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2006 DIGILAW 470 (KAR)

N. NAGAMMA v. H. A. SOMASHEKARAIAH

2006-06-09

H.G.RAMESH

body2006
ORDER These two petitions have been filed being aggrieved by the order passed by the Chief Judge, Small Causes Court, Bangalore in H.R.C. No. 761 of 1990, dated 26-9-2002. Hence, they are taken up together for disposal. 2. H.R.R.P. No. 58 of 2003 is filed by the tenant being aggrieved by the order passed by the Trial Court in allowing the petition under Section 27(2)(a) of the Karnataka Rent Act, 1999 and H.R.R.P. No. 57 of 2003 is filed by the landlord being aggrieved by the order of dismissal of the grounds raised by the petitioner under Section 27(2)(a), (c), CD and (1) of the Karnataka, Rent Act of 1999. 3. The eviction petition was filed during 28-3-1990 against the original tenant who died on 31-3-1990, thereafter, the L.Rs of the original tenant were brought on record; the original respondent was the tenant under the petitioner in respect of the petition premises which is a residential premise bearing Corporation No. 24 and present Municipal No. 24/2 situated in Jumma Masjid Road, Bangalore City, Corporation Division No. 26 with the measurement given in the schedule. The said premises was let out on a monthly rental of Rs. 30/- initially and thereafter, after 18 years, it was enhanced to Rs. 60/- i.e., from 1-8-1982 and subsequently, one additional room was also let out from 1-2-1987 and monthly rent was fixed at Rs. 175/- in respect of the entire premises. Stating that petitioner intends to reconstruct the petition premises after demolishing the existing building; that the tenants are chronic defaulters and failed to pay monthly rentals and also has put up a permanent structure on the upstairs of the existing building without the consent and knowledge of the petitioner and has contravened the terms of lease and forfeited their rights of tenancy and further they are also using the premise for carrying on the business instead of residential purpose, the petition was filed for eviction. The said petition was contested by the tenants denying the relationship and also any such violations and also the requirement of the petition premises by the landlord for demolition and reconstruction. After enquiry, the Trial Court held that there is a jural relationship of landlord and tenant. Insofar as the ground raised by the petitioner under Section 27(2)(c) of the Karnataka Rent Act is concerned, it was held partly in the affirmative and partly in the negative. After enquiry, the Trial Court held that there is a jural relationship of landlord and tenant. Insofar as the ground raised by the petitioner under Section 27(2)(c) of the Karnataka Rent Act is concerned, it was held partly in the affirmative and partly in the negative. Insofar as other grounds raised under Section 27(2)(1) and 27(2)(i) are concerned, the same were rejected. However, the petition was allowed under Section 27(2)(a) of the Karnataka Rent Act ordering for eviction. 4. Heard the Counsel for the respective parties in both the cases. 5. Insofar as the ground raised under Section 27(2)(a) of the Karnataka Rent Act is concerned, it is the argument of the learned Counsel for the tenants that as per the order of the Trial Court dated 26-9-2002 within one month from the date of the said order at the rate of Rs. 300/- an amount of Rs. 47,700/- has been deposited and also monthly rentals are being deposited regularly from time to time. Since there is compliance, the landlord cannot claim eviction under Section 27(2)(a) of the Karnataka Rent Act. Further, it is the argument of the learned Counsel for the tenants that the Trial Court has rightly held that the ground under Section 27(2)(1) is not proved since no damage is caused by putting up the construction or there is no change of identity; insofar as the ground under Section 27(2)(i) is concerned, he has not obtained the licence or building plan to put up the construction, as such, the Trial Court has rightly rejected the said ground. Even in respect of the ground raised under Section 27(2)(c) is concerned, no notice is being issued as required under the said section directing the tenants to stop the activity and further no such nuisance or damage is caused to the property of the landlord. Accordingly, submitted that the revision petition filed by them is to be allowed since there is a compliance of the direction issued by the Trial Court in depositing the arrears of rent and the order passed under Section 27(2)(a) does not survive for consideration. 6. Accordingly, submitted that the revision petition filed by them is to be allowed since there is a compliance of the direction issued by the Trial Court in depositing the arrears of rent and the order passed under Section 27(2)(a) does not survive for consideration. 6. Per contra, the learned Counsel appearing for the landlord has submitted that the tenants have not complied with the requirements of Section 21(1)(a) of the Karnataka Rent Control Act, 1961 and also there is misuse of the building and change of identity in putting up the construction on the upstairs without the consent of the landlord; there is a due notice issued as required under Section 27(2)(c) and there is a non-compliance; that the building is more than 100 years old and it requires immediate demolition and reconstruction. Accordingly, submitted that the Trial Court has committed an error in interpreting with the provisions of the Act, without considering the pleadings and material evidence on record. In support of his argument, he has also relied upon several rulings. 7. Now, let me consider: (i) Whether there is a compliance of mandatory provisions under Section 27(2)(a) of the Karnataka Rent Act? (ii) Whether the tenants are liable to be evicted for non-compliance of Section 27(2)(a) of the Karnataka Rent Act and other provisions related thereto? and (iii) Whether the Trial Court has committed any error in dismissing the petition filed by the landlord under Section 27(2)(c), (i) and (1) of the Karnataka Rent Act, 1999? 