Karnataka High Court
Sreenivas Shenoy vs Vasudeva Shenoy on 17 March, 1994
Equivalent citations: ILR1994KAR1102, 1995 A I H C 6367, (1994) 2 KANT LJ 517, (1996) 1 RENCJ 80, (1995) 1 RENCR 194, (1995) 2 RENTLR 496
ORDER
N.D.V. Bhat, J
1. This Revision Petition is referred to the Division Bench by the Order dated 14.2.1992 passed by the learned single Judge of this Court.
2. The Revision Petition is directed against the order dated 22.8.1985 passed by the learned District Judge, Dakshina Kannada, Mangalore in C.R.P.No. 92/1983. The said Revision Petition was directed against the order dated 21.3.1983 passed by the Munsiff, Udupi.
3. The facts leading to the instant Revision Petition, briefly stated, are as under:
U. Srinivasa Shenoy filed an application at H.R.C.No. 41/1975 before the Court of Munsiff at Udupi under Section 21(1)(a) and (f) of the Karnataka Rent Control Act, 1961 (for short 'the Act') for an order of eviction described in Schedule 'B' in the application for eviction. The father of U. Srinivasa Shenoy was Krishna Shenoy. The father of opponents-1 to 5 was one-Narasimha Shenoy. They were brothers. The property described in Schedule-A of the application for eviction was held by the said brothers on perpetual lease by virtue of a lease deed dated 18.6.1917. The said lease deed, in fact, was obtained by their father Anantha Shenoy from one Raghavendra Rao. When this was so, there was a partition between Krishna Shenoy and Narasimha Shenoy in the year 1956. A partition deed in that behalf was executed which is evidenced by Ex.D.1. The rent payable to the Muladar (the owner) was equally divided between the brothers. When this was so, Krishna Shenoy by a sale deed of the year 1960 purchased the lessor's right in respect of the entire leasehold properties. In other words, he became the owner in respect of the entire property including the moiety held by Narasimha Shenoy, the father of opponents-1 to 5. As a result of the said transaction, Narasimha Shenoy and his branch were liable to pay the rent in respect of the property allotted to the share of Narasimha Shenoy to Krishna Shenoy and his branch. In other words, Krishna Shenoy and after his death U. Srinivasa Shenoy were entitled to recover rent from Narasimha Shenoy and after his death from opponents 1 to 5.
4. It was the case of U. Srinivasa Shenoy in HRC No. 41/75 that Narasimha Shenoy kept up arrears of rent. Even a suit at O.S.No. 314/1964 was filed for the recovery of rent. The children of Narasimha Shenoy also kept up arrears of rent. It was also alleged that opponents 1 to 5 who are the children of Narasimha Shenoy sublet the properties to opponents 6 to 7 contrary to the terms of the lease deed of the year 1917. A quit notice at Ex.P.2 dated 26.4.1973 issued in that behalf did not yield any dividend. Under these circumstances, U. Srinivasa Shenoy filed the aforesaid application at HRC.No. 41/1975 before the Court of Munsiff praying for the reliefs referred to earlier.
5. The said application was resisted by opponent No. 2 in particular, while the relationship of landlord and tenant as between the parties to the application for eviction was not denied, the other allegations made in the application for eviction were not admitted by him. In particular, a contention was raised that the property in question is agricultural in nature and that therefore, the Court exercising its power under the Rent Control Act has no jurisdiction to deal with the matter. Similarly, while admitting that certain sum towards the rent was due, opponent-2 took up a contention that what was payable was fair rent and that the same has not been determined by the competent authority. Further opponent-2 also took up a contention that the forfeiture clause referred to in the application for eviction cannot be enforced, for the reasons reflected in his written statement. He also admitted the sub-lease but asserted that it was temporary and that they are not alienations within the meaning of the Transfer of Property Act. A contention was also raised that there was no impediment to sub-lease the property, Opponent-4 raised more or less similar contention.
6. Opponent-7 filed a separate counter contending among other things, that he is not liable to be evicted.
7. The learned Munsiff took the view that since the property is agricultural in nature, he did not have jurisdiction to try the case. He did not record any findings on the other points raised by him, since according to him, the findings on this aspect are not necessary. In the result, the application for eviction came to be dismissed on a finding on point No. 1 relating to jurisdiction. This order was passed on 21.3.1983.
