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1976 DIGILAW 201 (KAR)

SHIVANNA v. GANGAMMA

1976-11-15

VENKATACHALAIAH

body1976
( 1 ) IN this Civil Revision Petition under S. 50 of the Karnataka Rent control Act by the tenant, the correctness and legality of order of eviction dated 31-1-1976 passed by the learned III Additional Civil Judge, Bangalore, in HRC. No. 177/1975 on his file is challenged. ( 2 ) THE respondent-landlord instituted proceedings in the said HRC. No. 177/1975 for eviction of the petitioner-tenant under Proviso (a) to sub- sec (1) of S. 21 of the Karnataka Rent Control Act (hereinafter referred to as the 'act') alleging that the petitioner was in arrears of rent and that he had failed and neglected to pay the same despite a notice, dated 17-4-1975 (Ext. P-1) having been served on him demanding the arrears. The petitioner resisted the claim for eviction contending, inter alia that he was not a tenant of the respondent respecting the premises concerned in the proceedings but his possession was that of a mortgagee having spent rs. 4,000 on rebuilding and improving the premises. ( 3 ) THE learned Civil Judge before whom the parties tendered evidence in support of their respective cases, on an assessment and appreciation of the evidence on record, found that the relationship between the parties was that of landlord and tenant; that the tenant had committed default in the matter of payment of rent and granted an order for possession. The correctness of this order is challenged in this revision petition. ( 4 ) SRI P. Srinivasaiah, learned Counsel for the petitioner-tenant, contended that the carder of eviction passed by the learned Civil Judge without determining the arrears of rent and affording a month's time statutorily envisaged under Clause (iii) of sub-sec (2) of S. 21 of the 'act' stands vitiated and is rendered infirm. ( 4 ) SRI P. Srinivasaiah, learned Counsel for the petitioner-tenant, contended that the carder of eviction passed by the learned Civil Judge without determining the arrears of rent and affording a month's time statutorily envisaged under Clause (iii) of sub-sec (2) of S. 21 of the 'act' stands vitiated and is rendered infirm. Sub-sec (2) which is introduced in S. 21 of the Karnataka Rent Control act, by Act 14 of 1969 reads as under : " (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-sec (1), if the tenant : (i) complied with the provisions of S. 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 de'. ermined 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", a reading of clauses (ii) and (iii) of sub-sec (2) makes it clear that the opportunity to the tenant to pay the arrears must needs be preceded by and is to be granted consequent upon the court being satisfied that the tenant had sufficient cause for the default to pay or tender the rent within the period referred to in Clause (a) of proviso to sub-sec (1) of S. 21 of the 'act'. It necessarily follows that the tenant should show to the court the existence of such extenuating circumstances which enable the court- to be satisfied that the tenant had sufficient cause for default to pay or tender the rent within the time contemplated in Clause (a) of the proviso to sub-sec (1) of S. 21 of the Act. It necessarily follows that the tenant should show to the court the existence of such extenuating circumstances which enable the court- to be satisfied that the tenant had sufficient cause for default to pay or tender the rent within the time contemplated in Clause (a) of the proviso to sub-sec (1) of S. 21 of the Act. If the tenant himself does not attempt to satisfy the Court or the facts or the stand taken by the tenant are such as to ex- elude any possibility of such satisfaction on the part of the court that the tenant had such sufficient cause or where on the facts alleged the court is not satisfied as to existence of such sufficient cause, no order can or need be made under Clause (iii) of sub-sec (2) of S. 21 of the 'act'. This view as to the scope of provision of Clauses (ii) and (iii) finds support in a decision of Nesargi, J. in M. R. Ananthaswamy v. Puttamma. 1974 (2) Myslj. 221 ( 5 ) SRI P. Srinivasiah, however, suggested that Clauses (ii) and (iii) of sub-sec (2) of S. 21 require to be read disjunctively and the expression 'and' occuring at the end of Clause (ii) must, on a proper construction and in the context of ithe scheme of provisions, really means and is to be read as 'or' and that therefore an opportunity to deposit the arrears within one month was mandatory. The learned Counsel also invited my attention to the decision of the Supreme Court in Vidyacharun Shukla v. Khubchand bachel, AIR. 1964 SC. 1099. in which the Supreme Court, while construing the provisions of S. 29 (2) of the Limitation Act 1908, considered the import of the expression, 'and' occurring in the said subjection. This decision is wholly inopposite in the context of the scope of the provisions with which we are now concerned. The Legislative intent of sub-sec (2) of S. 21 is clear and beyond doubt and there is no scope for reading Clauses (ii) and (iii) of sub-sec (2) of S. 21 disjunctively. ( 6 ) IT was further contended by Sri P. Srinivasaiah, that there was evidence on record to show that the tenant had spent Rs. 4,000 on improvements to the property. ( 6 ) IT was further contended by Sri P. Srinivasaiah, that there was evidence on record to show that the tenant had spent Rs. 4,000 on improvements to the property. Sri K. N. Lakshminarasimhaiah, learned Counsel for the respondent-landlord, fairly concedes that if there is any such unjust enrichment of the landlord at the expense of the petitioner, that aspect of the matter may be left open and that liberty be reserved to the petitioner to pursue his claims in appropriate proceedings. ( 7 ) IT is seen from the circumstances of the present case that the petitioner in his reply dated 28-4-1975 (Ext. P-3) to the notice Ext. P-1 admitted his tenancy and also admitted the quantum of rent. His defence in exl. P-3 amounted to a plea of discharge. In the course of his objection filed to the proceedings for eviction, he denied the relationship of landlord and tenant and called himself a mortgagee. The learned Civil Judge, on evidence, found that the petitioner was a tenant and that he was in arrears. Sri Srinivasaiah has not been able to show how these findings are vitiated or otherwise be said to call for interference in revision. ( 8 ) IN the result, for the reasons seated above, this petition fails and is dismissed. Sri Srinivasaiah, prays for a month's time to vacate the premises. One month's time is granted from today. In the circumstances of the case, there will be no order as to costs. --- *** --- .