Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 304 (KAR)

K. A. GRACE v. M. S. LAKSHMIPATHI NAIDU

2000-04-10

M.P.CHINNAPPA

body2000
M. P. CHINNAPPA, J. ( 1 ) THE petitioner who suffered a decree of eviction from the petition schedule premises in HRC. 2800/92 on the file of the XVI Addl. Small causes Judge, Bangalore, filed this petition questioning the correctness and validity of the order passed by the Court. During the pendency of the petition, the respondent appeared and contended that the petition is not maintainable on the ground that the petitioner had not deposited the arrears of rent when he first filed the Revision petition on 25. 6. 99, which is a mandatory requirement of law. Therefore, the petition is liable to be dismissed. In view of this objection, arguments were heard in regard to the maintainability of this petition. ( 2 ) IT is an admitted fact that the petitioner filed this petition on 25. 6. 99. The office raised an objection that the petitioner had not produced any proof to show that he has paid the arrears of rent. Therefore, he has taken back the file and sent a sum of Rs. 2,400/- on 8. 7. 99 which is said to be the arrears of rent to the respondent by money order and re-presented the petition on 9. 7. 99. Therefore, the learned Counsel for the respondent contended that the petitioner preferred the Revision Petition on 25. 6. 99 as on that date he had not deposited or paid or sent the arrears by money order to the respondent. Hence, the petition is liable to be rejected. Form No. 14 filed for examination report 'among other objections, endorsement as to the result of examination reads thus: " (4) Whether upto date rents, have been paid or deposited to be clarified. " petitioner also admits that there was arrears of Rs. 2,400/- as on 25. 6. 99 which he sent by money order on 8. 7. 99. ( 3 ) PER contra, the learned Counsel for the petitioner submitted that having realised the fact that he has not paid the arrears of rent, he had taken back the file and after sending the money, order, he filed it. Therefore, re-representation of the petition shall be construed that the same was represented after due compliance of the provisions of law. Therefore, re-representation of the petition shall be construed that the same was represented after due compliance of the provisions of law. In view of this, it is relevant to refer to Section 29 (1) of the act which reads:"no tenant against whom an application for eviction has been made by a landlord under Section 21, shall be entitled to contest the application before the Court under that section or to prefer or prosecute [a Revision Petition under Section 50 against an order made by the Court on application under Section 21] unless he has paid or pays to the landlord or deposits with the Court or the district Judge or the High Court, as the case may be, all arrears of rent due in respect of the premises upto the date of. payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the Court or the District judge or the High Court, as the case may be. " ( 4 ) FROM the bare reading of the Section, it is clear that the words used are to "prefer" or "prosecute". In view of the expression "prefer" used in this section, the learned Counsel submitted that the petitioner preferred the Revision Petition on 25. 6. 99 and as on that date the petitioner had not deposited the amount, the petition is liable to be rejected. While emphasising that argument, he also contended that there cannot be two presentations of the petition, one to save limitation and the other to comply with the mandatory requirement of the provisions. He also further analysed this aspect and submitted that if the petition is not taken as presented on 25. 6. 99, but only on 9. 7. 99, the subsequent presentation of the petition is barred by time. Therefore, the petition is liable to be dismissed on that ground also as the petitioner has not filed any application to condone the delay explaining the reasons for the delay. In view of this argument, it is now necessary to refer to certain decisions cited at the Bar on these questions. Therefore, the petition is liable to be dismissed on that ground also as the petitioner has not filed any application to condone the delay explaining the reasons for the delay. In view of this argument, it is now necessary to refer to certain decisions cited at the Bar on these questions. ( 5 ) THE learned Counsel for the petitioner has drawn my attention to the Judgment rendered by this Court in BABU vs NAWAB KHAN the brief facts of the case are: In a proceeding under Section 21 (1) of the Act for possession by the landlord, the Small Causes Judge, passed an order on 10. 7. 81 that the tenant was in arrears of rent amounting to Rs. 1,760/- and that he should pay or deposit the same on or before 10. 8. 81. Thereafter, the Court passed an order under Section 29 (4) of the Act, stopping all further proceedings and directing the tenant to put the landlord in possession of the premises within one month. The tenant filed a revision against that order, paid the arrears of rent on 2. 11. 81 and the Revision Petition was registered and numbered on 4. 11. 