8. Being aggrieved by the same, U. Srinivasa Shenoy filed C.R.P.No. 92/1983 before the District Court under Section 50 of the Karnataka Rent Control Act.
9. The learned District Judge by his order dated 29.10.1984 sent back the matter to the lower Court with a direction to record findings on point Nos. 2 and 3 framed by it on the available evidence and to submit the same back to the District Court.
10. Accordingly, the learned Munsiff by his order dated 25.2.1985 recorded his findings on point Nos.2 and 3 against the applicant and sent back the papers to the District Court.
11. The learned District Judge, on a consideration of the evidence on record and for the reasons recorded in his judgment, took the view that the Court exercising its power under the K.R.C.Act has the jurisdiction to try the application in question. The learned District Judge also answered the other two points in favour of the tenants with the result, the Revision Petition filed before him came to be dismissed. Hence, the instant Revision.
12. We have heard the learned Counsel appearing for the respective parties.
13. In the light of the submissions made on either side, the following Points arise for Consideration:
1) Whether the petition schedule property is a "premises" within the meaning of Section 3(n) of the Act?
2) Whether the property in question was sublet by respondents-1 to 5 and if so, whether the same is a ground for eviction under the Act, having regard to the nature of the lease deed dated 18.6.1917?
3) Whether the petitioner is entitled to evict respondents-1 to 5 under Section 21 (1 )(a) of the Act?
14. At the very outset it is necessary to bear in mind the scope of exercise of jurisdiction under Section 115 CPC and the scope of revisional jurisdiction under the said Section is well defined. As pointed out by this Court in the Decision in D. VEERAPPA v. BANGARAPPA 1. AIR 1960 Mysore 297 before a petition under Section 115 can be entertained, some facet of lower Court's jurisdiction as detailed in that Section must come up for consideration. Further, the Decision in RAJAGOPALIAH SETTY V.R. v. N. RADHAKRISHNA 1983(2) KLJ 284 pressed into service by the learned Senior Counsel Sri H.B. Datar also is required to be borne in mind.
15. The first Point has a bearing on the question of jurisdiction of the Court exercising power under the Act. The said question, however, will depend upon the answer to the question as to whether the petition schedule property is a "premises" as defined in the Act. Section 3(n) of the Act defines "premises" as under:
"premises", means -
(i) a building as defined in Clause (a);
(ii) any land not used for agricultural purposes;"
16. The learned Munsiff has taken the view that the lease was agricultural in nature and that therefore under the Karnataka Rent Control Act he has no jurisdiction. The learned District Judge, however, having regard to the nature of the property at the relevant point of time and the decision of the Land Tribunal to the effect that the property is not agricultural in nature, took the view that the Court functioning under the Rent Control Act has jurisdiction to entertain and decide the application for eviction. In substance, the learned District Judge took the view that the property in question is a premises within the meaning of Section 3(n) of the Act. While reaching the conclusion in relation to the jurisdiction with reference to this aspect, the learned District Judge has placed reliance on the Decision in GOVINDA NAIK G. v. WEST PATENT PRESS COMPANY LTD. The discussion of the learned District Judge in this behalf can be seen at paras-6 to 9 of his order.
