GOPICHAND BALWANTHARAO v. PUNDALIK GOVINDAPPA — 1976 DIGILAW 195 (KAR)

( 1 ) THIS revision under S. 50 of the Karnataka Rent Control Act 1961 (hereinafter referred to as the Act) is directed against the judgment of the Dist Judge, Bijapur reversing in appeal the judgment of the Addl munsiff, Bijapur whereby granting the application of the landlord under s. 21 of the Act, he ordered eviction of the tenant from the non-residential premises CTS. 48 of Bagalkot. The landlords Muralidhar Govindappa pethakar and his two brothers filed the petition under S. 21 (1) (a) (b) (f), and (o) of the Act, for eviction of Gopichand Balawanthrao Wadka and another who are the tenants, on the grounds, of their bona fide and reasonable need for occupation, default in payment of rent, sub-letting and utilising the premises for the purpose for which they were not let out. It was stated that the landlords are running their own business in their residential house bearing CTS. 42 of Ward 9 which is not a suitable place for the said business and since they want to expand their business they stand in need of the disputed premises which are situated within the business locality of that town. It was also stated that the tenants were not doing any business of their own in the disputed premises and as such they could easily vacate the same. As stated before it was also contended that on the date of the petition a sum of Rs. 1160-59 was due towards the arrears of rent. The other two pleas of the landlords as to sub-letting and utilisation of the premises for a purpose for which it was not let out, were not pressed before the learned Dist Judge and the said pleas are even left out in revision as such the same may not be considered. The learned Munsiff however disagreed with the landlord and held that the arrears of rent were paid and that a reasonable and bona fide requirement of the landlords was not made out. Accordingly he dismissed the petition. The landlords went up in appeal before he learned Dist Judge but there they succeeded. The two pleas raised by the landlords, viz, the default in payment of rent and the reasonable and bona fide requirement for their own use and occupation, found favour with the learned Appellate Judge. Accordingly the petition was allowed and the tenants were asked to vacate the premises. The two pleas raised by the landlords, viz, the default in payment of rent and the reasonable and bona fide requirement for their own use and occupation, found favour with the learned Appellate Judge. Accordingly the petition was allowed and the tenants were asked to vacate the premises. They have now come up with the present revision. ( 2 ) DURING the course of the pendency of the petition, before the learned Munsiff, an application IA. 1 was filed stating that the tenants were not paying the arrears of rent and that they should be directed to discharge their liability. Thereafter in August and September, 1973 a sum of rs. 1. 600 was deposited by the tenants. IA. 1 was then not pressed by the landlords. Since this aspect has some bearing on the application of S. 29 to a proceeding under S. 21 of the Act as argued by the learaed Counsel for the petitioners, it need be mentioned at this stage. ( 3 ) IT was urged on behalf of the petitioner tenants that the default if any in payment of rent committed by the tenants so as to afford a ground to the landlords under S. 21 (1) (a) of the Act cannot be utilised for their eviction, because, the tenants complied with the provisions contained in s. 21 (2) of the Act. The Appellate Judge, however in that connection held at one place that sufficient cause was shown by the tenants for not paying or tendering the rent, while at another place he chose to State that the cause shown by the tenant was not sufficient. In their reply to the main petition it was contended by the tenants that they had suffered loss in their business. That was a reason why they could not pay the arrears at the earlier stage. The agreement to lease Ext. P1 itself was entered under circumstances, Wherein, the tenants had to surrender a part of the disputed premises in favour of the landlords. This they did because of the loss suffered by them in the business. Similarly, they stated in their reply to the notice which is Ext. P5 signifying thereby that their circumstances were not affluent and they were not in a position to pay up the entire arrears. This they did because of the loss suffered by them in the business. Similarly, they stated in their reply to the notice which is Ext. P5 signifying thereby that their circumstances were not affluent and they were not in a position to pay up the entire arrears. In his cross examination one of the tenants also stated in the Court, that they had suffered loss m the business. The landlord himself said in the witness box that the tenants were not doing any business it is obviously so because according to the landlords, the tenants are not getting any profit in their business All these circumstances did indicate a cause for the default to pay or tender the rent, and the "learned Appellate judge has not givea any reason why these reasons as stated did not amount to sufficient cause for the default To that extent thus, the finding of the learned Appellate Judge cannot be sustained. ( 4 ) THE tenants no doubt complied with S. 21 (2) (ii) of the Act. The learned Counsel for the respondents laid his stress on Cl (i) of sub-sec (2) and insisted that the tenants have not complied with the provisions of Section 29 of the Act To me Appears that S 29 in order to have an impact upon S. 21 of the Act, does not by itself contain a provision to be complied with so as to enable the enant to escape the ground contained in S. 21, (1) (a) of the Act S. 29 of the Act barely disentitles a tenant to contest the application or to prefer a revision unless he pays to the landlord ro deposit in Court the arrears of rent. This section also describes within what time and in what manner the payment or the deposit is to be made. Thereafter it is laid down in that section that unless the tenant Shows sufficient cause to the contrary, the Court either suo moto or upon an application of the landlord may stop all further proceedings and may even make an order directing the tenant to put the landlord in possession of the premises. Thereafter it is laid down in that section that unless the tenant Shows sufficient cause to the contrary, the Court either suo moto or upon an application of the landlord may stop all further proceedings and may even make an order directing the tenant to put the landlord in possession of the premises. Merely because S. 29 is there in the Act, and especially in a situation where neither the Court suo mote proceeds under that section, nor the landlord chooses to file