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2003 DIGILAW 808 (KAR)

M. KRISHNAIAH SHETTY v. S. S. ANGADI

2003-09-23

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( 1 ) THESE two revision petitions under Section 50 (1) of the Karnataka Rent Control Act, 1961 (the old Act for short), one by the owner and the other by the tenant, are directed against the Order dated 18-12-1999 passed in HRC No. 333/89 on the file of the II Adl. Small Causes Judge, Bangalore allowing the petition filed under Section 21 (1) (h) of the old Act dismissing the petition filed under Section 21 (1) (a) of the old Act. ( 2 ) THIS is the second round of litigation between the parties. Earlier a petition was filed by the owner under Section 21 (1) (h) of the old Act which came to be allowed on 28-6-1984 giving the tenant two and half years time to vacate the premises. After the expiry of the said period the landlord filed an execution petition for execution of the eviction decree. The tenant also filed a misc. petition for recalling the order of eviction passed on 28-6-1984. At that stage the parties compromised by entering into a new contract of tenancy with new terms and conditions. The execution petition was closed after recording satisfaction of the eviction decree. When matters stood thus, the landlord filed the present petition in the year 1989 under Sec. 21 (1) (a) and (h) of the old Act. The court-below dismissed the petition filed under Sec. 21 (1) (a) but allowed the petition filed under clause (h ). These two revision petitions are directed against the said impugned order. ( 3 ) I would be referring to the parties in the course of this order as landlord and tenant for the sake of convenience. ( 4 ) I have the learned counsel for the landlord and the tenant Angadi who appeared in person. ( 5 ) THE Learned Counsel for the landlord has relying on the lease agreement Ex. P5, submitted that the tenant cannot be heard to submit anything contrary to the terms contained therein. The finding of the Court-below that the tenant has shown sufficient cause for not paying or depositing the rent is totally perverse. He submitted that the Court-below on upholding the agreement Ex. P5 erred in law in holding that the rent is Rs. 175/- p. m. when it is specifically agreed between the parties under the agreement Ex. P5 that it is Rs. 750/ -. Mr. He submitted that the Court-below on upholding the agreement Ex. P5 erred in law in holding that the rent is Rs. 175/- p. m. when it is specifically agreed between the parties under the agreement Ex. P5 that it is Rs. 750/ -. Mr. Angadi, the tenant who appeared in person defended the order passed by the Court-below under Clause (a) of Section 21 (1) of the Act. ( 6 ) THE court-below was right in holding that Ex. P5 the agreement entered into between the parties on 19-9-1987 and its contents have been proved because the tenant did not dispute its execution though he did not admit it either. When a fact pleaded by a party is not disputed by the other side the said fact can be taken as proved and, therefore, all the contentions now sought to be urged by the tenant which run counter to the terms of agreement as contained in Ex. P5 cannot be countenanced in law. Therefore, the court-below was fully justified in rejecting the contention urged by the tenant that Rs. 20,000/- which was given as advance was to fetch interest and the same had to be adjusted against the rents falling due are all contentions which could not have been accepted at all in the face of the clear terms and conditions as contained in Ex. P5, the agreement. Ex. R2 to R6, the receipts issued by the landlord, also go to show that the parties have acted upon the agreement Ex. P5. All these receipts are subsequent to 1-7-1987. It is stated by the landlord that the tenant failed, to pay rent from December, 1987 onwards. The counter-claim of the tenant that whatever amount was paid under Ex. R2 to R6 was premium and not rent is totally baseless. If really they were paid as premium for execution of the sale deed by the landlord in favour of the tenant, as promised by him, the tenant would have also paid Rs. l75/-, the rent in addition to whatever amount he paid as premium. The very fact that no other payment was made in addition to this Rs. 750/- goes to show that the tenant has been taking frivolous stand to overcome the non-payment of the rent by him. The rent of Rs. l75/-, the rent in addition to whatever amount he paid as premium. The very fact that no other payment was made in addition to this Rs. 750/- goes to show that the tenant has been taking frivolous stand to overcome the non-payment of the rent by him. The rent of Rs. 750/- was disputed by the tenant in the case filed by the landlord and after the matter was decided by the Court-below the matter was taken up by the tenant in Revision. This Court in revision (H. R. R. P. 4486/1990) remanded the matter back to the Court-below for fresh consideration in accordance with law and with a direction to decide the rate of rent with reference to Clause 9 of Section 14 of the Old Act. The Court-below in the impugned order considered the effect of the said clause and came to a conclusion that the agreement entered into between the landlord and tenant could not be sustained in law as it is contrary to Section 14 of the Old Act. ( 7 ) THIS finding of the Court-below is totally perverse in that the statutory tenancy that came into being on allotment of the premises by the Rent Controller, under which Order of allotment he was required to pay Rs. 175/- per month, came to be terminated by the Eviction Order passed in the earlier proceedings between the parties. The Eviction Decree was satisfied in Execution No. 308/1987 and a Memo also came to be filed in that regard by both the parties. Once the rights and obligations that accrued to the tenant under the statutory tenancy were brought to an end by virtue of the satisfaction of the decree recorded in the said Execution Proceedings, the parties would no longer be governed by the terms and conditions of the said tenancy. When once the tenancy came to a close, the parties cannot be permitted in law to revert back to the terms and conditions by which they were governed by the earlier tenancy when the parties have entered into contract of tenancy at a later point of time with new terms and conditions. When once the tenancy came to a close, the parties cannot be permitted in law to revert back to the terms and conditions by which they were governed by the earlier tenancy when the parties have entered into contract of tenancy at a later point of time with new terms and conditions. When a new contractual tenancy is created by the parties by entering into an agreement in that regard the Court-below ought to have determined the rights and obligations of the parties with reference to the terms and conditions of the contractual tenancy alone and not with