17. Point No. 2: Under this Point it is required to be seen as to whether the property in question was sublet by respondents-1 to 5 and if so, whether the same is a ground for eviction under the Act having regard to the nature of the lease reflected in the deed dated 18.6.1917, The learned District Judge has on fact reached a conclusion that the lease in question is a permanent lease. It can be taken as having been well-settled that even if a tease deed provides for a ground for eviction under the T.P.Act, the same cannot be availed of for evicting the lessee or tenant unless the same is also a ground for eviction under the one or the other clause of Section 21 (1) of the Act. Similarly, even if Section 21(1) of the Act provides for a ground for eviction in a given case, the same cannot be availed of if the terms of lease between the lessor and the lessee guarantee a fixed period of lease or a permanent lease, unless of course, the lease deed also at the same time provides for termination of lease and recovery of possession on the breach of conditions of any of the terms. In fact, this aspect is dealt with by a Full Bench of this Court in SRI RAMAKRISHNA THEATRES LTD. v. GENERAL INVESTMENTS AND COMMERCIAL CORPORATION LTD. In the said case, this Court, on a consideration of the various Decisions of the Supreme Court and the earlier Decision of this Court, has held among other things, as under:
"It is unnecessary to multiply the citations as we do not find any other Decision which is quite relevant to the question raised before us. The meaning attributed to the non-obstante clause in Sub-section (1) of Section 21 of the Act in Bharath Petroleum Corporation's case is not correct; the overriding effect of the said clause is limited to the subject referred to immediately by the words following. In otherwords, even if any other law or contract provides for recovery of possession the same shall be of no effect and the eviction can be made only on the grounds stated in Clauses (a) to (p) of the proviso. This indicates that the landlord should have a right to recover possession and that right cannot be held to vest in him during the period of the term lease unless there is something in the lease deed which provides for the determination of the lease; in such a situation, even after the determination of the lease in the manner stated in the term lease, the recovery of possession will have to be made only by recourse to Section 21(1)".
We hasten to add here that this Court in the said case was concerned with the question as to whether a landlord is entitled to seek eviction of a tenant who is holding the leasehold premises as a lessee under a term lease, before the expiry of the period of lease when there is no provision for the forfeiture of lease in the lease deed. However, in our view, the ratio laid down in the said case, would mutatis mutandis apply even to a case where the lease is of a permanent nature. In the instant case, the lease deed dated 18.6.1917 is styled as a permanent lease. However, it is also noticed that there is a bar for alienation. In the context of the ratio laid down in the aforesaid case, it is clear that even though there is a bar for sublease in the lease deed and the same would result in forfeiture of lease, the same cannot be a ground for eviction under Section 21(1) of the Act. Section 21(1)(f) of the Act reads as under:
"Protection of tenants against eviction -
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant:
Provided that the Court may on an application made to it make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:-
xxx xxx xxx
(f) that the tenant has unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of subletting, assignment or transfer to which the provisions of Section 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force;"
It is necessary to state here that Section 21(1)(f) cannot be read in isolation and the same will have to be read in conjunction with Section 23 of the Act. Section 23 reads as under:
"Tenant not to sub-let or transfer after commencement of this part - (1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part, for any tenant to sublet whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein;
Provided that the State Government may, by notification, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification;
Provided further that nothing in this section shall apply to a tenant having a right to enjoy any premises in perpetuity.
(2) Any person who contravenes the provisions of Sub-section (1), shall, on conviction, be punished with fine which may extend to one hundred rupees."
The provisions of Section 21(1)(f) and Section 23(1) of the Act will have to be understood in a correct perspective. While Section 21 (1)(f) provides that 'unlawful subletting' is a ground for eviction, Section 23(1) stipulates as to what 'unlawful subletting' is. In the context of Section 23(1) it becomes clear that it is not every subletting that is 'unlawful', but subletting without the consent of landlord which is made 'unlawful'. Further the second Proviso to Section 23(1) makes it clear that para-1 of Section 23(1) shall not apply to a tenant having a right to enjoy any premises in perpetuity. In otherwords para-1 of Section 23(1) will not have any application to a permanent tenant.
18. At this juncture, it is necessary to have a clear idea as regards the meaning of the word 'UNLAWFUL'. The Karnataka Rent Control Act does not define the term 'unlawful'. The General Clauses Act also does not define the said expression. Under these circumstances, the meaning will have to be gathered by the Judicial Decisions. 'Unlawful' means contrary to or in defiance of law. Authorities are not wanting which would indicate that the word 'unlawful' is synonymous with the word 'illegal' vide - STATE v. TRUBY, 29 So, 2D 758, 761, 211 La. 178 (WORDS AND PHRASES - PERMANENT EDITION - Vol. 43 -page 544). In the instant case, as pointed out earlier, subletting is barred by the recitals of ,the lease deed dated 18.6.1917. In otherwords, bar to sublet is imposed as one of the conditions of the tease. The precise question, therefore, which would arise for consideration in this context is as to whether the said bar has reflected in the lease deed would make subletting 'unlawful', it is one thing to say that a particular act is contrary to taw and It is another thing to say that it is contrary to the terms of the contract or the terms of the lease. While in certain cases both may overlap in certain other cases they would remain distinct.
