M. A. HAFEEZ v. D. ASEERVADAM — 1982 DIGILAW 50 (KAR)

N. D. VENKATESH, J. ( 1 ) PETITIONER Hafeez is in occupation of the premises in question as a tenant under respondent, Mrs. Aseervadam. She, seeking possession of the premises, took steps under the Karnataka Rent Control Act, 1961 (the Act) in HRC No. 6818 of 1980 on the file of the VII Addl. Small Causes judge, Civil Stn. , Bangalore. During the pendency of that proceeding, on the ground that Hafeez had not complied with the directions given by the Court earlier to pay arrears of rent, he was directed, by its order dated 25 1-1982, to vacate and hand over vacant possession of the premises to Mrs. Aseervadam. Hafeez's revision is directed against that order. ( 2 ) THE impugned order purports to be an order under sub sec. (4) of S. 29 of the act. In making this order the learned judge proceeded mainly, relying on an order passed by this Court in CRP No. 3717 of 1980. According to him that in view of that order he had no other option but to direct the tenant to vacate the premises. ( 3 ) TO understand the implications of that order in CRP No. 3717-of 1980, it may be necessary to note the facts that had led Hafeez to prefer that revision. That revision was directed against an earlier order dated 31-10-1980 passed by the Court below on IA I in this very proceeding directing Hafeez to pay to Mis. Aseervadam balance of arrears of rent of rs. 2,250 within one month from the date of that order. The operative portion of that order which purported to be one under S. 29 (4) read as follows :-"the total payments made by the res pondent to the petitioner comes to Rs. 2,400. If Rs. 2,400 is deducted out of rs. 4,650 the balance comes to Rs. 2,250. Hence, I direct the respondent to pay the petitioner the balance of arrears of rent of Rs. 2,250 within one month from the date of this order. " ( 4 ) DURING the pendency of CRP No. 3717/80 in this Court the respondent (landlord) had filed an application (IA I) under sub sec. (4) of S. 29 of the Act with a request to stop all further proceedings and dismiss the revision on the ground that the tenant-petitioner had not paid the rent regularly as and when the same became due. (4) of S. 29 of the Act with a request to stop all further proceedings and dismiss the revision on the ground that the tenant-petitioner had not paid the rent regularly as and when the same became due. After hearing both the sides on the said IA, the learned single Judge, observing that "it was obligatory oa the tenant-petitioner to deposit the amount of arrears of rent determined by the Court below, the correctness of which he sought to challenge in the revision" and that "he did not do so", further stated as follows :"even when the tenant petitioner comes in revision against such order passed under sub sec. (4) of S. 29 of the act questioning the correctness of the order made by the Court below, it Is obligatory on the tenant to deposit the arrears of rent as determined. If he fails to do so, the revision itself will not be competent. However, as stated above, the matter was admitted, but in spite of the fact that the landlord was pressing for payment of rents the tenant-petitioner went on committing default in payment of monthly rent as and when they became due The learned counsel for the respondent also admitted that the rent referred to in IA. V have since been deposited, but his contention is that since the tenant-petitioner has not paid the rent regularly as and when it became due and also not given any satisfactory explanation as to why the proceedings should not be stopped, the revision petition deserves to be dismissed. Sri L. Govindaraj. learned Counsel for the respondent submitted that there was some mistake. The tenant should have deposited but he did not deposit. Mere mistake in not depositing the rent will not be compliance of the requirements of the provisions of S. 29 of the act. What is necessary is that the tenant petitioner who commits default in payment of rent should also satisfactorily account for the same. He has not done so. Having regard to the facts and the circumstances of the case, the tenant, who has committed continuous default in payment of rent, is not entitled to any further indulgence. There are absolutely no reasons why the further proceedings should not be stopped. IA No. V is, therefore, allowed.- The proceedings are stopped and the revision is dismissed". Having regard to the facts and the circumstances of the case, the tenant, who has committed continuous default in payment of rent, is not entitled to any further indulgence. There are absolutely no reasons why the further proceedings should not be stopped. IA No. V is, therefore, allowed.- The proceedings are stopped and the revision is dismissed". ( 5 ) IN the impugned order the Court below observes that in view of the order of this Court in CRP No. 3717 of 1980 stopping all further proceedings, the tenant was not entitled to contest the petition, and that in view of that decision, it (the Court below) could not re-open the issue and provide an opportunity to the tenant to show sufficient cause for not stopping further proceedings. ( 6 ) THE Court below, in taking that view of the order of this Court in CRP no. 3717 of 5980, has committed an error. It has not properly construed that order. What was challenged in this Court in CRP no. 3717/80 was an order dated 31 10-1980 on IA T of the Court below passed under sub sec. (3) of S. 29 determining summarily the arrears of rent to be paid by the tenant to his landlord. For being entitled to prefer or prosecute A revision against that order it was incumbent on the tenant to pay or deposit that arrears and to go on paying or depositing the monthly rent as and when it fell due. Though the tenant claims to have deposited, he had not done so in time. Therefore, the learned single judge held in CRP No. 3717/80 that "the proceedings are stopped and the revision is dismissed". If a tenant fails to pay or deposit the rent during the pendency of