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2001 DIGILAW 1878 (SC)

Mohd. Ziaulla Madani v. Ghouse Khan

2001-11-08

BRIJESH KUMAR, R.C.LAHOTI

body2001
ORDER : 1. The landlord-respondent filed a petition seeking an order for the recovery of possession over tenancy premises consisting of a shop, against the tenant-appellant on the ground available under Clause (a) of sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961 (hereinafter ‘the Act’ for short). Although a ground under Clause (h) was also raised but that has been negatived and hence it is not necessary to notice the facts relevant thereto. The tenant was in arrears of rent, for payment whereof, a notice of two months was served by the landlord on the tenant. As the rent in arrears remained unpaid for the period of notice, the eviction petition was filed. On the tenant-appellant being served with the notice of the proceedings, he deposited the amount of rent in arrears and complied with the provisions of Section 29 of the Act. So far as default in payment of arrears of rent before the filing of the petition is concerned, the tenant justified the same by pleading that the landlord was in the habit of not issuing receipts and there was a meter installed in the tenancy premises through which electricity was supplied to the landlord as also to other parts of the building and the tenant was entitled to deduct an amount of Rs. 50/- per month out of the rent payable to the landlord for which the landlord did not agree and, therefore, the rent in arrears had remained unpaid. The Trial Court found a sufficient cause for the default to pay or tender the rent within the notice period to the landlord having been made out and hence directed the landlord's petition to be dismissed. The landlord preferred a revision before the High Court which has been allowed. The High Court has, on an examination of the pleadings and re-appreciation of the evidence adduced by the parties, recorded a finding that no sufficient cause for the default committed by the tenant was made out and directed an order for eviction to be passed in reversal of the order of the Trial Court. Feeling aggrieved, the tenant has filed this appeal by special leave. 2. The short question which arises for decision in this appeal is whether a sufficient cause within the meaning of Section (2) of sub-section (2) of Section 21 of the Karnataka Rent Control Act was made out? Feeling aggrieved, the tenant has filed this appeal by special leave. 2. The short question which arises for decision in this appeal is whether a sufficient cause within the meaning of Section (2) of sub-section (2) of Section 21 of the Karnataka Rent Control Act was made out? Clause (a) contemplates a petition for eviction of tenant being filed by the landlord against the tenant if the latter has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice for the arrears of rent has been served on him by the landlord. There is no dispute that there were arrears of rent when a notice demanding payment of such arrears in two months of the date of service of notice was served on the tenant and that the tenant neither paid nor tendered the whole of the arrears of the rent legally recoverable from him whereafter the petition was filed. Sub-Section (2) of Section 21 prohibits an order for the recovery of possession on the ground available under Clause (a) of the proviso to sub-section (1) being passed subject to compliance by the tenant with the requirements of Clauses (i), (ii) and (iii) of sub-section (2). In the case at hand we are concerned with Clause (ii) only which casts an obligation on the tenant to satisfy the Court that he had sufficient cause for not paying or tendering the rent within the period referred to in the said Clause (a). 3. We have, with the assistance of the learned counsel for the appellant, gone through the evidence. The tenant has not given any reply to the notice served on him by the landlord. All that he stated in his statement was that subsequent to the service of the notice on him, he had met the landlord and the landlord had told him that the notice was just formally given and the tenant need not worry about it. The tenant also stated in his statement that there was a meter installed in the tenancy premises through which supply of electricity was made in other parts of the building. However, he does not state that such a controversy was brought to the notice of the landlord and thereupon the landlord had expressed any intention to postpone the fulfilment of his demand for arrears. However, he does not state that such a controversy was brought to the notice of the landlord and thereupon the landlord had expressed any intention to postpone the fulfilment of his demand for arrears. The tenant does not also say that it was for this reason that he had withheld the payment of rent. Apart from this, the case of the tenant, as set out in the written statement, was not put to the landlord during his cross-examination. The High Court was, therefore, right in forming an opinion that on the material available on record, it could not have been held that the tenant had discharged the burden, cast on him by the law, of satisfying the Court as to the availability of sufficient cause for the default in payment. The landlord had served a written notice on the tenant demanding payment of arrears of rent legally recoverable. The least that was expected from the tenant was to have replied to the notice if he disputed the entitlement of the landlord to recover the rent or the quantum of arrears. The tenant could also have tendered so much of the amount as he thought to be legally recoverable by the landlord. Nothing such was done. The finding of the Trial Court recorded in favour of the tenant as to the availability of sufficient cause for the default committed by the tenant was based, more or less, on surmises and the High Court, therefore, has not committed any error in setting aside that finding and arriving at a finding to the contrary which is a well reasoned and just finding. 4. We do not find any fault with the impugned order of the High Court. The appeal is devoid of any merit and is dismissed. 5. As the tenant is earning livelihood from the shop run by him in the tenancy premises and has been in occupation of the same for almost 30 years, the tenant is allowed six months' time for vacating the premises subject to his filing the usual undertaking on an affidavit, within a period of six weeks from today, to deliver vacant and peaceful possession to the landlord on expiry of six months from today, clear all the arrears of rent upto date within a period of six weeks and continue to pay the rent falling due month by month by the 15th day of each month. No order as to costs.