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2001 DIGILAW 692 (KAR)

ELSIE CONCESSO KAMATH v. ROSA D SOUZA

2001-09-05

K.SREEDHAR RAO

body2001
K. SREEDHAR RAO, J. ( 1 ) THE REVISION FILED AGAINST THE ORDER OF THE PRINCIPAL DISTRICT JUDGE, mangalore IN R. R. P. NO. 121 OF 1992. THE PETITIONER IS THE LANDLADY. THE respondent IS THE TENANT. THE LANDLADY FILED A PETITION FOR EVICTION IN h. R. C. NO. 99 OF 1990 ON "the FILE OF I ADDITIONAL MUNSIFF, MANGALORE under SECTION 21 (L) (A ). THE UNDISPUTED FACTS REVEAL THAT THE PETITION premises IS TENANTED ON A MONTHLY RENT OF RS. 450/- AND THAT AT THE relevant POINT OF TIME THERE WERE ARREARS OF THREE MONTHS RENTS PAYABLE by THE TENANT. THERE ARE OTHER TWO PREMISES ADJOINING THE PRESENT PREMISES having COMMON ELECTRICITY METER. IT IS SAID THAT SOMEWHERE IN THE month OF OCTOBER OR NOVEMBER 1989 ADJOINING TENANT VACATED THE PREMISES and HE DID NOT PAY THE ELECTRICITY BILLS. THE TENANT/respondent AND other TENANT IN THE OTHER ADJOINED PREMISES PAID THE ELECTRICITY BILL ISSUED for THE MONTH. THE TENANT/respondent CONTRIBUTES A SUM OF RS. 116/- towards THE PAYMENT OF ELECTRICITY BILL. IT APPEARS THAT THERE WAS A demand MADE BY THE TENANT TO THE LANDLADY TO PAY THE ELECTRICITY BILL while TENDERING RENTS. THE LANDLADY REFUSED TO PAY THE ELECTRICITY BILL pertaining TO THE VACATED TENANT. THEREFORE, THE TENANT/respondent SENT a CHEQUE FOR RS. 1,234/- DEDUCTED RS. 116/- FROM THE ARREARS OF THREE months RENTS WHICH HAS BEEN PAID TOWARDS DISPUTED ELECTRICITY BILL. THE landlady DID NOT ACCEPT THE CHEQUE, IT WAS RETURNED TO THE TENANT. THEREAFTER, A NOTICE WAS ISSUED UNDER SECTION 21 (A) CALLING UPON TO PAY THE entire ARREARS OF RENTS WITHOUT DEDUCTIONS. THE TENANT DID NOT REPLY THE notice. A PETITION CAME TO BE INSTITUTED UNDER SECTION 21 (A) FOR EVICTION. ( 2 ) IN THE OBJECTIONS STATEMENT THE TENANT HAS TAKEN UP PLEA CONTENDING THAT THE ARREARS OF RENT IN A SUM OF RS. 1,200/- WAS TENDERED BY CHEQUE DEDUCTING RS. 116/- PAID TOWARDS THE ELECTRICITY CHARGES AND IT ALSO DISCLOSES DURING THE PENDANCY OF THE PROCEEDINGS BEFORE THE TRIAL COURT THE ARREARS OF RENTS AT RS. 9,450/- WAS DEPOSITED ON 26-7-1991. THE ENTIRE CONTROVERSY WAS RIVETED IN RESPECT OF THE PROPRIETY OF DEDUCTIONS of RS. 116/- AND NON-PAYMENT OF ARREARS OF RENTS AFTER ISSUE OF STATUTORY notice UNDER SECTION 21 (L) (A) OF THE K. R. C. ACT. 9,450/- WAS DEPOSITED ON 26-7-1991. THE ENTIRE CONTROVERSY WAS RIVETED IN RESPECT OF THE PROPRIETY OF DEDUCTIONS of RS. 116/- AND NON-PAYMENT OF ARREARS OF RENTS AFTER ISSUE OF STATUTORY notice UNDER SECTION 21 (L) (A) OF THE K. R. C. ACT. CONSIDERING THE FACTS and MATERIAL, THE TRIAL COURT FOUND THAT THE TENANT HAVING NOT PAID THE rents WITHIN THE STATUTORY PERIOD AS DIRECTED HELD THAT THE TENANT IS liable TO BE EVICTED UNDER SECTION 21 (L) (A ). BEING AGGRIEVED, TENANT FILED the REVISION BEFORE THE DISTRICT COURT IN REVISION. THE ORDER OF THE TRIAL court IS