Karnataka High Court
Nanje Gowda vs Channe Gowda on 8 July, 1991
Equivalent citations: ILR1991KAR3978
ORDER Ramachandriah, J.
1. This Revision Petition filed by the tenant under Section 115 C.P.C. is not yet admitted as the learned Counsel for the respondent-landlord raised a preliminary objection that this Civil Revision Petition is not maintainable as the tenant has not deposited the rents due by him either at the time of the filing of this revision petition or subsequently. So, Sri Chandrasekharaiah, learned Counsel for the petitioner-tenant and Sri Ashok Haranahalli, learned Counsel for the respondent-landlord, are heard on that point.
2. Sri Chandrasekharaiah contended that the provisions of Section 29(1) of the Karnataka Rent Control Act, 1961 (for short 'the Act') are not applicable to Revision Petitions filed under Section 115 C.P.C. and, therefore, it is not open to the respondent-landlord to contend that this revision petition is not maintainable on the ground of non-deposit of arrears of rent as required under Section 29(1) of the Act, which reads as under:
"29. DEPOSIT AND PAYMENT OF RENT DURING THE PENDENCY OF PROCEEDINGS FOR EVICTION - (1) No tenant against whom an application for eviction has been made by a landlord under Section 21, shall be entitled to contest the application before the Court under that Section or to prefer or prosecute a revision petition under Section 50 against the order made by the Court on application under Section 21 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 due in respect of the premises upto the date 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 of 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."
3. The argument of Sri Chandrasekharaiah is that since it is not mentioned in Sub-section (1) of Section 29 of the Act that arrears of rent has to be deposited even in Revision Petitions filed under Section 115 C.P.C., the above extracted provisions of Section 29(1) are not applicable to Revision Petitions filed under Section 115 C.P.C.
4. On the other hand, Sri Ashok Haranahalli argued that having regard to the words '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 due in respect of the premises upto the date 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' etc., the provisions of Section 29(1) are attracted even to the Revision Petitions filed in this Court under Section 115 C.P.C.
5. In my opinion, there is considerable force in the above submission inasmuch as Section 115 C.P.C., is not mentioned in Section 29(1) of the Act for the obvious reason that no provision is made in the Act for filing a second revision against the order of the District Judge under Section 115 C.P.C.
6. It is only by virtue of the Full Bench Decision of this Court in KRISHNAJI VENKATESH SHIRODKAR v. GURUPAD SHIVRAM KAVALEKAR AND ORS., ILR (Karnataka) 1978 (2) 1585 which is affirmed by the Supreme Court in the case of SHYAMARAJU HEGDE v. VENKATESHA BHAT, ILR 1987 KAR 3244 by setting aside the Full Bench Decision of this Court in M.M. YARAGATTI v. VASANT, that Second Revision Petitions filed under Section 115 CPC against the first revisional order of the District Judge are entertained. Therefore, the first argument of Sri Chandrasekharaiah that Section 29(1) of the Act is not applicable to the Revision Petitions filed under Section 115 CPC for the reason that Section 115 CPC is not mentioned in Section 29(1) of the Act, cannot be regarded as a sound argument.
7. In this connection Sri Ashok Haranahalli invited my attention to a Decision of the Supreme Court in HUCUMCHAND AMALIKACHAND LONGDE v. MADHAVA BALAJIPOTDAR, 1984 (1) Karnataka Law Chronicle 504. The facts of the said Decision are that a Revision Petition filed under Section 115 C.P.C. was dismissed by this Court for non-payment of rents due. While granting the Special Leave Petition preferred by the tenant against the Order of this Court, the Supreme Court has taken the view that since the Revision Petition filed under Section 115 C.P.C., was already admitted, the order of this Court dismissing that Revision Petition on the ground of non-payment of rents due was erroneous inasmuch as a Revision Petition once admitted must be disposed of on merits and failure by the tenant to deposit the rents due is not a tenable ground for dismissal.
If the law was that there is no need for the tenant to deposit the rents due in revision under Section 115 C.P.C., the Supreme Court would have certainly observed that there was no need for the tenant to deposit the rents due in such a Revision Petition. Therefore, the implication of the said Decision of the Supreme Court is that dismissal of a Revision Petition filed under Section 115 C.P.C. for non-deposit of rents due before the Revision Petition is admitted, would be justified.