81. With these facts, the. Courts has held:"the Revision Petition was not liable to be dismissed in limine, on the ground of non-payment of arrears of rent before preferring the revision. Under the High Court of Karnataka Rule, 1959, the presentation of the papers at the office may not amount to the preferring of an appeal, revision or application. They can be said to have been preferred only after they are admitted to the register and numbered. Where the tenant had paid of deposited the amount he was liable to pay or deposit as provided in Section 29 earlier to the revision having been admitted to the register and numbered the requirement of Section 29 can be said to have been satisfied. "but this Judgment is no more good iaw in view of the Judgment rendered by the Division Bench of this Court reported in MEDICAL research LABORATORY PVT. LTD. "but this Judgment is no more good iaw in view of the Judgment rendered by the Division Bench of this Court reported in MEDICAL research LABORATORY PVT. LTD. vs AJITH K. C. wherein it is held:"the decision rendered by Venkatesh, J. , does not make any reference to the decision rendered by the Division Bench in Shiva vs-B. Devanna (ILR 1980 (1) KARNATAKA, 706), Therefore, at the most, it could have been said that the decision rendered by venkatesh, J, conflicts with the decision rendered by a Division bench of this Court in Shiva's case and also with the decision rendered by another Division Bench of this Court in CRP - No. 1222 of 1965, deposed of on 18. 2. 1969. which has been followed in Shevade Camera Works' case. In other words, the view expressed by Venkatesh, J. , appears to be contrary to the law laid down by two Division Benches of this Court. Therefore, we are clearly of the view that under such circumstances, the case could have been decided according to well established practice, convention and "rule" of staredecisis. Apart from the above, the law laid down in the decisions rendered by the two Division Benches of this Court prevail over the view expressed, by Venkatesh, J. Hence the said decision does not lay down the correct law. "in this case before the Division Bench the facts are that the Trial court ordered that the tenant is liable for penal consequences provided under Section 29 (4) of the Act. Against the said order, a revision Petition was filed in the High Coturt under Section 50 (1) of the KRC Act. The tenant did not deposit the arrears of rent while preferring the Revision Petition, the office raised an objection about the maintainability of the Revision Petition The learned Single Judge referred the matter to the Division Bench at there appeared to be conflict of decisions. ( 6 ) BESIDES this decision, even if the Judgment of Babu's case is taken into consideration, the expression 'preferred' takes place only after the petitions are admitted, registered and numbered. In this case also as indicated above, as soon as the petition was preferred, the office registered the case and the number was assigned. ( 7 ) THESE decisions came to be rendered when the old rules were in vogue. In this case also as indicated above, as soon as the petition was preferred, the office registered the case and the number was assigned. ( 7 ) THESE decisions came to be rendered when the old rules were in vogue. Subsequently in 1995 a circular came to be issued dated 29. 9. 95 where in the earlier practice of giving FR number was done away with. The validity of this circular was questioned in W. P. 41177/95 which came to be dismissed with certain observations. As against that order, writ appeal No. 1554/96 was filed which also came to be dismissed confirming the order passed by the Single Judge. In compliance with the Judgment in W. A. 1554/96 another circular was issued on 25. 2. 97. In that circular it is specifically stated that the documents which require rectification or replacement my be returned along with other papers to the advocate/party or authorised representative on his satisfying the registrar of the need to do so, for compliance. In case of failure to rectify the defects within the stipulated time, such cases shall be posted before the Court for orders regarding non-compliance with the office object ions/non-return of documents and other papers. From this circular also it is abundantly clear that the office-in-charge, judicial side directed that documents which require rectification are only to be returned and not the entire file. But in this case, though the objections raised by the office did not call for returning the entire file, for the reasons best known to the office the file was returned. Thereafter, the party/ petitioner sent the amount to the respondent and re-presented the petition. Therefore, in view of the expression used in Section 29 (1) of the Act, the word 'preferred' only denotes the presentation of the petition before the Court, registration of the same and assignment of the number. That clearly shows that preferring was completed on the date on which the petition was first presented before the Court and admitted, registered and numbered i. e. , on 25. 6. 99. On that date as admitted by the petitioner, the rent was not paid to the petitioner. That clearly shows that preferring was completed on the date on which the petition was first presented before the Court and admitted, registered and numbered i. e. , on 25. 6. 