19. Sri Padubidri Raghavendra Rao, learned Counsel for the petitioners, however, placed reliance on the Decision in JAINABI v. KRISHNA 5. and the Decision in PRALHAD HUCHARAO CHITGUPI v. HUBLI GINNING AND TRADING CO. LTD. AND ORS. 1974(2) KLJ 416, to contend that recourse to Section 21 (1) of the Act can be had even if the lease is a permanent one. In JAINABAI's case, the learned Single Judge of this Court has held that what Section 21 requires is that notwithstanding anything to the contrary contained in any other law or contract, no order for recovery of possession can be made by the Court, except under the grounds enumerated under Clause (1) of Section 21 of the Act and as such the matter has to be considered de hors the alleged terms of the lease entered into between the parties and to see whether the landlord has made out a case under any one of the grounds mentioned in Section 21(1) of the Act. In PRALHAD HUCHARAO's case, the learned single Judge of this Court has held that the landlord must have a right of re-entry before he can seek eviction under Section 21 and where there is no right reserved in the landlord to terminate the lease, he cannot seek eviction under Section 21. In our view, these Decisions are not of any assistance to the petitioners. In the first place these Decisions do not touch upon the precise question under consideration, Further having regard to the Full Bench Decision in the case of RAMAKRISHNA THEATRES LTD., alluded to earlier, it is not necessary to dilate on the said Decisions. Sri Raghavendra Rao, learned Counsel has also placed reliance on the Decision in PRADESH KUMAR BAJPAIE v. BENOD BEHARI SARKAR, as also the Decision in K.K. KRISHNAN v. M.K.VIJAYA RAGHAVAN, . We may point out here that both these Decisions of the Supreme Court have been considered by the Full Bench of this Court in the case of Ramakrishna Theatres Ltd. particularly at paras-24 and 25 of its Judgment and on a consideration of the said Judgments as also the other Judgments of the Supreme Court, this Court has evolved the ratio referred to and culled out earlier in the course of this Order. Under these circumstances, we are of the view that it is not necessary to dilate on the said Decisions and it will suffice if we bear in mind the ratio in Ramakrishna Theatres Ltd's case; reference is also made by Sri Raghavendra Rao to the Decision in BHARAT PETROLEUM CORPORATION LTD. v. MOHD. HANEEF CHOOHEY, ; it will suffice if it is mentioned at this stage that the said Decision is overruled in the Full Bench Decision referred to earlier. As can be gathered from the Full Bench Decision, it can be taken as well settled, that if a lessor has earned a right to evict the lessee under the term of lease, the same can be made a ground to evict the lessee under the Act, provided that there is also a ground for eviction under any of the clauses of Section 21 (1) of the Act. We have pointed out earlier, with reference to Section 21(1)(f) and Section 23(1) of the Act, as to under what circumstances, subletting can afford a ground for eviction. We have also pointed out earlier as to how subletting by a tenant who is entitled to enjoy the lease in perpetuity is not an unlawful subletting, which alone constitute a ground for eviction under Section 21 (1)(f) of the Act.
20. Sri Padubidri Raghavendra Rao, however, submitted that the second Proviso to Section 23(1) of the Act has no application to the lease in question since the lessee under the lease deed cannot be said to be a tenant having a right to enjoy the premises in perpetuity. The thrust of the submission made by Sri Raghavendra Rao is that having regard to the forfeiture clause in the lease deed the nature of permanency or perpetuity is affected, and the same would, therefore, render the second Proviso to Section 23 inapplicable and para-1 of Section 23 therefore, would apply, thereby making subletting unlawful.
21. In order to appreciate the submission of Sri Raghavendra Rao, learned Counsel for the petitioners, it is necessary to see as to whether the lease in question is a permanent lease.
22. In the instant case there is a written instrument at Ex.P.1 evidencing the lease. It is a cardinal rule of construction of deeds and documents in general, that the intention of the parties should be gathered from the language used by the parties in such deeds and documents and where the words used are clear and unambiguous effect should be given to them according to their natural sense and plain meaning. It is also necessary to remember that the document must be construed as a whole and a construction should be adopted which is reasonable and which will give effect to all parts of the documents. In otherwords a harmonious construction of the document should be preferred to one which causes repugnancy between the various parts. It is also necessary to remember that while formal expressions used in the document to describe the nature of the transaction are relevant they are not conclusive. The rules of construction of deed which are general in nature would apply to construction of lease deeds also.