REVERSED AND PETITION UNDER SECTION 21 (L) (A) OF THE K. R. C. ACT IS dismissed. BEING AGGRIEVED BY THE SAID ORDER IN REVISION THE LANDLADY has COME IN REVISION BEFORE THIS COURT. ( 3 ) AFTER HEARING THE COUNSELS FOR THE PETITIONER AND RESPONDENT, I FIND THAT THE MERE FACT OF NON-PAYMENT OF RENTS WITHIN A STATUTORY NOTICE PERIOD DOES NOT NECESSARILY WARRANT EVICTION UNDER SECTION 21 (L) (A) OF the ACT, SINCE THE COURT HAS TO SCRUTINIZE THE GROUNDS UNDER SECTION 21 (2) OF THE ACT WHILE ORDERING EVICTION UNDER SECTION 21 (L) (A) OF THE ACT. THE PROVISIONS OF SECTION 21 (2) OF THE K. R. C. ACT ARE EXTRACTED HEREUNDER for CONVENIENT REFERENCE:"21 (2) NO ORDER FOR THE RECOVERY OF POSSESSION OF ANY PREMISES shall BE MADE ON THE GROUND SPECIFIED IN CLAUSE (A) OF THE PROVISO to SUB-SECTION (1), IF THE TENANT (I) COMPLIES WITH THE PROVISIONS OF SECTION 29; (II) SATISFIES THE COURT THAT HE HAD SUFFICIENT CAUSE FOR THE DEFAULT to PAY OR TENDER THE RENT WITHIN THE PERIOD REFERRED TO IN THE SAID clause (A); AND (III) PAYS TO THE LANDLORD OR DEPOSITS IN THE COURT SUCH FURTHER amount, AS MAY BE DETERMINED BY THE COURT TO BE DUE, ALONG WITH a SUM NOT EXCEEDING TEN PER CENT OF THE RENT THEREOF AS MAY BE fixed BY THE COURT, WITHIN ONE MONTH FROM THE DATE OF THE ORDER OF the COURT". ( 4 ) UNDER THE STIPULATED CIRCUMSTANCES UNDER SECTION 21 (2) OF THE ACT IF TENANT SATISFIES ANY OF THE THREE STIPULATIONS, THERE NEED NOT BE AN ORDER OF EVICTION UNDER SECTION 21 (L) (A) OF THE ACT, ALTHOUGH WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF RECEIPT OF THE STATUTORY NOTICE ARREARS IS NOT PAID. ( 4 ) UNDER THE STIPULATED CIRCUMSTANCES UNDER SECTION 21 (2) OF THE ACT IF TENANT SATISFIES ANY OF THE THREE STIPULATIONS, THERE NEED NOT BE AN ORDER OF EVICTION UNDER SECTION 21 (L) (A) OF THE ACT, ALTHOUGH WITHIN A PERIOD OF TWO MONTHS FROM THE DATE OF RECEIPT OF THE STATUTORY NOTICE ARREARS IS NOT PAID. THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE disclose THAT THE TENANT DEDUCTING THE AMOUNT PAID TOWARDS THE ELECTRICITY bill TENDERED THE BALANCE OF RENT BY CHEQUE EVEN BEFORE ISSUANCE OF statutory NOTICE. THE ISSUANCE OF STATUTORY NOTICE MAY NOT BE OF AN eventful CONSEQUENCE TO AFFECT THE RIGHTS OF THE TENANT. SINCE SOME TIME immediately BEFORE THE STATUTORY NOTICE, THE TENANT HAD TENDERED THE rent BY WAY OF CHEQUE WITHHOLDING THE DISPUTED ELECTRICITY CHARGES. THE landlady HAD UNWARRANTEDLY RETURNED THE CHEQUE. ON THE OTHER HAND, the LANDLORD COULD HAVE ENCASHED THE CHEQUE AND COULD HAVE ISSUED statutory NOTICE UNDER SECTION 21 (L) (A) OF THE K. R. C. ACT ONLY IN RESPECT of THE DISPUTED AMOUNT RELATING TO THE ELECTRICITY CHARGES. WHEN THERE was ALREADY A BONA FIDE EFFORT OF TENDERING THE RENT ON THE PART OF THE tenant SOME TIME IMMEDIATELY BEFORE THE STATUTORY NOTICE, IT WOULD BE superfluous AND TOO TECHNICAL TO INSIST THAT THE TENANT SHOULD FORMALLY tender THE RENTS ONCE AGAIN WITHIN TWO MONTHS. IT WAS