LAXMI BAI v. B. K. HEMANTH KUMAR — 1999 DIGILAW 166 (KAR)

( 1 ) THIS is a landlord's revision petition against rejection of the petitioner's eviction under Section 21 (1) (a) and (h) of the Karnataka Rent Control Act (hereinafter called the 'act') in HRC No. 2143 of 1989, dated 11-7-1995 on the file of the Court of Small Causes, Bangalore. ( 2 ) THE parties are referred according to their array in the Trial Court. ( 3 ) THE petitioner claims that the respondent is a tenant of the schedule premises on a rental of Rs. 500/- p. m. under a lease deed dated 5-2-1988. A notice was tendered to the respondent-tenant calling upon him to pay the arrears of rent from 5-2-1988 till 5-1-1989 and the respondent refused to receive the same and it was affixed on the door of the premises, while another notice was sent to him by registered post. Since the respondent has not complied with the notice, the petitioner claimed eviction under Section 21 (1) (a) and (h) of the Act, but it has been rejected by the Trial Court. ( 4 ) THE respondent denied the status of the petitioner as the owner of the property or that of the power of attorney holder Champalal to represent the petitioner. The respondent claims that besides the petitioner, one Kapurchand Bhoormalji also claimed to be the landlord of the property and there is a dispute in relation to the property in question. However, the respondent is in occupation of premises 4 and 5 (New No. 41, D. S. Lane, Chickpet, Bangalore ). He has asserted that the lease deed dated 5-2-1988 under which a rental of Rs. 500/- p. m. is claimed is not true and was not executed by him out of free will and knowledge of the contents thereof. The power of attorney holder, it is alleged, secured the lease deed from the respondent under threats of eviction in Execution No. 5786 of 1987 obtained against one S. D. Fernandes, who had nothing to do with the premises in question. The eviction in HRC No. 3296 of 1985 had been obtained by fraud in the Court. In the circumstances, the respondent denies the relationship of landlord-tenant with the petitioner. The respondent claims to have been a tenant of the premises for more than 10-11 years under one Kapurchand Bhoormalji on a rental of Rs. 50/- p. m. , which was enhanced to Rs. In the circumstances, the respondent denies the relationship of landlord-tenant with the petitioner. The respondent claims to have been a tenant of the premises for more than 10-11 years under one Kapurchand Bhoormalji on a rental of Rs. 50/- p. m. , which was enhanced to Rs. 100/- p. m. , during the pendency of HRC No. 1868 of 1984 filed by the said kapurchand Bhoormalji by virtue of a compromise petition filed in that Court. In the circumstances, the respondent claims to have filed HRC No. 1873 of 1988 impleading the petitioner and Kapurchand Bhoormalji as parties and after contest, the petition was allowed on 13-3-1989 permitting the respondent to deposit the rent till the dispute is resolved in a competent court. Thus the respondent is neither a defaulter nor liable to pay rent as claimed by the petitioner. The respondent, it is contended, is not liable to be evicted under Section 21 (1) of the act. ( 5 ) THE petitioner's case regarding Section 21 (1) (h) of the Act is also denied by the respondent. It is contended that the petitioner is not entitled to any relief as there is no relationship of landlord and the tenant between him and the respondent. ( 6 ) THE Trial Judge held that there was relationship of landlord and tenant between the petitioner and the respondent and also held that there was arrears of rent of Rs. 3,000/- payable by the respondent to the petitioner, but held that the respondent was entitled to a conditional order of eviction namely 30 days time to pay the arrears of rent quantified by the Court. The claim for eviction under Section 21 (1) (h) of the Act was, however, rejected. The landlord who is aggrieved by the conditional order of eviction under Section 21 (1) (a) of the Act has preferred this revision petition. ( 7 ) THE petitioner's contention is that the learned Trial Judge failed to see that the plea of fraud in obtaining the lease deed Ex. P. 2 dated 5-2-1988, having failed, the conditional order of eviction could not have been passed. ( 7 ) THE petitioner's contention is that the learned Trial Judge failed to see that the plea of fraud in obtaining the lease deed Ex. P. 2 dated 5-2-1988, having failed, the conditional order of eviction could not have been passed. The stand taken by the respondent in the earlier proceedings initiated by Kapurchand Bhoormalji was in total contradiction to the stand now taken by the respondent