RANGA NAIKA v. SARASWATHI, RATNA BAI — 1971 DIGILAW 62 (KAR)

( 1 ) THE petitioner in this revision application is the tenant respondent in HRC 256 of 1970 on the file of the Principal Munsiff at Mangalore, south Kanara. Two questions have been raised before this Court, both dealing with the interpretation of Ss. 29 (1) and 29 (4) of the Mysore house Rent Control Act, 1961. ( 2 ) THE landlord filed an application for eviction under S. 21 (1) (h) and 21 (1) (j) of the Mysore Rent Control Act for eviction of the tenant. In the application it was stated that the tenant is a monthly tenant in respect of the premises on a monthly rental of Rs. 15 which is exclusive of electric charges payable by the end of the month. In the counter statement filed by the respondent it was stated: "it is also true that this respondent is to pay a monthly rental of Rs. 15 and Rs. 3 per month towards electricity charges". The tenant having not paid or deposited the rent for the months from February 1970 to June 1970, an application was filed on 17th July 1970 for an order under S. 29 (4) of the Mysore Rent Control act. 1961. In support of the application. an affidavit was filed and in para 3 of the affidavit it was stated: "i say that the opponent is a monthly tenant under the petitioner on a monthly rental of Rs. 15 exclusive of electricity charges" The tenant also admitted in the counter statement "that this respondent submits that he is liable to Rs. 15 as rent and Rs. 3 towards the electric charges" Thereafter in the counter statement, no explanation was given as fo why the amount was not deposited. ( 3 ) THE learned Principal Munsiff who heard the said application passed the order under revision on 3-9-1970. He held that the tenant was highly irregular and indifferent in the payment of monthly rents and that no explanation has been given for the failure to deposit the monthly rents as and when they became due and no reasons were stated as to why further proceedings should not be stopped. He held that the tenant was highly irregular and indifferent in the payment of monthly rents and that no explanation has been given for the failure to deposit the monthly rents as and when they became due and no reasons were stated as to why further proceedings should not be stopped. Accordingly, he allowed the application, stopped further proceedings and directed the tenant to put the landlord in possession of the schedule premises within one month from the said date, i. e. , 3-9-1970 It is against this order that the present revision application has been filed. ( 4 ) SRI Tukaram S. Pai, the learned Counsel for the petitioner, has advanced two interesting questions before this Court. The first question he has raised is that a tenant under the Rent Control Act has two sets of defences open to him. One is what he calls it as the special defence which he is entitled to have under S. 21 (1) of the Mysore Rent Control Act. The second is what he calls it as genera] defence which is open to him under the general law, e. g. , that the tenancy has not been terminated by means of quit notice etc. The contention raised by Mr. Pai is that under the provisions of S. 29 of the Act what is struck off is the special defences which are available to him under S. 21 of the Act and not general defence's which are available to him under the general law. It was further contended that in the present case there was a dispute with regard to the quantum of rent and the only order which the Court could pass under s. 29 of the Act was first an order under S. 29 (3) of the Act directing the tenant to pay the amount and it was only on the failure to comply with that order the further order under S. 29 (4) could be passed. Both these arguments which are raised by Sri Tukaram Pai have been seriously contested by Sri U. L. Naravana Rao, the learned Counsel appearing for the respondent. ( 5 ) SEC. 29 (1) (3) and (4) of the Act have been subject matter of several decisions of this Court, and I will presently deal with the wordings of the provisions of the section and thp object of the legislation. ( 5 ) SEC. 29 (1) (3) and (4) of the Act have been subject matter of several decisions of this Court, and I will presently deal with the wordings of the provisions of the section and thp object of the legislation. Under s. 29 (1) of the Act it has been provided that no tenant against whom an application for eviction has been made bv a landlord under S. 21 of the act shall be entitled to contest the application before the Court under that section unless the tenant pays all the arrears of rent due in respect of the premises and continues to pay it as and when it accrues due. S. 29 (1) of the Act came up for consideration before the Division Bench of this Court in Hanumantha Bhatta v. Govalakrishna Kedilaya, CRP. 1222/65 dt. 18-2-69. The relevant portion of the observation of this Court, is given below:"the language of sub-sec. (1) of S. 29 in our opinion, is clear and it does not admit of any construction as contended bv the learned counsel for the petitioner. The object of sub-sec. (1) of S. 29 is that any tenant who wants to prosecute proceedings under the Act should pay or deposit all arrears of rent and that he cannot take the benefit of the Act unless he discharges his obligation of paying or depositing all arrears of rent under the Act. The learned Counsel for the petitioner was unable to show anv reason for making a distinction where revision is preferred against the order of the District Judge on appeal and the order of the Munsiff made under sub-sees. (1) and (4) of s. 29. The petitioner (tenant), admittedly, has not paid or deposited the rent found ,as arrears by the Court below and therefore he was not entitled to prefer any revision petition or prosecute the same. " ( 6 ) IN so far as the passing of an order under S. 29 (4) is concerned there are three judgments of this Court which are relevant and which have been referred to by the learned trial Judge, and before making a reference to some of these judgments I shall set out the provision of s. 29 (4 ). Under