HEBBURAPPA GOWDA v. B. M. BENAKATTI — 1979 DIGILAW 30 (KAR)

( 1 ) IN this revision petition, under S. 50 (1) of the Karnataka Rent Control Act of 1961 (hereinafter referred to as ' the Act ') the petitioner challenged the order dated 28-7-1977 of the IV Addl. Civil Judge, Bangalore City allowing the application of the respondent for his eviction. ( 2 ) ADMITTEDLY the petitioner is in occupation of a portion of the premises bearing No. 493 situated at Magadi Road Chord Road, X Main, Bangalore (hereinafter referred to as ' the premises ') as tenant of the respondent on a monthly rent of Rs. 70. On 18-1-1974 the respondent filed a petition under s. 21 (1) (a) and (h) of the Act in the Court of the First Munsiff, Bangalore, for eviction of the petitioner which later came to be transferred to the court of the Civil Judge on the enactment of the Karnataka Rent Control (Amendment) act of 1975. In his petition, the respondent asserted that the petitioner was irregular in payment of rents and was due in a sum of Rs. 420 without specifying the period for which he was due in that sum. Secondly, the respondent asserted that the premises was required for his bona fide use and occupation in the circumstances narrated in para 6 of his petition. In his objection statement, the petitioner denied that he was due in the sum claimed by the respondent and also his claim that the premises was required for his bona fide use and occupation. ( 3 ) ON 28-11-1974 the respondent filed an application, numbered as I. A. No. 1, under S. 29 (1) of the Act to stop the proceedings and deliver vacant possession of the premises. In his affidavit accompanying I. A. No. I the respondent alleged that the petitioner was due in a sum of Rs. 840 for 12 months for the period ending 30th June 1974, which was opposed by the petitioner. In his objection to I. A. No. I the petitioner asserted that he was not due in any arrears of rent. In support of their respective eyes I. A. No. I, the parties filed their memo of calculations and also placed the evidence before court. On a consideration of the memo of calculation and the evidence placed by the parties, the learned IV Adl. In support of their respective eyes I. A. No. I, the parties filed their memo of calculations and also placed the evidence before court. On a consideration of the memo of calculation and the evidence placed by the parties, the learned IV Adl. Civil Judge passed an order on 11-6-1976 on I. A. No. I that for the period ending May 1976, the petitioner was due in a sum of Rs. 30 to the respondent and that the same should be paid or deposited on or before 21-6-1976 with a further direction that rents in future should be paid regularly as and when they accrue. In compliance with this order the petitioner deposited a sum of Rs. 30 on 17-6-76 which amount has been drawn by the respondent. Evidently after the petitioner complied with the order made on I. A. No. I the court proceeded with the trial on merits. In support of his case the respondent examined himself and closed his case, while the petitioner in addition to examining one Kadaiah as D. W. 2 examined himself and closed his case On a consideration of the evidence placed by the parties, the learned Civil Judge, by his order dated 28-7-1977, found, (i) that there was a proper termination of tenancy ; (ii) that the petitioner was in arrears of rent and had not paid the same within two months from the date of receipt of notice; and (iii) that the respondent does not require the premises for his bona fide use and occupation and that an order of eviction would cause greater hardship to the petitioner. But in view of his finding on the arrears of rent, the learned Civil Judge allowed the application filed by the respondent granting three months time to the petitioner to vacate the premises. Under Sec. 50 (1) of the Act, the petitioner has challenged the order of the learned Civil Judge contending that the finding recorded by him on the arrears of rent is erroneous and the respondent is not entitled for a decree for eviction under S. 21 (1) (a) of the Act. The revision petition presented by the petitioner on 29-9 1977 was posted for admission before Venkataramiah, J, on 6-10-1977 on which day Sri G. E. Kotre took notice for the respondent and filed power. The revision petition presented by the petitioner on 29-9 1977 was posted for admission before Venkataramiah, J, on 6-10-1977 on which day Sri G. E. Kotre took notice for the respondent and filed power. Evidently, after hearing both sides Venkataramiah, J, admitted the revision petition and granted an order of stay on the same day. Even though the respondent took notice of this revision petition on 6-10-1977, he has neither filed an independent revision petition nor any cross-objections challenging the finding of the learned Civil Judge and the apparent rejection of his application under S. 21 (1) (h) of the Act. ( 4 ) SRI B, Veerabhadrappa, learned counsel for the petitioner, strenuously contended that the finding of the learned Civil Judge that the petitioner was due in arrears of rent and the arrears of rent had not been paid and therefore the respondent was entitled for a decree for eviction under S. 21 (1) (a) of the