99. On that date as admitted by the petitioner, the rent was not paid to the petitioner. ( 8 ) WITH this background, it is now necessary to refer to the decision rendered by Their Lordships of the Supreme Court in p. R. DESHPANDE vs MARUTI BALARAM HAIBATTI wherein it is held that the Revision Petition is not maintainable or cannot be entertained unless it is accompanied by either payment or deposit of 'all arrears of rent due upto the payment or deposit. ' ( 9 ) IN ASHOK KAPIL vs SANA ULLAH (DEAD) AND OTHERS, the Supreme Court has held:"such liberal interpretation can be afforded to prevent a wrongdoer from taking advantage of his own wrong. The maxim; "nullus commodum capere protest de injuria sua propria". (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a Court of law for enjoying the fruit of his own wrong. " ( 10 ) THEIR Lordships of the Supreme Court in MRANALINI B. SHAH AND ANOTHER vs BAPALAL MOHANLAL SHAH held that protection against ejectment on payment or tender of rent in Court "regularly", word "regularly" meaning mandatory. Where tenant persistently defaults in payment of monthly rents, held Court has no discretion to grant him protection under Clause (b), even if he pays off the whole arrears of rent by the time of pronouncement of judgment. From this it is clear that "regularly" it will have to be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord claims for eviction on the ground of default in payment of rent is to be defeated. The word 'regularly' has its own significance. It enjoins a payment or tender characterised by reasonable punctuality; that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. It enjoins a payment or tender characterised by reasonable punctuality; that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. ( 11 ) THE Division Bench of this Court in SYED ABDUL WADOOD vs STATE OF KARNATAKA held that the object of Section 29 is to ensure payment of rent to the landlord. The statutory protection given to the tenant by the Act, is made defendant on the tenant paying the rent promptly, unless, sufficient cause could be shown by him against the eviction order under this provision. If rent is not paid by a tenant without a valid cause, he fails to discharge his basic obligation, in order to gain the benefit under the lease. The purpose of Rent Control legislation is not conferment of an absolute benefit on the tenant without any corresponding obligation. Its provisions, are to be interpreted in the manner ever beneficial legislation is interpreted. But that would not lead to the principle that, any provision which puts an irksome restriction or obligation on the tenant, should be held as unreasonable. ( 12 ) YET again the Division Bench of this Court in SHIVA vs DEVANNA B. 7 held that deposit and payment of rent should be made before the presentation of a Revision Petition under Section 50 of the Act by a tenant against an order made under Section 21. The requirement of deposit of arrears of rent in terms of Section 21 (1) is mandatory and a tenant who fails to fuffill the said statutory requirement has no right to contest an eviction petition and is not. entitled to prefer revision petition under Section 50 of the Act against eviction order. ( 13 ) THIS Court has held in JACOB CORLINQ V. PRABHA vs SHENOY that it is not necessary for the landlord to make a special application under Section 29 of the Act; for Section 21 (2) of the Act itself provides that the tenant shall comply with the provisions of section 29 of the Act. It is made a statutory liability. It is made a statutory liability. ( 14 ) THE Single Bench of this Court in D. M. NONI vs AHMEDAND OTHERS held that tenant whenever required to file revision, arising out of eviction proceedings has to deposit or pay the rent before seeking registration of Civil Revision Petition. (Emphasis supplied) ( 15 ) IN SHIVALINGAPPA NIRANJAIMAPPA SHETTY vs DATTUAPPANNA KUMAR AND ANOTHER this Court has held that the petitioner cannot be' said to be wholly disabled from complying with the directions of the Court, merely because the last day in question happened to be a Sunday. Merely because the last day for deposit was a holiday, he cannot claim to make the deposit in Court on the next day. ( 16 ) IN MURALIDHARA vs B. R. SESHADRI AND ANOTHER the Single Judge of this Court has held that payment/deposit of all arrears of rent upto day of payment/deposit and regular payment/ deposit of rent becoming due subsequently is mandatory for participation in proceedings. Promptness in payment of rent is implicit in Section 29 (1) and payment at irregular intervals is not sufficient compliance with provision. Statutory protection available only if tenant is prevented from making payment/deposit by reasons beyond his control or bona fide reasons, if such case is made out under Section 29 (4) of the Act. Similar is the view expressed by this Court. ( 17 ) IN (ILR 1999 KAT 3588) this Court has held even if the Revision Petition is numbered and admitted it is open to the landlord to bring it to the notice of the court about the non-compliance of section 29 (. 1) of the Act, in the matter of payment or deposit of rents before filling the Revision Petition. ( 18 ) AT the cost of repetition, it may be mentioned that the petition is deemed to have been preferred on the date the petition is received in the office. In this case, the office not only received the petition but also numbered the petition. The petition was taken back only to comply with the objections. As admitted by the learned Counsel for the petitioner, the petitioner later realised thai the mandatory requirement of law of depositing the rent to prefer the Revision petition was not complied with. Such conduct of the petitioner is nothing but evading the compliance of statutory requirement or to gain time to suit his convenience. As admitted by the learned Counsel for the petitioner, the petitioner later realised thai the mandatory requirement of law of depositing the rent to prefer the Revision petition was not complied with. Such conduct of the petitioner is nothing but evading the compliance of statutory requirement or to gain time to suit his convenience. As rightly pointed out by the learned Counsel for the respondent, that has to be curbed and it should be made compulsory that as on the first presentation of the petition, the party has to comply with the compulsory statutory requirements such as depositing the rent under Section 29 (1) of the act. ILR K. A. Grace and Another vs M. S. Lakshnrpathi Naidu 1679 ( 19 ) THE learned Counsel for the respondent also has drawn my attention to show that the petitioner was irregular in payment of rents. In support of it, he has produced a copy of the letter sent to the petitioner on 18. 