24. It is in the context of the aforesaid recitals that the Court is required to assess the nature of the lease. As pointed out earlier, the main thrust of the submission of Sri Raghavendra Rao, learned Counsel for the petitioners was on the existence of the forfeiture clause and the right of re-entry. According to Sri Raghavendra Rao forfeiture clause coupled with the right "of re-entry destroys permanency or perpetuity of the lease in question, notwithstanding the fact that the lease deed describes the lease as permanent and perpetual. Sri Raghavendra Rao is right in contending that the existence of a forfeiture clause with a right of re-entry in a lease deed is indeed a relevant factor which will have to be taken into consideration for assessing the nature of the lease. However, as pointed out earlier, it is not just one or two factors which should enter into the Judicial verdict. In our view, the fact that the lease is made hereditary, the fact that the lessees themselves will have to pay the enhanced assessment, the fact that the lessor or his representative has no right to increase the rent, the fact that the leasehold property and the crops grown thereon are made a charge towards the liability to pay rent and enhanced assessment and the fact that the lessor and his representative have no right to demand the surrender of the lease as long the conditions are fulfilled, are indeed the factors which would overwhelmingly militate against the plea that the lease is not a permanent one. In our view, in the context of these factors which can be spelt out from the recitals of the instrument of lease itself, the mere fact that the lease deed contains a forfeiture clause with a right of reentry in the event of non-payment of rent or alienation of the property, by itself, will not make the lease non-permanent. It is not as if permanent lease cannot contain a forfeiture clause at all. In other words, forfeiture clause with right of re-entry is not conclusive to hold that the lease is not permanent, though the said clause is indeed one of the relevant factors which will have to be taken into consideration while deciding the question as to whether the lease is permanent or not. It is also relevant at this juncture to refer to certain Decisions which have a bearing on this aspect In the Decision in BHAGWATI PRASAD AND ORS. v. BALGOBIND AND ORS, AIR 1933 Oudh 161 11. AIR 1933 Oudh 161 . Among other things, it is held as under:
"The lease under consideration does not cease to be a lease in perpetuity simply because, it contains the forfeiture clause in question. The forfeiture clause in question does not affect the permanency of the tenure as long as the annual rent is paid. The provision for the forfeiture of the lease for non-payment of rent was intended merely as security for the payment of rent."
Then again, in the Decision in R.S. RAMMOHANRAI JASWANTRAI DESAI AND ORS. v. SOMABHAI NATHABHAI PATEL AND ORS. Their Lordships of the Bombay High Court have, among others, held as under:
"Under the decree Bhika Parshottam became a tenant for an indefinite period. In accordance with the above decisions, it will therefore have to be held that he was a life tenant, unless it can be shown that the terms of the lease contained in the decree, the surrounding circumstances and the subsequent conduct of the parties indicate that there was an intention to grant a perpetual lease. In support of his arguments Mr. Desai has first relied on the fact that the word "defendant" is used in singular and that there are no words of inheritance and no reference to heirs or legal representative of Bhika Parshottam in the decree. But as pointed out in KOOLDEEP NARAIN SINGH v. THE GOVERNMENT, 14 M.I.A 247 at P. 255 : (11 Beng. L.R. 71 P.C.), the omission of words of inheritance does not show conclusively that the lease was not hereditary. See also BABU v. SITARAM 3 Bom.L.R. 768. Mr. Desai also relied on the provision in the decree about the rendering of service and stated that this showed that there was no intention to create a hereditary interest in the lease. The service to be rendered was that the tenant was to drive the landlord's cart and bullocks on two occasions in a year. This is not service of a kind which could be rendered by Bhika Parshottam alone. It could equally well be rendered by any other person, Consequently this provision does not necessarily suggest that only a life estate was intended to be granted. The other circumstances on which Mr. Desai relied is the prohibition on alienation of the leasehold rights. This undoubtedly