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1977 DIGILAW 86 (KAR)

SHEVADE CAMERA WORKS LTD v. RAMACHANDRA KHEMAJIRAO GODSE

1977-03-16

M.S.NESARGI

body1977
( 1 ) IN this petition filed under S. 5c of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act'), the petitioner, who is admittedly the tenant of the schedule premises, has challenged the order dated 17-1-1975, passed on IA. 3 by the First Addl Munsiff, Belgaum, in HRC. 85 of 1973, holding that the arrears due by the petitioner-tenant to the respondent-landlord amounted to Rs. 195 and directing that the petitioner-tenant should pay the said amount of Rs. 195 on or before 31-1-1975 and the petitioner-tenant should go on paying or depositing the rent for the further period from 15-5-1970 till the conclusion of the HRC proceeding at the annual rent of Rs. 180. ( 2 ) THE few facts necessary for consideration of this petition may be narrated as follows: HRC. 85 of 1973 was filed by the landlord praying for vacant possession of the schedule premises on the grounds available under cls. (a) and (h) of the proviso to S. 21 (1) of the Act. The petitioner-tenant contested the proceeding. During the pendency of the proceeding, the petitioner-tenant filed IA-3 under S. 29 (3) of the Act for determining the amount of rent to be paid or deposited under sub-sec (1) of S. 29 of the Act. The Munsiff held that the amount of arrears was Rs. 195 and directed the petitioner-tenant should pay the said amount before 31-1-75 and should go on paying or depositing the annual rent at Rs. 180 for the further period from 15-5-1970 till the conclusion of the HRC. ( 3 ) THE contention of the petitioner-tenant, as put before the Munsiff and sought to be argued in this revision petition, is that the petitioner-tenant had made payments by way of cheques etc, and those amounts exceeded what he was required to pay even at the rate of Rs. 180 per year. Shri K. I. Bhatta, learned Counsel appearing on behalf of the respondent-landlord raised a preliminary objection to the effect that the petitioner-tenant has not paid or deposited the arrears of Rs. 195 found due by the Munsiff by 31-1-1975 and in fact, that amount is still due from him and, therfore, action under S. 29 (4) of the Act should be taken. 195 found due by the Munsiff by 31-1-1975 and in fact, that amount is still due from him and, therfore, action under S. 29 (4) of the Act should be taken. ( 4 ) SHRI Suresh S. Joshi, learned Counsel appearing on behalf of the petitioner-tenant urged in the first instance that in this petition, the grievance of the petitioner is that the learned Munsiff has not taken into consideration all the facts put forth by him in regard to the amounts paid by him to the landlord-respondent and therefore, the Munsiff was in error in holding that the petitioner-tenant was still due to pay Rs. 193 and until that question is decided, action under S. 29 (4) of the Act is not permissible in law as the provisions of 8. 29 (1) of the Act would not be applicable. He nextly contended that S. 29 (1) of the Act would apply to appeals preferred by tenants as against the orders passed under S. 21 (1) of the Act and to revision petitions preferred by tenants as against the orders passed under S. 21 (1) of the Act and as this revision petition is against the order made by the Munsiff under S. 29 (3) of the Act, S. 29 (1) of the Act would not be applicable. ( 5 ) BOTH the contentions advanced by Shri Joshi are covered by the decisions of this Court. In R. Srinivasa Rao v R. Bheema Rao, CRP. 843/64 dt. 11-2-66, Kalagate, j, has held that where there has been a finding of the trial Court establishing the relationship of landlord and tenant, then, when the appeal is presented to the appellate Court, the tenant would be required to deposit the arrears of rents, though the very same finding is being challenged in appeal. This decision has been followed by this Court in many other cases. One of such cases is K B. Clrikkaiah v. Parvathamma, CRP. 1745/73 dt. 20-11-73. Therefore, for the purposes of S. 29 (1) of the Act, it is clear, that it is immaterial what is challenged is the very finding recorded in the lower Court. ( 6 ) THE second contention of Shri Joshi is covered by the decision of this court in Hanumantha Bhatta v. Gopalakrishna Kedilaya, CRP. 1222/65 dt. 18-2-69. 1745/73 dt. 20-11-73. Therefore, for the purposes of S. 29 (1) of the Act, it is clear, that it is immaterial what is challenged is the very finding recorded in the lower Court. ( 6 ) THE second contention of Shri Joshi is covered by the decision of this court in Hanumantha Bhatta v. Gopalakrishna Kedilaya, CRP. 1222/65 dt. 18-2-69. That revision petition was against an order passed by the Munsiff under S. 29 (4) of the Act. It was contended on behalf of the tenant that sub-sec (1) of s. 29 of the Act governs the appeals under S. 48 and revision petitions under S. 50, preferred against the order of the District Judge only and the said sub-section is not applicable to the revisions preferred against the orders of the Courts of the Munsiff, made under S. 29 (1) and (4) of the act. The Division Bench held as follows :"the language of sub-sec (1) of S. 29, in our opinion, is clear and it does not admit of any construction as contended by 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 any 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-seec (1) and (4) of S. 29. " ( 7 ) AS already pointed out, it is undisputed that this amount of Rs. 195 has not been paid to the landlord till today. Shri Joshi offered to pay the amount to Shri K. I. Bhatta, on this day, but, the offer was not accepted. Even if payment had been accepted, it would not have remedied the matters. Hence the preliminary objection raised by Shri K. I. Bhatta succeeds. In the result, this revision petition is dismissed under Sec. 29 (4) of the Act. No order as to costs. --- *** --- .