BASAVARAJU v. KAMALABAI — 1991 DIGILAW 402 (KAR)

K. RAMACHANDRIAH, J. ( 1 ) THESE revision petitions are filed by the tenants under sub-section (1) of Section 50 of the Karnataka Rent Control Act, 1961 (for short 'the act') challenging the order of eviction dated 4-10-1990 passed against them in h. R. C. Nos. 2676/1988, 2677/1988, 2678/1988 and 2679/1988 on the file of the chief judge, court of small causes, Bangalore city under clause (h) of Section 21 (1) of the act. ( 2 ) SRI sudarshan reddy, learned counsel for the respondents-landlords, has raised a preliminary objection that these revision petitions arc liable to be dismissed as not maintainable for not complying with the mandatory requirements of sub-section (1) of Section 29 of the act inasmuch as the petitioners-tenants have not deposited the arrears of rent due by them on the date of filing these revision petitions on 10-1-1991 and also subsequently. ( 3 ) SRI g. S. Visveswara, learned counsel for the petitioners-tenants, argued that there is no merit in the said preliminary objection raised by the learned counsel for the respondents-landlords. The reasons assigned by Sri g. S. Visveswara in support of his said contentions are as under: (A) the impugned order was made by the trial court on 4-10-1990, applications for certified copy of the order were filed on 6-10-1990, certified copies were deuvered to the petitioners on 13-11-1990 and these revision petitions are filed on 10-1-1991 although the last date for filing the revision petitions after deducting the time taken for granting the certified copies of the order was 9-1-1991. The petitioners have deposited certain amounts towards arrears of rent in each of these four revision petitions on 25-1-1991 and some more amount are deposited by the petitioners on 2-2-1991 in one case and on 4-2-1991 in the other 3 cases and that would cover the entire arrears of rent due by them upto 31-1-1991. Since the petitioners had time upto 9-2-1991 for filing these revision petitions and since the entire arrears of rent are deposited by then, it cannot be said that these revision petitions are not maintainable although they are filed by way of abundant caution on 10-1-1991. Since the petitioners had time upto 9-2-1991 for filing these revision petitions and since the entire arrears of rent are deposited by then, it cannot be said that these revision petitions are not maintainable although they are filed by way of abundant caution on 10-1-1991. Even if this court had dismissed these revision petitions as not maintainable for non-compliance with the Provisions of Section 29 (1) of the act as on 10-1-1991, petitioners could have as well filed fresh revision petitions on or before 9-2-1991 by which time the entire arrears of rent due till the end of january, 1991 had been deposited and for this reason the rigor of Section 29 (1) of toe act is not applicable; and (b) the second limb of the argument of Sri g. S. Visveswara was that these revision petitions cannot be dismissed straightaway for non-compliance with the Provisions of Section 29 (1) of the act without giving an opportunity to the petitioners to show-cause why they had not paid or deposited the rent on the date of filing the revision petitions as contemplated under Section 29 (4) of the act. He placed reliance in support of his said contention on a decision of the Supreme Court in n. T. Bharathi v hotel olympia, 1990 (supp.) Scc 213, in which the Provisions of sections 29 (1) and 29 (4) of the act are considered and held that even in cases of short fall in deposit of arrears of rent by the tenant, dismissal of revision petition by the high court without giving an opportunity to the tenant to show-cause or offer explanation for such short fall was not justified and consequently, the order of this court is set aside and the matter is remanded back to this court for fresh disposal of the revision petition in the light of the contentions raised by the parties. He further submitted that if the first limb of his argument is not acceptable, this court may be pleased to condone the lapse on the part of the petitioners for not depositing the arrears of rent due by them on the date of filing these revision petition on 10-1-1991 as the petitioners are all poor persons and poverty was the only cause for not depositing the arrears of rent on the dale of filing the revision petition. ( 4 ) ON the other hand, Sri sudarshan reddy, learned counsel for the respondents-landlords, argued that the petitioners having opted to file these revision petitions on 10-1-1991 although they had time upto 9-2-1991 for filing these revision petitions, they had to comply with the mandatory requirements of Section 29 (1) of the act and, therefore, the first part of the argument of Sri g. S. Visveswara cannot be accepted. He placed reliance in support of his said argument on a division bench decision of this court in medical research laboratory pvt, ltd. V ajith, k. C, 1984 (2) kar, l. j. 267. ( 5 ) REGARDING the second part of the argument of Sri g. S. Visveswara, srisudarshan reddy submitted that it is for the tenant to show-cause for non-compliance with the Provisions of Section 29 (1) of the act and not for the court to call upon them to show-cause for their lapse. He further submitted that the petitioners-tenants have misrepresented to this court at the time of filing these revision petitions that the rent due by them are deposited and it is only after he brought to the notice of this court that the petitioners have not deposited the rent due by them as required by Section 29 (1) of the act that they have come forward with the present explanation which cannot be accepted both on facts and also in law and, therefore, these revision petitions are liable to be dismissed as not maintainable in law as has been held by this court in the case of medical research laboratory. ( 6 ) IN my opinion, none of the above mentioned contentions urged by Sri g. s. visweshwara stand the test of scrutiny. ( 7 ) AS rightly contended by Sri sudarshan reddy, it was open to the petitioners-tenants to have waited till the last date for filing the revision petition and fifed the same on 9-2-1991. Instead of doing so, they have filed the revision petitions on 10-1-1991 obviously for the reason that four months' time granted by the trial court to vacate the premises was to expire on 3-2-1991. Instead of doing so, they have filed the revision petitions on 10-1-1991 obviously for the reason that four months' time granted by the trial court to vacate the premises was to expire on 3-2-1991. As per the Provisions of Section 29 (1) of the Act, no tenant shall be entitled to prefer or prosecute a revision petition under Section 50 of the act against an order made by the court on an application under Section 21 unless he has paid or pays to the landlord or deposits with the high court all arrears of rent due in respect