is a circumstance in favour of the plaintiffs. But. as pointed out in Bhabataram v. Trailokyanath, 59 Cal. 1282 (AIR (19) 1932 Cal. 764) such a provision does not militate against the permanent character of the tenancy. Mr. Desai also invited our attention to the form in which receipts for rent were issued from 1923 to 1936. in each of these receipts it is stated that the land had been taken on lease for one year. But these receipts were passed by the plaintiffs and any statement made therein would not, therefore, bind the defendants. Also, as I have mentioned above, the plaintiff's story that Bhikha Parshottam had given up his rights under the decree and had, become an annual tenant has not been accepted by the lower Courts. There are in this case other circumstances which, in our opinion, clearly indicate that something much more than a lease to enure only during the lifetime of Bhika Parshottam was intended. The suit in which the above decree was passed was filed by the plaintiff's ancestors for recovering possession of survey No. 174 from Bhika Parshottam. who as stated in the plaint, had been cultivating it since several years. Bhika Parshottam then contended that he was a permanent tenant. The suit ended in a compromise decree, and although a specific contention had been raised by the defendant Bhika Parshottam that he was a permanent tenant, the decree is silent as to the duration of the tenancy. Bhika Parshottam was 60 years old in 1911 when the suit was filed. His expectation of life at that time could not have been more than a few years. The decree makes provision for a revision of the rent every 12 years. This strongly suggests that the parties intended that the tenancy should continue even after Bhika Parshottam's death. Another circumstance indicating a permanent grant is the provision giving the tenant a right not only to 2/3rds share of the fruits of fruit bearing trees, but also to 2/3rds share in the wood of ail trees. The subsequent conduct of the parties leads to the same conclusion. Bhika Parshottam died in 1927 leaving behind two sons, Chatur and Nathabhai. The plaintiffs did not then resume possession of the land, but allowed Chatur to continue as tenant. Chatur died in 1936-37 and since then the present defendants have been in possession of the land. Defendant-1 is the son of Nathabhai, while defendants-2 and 3 are the sons of Chatur. The land has, therefore, been in the possession of Bhikha Parshottam's family for atleast three generations. The only inference that can be drawn from these circumstances is that the lease was not intended to come to an end on Bhika Parshottam's death, but was intended to operate as a perpetual lease, which could be terminated, as provided in the decree, only if there was default in the payment of rent or if the rights conferred by it were alienated.
After a careful consideration of all the circumstances, we are, therefore, of the opinion that a hereditary interest in the lease was created by the compromise decree, which was passed in 1912, and that the defendants are. consequently permanent tenants in respect of 14 3/4 bighas out of Survey No. 174."
25. Sri Raghavendra Rao, learned Counsel for the petitioners, however, wanted to draw some support from the Decision of the Full Bench alluded to earlier. We may point out here that the Full Bench had no occasion to consider this aspect. All that the Full Bench, in substance, has decided is that if a lessor has earned a right to evict the lessee under the terms of the lease the same can be made a ground to evict the lessee under the Act, provided the same is also a ground for eviction under any of the clauses of Section 21(1) of the Act. We may also point out here that this, in substance, is also the ratio in the Decision in V. DHANAPAL CHETTIAR v. YESODAI AMMAL 12. . In the instant case itself, we will point out little later as to how the petitioner has earned a cause of action to file an application under Section 21(1)(a) of the Act notwithstanding the fact that the lease in question is a permanent one. At this juncture, while dealing with Point No. 2 relating to unlawful subletting, we have no hesitation to hold that the lease in question is a permanent lease. Once when it is held that the lessee in question is a permanent lease it would follow that subletting by a lease under the said lease cannot be termed as unlawful subletting in view of the second Proviso to Section 23(1) of the Act. As such, the petitioner has no cause of action under Section 21(1)(f) of the Act. Point No. 2 is answered accordingly.