the application for payment of rent and asking to stop proceedings or to make an order directing the tenant to put the landlord in possession, it cannot be stated that the ground under S. 21 (1) (a) of the act succeeds and the tenant cannot avail of the provisions contained in sub-sec (2)of that section as he has not complied with the provisions of S. 29 of the Act Sub-sec (2) (i) decidely presupposes that either the Court suo moto makes an order under S. 29 of the Act, or the landlord files an application under that section for an order, and some direction is made in consequence to these proceedings Only thereafter the tenant can be asked to comply with the provisions of S 29 of the Act, and failing that he cannot scape the consequence of the default in payment of rent which shall be a ground for his eviction. In the instant case, neither an application was filed by the landlord for an order under S. 29 of the Act, nor the Court suo moto proceeded under that section and made an order and that being so it cannot be stated that the tenant has not in any manner complied with the provisions of S. 20 of the Act. The learned Counsel for the petitioners in that connection, referred to and Division Bench decision, of this Court in ayesha Biddiqua Brgum v V. V. Sheik Kutty, (1968) 2 Mys. L. J. 5. The learned Counsel for the petitioners in that connection, referred to and Division Bench decision, of this Court in ayesha Biddiqua Brgum v V. V. Sheik Kutty, (1968) 2 Mys. L. J. 5. The learned Judges significantly observed as follows : " Thus, unlike the East Punjab Urban Rent Restriction Act, our act has left the date of payment of arrears of rent to the tenant h imself with the result, that it may in some cases, happen that the court does not start proceedings under S 29 (4) either by itself or on an application of the landlord, the tenant against whom an application under S. 21 is made may commit default in payment of rente becoming due pending disposal of the said application and continue to be in possession of the premises with impunity without payment of rente becoming due subsequent to the application until the dispoal thereof or may choose a date for payment of all arrears of rent before the disposal of the application under S. 21 unless proceedings under Sec. 29 (4) are started earlier and eseape the consequences mentioned therein. It is manifest the learned Judges while deciding that case did consider a situation where the proceedings do not start under S. 29 of the Act and specifically said that the tenants can continue to be in possession of the premises with impunity without payment of rent becoming due, though the landlord may choose to proceed against them under S. 29 of the Act, and by doing so unless sufficient cause is shown to the contrary, the tenants can be asked to deliver possession to the landlord even during the pendency of the petition under S. 21 of the Act. It is further to be considered that their Lordships in that case were considering S. 29 of the Act, inasmuch as proceedings under that section were already initiated and they were called upon to decide as to what impact that section had upon the petition under S 21 of the Act. In fact, in view of the amendments made in sub-sec (2) of S. 21 of the Act, a direct impact of S. 29 has been made on S. 21 of the Act But that can only be, when some proceedings under that section have been taken and some orders has been passed which requires to be complied with by the tenant. ( 5 ) THE learned Counsel for the Petitioners relied on another decision in CEP 1855 of 1967 (2) decided on 30-6-89. But that case also arose out of aft application under S. 29 of the Act. As I have stated before, in the instant case, neither an application under S. 29 of the Act was moved before the learned Munsiff nor the Court suo moto proceeded under that section. Thus, in fact the two decisions relied upon by the learned Counsel, with respect have no direct application in the present case. ( 6 ) AS to the other ground relating to the reasonable and bona fide requirement of the landlord in my opinion, the learned Dist Judge has again committed an error in arriving at the rinding. In the petition in paragraph 6 it was stated, that the business was being carried on by the landlords in CTS. 42 of Ward 9. But in their statements before the Court, it was stated that the landlords carry on the business in the premises which were surrendered by the tenants in 1969-70. The disputed premises are no doubt CTS. 48 and not CTS. 42 as stated in the petition. It is however stated that the disputed premises on one side face the bazaar area while on the back side they are opposite to a lane. The landlords perhaps constdered that the site facing the bazaar area is more suitable for them for business. Nonetheless, they are carrying on their business in a portion of the disputed premises which were "surrendered in their favour by these very tenants in 1969-70. The previous rent for the entire premises was es. 1,000 and after the surrender effected in 1969-70, the rent was reduced to Rs 550, meaning thereby, that half of the premises were surrendered. The learned Counsel for the petitioners rightly contended that the surrendered portion must be equal in area as compared to the disputed premises. As such, the landlords cannot be stated to be Occupying a very small area for their business. It is also admitted in evidence that some new buildings was constructed by these very landlords and the same was let out to some other tenants. As such, the landlords cannot be stated to be Occupying a very small area for their business. It is also admitted in evidence that some new buildings was constructed by these very landlords and the same was let out to some other tenants. The learned Dist Judge gave the finding in favour of the landlords because he considered, that the tenants were no longer doing business in the disputed premises, which statement was not admitted by the tenants themselves and also because he considered that the circumstances compelled the landlords to take on rent another premises for their business. In fact, neither the landlords nor anvbody else stated that any rented premises were under contemplation by them. Therefore, upon the observations of the learned Dist Judge, no reasonable finding could be arrived at on the question of boha fide need in favour of the landlord. ( 7 ) IN this view of the matter, in my considered opinion, the decision of the learned Appellate Judge was both illegal and incorrect and interference is required under Section 50 of the Act ( 8 ) THE petition is therefore allowed and the decision of the learned dist Judge is set aside. The petition of the landlords under S. 21 of the act shall stand dismissed. No order as to costs. --- *** --- .