8. The learned Counsel for the landlord has submitted that he does not press the ground raised under clause (i), as such I do not appreciate on that aspect. In the judgment in the case of Jacob Carlino v Prabha V Shenoy1, referring to the provisions of the Karnataka Rent Control Act of 1961, this Court has held that, when an application under clause (a) of the proviso to Section 21(1) is pending it is not necessary for the landlord to make a special application under Section 29-of the Act; for Section 21(2) of Act itself provides that the tenant shall comply with the provisions of Section 29 of the Act and it is made a statutory liability. Therefore, immediately after filing of the application under clause (a.) of Section 21(1), the tenant shall deposit all the arrears of rent within a period of 30 days and thereafter go on paying the rentals as and when accrues due. In the matter of payment of rents if the tenant defaults he must show sufficient cause why he has not paid the rents and why order of stopping of further proceedings should not be passed. 9. Even in the decision in the case of Mranalini B. Shah and Another v Bapalal Mohanlal Shah1 the Apex Court has made it clear that, in case of monthly tenancy the Court has no discretion to treat the payments made at irregular intervals as sufficient compliance. 10. Rule 9 of the Karnataka Rent Control Rules, 1961 under the old Act is in pari materia similar to Rule 25 of the Karnataka Rent Rules, 2001, which mandates that there shall be deposit of rent regularly as and when it falls due and with due notice to the landlord. In the instant case, what is being noticed is that after filing of the petition the tenants have not paid the rents nor deposited the same regularly although it was held that their exists a jural relationship of landlord and tenant. Even as noticed in the order of the Trial Court the tenants have been directed to deposit the arrears of rent of Rs. 47,700/-, however, subsequently, the said amount has been deposited. But as noticed in the judgment rendered by this Court whenever an application under Section 21(1)(a) which is similar to Section 27(2)(a) is made without there being an application under Section 29 by the landlord it is the duty of the tenant to deposit the amount as and when it falls due. This itself makes it clear that the tenants have not deposited the amount as and when the amount has fallen due and also there is no such explanation for non-deposit regularly. Under such circumstances, even if there is a compliance as per the direction issued by the Trial Court to deposit the amount, the tenant has become a defaulter and as such, he is liable to be evicted under Section 27(2)(a) of the Karnataka Rent Act, 1999. Under such circumstances, even if there is a compliance as per the direction issued by the Trial Court to deposit the amount, the tenant has become a defaulter and as such, he is liable to be evicted under Section 27(2)(a) of the Karnataka Rent Act, 1999. Further, even after revision is filed, even after the arrears of rent have been deposited, no notice is caused to the landlord as required under Rule 25 of the Rules. So there is non-compliance. 11. The Trial Court has dismissed the ground raised by the landlord under Section 27(2)(c) of the Karnataka Rent Act. Section 27(2)(c) reads that, the tenant if he has used the premises for the purpose other than for which it was let out without obtaining the consent in writing of the landlord, then he would be evicted, provided notice has been served on him asking him to stop the misuse of the premises. When the tenant has failed to comply with such requirement within one month as per Section 21(1)(b) of the old Act and at that time when the petition was filed he is required to stop the use or else he is liable to be evicted. 12. Section 108(o) of the Transfer of Property Act, 1882, provides for, the lessee may use the property as a person of ordinary prudence and he must not use or permit another to use the property for a purpose other than that for which it was leased. Admittedly, in the instant case, the petition premises is being used for business purpose although it was let out for a residential purpose. As per Ex. P. 24 a notice is being issued by the landlord, though it is not specifically mentioned to stop the proceedings therein, the notice has to be treated in such a manner that it is to stop such a misuse. In this regard, the learned Counsel for the landlord has relied upon the ruling in State of Andhra Pradesh v Gundugola Venkata Suryanarayana Garu 1, wherein, it contemplates that notice must be reasonably construed, every venial error or defect cannot be permitted to be sufficient to defeat a just claim. This clarifies that the notice issued at Ex. In this regard, the learned Counsel for the landlord has relied upon the ruling in State of Andhra Pradesh v Gundugola Venkata Suryanarayana Garu 1, wherein, it contemplates that notice must be reasonably construed, every venial error or defect cannot be permitted to be sufficient to defeat a just claim. This clarifies that the notice issued at Ex. P. 24 is to stop such misuse and even after that if it is continued then it is a clear violation of the provisions of Section 27(2)(c) and the Trial Court has committed an error in not appreciating the same properly and in rejecting the said contention. Similarly, insofar as Section 27(2)(1) is concerned, it is an admitted fact that a room has been put up in the first floor of the building. On the ground that there is no such change in identity or diminishing its value, the Trial Court has dismissed the petition on this ground also. Necessarily putting up a building on the first floor by way of putting up a room is a substantial alteration changing its identity, the Trial Court ought to have considered this aspect and it has committed an error in dismissing this ground as well. 13. In view of the above petition is allowed insofar as the grounds raised under Section 27(2)(a), (c) and (1) of the Karnataka Rent Act, 1999 is concerned while allowing the revision preferred by the landlord and dismissing the revision filed by the tenants by setting aside the order passed by the Trial Court. Parties to bear their own costs. However, one year's time has been granted to the tenants from today to vacate and hand over the vacant possession of the petition premises to the landlord. Parties to bear their an costs.