demonstrating the falsity of the case of the respondent rendering the respondent liable for eviction under Section 21 (1) (a) of the Act. ( 8 ) WHETHER the Trial Judge was right in passing a conditional order under Section 21 (1) (a) of the act requires examination? ( 9 ) THE case that is sought to be pleaded on behalf of the respondent-tenant was that one kapurchand Bhoonnalji was the landlord and he had sought to evict him by filing HRC No. 1868 of 1984 under Section 21 (1) (a) of the Act and that the case was ultimately withdrawn as not pressed on 28-2-1987. Meanwhile, the petitioner herein obtained an order of eviction against one fernandes and took possession of the premises Nos. 33 to 44 as per Ex. P. 11 on 4-2-1988. At that time, the respondent was compelled to execute Ex. P. 2, a rent bond in favour of the petitioner Laxmi Bai and that Ex. P. 2 lease deed is vitiated by fraud. The respondent also sought to contend that having regard to the claim by Kapurchand Bhoonnalji against him, the rent was enhanced to Rs. 100/- at the time of disposal of HRC No. 1868 of 1984. When the notice Ex. P. 3 was issued, the respondent did not reply to the same nor complied with the notice. Meanwhile, the respondent claims that he made an application under Section 19 of the Act in HRC No. 1873 of 1988 as per Ex. R. 2 which, on contest, culminated in the order Ex. R. 4 dated 31-3-1989 allowing the petition and permitting the deposit of rent till the doubt about petitioner's title and the claim of Kapurchand Bhoormalji, was resolved. The respondent, in the circumstances, has contended that he is not liable to satisfy the claim of the petitioner. R. 2 which, on contest, culminated in the order Ex. R. 4 dated 31-3-1989 allowing the petition and permitting the deposit of rent till the doubt about petitioner's title and the claim of Kapurchand Bhoormalji, was resolved. The respondent, in the circumstances, has contended that he is not liable to satisfy the claim of the petitioner. ( 10 ) THE Trial Judge found that the petitioner being the daughter of Himathmalji, had become the owner of the property by virtue of a will and therefore, was entitled to prosecute the proceedings against the respondent. The learned Judge also found that the contention of the respondent that ex. P. 2 was vitiated by fraud and/or force was not true. The learned Judge then proceeded to hold that by virtue of the order Ex. R. 4 made under Section 19 of the Act, the respondent was entitled to pay the arrears of rent found due within the time stipulated by it and was not liable to be evicted from the schedule premises, if he satisfied the order within the time granted. ( 11 ) THE contention of the respondent-tenant that there was a bona fide dispute as to who was the landlord of the property and that he was, therefore, constrained to resort to the expedient of an application under Section 19 of the Act requires scrutiny. ( 12 ) KAPURCHAND Bhoormalji is stated to have issued a notice Ex. P. 6 on 31st October, 1983 demanding a sum of Rs. 550/- as arrears of rent from October 1982. The respondent sent a reply ex. P. 7 wherein he asserted that Kapurchand Bhoormalji wanted to knock off the property belonging to Laxmi Bai, daughter of Himatmalji (the petitioner); that Kapurchand Bhoormalji was acting for and on behalf of Laxmi Bai as a rent collector; that a sum of Rs. 3,000/- received by Kapurchand Bhoormalji on 31-10- 1981 was never paid to Laxmi Bai and that the kapurchand Bhoormalji was not entitled to any rent whatsoever. After the exchange of the aforesaid notices, HRC 1868 of 1984 was filed under Section 21 (1) (a) and (k) of the Act. 3,000/- received by Kapurchand Bhoormalji on 31-10- 1981 was never paid to Laxmi Bai and that the kapurchand Bhoormalji was not entitled to any rent whatsoever. After the exchange of the aforesaid notices, HRC 1868 of 1984 was filed under Section 21 (1) (a) and (k) of the Act. ( 13 ) THE respondent-tenant resisted the claim of Kapurchand Bhoormalji by filing a verified objection statement wherein he asserted that the premises belong to Himatmal S/o. Kajuji; that laxmi Bai, the daughter of Himatmal Kajuji is the present owner; that the ownership of the premises is concluded in O. S. No. 2 of 1956 on the file of the District Judge, Bangalore wherein kapurchand Bhoormalji was the first defendant; that in the proceedings Kapurchand admitted title to the property by Himatmalji and that therefore there was no relationship of landlord-tenant between him and Kapurchand Bhoormal. The respondent has also took various other contentions which are not relevant for the purpose of this case. ( 14 ) IN HRC No. 1868 of 1984 