S. 29 (4) it is clear that, a tenant is entitled to show sufficient cause for not stopping all further proceedings, and if he shows sufficient cause, then the proceedings will not be stopped but the Court will hear his defences and dispose of the application in accordance with law. But if the tenant is not able to show sufficient cause for not stopping the proceedings, then, according to my view, an order directing the tenant to put the landlord in possession has to follow. ( 7 ) SRI Pai, the learned Counsel for the petitioner, in support of his submission that the tenant gets what he calls a double opportunity i. e. , first to show sufficient cause for not stopping the proceedings, and second that even if he is not able to satisfy the Court with regard to not stopping of the proceedings since the main order has to be passed actually under s. 21 of the Act, he is entitled at that stage to submit to the Court the general defences which are open to him. In support of the submission, he has relied upon a judgment of the Madhya Pradesh High Court in krishnabai v. Laxmibai, AIR 1970 MP. 280 . The relevant paragraphs of the said judgment are at paragraphs 7 and 10 which are given below:"7. S. 13 of the Act imposes an oblation on the tenant to deposit in Court or pay to the landlord all arrears of rent and also to go on so depositing or paying rent throughout the pendency of the suit within the time prescribed in the two parts of that section. Sub-sec. (6) of S. 13 then lays down the consequenccs of non-compliance with the requirements of section It runs thus: 13 (6 ). If the tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit' two things are abundantly clear from the language of sub-sec (6 ). The first is that the defence afainst eviction which is struck out is the defence against eviction of the tenant under S. 12 of the Act. Such striking out of the defence does not debar the tenant from taking any defence to which he is entitled under the Transfer of Property act. The first is that the defence afainst eviction which is struck out is the defence against eviction of the tenant under S. 12 of the Act. Such striking out of the defence does not debar the tenant from taking any defence to which he is entitled under the Transfer of Property act. Notwithstanding such striking cut of the defence he can still show, for instance, that there is no relationship of landlord and tenant between him and the plaintiff, or that the lease was not determined as required by S. 11 of the Transfer of Property Act, so that during the subsistence of the lease he cannot be ejected. This was also the view taken in Premdas v. Laxmi Narayan (l964 MPLJ. 100 ). 10. It is wrong to think that the grounds enumerated in s. 12 are grounds of defence; indeed, they are grounds to constitute a cause of action for the plaintiff to sue for ejectment. There is nothing in the language of S. 13 (6) of the Act to exclude the application of s. 12 to a suit as a consequence of the striking out of the defence. If that had been the intention of the framers of the law, then the section would have been so worded, and after the words 'may order defence against eviction to be struck out and shall proceed with the hearing of the suit", there would have been found the following words: 'and shall proceed with the hearing of the suit without entering into an enquiry whether any ground under S. 12 exists'. The section, as it stands today merely enjoins the Court "to proceed with the hearing of the suit. " The only meaning of this expression is that the Court shall proceed with the hearing of the suit according to law. To put it differently, a decree shall be passed, if the plaintiff proves the cause of action on which the suit is based; otherwise, it will be dismissed. " ( 8 ) IT may be seen that according to the provisions of S. 13 (6) of the madhya Pradesh Act, what has been provided is that the Court after striking of the deience snail proceed with the hearing of the suit without entering into any enquiry whether any grounds under S. 12 exist. " ( 8 ) IT may be seen that according to the provisions of S. 13 (6) of the madhya Pradesh Act, what has been provided is that the Court after striking of the deience snail proceed with the hearing of the suit without entering into any enquiry whether any grounds under S. 12 exist. The wordings used in S. 13 (6) and those of S. 29 (4) of the Mysore Act are entirely different. Under S. 13 (6) of the Madhya Pradesh Act, the Court has to proceed with the hearing ol the suit and only the grounds under s. 12 are not required to be considered. But under the Mysore Act what. is required to be done is stopping of further proceedings and making an order directing the tenant to put the landlord in possession of the premises. Therefore under the Mysore Act, there is no question of any further occasion for a tenant to resist the application. This view finds support from the observations in some of the judgments given by this Court, apart from the decisions, the wording of S. 29 (4) is itself absolutely clear and admits of no ambiguity. If the Court passes an order stopping further proceedings and has to make an order directing the tenant to put the landlord in possession, according to me, there is no other opportunity available to the tenant wherein he can substantiate, as Mr. Pai calls the general defences. What happens under the Mysore Act is that further proceedings under S. 21 of the Act are stopped and that the landlord gets an order in his favour directing the tenant to deliver possession under s. 29 (4) of the Act. Therefore there is no further occasion for the tenant to contest or resist the matter. ( 9 ) SRI Tukaram Pai further contended that under S. 29 (4) of the act a tenant is entitled to show cause as to why further proceedings should not be stopped and also why an order for eviction should not be made. By implication it was suggesed by the learned Counsel for the petitioner that the petitioner can show sufficient cause for not stopping proceedings by raising contentions like the notice to quit being not