of the premises upto the date of payment or deposit and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate on which it was last paid or agreed to be paid until the termination of the proceedings before the high court. It is further provided in sub-section (4) of Section 29 of the act that if any tenant fails to pay or deposit the rent as aforesaid, the high court. . . . . . . shall unless the tenant shows sufficient cause to the contrary. . . . . . . . Dismiss the revision petition. In my opinion, the Provisions of sub-sections (1) and (4) of Section 29 of the act are mandatory and non-compliance with the said Provisions entails dismissal of the revision petitions. Therefore, the argument of Sri g. s. visweswara that since the last date that was available to the petitioners for filing these revision petitions was 9-2-1991, deposits of rent made by them in two instalments on the dates mentioned above, should be treated as valid deposits cannot be accepted as a sound one. On this point, a division bench of this court has dearly ruled in the case of medical research laboratory, referred to above that the revision petitions fied without complying with the mandatory requirements of Section 29 (1) of the act is liable to be rejected under Section 29 (4) of the act as not maintainable in law and it still holds the field as the said decision is neither expressly nor impliedly overruled either by a larger bench of this court or by the Supreme Court. ( 8 ) IN the case of n. t. bharati on which strong reliance was placed by Sri g. s. visweswara, the revision petitions had been admitted by this court in the presence of the counsel, for the respondent-landlord who had entered caveat. Therefore, the supreme court has ruled that since the revision petitions had been admitted in the presence of the counsel for the respondent who had entered caveat, it was necessary in the ends of Justice to set aside the order of the high court and to remand the matter to the high court for determination of the question whether the revision petition should be disposed of on merits or dismissed in terms of Section 29 of the act. But, in the instant cases, the respondent-landlord has urged even before the admission of these revision petitions that they are not maintainable for non-compliance with the mandatory Provisions of Section 29 (1) of the act. ( 9 ) THE argument of the teamed counsel for the respondents-landlords that the serevision petitions are liable to be dismissed as not maintainable deserves to be upheld on a consideration of the decisions rendered by the Supreme Court with reference to the Provisions of Section 117 of the Representation of People Act, 1951 which reads as under:"117. Security for costs: (1) at the time of presenting an election petition, the petitioner shall deposit in the high court in accordance with the rules of the high court a sum of two thousand rupees as security for the costs of the petition. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "the Supreme Court has held in charan lal sahu v nandkishore bhatt and others, AIR 1973 SC 2464 in paragraph-6 at page 2467 as under:"we are clearly of the view that the non-deposit of the security along with the election petition as required under Section 117 of the act leaves no option to the court but to reject it. The appeal is accordingly dismissed with costs". The appeal is accordingly dismissed with costs". Following the said decision, the Supreme Court has again observed in aeltemesh rein v chandulal chandrakar and others, 1981 (2) SCC 689 ; that "the high court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the act. "in that case the appellant had pleaded that he could not pay the deposit because he was burgled on way to the court. The Supreme Court has rejected that contention by observing that the said plea is as irrelevant as it seems untrue. In the instant cases, the explanation offered by Sri g. s. visveswara was one of poverty as the petitioners are poor persons. But, no such explanation is mentioned in the revision petitions. The rent payable by the petitioners arc Rs. 50/- or below per month and not huge amounts. The language of Section 29 (4) of the act is that if any tenant fails to pay or deposit the rent, the high court shall unless the tenant shows sufficient cause to the contrary, dismiss the revision petition. Therefore, it was open to the petitioners-tenants lo have mentioned in the revision petitions that they could not pay or deposit the arrears of rent due by them due to poverty. Since no such explanation is offered at the time of filing these revision petitions, the belated submission made by their learned counsel that poverty was the only cause that prevented them from paying or depositing the rent cannot be countenanced. The argument of Sri g. S. Visveswara that the rent deposited on or before 4-2-1991 are valid deposits is not acceptable, then the petitioners may be given an opportunity to show cause why they could not deposit (he rent simultaneously with the filing of these revision petitions has lo be mentioned only to be rejected in view of the clear language of Section 29 (4) of the act. That is also the view taken by the division bench of this court in the case of medical research laboratory. ( 10 ) IT, therefore, follows that these four revision petitions are reliable to be dismissedas not maintainable for non-compliance with the Provisions of Section 29 (1) of the act. That is also the view taken by the division bench of this court in the case of medical research laboratory. ( 10 ) IT, therefore, follows that these four revision petitions are reliable to be dismissedas not maintainable for non-compliance with the Provisions of Section 29 (1) of the act. ( 11 ) IN the result, all the four revision petitions are dismissed under Section 29 (4) of the act as not maintainable. Further orders 11 after i pronounced the Order, Sri g. S. Visweswara, learned counsel for the petitioners, prayed for grant of reasonable timt to the petitioners to vacate the premises in their occupation. Learned counsel for the respondents-landlords has no objection to grant reasonable time. Petitioner had more than three years' time to secure alternate accommodation as the eviction petitions were filed against them in 1988. However, i consider it just and necessary to grant reasonable time to vacate the premises. So, petitioners are granted time till 30-11-1991 (thirtieth day of november, nineteen ninety one) to voluntarily vacate and deliver vacant possession of the respective premises in their occupation without putting the respondents to the ordeal of filing an execution petition and also without inducting any third party into the premises and also subject to payment of rent regularly every month till then. Petitioners are given two weeks' lime to file an undertaking to that effect by means of their affidavits in this court. --- *** --- .