka Rent Control Act.
8. The unsuccessful tenant filed revision (Rent) 54/1986 before the Additional District Judge, Bijapur. The learned Judge after considering all the aspects in detail, held that the reason for non-payment, namely, the non-settlement of accounts is an after-thought. There is no sufficient cause for non-payment of rents, found due - hence dismissed the revision.
9. On this aspect i.e., whether there was a "sufficient cause" for non-payment of arrears of rents, both the Courts are concurrent. In RAMSEWAK v. MUNNALAL it is held that:
"The order of eviction of tenant based on concurrent findings of the lower Courts that there was no valid tender of rent by the tenant or refusal thereof by the landlord could not be interfered with."
Similarly in JOHEJO DEVI v. MOHARAM ALI it was held that "High Court was unjustified in interfering with concurrend findings of fact since the lower Courts had not committed any irregularity."
10. This being a C.R.P. under Section 115, there can hardly be any justification to interfere with the concurrent findings.
11. But Mr. K. Channabasappa, the learned Counsel for tenant, submitted that both the Courts have not correctly applied the relevant criteria to Judge the "sufficient cause". He submitted that being a beneficial legislation the Courts have to lean in favour of a liberal approach. He urged that in judging the existence of 'sufficient cause' the Court must consider the bona fides of the person, the reason for his inaction and whether there is wanton negligence. He attempted to draw sustenance from Section 114 of T.P. Act, which provides for relief against forfeiture for non-payment of rent.
12. The power given to the Court under Section 114 T.P. Act is purely discretionary. In lieu of order of ejectment, it may pass an order relieving the tenant against forfeiture. Explaining this power, the Supreme Court in NAMDEO LOKMAN LODHI v. NARMADA BAI observed thus:
"We are, therefore, unable to accede to the contention of Mr. Daphtary that though Section 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter....."
13. In the instant case the tenant in his objection statement denied that he is in arrears of rent, on the contrary he contended that landlord has to pay Rs. 160/-When both the Courts found that he was in arrears of rent, after remand, he built up a story that because the accounts between him and landlord were not settled, he did not pay rent. Apart from being an after thought, the stand reflects his conduct. This plea was wanting in bona fides; if this was the truth, there is no justification to take this plea, after remand.
14. Moreover the plea has no legal sanctity. The payments due from landlord, on some other account, cannot be adjusted in rents. Indeed this is not a valid defence in an action for ejectment. Dealing with a provision in Bihar Building (Lease, Rent and Eviction) Control Act (Act 3/1947), which provides for refund of excess rent paid or adjustment towards rent, the Court observed thus in NANDALAL v. GANESH PRASAD :
"Viewed in that light the logical conclusion will have to be that without the appellant calling upon the respondent to adjust the excess payments towards the arrears of rent, he cannot seek such a right in the suit filed by the respondent by way of defence in the suit for eviction. The High Court has not therefore committed any error in holding that without the appellant exercising his option and calling upon the respondent to adjust the excess payments towards arrears of rent he cannot seek an automatic adjustment of the excess payments made by him and contend that he was not liable to be evicted for non-payment of rent."
Explaining the ratio of Judgment in SARWAN KUMAR ONKARNATH v. SUBHAS KUMAR , it was observed thus:
"The Judgment does not lay down any general principle that in whatever circumstances the excess payment had been made and whatever be the period of default the landlord was bound to adjust the excess payment towards arrears of rent and exonerate the tenant of the default committed by him in payment of rent....."
15. There is no provision in the Karnataka Rent Control Act, which permits such adjustment or claim set off. Between the parties there is no written agreement permitting such adjustment. In this view of the matter, the contention that there was a sufficient cause is unacceptable. The plea neither flows from contract nor from any statutory provisions. This C.R.P. fails, it is dismissed.
16. However the time granted by the Court below expired on 17-10-1988. Proceedings are initiated in July 1981. As it is more than seven years have elapsed. Premises is a shop; therefore ends of justice would be met, if the tenant is granted time till 31-5-1989, once and for all, subject to payment of monthly rents regularly, as and when it falls due. The tenant shall vacate and surrender possession on or before 31-5-1989. If there be a single default in the payment of rents, the landlord will be entitled to execute the eviction order. No costs.