26. Point No. 3: Under this Point it is required to be seen as to whether the petitioners are entitled to an order of eviction under Section 21(1)(a) of the Act As pointed out by the Supreme Court in DHANAPAL CHETTIAR's case even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law and the tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act and not otherwise. We have also referred to the ratio of the Decision of the Full Bench of this Court earlier hereinabove. In the instant case, there is a forfeiture clause for non-payment of rent in the lease deed as also the right of re-entry in that behalf. Under Section. 21 (1)(a) of the Rent Control Act, if a tenant does not pay the arrears of rent within two months of the date on which a notice of payment for the arrears of rent has been served on him by the landlord by tender or delivery either personally to the tenant or to a member or to a servant of his family at his residence (or if such tender or delivery is not practicable) by affixture to a conspicuous part of the premises, the landlord has the cause of action to recover possession of the premises leased to the tenant. In the instant case, it is noticed that the lease stood determined by forfeiture. Further the petitioner is shown to have earned a cause of action under Section 21(1) (a) of the Act to recover possession. In fact, both the Courts have held that the tenants have failed to pay the rent within the time stipulated in Section 21(1)(a) of the Act, Further while the learned Munsiff has taken the view that respondents-1 to 5 are liable to be evicted and are not entitled to the protection under Section 21(2) of the Act, the learned District Judge has taken the view that they are entitled to protection under Section 21 (2) of the Act.
27. Having regard to what is stated hereinabove, the only aspect under the Point under consideration that is required to be considered is as to whether the discretion exercised by the District Judge Under Section 21 (2) of the Act is as such would call for interference in exercise of the jurisdiction under Section 115 of CPC.
28. It is noticed that the learned District Judge while taking the view which he had taken has taken into consideration the notice at Ex.P.2 issued by the landlord to the tenants. The learned District Judge has also taken into consideration Ex.D.7 which is a reply to Ex.P.2. It is pointed out by the learned District Judge in para-11 of his order that the tenant informed the landlord that the rate of rent claimed in the notice is excessive and he is entitled to claim only the amount mentioned in the lease deed and not the excessive rent. The learned District Judge has also taken note of the tact that the tenant offered to pay the agreed rent as per the lease deed and requested the landlord to inform him as to how much rent is due so as to enable him to send the same. The learned District Judge has also taken into consideration the fact that the rent involved was very small in nature. This aspect is dealt with in para-12 of his order, It is pointed out by the learned District Judge that the rent in cash would come to Rs. 30/- per year which comes to Rs. 2/- p.m. and the value of the mangoes is also taken into consideration the total amount of rent per month would work out at Rs. 4/-. In that context, the learned District Judge has taken the view that no undue hardship can be said to have been caused to the landlord by the non-payment of rent within the stipulated time. On an appreciation of evidence and in the facts and circumstances of the case, the learned District Judge has taken the view that the default committed by the tenant cannot be said to be wilful. It is pointed out by the learned District Judge in para-11 (at page-13) that as soon as the eviction petition is filed, the tenant has deposited the arrears of rent in Court. Further, the learned District Judge has also taken the view that having regard to the contents of the notice at Ex.P.2 and reply thereto at Ex.D7 and having regard to the fact that the tenants could have been labouring under an impression that the Land Reforms Act would apply and if in that context clarification was sought for by the tenants, the same cannot be said to be unjustified also. This aspect is dealt with by the learned District Judge in para-14 of his order. Further the learned District Judge has also taken the view that while interpreting Section 21 (2) of the Act a liberal orientation is required to be had. This aspect is dealt with by the learned District Judge in para-11 of his order (at page-14). In sum, the learned District Judge took the view that the tenants are entitled to the protection under Section 21 (2) of the Act. Section 21 (2) reads as under:
"21. Protection of tenants against eviction-
(1) XXX XXX XXX (2) No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (2), if the tenant :-
(i) complies with the provisions of Section 29;
(ii) satisfies the court that he had sufficient cause for the default to pay or tender the rent within the period referred to in the said Clause (a); and
(iii) pays to the landlord or deposits in the court such further amount, as may be determined by the court to be due, along with a sum not exceeding ten per cent of the rent thereof as may be fixed by the court, within one month from the date of the order of the Court."
It is noticed that the learned District Judge has, on an appreciation of evidence on record, taken the view that the tenant is entitled to the protection under Section 21 (2) of the Act in the context of the different clauses thereunder.
