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1977 DIGILAW 115 (KAR)

A. M. ABDUL KHADER v. BERNARD LOBO

1977-04-20

M.S.NESARGI

body1977
( 1 ) THIS petition under Sec. 50 cf the Karnataka Rent Control Act, 1961 as it stood prior to the amendment by Act 31 of 1975 (hereinafter referred to as the 'act'), is directed against the order dt. 11-9-1974 passed by the Dist Judge, SK, Mangalore on IA. III in HRC App. 108 of 1973. By the said order, the learned Dist Judge has dismissed the appeal of the petitioner tenant. ( 2 ) THE respondent -landlord filed an application under Cls (h) and (j) cf the proviso to S. 21 (l) of the Act praying for vacant possession of the schedule premises. The trial Court allowed the application and as against '. hat crder, the petitioner tenant filed HRC App. 108 of 1973. During the pendency of the appeal, the landlord filed IA. III under Section 29 (1), (2) and (4) of the Act cor-tending that the 'tenant had deposited the rent only upto 31-7-1973 and had no" deposited the rent thereafter and as such, the order under Sec. 29 (4) of the Act dismissing the appeal was to be passed. The tenan1. contended that the deposit of rent up-to-date had been made, but when notice of the deposit was sought to be served c-n the Counsel for dhe landlord by the Counsel of the tenant, the Counsel for the landlord refused to accept the notice and, therefore, ia. III ought to be dismissed. ( 3 ) THE learned Dist Judge has observed in the course cf his order that the rent up-to-date had been deposited, but it was not accompanied by the prescribed fee for issue of notices. On this basis, he has further on observed that the question whether the Counsel for the tenant had notified the Counsel for the landlord as and when the deposit was made and that the Counsel for the landlord had refused to take notice need not agilate his mind, because the law, according to him, was that a deposit unaccompanied by the prescribed fee was not in law deposit of rent. He has relied upon the decision of this Court in K. J. Acharya v. L. Ravindra rao ( (1965) 1 Myslj. 221 ). He has not gone into the question whether various items of deposit taken into consideration by him had or had not been made within the period prescribed by law for payment of rent. He has relied upon the decision of this Court in K. J. Acharya v. L. Ravindra rao ( (1965) 1 Myslj. 221 ). He has not gone into the question whether various items of deposit taken into consideration by him had or had not been made within the period prescribed by law for payment of rent. ( 4 ) THE tenancy in this case is according to English calendar month. Therefore, the law would be that the rent should be paid within 15th of the succeeding month. When that is so, deposit of rent in Court will have to be made within that period and the fact that such deposit has been made will have to be notified to the landlord. It is with the object of securing notice to the landlord that Rule 9 of the Rent Control Rules lays down that prescribed fee for issue of notice to the landlord should also be paid along with the deposit. It is not the law that even if the landlord has been notified in Some other manner, the tenant should fail for nonpayment of the prescribed fee. Therefore, it is clear to my mind that the learned Dist Judge has mechanically applied the decision in K. J. Acharya's case (l ). ( 5 ) IT was the duty of the Dist Judge to find out in the first instance whether various items of deposit had been made within the time allowed by law. If any deposit is made beyond the time allowed by law, then it becomes immaterial whether it is accompanied by the prescribed fee for issue of notice or whether it is not accompanied by such a fee, as it is clear thalt such a deposit of rent "would not be payment of rent according to law so as to take away the case from the ambit of S. 29 (l) of the Act. He has totally ignored this aspect of the matter while it was incumbent upon him to go into this aspect before reaching the conclusion on IA. III. He has totally ignored this aspect of the matter while it was incumbent upon him to go into this aspect before reaching the conclusion on IA. III. ( 6 ) IN view of what has been expressed in regard to the position of law, in the paragraph preceding the above paragraph, the view expressed by the learned Dist Judge 'that whether the Counsel for the tenant had or had not notified the Counsel for the landlord as and when the Counsel for the tenant made the deposit in Court need not agitate his mind, is not sound, because if, in fact, after making such deposit, the Counsel for the tenant had notified the Counsel for the landlord, then it would be sufficient notiee to the landlord and as such, non-payment of the prescribed fee along with the deposit would not come in the way of the tenant so far as the provisions of S. 29 (1), (2) and (4) of the Act are concerned. In view of the foregoing reasons, the order dt. 11-9-1974 passed by the dist Judge, SK, Mangalore on IA. III in HRC App. 108 of 1973, is set aside. The matter is remitted to the Dist Judge for fresh disposal according to law bearing in mind the observations made in the body of this order. No order as to costs in the circumstances of the case. --- *** --- .