all that happened was dismissal of the petition as not pressed on 28-2-1987. No evidence has been produced by the respondent to show that he had paid any rent to Kapurchand Bhoor-malji either before or after the order in HRC No. 1868 of 1984. Ex. P. 11, the delivery warrant and the receipt show that Laxmi Bai sought eviction of one S. D. Fernandes from the premises Nos. 33 to 41, D. S. Lane, Chickpet, Bangalore and took delivery of the premises. It is admitted that the respondent herein was one of the attestors to the delivery receipt. On a day thereafter, the respondent executed Ex. P. 2 in favour of the petitioner agreeing to pay a rental of Rs. 500/- p. m. This Ex. P. 2 according to the respondent, was not "executed by him out of free will and/or after knowing the contents thereof". The further explanation of the respondent is that the power of attorney holder of the petitioner under duress secured the signatures while executing the order of delivery against Fernandes and Ex. P. 2 is thus vitiated. The explanation of the respondent in his evidence is that the petitioner's power of attorney holder asked him to sign on blank stamp papers and he signed them during the interval (during delivery) on account of disturbance and confusion. P. 2 is thus vitiated. The explanation of the respondent in his evidence is that the petitioner's power of attorney holder asked him to sign on blank stamp papers and he signed them during the interval (during delivery) on account of disturbance and confusion. Later he also lodged a complaint but the police did not take any action. This statement of the respondent, having regard to the previous evidence, contradicts the respondent; nor is his conduct, subsequent to Ex. P. 2, of any assistance in arriving at a conclusion in his favour. Significantly, the respondent in his evidence has contradicted every statement made in the objection statement filed as per Ex. P. 9 and he has asserted that he does not know anything pertaining to the petitioner. ( 15 ) THERE is no evidence to show that Kapurchand Bhoormalji pressed for payment of rent by issuing any notice to the respondent subsequent to the dismissal of HRC No. 1868 of 1984 and prior to the institution of the petition under Section 19 of the Act. HRC No. 1873 of 1988 filed by the respondent was contested, but having regard to the limited nature of the enquiry, the Court of small causes permitted the petitioner to deposit the rent at the rate of Rs. 100/- p. m. allegedly claimed by Kapurchand Bhoormal. The Court of small causes did not, and could not, determine any of the facts in controversy such as title or rate of rent. ( 16 ) THE learned Counsel for the respondent sought to contend that the petitioner has instituted a suit against Goutam Chand and others in [o. S. No. 2 of 1956] on the file of the Civil Judge, bangalore wherein, besides respondent, two others Sheshamal and Vijayaraj were sought to be impleaded as defendants and therefore there is a bona fide dispute regarding petitioner's title to the property and the respondent was justified in approaching the Court under Section 19 (3) of the Act. Consequently, the order made by the rent control Court permitting deposit of the rent till the title of the petitioner was cleared, constituted a valid defence against the claim for eviction under Section 21 (1) (a) of the Act. Consequently, the order made by the rent control Court permitting deposit of the rent till the title of the petitioner was cleared, constituted a valid defence against the claim for eviction under Section 21 (1) (a) of the Act. ( 17 ) IN order to avail protection from eviction under Section 21 (1) (a) of the Act, the tenant would have to comply with all the conditions enumerated in Section 21 (2) of the Act, is no longer in any shadow of doubt. The rate of rent according to the petitioner-landlady is Rs. 400/- p. m. , and the period for which the rent is due is also not open to any sort of challenge. The entire defence is one of denial of relationship of tenancy between the petitioner and the respondent. ( 18 ) THE narrative above would show that when Kapurchand Bhoormalji sought to evict the respondent for non-payment of rent, Kapurchand Bhoormalji was characterised by the respondent as a rent collector for and on behalf of the petitioner; that Kapurchand Bhoormalji had defrauded the petitioner by obtaining Rs. 3,000/- as an advance payable to the petitioner and that therefore there was no relationship of landlord and tenant between the respondent and the kapurchand Bhoormal. When the petitioner, on the basis of the rent bond Ex. P. 2 sought to evict the respondent, he turned a full circle