the revision as provided under S. 29 (4) of the Act, the revisional Court can only stop the proceedings in revision and dismiss that revision petition. It cannot make an order directing the tenant to put the landlord in possession of the premises, and this order "directing the tenant to put the landlord in possession of the premises" can only be made by the trial Court. It cannot make an order directing the tenant to put the landlord in possession of the premises, and this order "directing the tenant to put the landlord in possession of the premises" can only be made by the trial Court. If, in a given case it had passed such an order and in a revision preferred against such an order, the tenant had committed default during the pendency of the revision, the result of the revisional Court stopping further proceedings and dismissing the revision would, no doubt, result in confirming the order of the Court below directing the tenant to put the landlord in possession of the premises. This is clear by a bare reading of S. 29 (4) which is as follows:"29. Deposit and payment of rent during the pendency of proceedings for eviction. . . . . . . . (4) If any tenant fails to pay or deposit the rent as aforesaid, the Court, the District Judge, or the High Court, as, the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision petition, as the case may be". ( 7 ) CONSTRUED this way, the order dated 23-11-1981 in CRP No. 3717/80 resulted only in the dismissal of that revision pending in this Court. Nothing more can be read into it. And the result of this order is that the order dated 31 10-1981 of the court below remained as it was, and that order, as already stated, was that the tenant should pay the balance of arrears of rent of Rs. 2,250 within one month from the date of that order. ( 8 ) NOW, the question is, was the Court below right in directing the tenant to handover vacant possession of the premises to his landlord ? The Court below could have passed that order only if the tenant had not shown sufficient cause not to stop all further proceedings as provided in sub-sec. (4 ). Admittedly the tenant had not been provided with any such opportunity before the Court below passed the impugned order. Counsel for the landlord says that, in the circumstances of this case, the tenant was not entitled to any such opportunity at all. (4 ). Admittedly the tenant had not been provided with any such opportunity before the Court below passed the impugned order. Counsel for the landlord says that, in the circumstances of this case, the tenant was not entitled to any such opportunity at all. According to him admittedly the tenant was in airears and in a case like this, the law does not contemplate any further opportunity being provided to the tenant. In this connection he places reliance on : Gopichand Balwantha Rao v. Pundalik Govindappa (1), Shivanna v. Gungamma (2), M. R. Ananthaswamy v. Puttamma (3), Ranganaika v. Saraswathi (4) and s. P. Bagali v. Srisailappa Mallappa (5 ). The first three decisions deal with S. 21 (2) of the Act and have no direct application to the question involved here. In ranganaika's (4) case (supra) the facts are distinguishable. The contention on behalf of the tenant there was that he was entitled to a double opportunity i e. , first to show sufficient cause for not stopping further proceedings and second, that if he is not able to satisfy the Court with regard to not stopping further proceedings, since the main order has to be passed actually under s. 21, he was entitled to, at that stage, submit the general defences open to him. That is not the case here. In fact the tenant's right for an opportunity to show cause for not stopping further proceedings under S. 29 (4) is conceded in this decision. So also the facts in S. P. Bagali's (5) case are distinguishable. There the Court was considering as to how, in an appeal preferred to the rppellate Court against the order of the Court (under the provisions then in force), the appellate Court should, under S. 29, deal with the default committed by the tenant in the payment of rent during the pendency of the proceedings. ( 9 ) THE ambit and scope of sub-sec. (4) of S. 29 and as to how that provision has to be construed is considered in I. P. Hansraj v. G. S. Pannalal (6 ). As observed therein "the sufficient case to be shown by the tenant under S. 29 (4) of the Act, is not for the failure to pay or deposit the rent, but. . (4) of S. 29 and as to how that provision has to be construed is considered in I. P. Hansraj v. G. S. Pannalal (6 ). As observed therein "the sufficient case to be shown by the tenant under S. 29 (4) of the Act, is not for the failure to pay or deposit the rent, but. . against the stopping of further proceedings and making an order directing the tenant to put the landlord in possession of the premises". In a proceeding pending before it the Court cannot direct the tenant to put the landlord in possession of the premises, exercising its powers under sub sec (4) of S. 29 unless it stops all further proceedings, which it can do only if the tenant fails to show sufficient couse to the contrary as contemplated therein. If the tenant had not shown sufficient cause in the revision, the dismissal of that revision, that cannot be a ground for the Court (the trial Court), in the matter still pending before it. to direct the tenant to put the landlord in possession of the premises. Admittedly, the Court below has not passed any order as yet stopping all further proceedings as contemplated under S. 29 (4) by way of a follow-up action to the order it had made on 31-10-1980. In the circumstances and for the reasons stated above the impugned order is liable to be set aside. ( 10 ) THEREFORE, this petition is allowed. The order dated 25 1 1982 on IA IV in hrc No. 6818 of 1980 is hereby set aside. The Court below is directed to proceed afresh in the matter involved in this revision in accordance with law and in the light of the observations made above. No costs. --- *** --- .