8. However, Sri Chandrasekharaiah argued on the strength of the Division Bench Decision of this Court in MEDICAL RESEARCH LABORATORY PVT. LTD: v. AJITH K.C., 1984 (2) KLJ 267 : ILR 1984 (2) KAR 510 that it is not held in the said Decision that provisions of Section 29(1) of the Act are attracted to the Revision Petitions filed under Section 115 C.P.C. It is specifically mentioned in the order of reference extracted in the beginning of the said Decision that the point referred for the opinion of the Division Bench by the learned Single Judge was: Whether a Revision Petition, against whom an application for eviction is made by a landlord under Section 21 of the Act is entitled to prefer or prosecute a revision under Section 50 of the Act or under Section 115 C.P.C. against an order made on an application under Section 21 or against an order made under Section 29(1) or 29(4) of the Act, without paying to the landlord or depositing with the Court all arrears of rent due in respect of the premises, as required under Section 29(1) of the Act. His reference is not decided finally by the Revisional Court itself or still pending Decision in the Revisional Court. The said point of reference is answered in para-11 of the Decision by holding that this Court has consistently understood the words 'against an order made by the Court on an application under Section 21' occurring in Section 29(1) of the Act, as 'any order made by the trial Court on an application under Section 21 of the Act'. The argument of Sri Shekara Shetty could not be accepted. That apart the Division Bench has not observed in that Decision that rents due need not be deposited in a Revision Petition filed under Section 115 C.P.C.
9. Sri Ashok Haranahalli, also invited my attention to a Full Bench Decision of the Gujarat High Court in LALCHAND JEMATHMAL v. NANABHAI RANCHODDAS AND ORS., 1976 Rent Control Reporter 199 in which, while considering the provisions of Section 12(3)(b) of the Bombay Rents Hotel & Lodging House Rents Control Act, 1947 (for short 'the Bombay Act'), it is held that Section 12(3)(b) of the Bombay Act applied even at the appellate stage and the words 'till the suit is finally decided' occurring in Section 12(3)(b) refer also to the Decision of the suit in appeal by the Appellate Court when an appeal is preferred by the landlord against a decree passed by the trial Court dismissing his suit and when the question arises before the Appellate Court whether the tenant is entitled to the protection of Section 12(3)(b), the Appellate Court would have to consider whether the tenant has, after paying or tendering in Court the arrears of standard rent and permitted increases on the first day of hearing of the appeal or on or before such other date as might have been fixed by the Court, continued to pay or tender in Court regularly the standard rent and permitted increases till the Decision of the appeal. If he has not paid the amount of standard rent and permitted increases as fixed by the trial Court and in case the Appellate Court has enhanced the standard rent and the permitted increases, has not paid the difference arising because of such enhancement on or before such date as the Appellate Court might fix and after such date continued to pay regularly the enhanced rent and the permitted increases, the tenant would be deprived of the Bombay Act.
10. In my opinion, the implications of the said provisions are that the provisions of Section 12(3)(b) of the Bombay Act, which materially correspond to the provisions of Section 29 of the Act, are applicable even to appeals filed against the orders passed under Section 12(3)(b) of the Bombay Act. That being so, the argument of Sri Chandrashekharaiah that the provisions of Section 29(1) of the Act are not applicable to Second Revision Petitions filed under Section 115 C.P.C., cannot be regarded as a sound argument.
11. Sri Ashok Haranahalli also placed reliance on a Decision of the Supreme Court in SHANKAR RAMACHANDRA ABHYANKAR v. KRISHNAGIRI DATTATREYA BAPAT, in which the Supreme Court has observed as under:
"Where on its revisional jurisdiction being invoked against the order of the Appellate Court under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, the High Court dismissed the revision after hearing the both the parties, the order of the Appellate Court becomes merged with the order made in revision and therefore the Appellate Order cannot be challenged; OR attacked by another set of proceedings in the High Court under Articles 226 and 227 of Constitution. The principle of merger of orders of inferior Courts would not become affected or inapplicable by making any distinction between the petition for revision and an appeal.
The right of appeal is one entering a superior Court and invoking its aid and inter-position to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the extent of relation of superior and inferior Court and the power on the pan of the former to review Decisions of the latter.
When the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and become inferior for the purpose of rectifying the error of the Court below under Section 115 C.P.C. circumscribe the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. This is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.
Further even on the assumption that the order of the Appellate Court had not merged with the order which disposed of the revision petition, the Writ Petition ought not to be entertained by the High Court when the petitioner had already chosen the remedy under Section 115 C.P.C. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances, would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions."
12. In the light of the observations made in the above mentioned Decision, as extracted above, the argument of Sri Chandrasekharaiah that the petitioner/tenant in the instant case need not deposit the arrears of rent as per the mandate of Section 29(1) of the Act in this Revision Petition filed under Section 115 C.P.C., is rejected as unsustainable. However, the petitioner/tenant is given two weeks time to deposit the entire arrears of rent due by him upto 30th June 1991. Post after two weeks.