valid. I am not inclined to accept this contention of the learned Counsel for the petitioner. By implication it was suggesed by the learned Counsel for the petitioner that the petitioner can show sufficient cause for not stopping proceedings by raising contentions like the notice to quit being not valid. I am not inclined to accept this contention of the learned Counsel for the petitioner. I have already referred to the judgment of this Court wherein it has been laid down that under S. 29 of the Act, it is the duty of the tenant to pay the rent and it is only on payment of that rent, he is entitled to contest the proceedings. S. 29 of the Act states that if the tenant fails to pay the rent, then the Court may stop all further proceedings, unless sufficient cause is shown. Now the sufficient cause which is contemplated, under s. 29 of the Act is not a sufficient cause in answer to a petition filed under s. 21 of the Act. Dealing with the provisions of S. 29 (4), this Court in thomas Veigas v. Leelavathi, (1965) 2 Mys. L. J. 371, laid down as under: "the object of the provisions of S. 29, in my opinion, is to secure prompt payment of rent by the tenants to the landlords during the pendency of the proceedings for eviction under the Act, and to discountenance any attempt on the part of the tenants from stopping payment. A tenant, who wants to avail of the benefits of the Act, is placed under an obligation to perform his part of the duty, namely, the prompt payment of rent within the time allowed by law. If the tenant commits default, the statute has provided, by way of penalty, for the forfeiture of the protection afforded by the Act to the tenant; but power is conferred on the Court to relieve against the forfeiture if the tenant shows 'sufficient cause', and that power has to be exercised by the Court on taking into consideration all the facts and circumstances of the case. The clause 'unless the tenant shows sufficient cause to the contrary' is not in regard to the failure to pay or deposit the rent, but has reference to the subsequent clause, viz. , 'to stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises. " (page 373 ). The clause 'unless the tenant shows sufficient cause to the contrary' is not in regard to the failure to pay or deposit the rent, but has reference to the subsequent clause, viz. , 'to stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises. " (page 373 ). Again at page 374, the learned Judge has referred as to what is required to be done by the tenant and has stated that sufficient cause to be shown is not for the failure to pay or deposit the rent, but the cause is to be shown for stopping all further proceedings and making of an order directing the tenant to put the landlord in possession of the premises. This is clear from the language of the section, Again on the same subject, in another part ol the judgment, his Lordship has stated that what circumstances would constitute sufficient cause to award relief to a tenant under sub-sec. (4) not having been laid down by the Act, the Courts have to exercise the discretionary power taking all the facts and circumstances of the case. In the consideration of the facts and circumstances, one of the relevant considerations would be the circumstance that the tenant has failed to pay or make the deposit. The other consideration is bona fide conduct of the party and the like. The sufficient cause which is being pleaded before me is the sufficiency of the cause against the granting of the application under S. 21. I am unable to accept this contention as, if this contention is accepted, the provision of S. 29 (4) of the Act is rendered nugatory. Therefore I am of the view that the first contention raised by the learned Counsel for the petitioner is not acceptable and hence the same is rejected. It may be seen that this Court in more than one judgment has laid down that when an order is passed under S. 29 (4), it need not comply with the provisions ol S. 21 (1) (a) of the Act, and it has also been stated that even though an order under S. 29 (4) implies an order for eviction, it is not an appealable order. Having regard to the view taken by this Court, the contention advanced by the learned Counsel for the petitioner cannot be entertained. Having regard to the view taken by this Court, the contention advanced by the learned Counsel for the petitioner cannot be entertained. ( 10 ) THE second contention raised by the learned Counsel for the petitioner is that in the present case there was sufficient cause for nonpayment and further there was no direction for payment of the quantum of rent chat was required co be deposited, and hence the order under S. 29 (4) was one without jurisdiction. In this connection, it may be stated that on a reading of the petition, the objection statement, the affidavit filed in support of I. A. No. I and the counter statement filed to the same, I am of the view that there is no dispute re: payment of rent. The only dispute was whether the tenant should pay electric charges in addition to the rent or whether it was a sum of Rs. 3 in addition to the rent of Rs. 15. So far as the payment of Rs. 15 is concerned, there is no dispute between the parties. Therefore I am of the view that there was no need for passing an order under S. 29 (1) of the Act. ( 11 ) IN so far as the question of sufficiency of cause was concerned, it may be seen that the Court below has stated that there is hardly any doubt that the tenant was highly irregular and indifferent in the payment of rents and no reasons have been assigned as to why the proceedings should not be stopped as the conduct was said to be not a bonafide one. I am in full agreement with the view expressed by the learned Judge and I reject this contention of the learned Counsel for the petitioner. ( 12 ) THE revision application fails and the same is dismissed. ( 13 ) IN the circumstances of this case, I grant time till 1-11-1971 for vacating the premises, I also direct the tenant to pay all the rent that is due till 1-11-1971 before 1st of May 1971. --- *** --- .