9. 99 wherein it was specifically brought to the notice of the petitioner that the Trial Court while allowing the application filed under Section 29 directed the petitioner to pay rents regularly as and when accrued in addition to a sum of Rs. 38,800/- that amount was not paid and he has violated the order passed by the Trial Court. He has further requested the petitioner to furnish the particulars of all the payments made or deposited subsequent to 6. 11. 95. The particulars required by the respondents are:a) amounts deposited in the Trial Court and also in the High court; b) the dates of deposits; c) the R. O. numbers; d) amounts remitted by postal money order; and e) amounts paid in cash in Court. Thereafter, a reply was sent and particulars were furnished. It is not in dispute that subsequently the arrears of rent were paid and that payment was not in strict compliance with Section 29 of the Act. It is held by Their Lordships of the Supreme Court in SECRETARY to THE GOVERNMENT OF ORISSA AND ANOTHER vs sarbeswar ROUT that if a plaint drawn up in accordance with the prescribed law is filed before a Civil Court, the suit must be deemed to have been instituted on that date and not on a later date when the Court takes up the plaint and applies its mind. ( 20 ) IN MISTRY PREMJIBHAI VITHALDAS vs GANESHBHAIKESHAVJI. Their Lordships have held that statutory protection can only be given in accordance with the terms on which it is permissible. The Act certainty does not confer a power upon the Court to excuse the violation of the provisions of the Act by making wrong assumptions or on compassionate grounds. The Court coutd not exercise therefore what would be in effect a power to condone the infringement of the Act. ( 21 ) THE learned Counsel for the respondent also placed relianceon a decision rendered by this Court reported in (1996 (6) KLJ SN 18) wherein it is held that the provisions of the Special Act prevails over the procedural land. Court Fee Act is said to have been held a special enactment and that will prevail over the Civil Procedure Code. High Court Act and the Rules framed thereunder cannot prevail over the Rent Control Act. ( 22 ) THE Supreme Court in ( 1999 (8) SCC 74 ) held that the words and phrases must be assumed that the legislature has used it in its legal sense and not with reference to common parlance or dictionary meaning external aids are impermissible. ( 23 ) THE learned Counsel for the respondent according to my opinion is correct, that there cannot be two dates to complete the concept of preferring a Revision Petition, that one is to save the limitation and another to comply with the mandatory requirement of special statute. On the date of first presenting the petition, the petitioner has to satisfy the other statutory requirement also, lest it is not due compliance and such petition is liable to be rejected on the ground of non-compliance. ( 24 ) ADMITTEDLY, the petitioner has not filed any application giving reason as to why he has not paid the rent when he first presented the petition. As indicated above, liberal interpretation cannot be afforded to prevent a wrong doer from taking advantage of his own wrong. It is also necessary for the tenant to pay rent promptly or show sufficient cause for not complying with the mandatory requirement. It is also well settled law that statutory protection is available to the tenant only if he is prevented from making payment/ deposit by reasons beyond his control or for bonafide reasons. It is also necessary for the tenant to pay rent promptly or show sufficient cause for not complying with the mandatory requirement. It is also well settled law that statutory protection is available to the tenant only if he is prevented from making payment/ deposit by reasons beyond his control or for bonafide reasons. The act certainly does not confer power upon the Court to excuse the violation of the provisions of the Act by making wrong assumptions or on compassionate grounds. Therefore, the Court could not exercise its power to condone the infringement of the Act. ( 25 ) FOR the foregoing reasons and also considered from any angle, I am of the firm view that this Petition is not maintainable. Accordingly, the petition stands dismissed. As soon as the order is pronounced, the learned Counsel for the petitioner seeks permission of this Court to move the Hon'ble supreme Court. There is no question of law of general importance involved in this case. Further, the legal points raised by both the parties in this case are covered by the Judgment of the Supreme court and also of various High Courts referred to above. Therefore i am of the opinion that the prayer has no merit. Accordingly, it is rejected. --- *** --- .