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1974 DIGILAW 78 (KAR)

M. R. ANANTHASWAMY v. PUTTAMMA

1974-04-02

M.S.NESARGI

body1974
( 1 ) THE petitioner-tenant has in this petition challenged the order of eviction passed by the V Addl I Munsift, Bangalore, in HRC No. 995 of 1971 and affirmed by the I Addl Dist Judge, Bangalore, in HRC No. 41 of 1973. The respondent is the land-lady. ( 2 ) THE admitted facts are that the petitions is the tenant and the Respt. is the land-lady. The rental of the schedule premises is Rs 20 p. m the facts held proved by the two Courts below are that the Respt-land-lady issued notice Ext P1 dt 29-6-1971 intimating the tenant that ho had failed to pay the rental for the period between 1-6-1969 and 30-6-1971 (24 months) and that he was called upon to vacate the premises on the expiry of the 31st of July 1971 The tenant did not vacate the premises. The land-lady instituted HRC proceedings on 8-9-1971 under Cl. (a) of the proviso to S. 21 (J) of the Karnataka, Rent Control Act, 1961, (hereinafter referred to as the Act) The tenant contended that he had not at ail defaulted in payment of ren1al and had in fact discharged all the dues and further that he had paid a sum of Rs 250 to the land-lady as advance and he was entitled to adjustment of the same. ( 3 ) BOTH the Courts below have found that the tenant had not established that he had paid all the rental due and also had paid a sum of Rs 250 as advance towards the rental They further held that as the tenant had not shown sufficient cause for the default to pay 01 tender the rent within the period referred to in Cl (a) of the proviso to S 21 (1) of the Act, he was not entitled to protection from eviction in view of sub-sec. (2) of Sec. 21 of the Act. ( 4 ) SRI S M. Hegde, learned Advocate appearing on behalf of the petitioner-tenant, strenuously urged that the two, Courts below have not understood the ambit of sub-sec (2) of S. 21 of the Act, and as such, have not applied it m a proper manner. He propounded that the tenant had shown sufficient cause for the default by contending that he had paid all the rental due to the landlady and had also paid a sum of Rs. He propounded that the tenant had shown sufficient cause for the default by contending that he had paid all the rental due to the landlady and had also paid a sum of Rs. 250 as advance towards the rental and that contention ought to have been considered by the two Courts below in order to find out whether it really amounted to sufficient cause or not as provided under Cl. (n) of sub-sec (2) of S 21 of the Act. He, in this connection, pointed out that all that the two Courts below have found out is that the tenant had not established that he had discharged the rental due to the landlady and had paid the amount of rs,250 towards the advance of rental. He contended that, that was not the proper approach to be adopted by the Courts below. ( 5 ) CLAUSE (a) of the proviso to S. 21 of the Act gives a right to the landlord to seek eviction of a tenant on the ground that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him 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 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. Sub-sec. (2) of S 21 of the Act, lays down specifically that no order of recovery of possession of any premises shall be made on the ground specified in Cl. (a) of the proviso to sub-sec. (1) of S. 21 of the Act, if the tenant complies with the following three, things :" (i) with the provisions of Section 29; (ii) satisfied the Court that he had sufficient cause for the default to pay or tender the rent within the period referred to in the said CL (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, with in one month from the date of the order of the Court. " ( 6 ) AN order of eviction under Cl. (a) of the proviso to S. 21 (1) of the Act can be passed only on the basis that even after the expiry of two months of a notice served on the tenant in regard to the arrears of rental, the tenant failed to pay or deposit the same Jo the landlord. Such order of eviction cannot be based on any arrears, in regard to which, notice as contemplated by Cl. (a) of the proviso to S. 21 (1) of the Act has not been issued by a landlord This has to be borne in mind while understanding the three clauses in Section 21 (2) of the Act. Application of S. 29 of the Act is not called for in this case as that question does not arise on the facts and circumstances of this case. Hence there is no obligation on the petitioner-tenant to comply with the provisions of Section 29 of the Act. ( 7 ) THE contention of the tenant that he had discharged all the rental dues and had also paid a sum of Rs. 250 as advance towards rental has not been established by the tenant by producing cogent and reliable evidence. He has not produced any receipts issued by the landladv in this behalf He has merely stated on oath that the landlady was not in the habit of issuing receipts and therefore he had no receipts with him, and in fact he had paid all the rental and also had paid an amount of Rs. 250 as advance towards rental. He has not established any circumstances to probabilise that he had, in fact, paid all these amounts to the landlady Sri S. M. Hegde pointed out that the landlady has admitted that in regard to certain payments made by the tenant she had not issued any receipts. But that cannot by itself lead to a conclusion that all that had been sworn to by the tenant is acceptable in proof of his contention that he had discharged all the rental due by him to the landlady. These facts have been properly dealt with by the two Courts below and I agree with the findings given by them in this behalf. These facts have been properly dealt with by the two Courts below and I agree with the findings given by them in this behalf. It is hence clear that the tenant has failed to satisfy the Court that there was no default committed by him in regard to the arrears of rental mentioned in Ext. P1 notice, which is the subject-matter of the proceeding under Cl. (a) of S. 21 (1) of the Act. The default committed by the tenant is satisfactorily established. It was up to him to put forward sufficient cause for the default to the satisfaction of the Court. When he has contended that there was no default and has failed in that contention, there does not remain any circumstance which could be regarded as sufficient cause shown by the tenant. When no such circumstance exists, then the question of the Court being satisfied whether such circumstance amounts to sufficient cause or not does not arise. Therefore, the contention put forward by Sri S. M. Hegde that the two Courts below have not understood the ambit of sub-sec. (2) of S. 21 of the Act and have not approached the material on record in a proper persepective, cannot be accepted. ( 8 ) I have already shown that the law requires that the tenant should comply with the above narrated three conditions in sub-sec. (2) of S. 21 of the Act so as to be entitled to protection from eviction. If a tenant fails to establish any of these three conditions which apply to the facts and circumstances of a case, then he cannot claim protection from eviction, because the law does not provide such a protection to such a defaulting tenant. Sri S. M. Hegde also contended that the Court below ought to have called upon the petitioner-tenant to pay the amount found due by him within one month as laid down in Cl. (iii) of sub-sec. (2) of S 21 of the act. I am unable to see any force in this contention, because Cl. (iii) does not pertain to the default covered by Cl. (a) of the proviso to S. 21 (1) of the Act. It clearly pertains to the further amount found due as- may be determined by the Court. It is only Cl. (ii) of sub-sec. (2) of S. 21 of the act that governs the default covered by Cl. (iii) does not pertain to the default covered by Cl. (a) of the proviso to S. 21 (1) of the Act. It clearly pertains to the further amount found due as- may be determined by the Court. It is only Cl. (ii) of sub-sec. (2) of S. 21 of the act that governs the default covered by Cl. (a) of the proviso to S. 21 (1) of the Act. ( 9 ) IN view of this position in law, available on the basis of the facts established, it has to be held that the orders passed by the two Courts below cannot be interferred with. I, therefore see no substance in this petition and hence dismiss jt with costs. The petitioner-tenant is allowed three months' time from this day to give vacant possession of the premises to the landlady. --- *** --- .