OBVIOUS FROM THE conduct OF THE LANDLADY THAT SHE WAS NOT PREPARED TO AGREE FOR THE deduction OF THE AMOUNT PAID TOWARDS ELECTRICITY CHARGES AND ANY REPEATED tender AFTER ISSUANCE OF NOTICE, WOULD NOT HAVE MADE ANY FACTUAL and EVENTFUL DIFFERENCE IN THE SITUATION. THEREFORE, I FIND THAT THE NONPAYMENT of RENT BY THE TENANT APPEARS TO BE SUPPORTED BY SUFFICIENT cause AS DISCUSSED ABOVE. ( 5 ) THE COUNSEL FOR THE PETITIONER STRENUOUSLY CONTENDED THAT THE DEDUCTION OF THE ELECTRICITY CHARGES PAID IN RESPECT OF THE PREMISES VACATED BY OTHER TENANT BECOMES A DISTINCT LIABILITY AND CANNOT BE A SUBJECT-MATTER OF SET-OFF TOWARDS THE RENT PAYABLE IN RESPECT OF THE PETITION PREMISES APPEARS TO BE AN UNTENABLE ARGUMENT. IN THIS REGARD, THE DECISION OF THIS COURT IN MANOHAR TULAJARAM V VALLABHA RAMAGOPAL, IS cited. FROM THE FACTS, THE SAID DECISION IS DISTINGUISHABLE FROM THE FACTS in THE PRESENT CASE. IN THIS REGARD, THE DECISION OF THIS COURT IN MANOHAR TULAJARAM V VALLABHA RAMAGOPAL, IS cited. FROM THE FACTS, THE SAID DECISION IS DISTINGUISHABLE FROM THE FACTS in THE PRESENT CASE. IN THE CITED CASE, THE LIABILITY INCURRED BY THE LANDLORD IN RESPECT OF A TRANSACTION NOT CONNECTED WITH THE CONTRACT OF LEASE WAS SOUGHT TO BE ADJUSTED TOWARDS THE RENT LIABILITY. IN THAT CONTEXT, IT WAS HELD THAT IT IS NOT PERMISSIBLE TO SET-OFF THE OTHER DISPUTED MONETARY LIABILITIES TOWARDS RENT. IN THE PRESENT CASE, THE AMOUNT PAID BY THE TENANT IS TOWARDS ELECTRICITY CHARGES RELATING TO THE ADJOINING PREMISES vacated BY SOME OTHER TENANT. THE LANDLADY BEING A PRIMARY CONSUMER has ALWAYS THE OBLIGATION TO PAY THE ELECTRICITY CHARGES WITHIN 7 DAYS from THE ISSUANCE OF THE BILL AND IF A TENANT IS IN OCCUPATION, THE OCCUPIER has TO PAY THE ELECTRICITY CHARGES. IN RESPECT OF THE VACATED PREMISES there WAS NOBODY IN OCCUPATION AND LANDLADY WAS REFUSING TO PAY ELECTRICITY. BILL, AND THE BILL IF NOT PAID WITHIN THE TIME THERE WAS IMMINENT threat OF DISCONNECTION OF ELECTRICITY SUPPLY. ALL THE THREE PREMISES HAD only ONE METER AND THE DISCONNECTION OF POWER SUPPLY WOULD NECESSARILY have AN ADVERSE IMPACT ON THE RIGHT OF THE TENANT/respondent, THEREBY the TENANT/respondent WOULD SUFFER THE LOSS OF ESSENTIAL AMENITIES TO HIS premises. THEREFORE, UNDER SUCH CIRCUMSTANCES, THE RESPONDENT/tenant paying THE ELECTRICITY BILL CANNOT BE HELD TO BE UNREASONABLE AND NOT connected WITH THE CONTRACT OF LEASE. THERE WAS A LEGAL OBLIGATION ON THE part OF THE LANDLADY TO PAY THE ELECTRICITY BILL IN RESPECT OF THE METER through WHICH THE RESPONDENT/tenant WAS GETTING THE POWER SUPPLY. IN that CONTEXT THE DISCHARGE OF THE MANDATORY OBLIGATION OF THE LANDLADY by THE TENANT FOR PROPER AND LEGAL ENJOYMENT OF THE LEASED PREMISES cannot BE TERMED AS UNTENABLE IN LAW. THEREFORE, THE TENANT WAS FULLY justified IN WITHHOLDING THE DISPUTED ELECTRICITY CHARGES. AS SUCH I DO NOT find ANY MERIT IN THE REVISION. ACCORDINGLY, THE REVISION DISMISSED. --- *** --- .