29. Sri Raghavendra Rao, learned Counsel for the petitioners vehemently contended that the approach adopted by the learned District Judge is wholly wrong. It is pointed out by Sri Raghavendra Rao, that the burden to prove the ingredients reflected in each of the Sub-clauses under Section 21(2) of the Act is on the tenants and in the instant case, the tenants have miserably failed to prove the same. The learned Counsel also submitted that the tenants could have atleast paid the agreed rent and failure on their part to pay the agreed rent within two months next after the notice was served on them as required under Section 21 (1)(a) of the Act is fatal and the tenants did not deserve any relief under Section 21(2) of the Act. In this connection, the learned Counsel invited the attention of this Court to the Decision in RAMAIAH v. NARASAIAH, . In the said case, the learned Single Judge of this Court, among other things, has pointed out that under Sub-clause (ii) of Sub-section (2) of Section 21, the Court is directed to consider only the default in the period of two months mentioned in Clause (a) of Sub-section (1) of Section 21 of the Act and if that is not paid within the stipulated period without justifiable cause (underlining supplied), then the Court has no choice but to pass an order of eviction. It is further pointed out therein that there is no room for Judicial discretion to refuse an order of eviction and any discretion that the Court has to exercise is only in regard to sufficiency of the cause and no more. It is further observed in the said case that Sub-clause (iii) of Sub-section (2) of Section 21 of the Act provides that in case of dispute as to quantum of rent an enquiry has to be held and disputed amount will have to be determined, It is emphasised in the said case that liberal approach if at all is to be adopted only in determining as to what constitutes sufficient cause and in not disregarding the mandate of Clause (a) of Sub-section (1) of Section 21 of the Act. It is further pointed out that the tenant has to pay the admitted rent lawfully due within two months and on failure he is liable for eviction.
30. It is noticed that the learned District Judge has, in fact, taken into consideration the said Decision while considering this aspect. He has also referred to another Decision of this Court viz., the Decision in GULAM RASUL MANRULWALA v. SUSHEELAMMA, 1983(1) KLJ 4. In the said case, it is pointed out by the learned Single Judge that while exercising the discretion under Clause (ii) of Section 21(2) of the Act, the Court should keep in mind the beneficial nature of the law and the language of the Section. It is further pointed out that unless the tenant's conduct disentitled him, the Court's hands are not tied to exercise its discretion in his favour. It is also observed in the said case that of the many factors to be taken note the first and foremost is the conduct of the tenant and in assessing his conduct the Court has to see whether he is a chronic defaulter, whether he had any genuine ground from his point of view to withhold the rent and the Court is also required to consider as to whether he was prevented from any real difficulty in remitting the amount as also his economic condition. It is noticed that the learned District Judge has considered both these Decisions and in fact, in para-13 of his judgment has pointed out the relevant observations made by the learned single Judge of this Court in RAMAIAH's case , which reads as under:
"Any discretion that the Court has to exercise is only in regard to sufficiency of the cause and no more."
After having considered both the cases and after having taken into consideration the several factors enumerated earlier, the learned District Judge has taken the view that the tenant has sufficient cause for not making the payment within the stipulated time. We noticed that the learned District Judge while taking the view which he has taken in this behalf has given reasons based on facts? We have briefly referred to the several factors which the learned District Judge has taken into consideration while reaching the conclusion that the tenants as entitled to the protection under Section 21 (2) of the Act, After a careful consideration of the reasons reflected in the order of the learned District Judge, we are indeed of the view that it is not at all possible to say that the District Judge has acted in the exercise of his jurisdiction either illegally or with material irregularity. It is true that the view of the District Judge on this aspect is in conflict with the view taken by the learned Munsiff However, the fact that the two Courts differ in their conclusion would not be a ground for eviction, (M.D. SULEMAN v. SUKUMAR, (1968) 1 SCWR 424). Further, even if a different view is possible than the one taken by the learned District Judge that by itself will not be a ground for interference in Revision under Section 115 CPC (BHOJRAJ KUNWARJI OIL MILL AND GINNING FACTORY AND ANR. v. YOGRAJSINHA SHANKARSINHA PARIHAR AND ORS., , Under these circumstances, we answer Point No. 3 in the negative.
31. For the reasons stated hereinabove, we are of the view that there is no ground for interference with the order passed by the learned District Judge. The Revision Petition is liable to be dismissed. Accordingly, the same is hereby dismissed. There is no order as to costs.