Act is erroneous and that in any event when the petitioner had complied with the order made by him on I. A. No. I, is clearly illegal. Sri I. G. Gachchinamath, learned counsel for the respondent, refuted the contention of Sri Veerabhadrappa. Besides supporting the order of the learned Civil Judge under S. 21 (1) (a) of the Act sri Gachchinamath contended that the finding recorded by the learned Civil judge on the claim of the respondent under S. 21 (1) (h) of the Act is contrary to the evidence on record and the respondent was entitled for a decree for eviction against the petitioner under that provision also. Before examining the contention urged for the petitioner, 1 propose to examine the contention of Sri Gachchinamath, whether it is open to the respondent to challenge the finding of the learned Civil Judge rejecting his claim under S. 21 (1) (h) of the Act. ( 5 ) EARLIER I have noticed that the respondent filed his application under s. 21 (1) (a) and (h) of the Act and the learned Civil Judge found in his favour only under S. 21 (1) (a) of the Act and allowed his application. ( 5 ) EARLIER I have noticed that the respondent filed his application under s. 21 (1) (a) and (h) of the Act and the learned Civil Judge found in his favour only under S. 21 (1) (a) of the Act and allowed his application. In clear and express terms the learned Civil Judge has rejected the claim of the respondent under S. 21 (1) (h) of the Act, though in the operative portion of his order he does not say that he is rejecting his application to that extent, but the effect of the order is that the learned Civil Judge has rejected his application under s. 21 (1) (h) of the Act. Sri Gachchinamath urged that since the court had allowed the application of the respondent, he could not have maintained an independent revision against a mere finding recorded by the court under S. 21 (l) (h) of the Act. In my opinion it is not a mere finding that is recorded by the court below as contended by Sri Gachchinamath. The definite claim made by the respondent under the specific provision of the Act has been examined by the court and found against him and the claim made thereto had also been rejected by the court. In these circumstances, I am of the opinion that it was clearly permissible for the respondent to have challenged the order of the learned civil Judge in so far as it held against him on his claim under S. 21 (1) (h) of the Act and rejected his claim for eviction under that provision. In my opinion, if the respondent maintained an independent revision petition against that part of the order of the court below rejecting his claim, by the same reasoning he could also maintain cross-objections under Order 41 Rule 22 CPC. which is applicable to the proceedings under the Act (vide Rule 35 of the Karnataka Rent control Rules, 1961 ). But Sri Gachchinamath, maintained that the respondent without filing a revision or cross-objections can challenge the finding of the court below under S. 21 (1) (h) of the Act on the authority of the ruling of the supreme Court in Virdhachalam Pillai v. Chaldem Syrian Bank Ltd. , Trichur, AIR 1964 SC 1425 . But Sri Gachchinamath, maintained that the respondent without filing a revision or cross-objections can challenge the finding of the court below under S. 21 (1) (h) of the Act on the authority of the ruling of the supreme Court in Virdhachalam Pillai v. Chaldem Syrian Bank Ltd. , Trichur, AIR 1964 SC 1425 . In support of his submission Sri Gachchinamath strongly relied on the following passage in Virdhachalam Pillai's case : " We do not see any substance in this objection, because the respondent is entitled to canvass the correctness of findings against it in order to support the decree that has been passed against the appellant. " in Virdhachalam Pillai's case, the facts were these :-A Bank called Chaldean syrian Bank Ltd. , had advanced Rs. 80,000 to one M. Kalyanasundaram on the strength of mortgage by deposit of title deeds. In a suit filed by the Bank for recovery of the said amounts Kalyanasundaram and his son Virdhachalam Pillai were impleaded as defendants. The suit filed by the Bank was decreed against kalyanasundaram and was dismissed against Virdhachalam Pillai by the trial court, the validity of which was not challenged by Kalyanasundaram, but was challenged only by the Bank in so far as it dismissed the suit against Virdhachalam pillai before the High Court of Kerala. The High Court of Kerala allowed the appeal of the Bank against Virdhachalam Pillai and thereby granted a decree both against Kalyanasundaram and Virdhachalam Pillai. In an appeal filed by Virdhachalam Pillai before the Supreme Court it was contended for him that in the absence of an appeal by the Bank in so far as it related to the finding of the High Court that there is an antecedent debt only to the extent of Rs. 59,000, it was not open to the Bank to contend that there is an antecedent debt for the entire sum of Rs. 80,000 and support the decree of the High Court for the entire sum as was sought to be done by the Bank before the Supreme Court. In repelling the contention of Virdhachalam Pillai the Supreme Court stated the principle extracted by me earlier. From