reference to the terms under which the tenant came to occupy the premises on allotment by the Rent Controller. The Court-below has misguided itself in coming to a conclusion that an agreement entered into by them in contravention of the fair rent fixed by the Rent Controller is contrary to law when the statutory tenancy itself was no longer in existence. The contractual tenancy created under Ex. P5 is not a mere agreement for enhancement of rent but it is a totally new lease agreement creating new substantive rights and obligations. ( 8 ) THE facts in the present case would go to show that the tenant never paid the rents at the agreed rate of Rs. 750/- per month whenever the rent fell due. It is only when the matter came up in Revision that the tenant deposited the rents calculating the rent at the rate of Rs. 750/- per month. The tenant has been shifting his stand from time to time to suit his convenience and has failed to perform the obligations which he had to statutorily perform under the contract of tenancy. It has been laid down by the Apex Court in Nasiruddin v. Sita Ram Agarwal AIR 2003 SC 1543 which was also a case in which the landlord sought eviction of the tenant on the ground of non-payment of rent, that: it is the well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified. (Underlining is mine) the reason given by the tenant throughout for non-payment of rent in time is that Rs. (Underlining is mine) the reason given by the tenant throughout for non-payment of rent in time is that Rs. 750/- was not the actual rent and it was Rs. 175/- and that the said amount has to be adjusted against the interest that has to be paid by the landlord on the deposit of Rs. 20,000/- held by him. This reason is not a satisfactory one and now that I have held that the actual rent payable by him was/is Rs. 750/-, its non-payment amounts to failure on his part to perform the obligation cast on him. Therefore, I find that the finding recorded by the Court-below to the effect that the tenant had shown sufficient cause for non-payment of rent to the landlord within two months from the date of notice is perverse and is liable to be set aside. I hold that the tenant has failed to pay or deposit the rents as and when they fell due and the reason shown by him for not so doing despite being called upon to do so by a registered notice is totally unsatisfactory. While under Sec. 21 (1) (a) of the old Act an order for eviction followed automatically on the landlord establishing that the tenant had failed to pay or deposit the rent despite notice served on him, under Sec. 27 (2) (r) of the Act the eviction is not the immediate fall-out and the order made for eviction of the tenant would become operative only in the event of the tenant failing to pay or deposit the arrears of rent within one month of the date of the order. Where the tenant deposits or pays to the landlord within a month from the date of the order, all the arrears upto the end of the month previous to that in which payment or deposit is made, the tenant would not suffer eviction under Sec. 27 (2) (r) of the Act. ( 9 ) THE premises is sought by the landlord for providing accommodation to one of the married daughters and his son-in-law who are dependent on him for their day to day maintenance. ( 9 ) THE premises is sought by the landlord for providing accommodation to one of the married daughters and his son-in-law who are dependent on him for their day to day maintenance. The defence set up by the tenant before the Court-below that the landlord has no duty to provide accommodation for his daughter and son-in-law cannot be countenanced in the light of the latest decision of the Apex Court in Dwarkaprasad v. Niranjan in AIR 2003 SC 2024 . The Apex Court while interpreting the words For occupation by himself occurring in Section 13 (1) (g) of the Bombay Rents Hotel and Lodging House Rates Control Act which very phrase is used in Section 27 (2) (r) of the Karnataka Rent Act, 1999, observed thus: such a provision cannot be construed strictly so as to confine it to the requirement of the landlord alone and it can be extended to include the requirement of members of landlords family. In the present case, the plaintiff landlord has pleaded right from the beginning that he constitutes a joint family with his mother and brothers and sisters. It is also in evidence that the plaintiff holds the property for the benefit of the entire family. All the brothers and sisters including mother of the landlord live with him as members of the joint Hindu family. It is his obligation to settle his younger brothers in business as it is his obligation to settle his children in business. Therefore, he can legitimately seek eviction of a tenant by pleading that he needs demised premises to settle his son and his younger brothers in business. This being the legal position the conclusion is inevitable i. e. the plaintiff-landlord must succeed and a decree for eviction is liable to be passed in his favour for the entire demised premises. In the light of the decision laid down by the Apex Court touching the issue, it is no longer open to the tenant to contend that the landlord cannot seek possession of the premises for use and occupation of his daughter and son-in-law who are dependent on him. It has come in the evidence that the premises in the possession of the landlord is not sufficient enough to accommodate his daughter and her family. The finding so recorded by the Court-below to grant the order of eviction does not suffer from any illegality. It has come in the evidence that the premises in the possession of the landlord is not sufficient enough to accommodate his daughter and her family. The finding so recorded by the Court-below to grant the order of eviction does not suffer from any illegality. ( 10 ) THEREFORE, the finding recorded by the Court-below under Section 21 (1) (h) of the Old Act does not call for any interference. The Revision Petition filed by the tenant challenging the said finding is liable to be dismissed. ( 11 ) IN the result, H. R. R. P. No. 243/2000 is allowed and in terms of the second proviso to Sec. 27 (2) (r) of the Karnataka Rent Act, 1999 the tenant is directed to vacate the premises unless he pays to the landlord or deposits into Court within one month of the date of order, an amount calculated at Rs. 750/- per month at which it was last paid, for the period for which the arrears of rent is legally recoverable from him, including the period subsequent thereto up to the end of the month previous to that in which payment or deposit is made. ( 12 ) THE H. R. R. P. No. 139/2000 is dismissed. The tenant is given three months time to quit and deliver vacant possession of the petition premises. The time granted will however be subject to payment of all arrears of rent due from the tenant calculated at the rate of Rs. 750/- per month as noted in para 11 herein above. --- *** --- .