and set up title of Kapurchand Bhoormalji to the property in question and also set up tenancy under Kapurchand Bhoormal. The respondent is squarely guilty of approbating and reprobating, according to the exigency of the situation. All that can be said is that if the tenant has a genuine defence to show that there was sufficient cause for non-payment of the rent, an order under Section 19 of the Act could also be pressed into service as part of the defence but an order under Section 19 only cannot constitute the sole shield against eviction under Section 21 (1) (a) of the Act. ( 19 ) A proceeding under Section 19 of the Act is intended to protect a bona fide tenant from disputes between the landlord and another person relating to the demised premises. In the instant case, the respondent-tenant right through had taken a stand that his landlord is the petitioner laxmi Bai and none else. He has also executed the rent bond Ex. In the instant case, the respondent-tenant right through had taken a stand that his landlord is the petitioner laxmi Bai and none else. He has also executed the rent bond Ex. P. 2 from which he wanted to wriggle out by raising contention that it was vitiated. The respondent's Counsel could hardly sustain the plea taken by the respondent about Ex. P. 2 being vitiated. Thus to the knowledge of the respondent-tenant, the defence raised against the petitioner on the basis of the order of the rent control Court under Section 19 of the Act was an abuse of process of the Court, engineered solely for the purpose of lending some measure of credibility to an otherwise unsustainable defence. ( 20 ) AN order under Section 19 of the Act cannot constitute an impregnable shield against a claim for eviction under Section 21 (1) (a) of the Act. An order under Section 19 of the Act is essentially a very temporary arrangement by which a bona fide tenant could plead that he has done all that he could without embroiling himself in any dispute involving the landlord and another. A Court adjudicating the claim for eviction under Section 21 (1) (a) of the Act would have to examine with or without an order under Section 19 of the Act, a claim of the tenant that he had sufficient cause for non-payment of rent within 2 months next after the receipt of the notice of demand for the arrears of rent. The Court would have to examine whether the defence raised by the tenant is genuine or not, without regard to any order that may have been made under Section 19 of the act. If it is found as a fact that the very initiation of the proceedings under Section 19 of the Act, as in this case, was a calculated move to create a defence indicating a colour of bona fides, the court is not, and indeed cannot, tie its hands and say that Section 19 of the Act constitutes full defence without regard to any circumstance negativing the bona fides of the tenant making the application under Section 19 of the Act. Not every doubt regarding title of a landlord can constitute a ground for moving the Court under Section 19 of the Act. It must be a bona fide doubt. Not every doubt regarding title of a landlord can constitute a ground for moving the Court under Section 19 of the Act. It must be a bona fide doubt. Bona fides is defined as thus in Stroud's Judicial Dictionary, Fifth Edition, Volume I: bona FIDE: The equivalent of this phrase is "honestly" (per Bramwell, L. J. in R. v Holl, 7 qbd 575 ). In the circumstances noticed, it is clear that the attempt of the respondent in of moving an application under Section 19 of the Act was not bona fide. On the other hand, it constituted an abuse of the process of law. ( 21 ) IN the instant case, the defence of the respondent-tenant can hardly be regarded as a sufficient cause, notwithstanding the fact that the petitioner is fighting a litigation with other persons in relation to the property in question. In any event, after the execution of Ex. P. 2 by the respondent, the respondent could hardly press into service Kapurchand Bhoormalji's claim as a defence against eviction under Section 21 (1) (a) of the Act. The acceptance of respondent's defence by the learned Trial Judge in the circumstances, cannot be sustained and is reversed. The respondent-tenant was not entitled to a conditional order of eviction under Section 21 (1) (a) of the Act. The respondent-tenant is liable to be evicted unconditionally under Section 21 (1) (a) of the Act. The revision therefore deserves to be and is allowed directing eviction of the tenant from the schedule premises. Time of one month is granted to surrender vacant possession of the premises. The petitioner-landlady is entitled to costs throughout.