this, it can be seen that there was a decree in favour of the Bank against Virdhachalam Pillai for the entire sum, though there was a finding that there is an antecedent debt only to an extent of Rs. In repelling the contention of Virdhachalam Pillai the Supreme Court stated the principle extracted by me earlier. From this, it can be seen that there was a decree in favour of the Bank against Virdhachalam Pillai for the entire sum, though there was a finding that there is an antecedent debt only to an extent of Rs. 59,000. Before the Supreme Court the Bank contended that it was open to support the decree and contest the findings recorded against it as was clearly permissible to it under Order 41 Rule 22 of C. P. C. It is in this context, the Supreme Court observed that it was permissible for the Bank to contest the finding against it also. In the present case, it is certainly open to the respondent to canvass the correctness of the findings under S. 21 (1) (a) on any of the grounds and support the order of the learned Civil Judge under S. 21 (1) (a) of the Act. But it is certainly not open to him to challenge the order made against him by the court below under S. 21 (1) (h) of the Act. In the present case, Sri Gachchinamath is not attempting to canvass the correctness of the findings to support the order made against the respondent in this view, I am of the opinion that the ratio of the ruling of the Supreme court in Virdhachalam Pillai's case has no application and that in the absence of an independent revision or a cross-objection, it is not open to the respondent to canvass the correctness of the finding and the order made thereto by the court below rejecting his claim under S. 21 (1) (h) of the Act. In this view, the question of examining the correctness of the finding and the order of the learned Civil Judge rejecting the claim of the respondent under S. 21 (1) (h) of the Act cannot be examined and interfered by me. I therefore reject this contention of Sri Gachchinamath. ( 6 ) IN the narration of facts, I have noticed that, on 11-6-1976, the learned civil Judge found on I. . A. No. I that the petitioner was due in a sum of Rs. 30 only and directed its payment on or before 21-6-1976 and that the same has been complied by him. ( 6 ) IN the narration of facts, I have noticed that, on 11-6-1976, the learned civil Judge found on I. . A. No. I that the petitioner was due in a sum of Rs. 30 only and directed its payment on or before 21-6-1976 and that the same has been complied by him. After the disposal of I. A. No. I, it is the case of the petitioner that he has been regularly paying the rents. From 11-6-1976 to 28-7-1977 the respondent did not again file any application under S. 29 (1) of the Act nor called upon the Court to initiate proceedings under S. 29 (4) of the Act for default in payment of rents that have accrued from 1-6-1976. In his objection statement the petitioner has pleaded that he was not due in any sum. But ultimately the court found that he was due only in a sum of Rs. 30 upto 30-5-1976. In the course of his order the learned Civil Judge vaguely holds that the petitioner has not been paying the rents from June 1976 regularly. In his evidence the respondent does not clearly state the defaults, if any, committed by the petitioner from 1-6-1976. Lastly the learned Civil Judge in granting a decree for eviction takes into consideration that the petitioner had not paid rents claimed by the respondent within two months from the date of receipt of the legal notice, overlooking the fact that he had joined issue on that question and the court ultimately on 11-6-1976 found that he was due only in a sum of Rs. 30 for the period ending 30-5-1976. In these circumstances, I am of the opinion that the finding of the learned Civil Judge on the arrears of rent is open to serious criticism. ( 7 ) APART from this, the learned Civil Judge in granting a decree for eviction has overlooked S. 21 (2) of the Act. Sub-section (2) of Section 21 of the Act expressly says that a decree for eviction should not be made if a tenant has complied with the provisions of Section 29, evidently referring to an order made under section 29 (1) of the Act. Sub-section (2) of Section 21 of the Act expressly says that a decree for eviction should not be made if a tenant has complied with the provisions of Section 29, evidently referring to an order made under section 29 (1) of the Act. Admittedly, the order made by the learned Civil Judge under Sec. 29 (1) of the Act on I. A. No. I had been complied with by the tenant petitioner and therefore it was not open to the learned Civil Judge to grant a decree for eviction overlooking the beneficial provision made by the Legislature in favour of a tenant. In this view, I am of the opinion that the decree passed by the learned Civil Judge against the petitioner under Section 21 (1) (a) of the Act cannot be upheld and is liable to be set aside. I therefore set aside the order of the learned Civil Judge and direct the dismissal of the petition filed by the respondent for eviction of the petitioner. ( 8 ) REVISION petition allowed. ( 9 ) IN the circumstances of the case, I direct the parties to bear their own costs. --- *** --- .