Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 588 (KAR)

T. R. Jaganath v. Gokul Promoters Pvt. Ltd.

2008-10-15

B.V.NAGARATHNA

body2008
Judgment :- (This HRRP filed u/s 46 of Karnataka Rent Act against the order dated 28.08.2008 passed in HRC.No.221/2003 on the file of the Chief Judge, Court of Small Causes, Bangalore, stopping all further proceedings and holding that the petitioner herein is directed to put the Landlord/Respondent herein in possession of the petition schedule premises within one month.) This revision petition is filed by the tenant challenging the order dated 28.2008 under which all further proceedings in HRC.No.221/2003 has been stopped and he has been directed to put the respondent/landlord in possession of the petition schedule premises within one month from the date of the order, failing which the respondent herein is at liberty to take possession of the premises by due course of law. 2. For the sake of convenience the parties shall be referred to in terms of their status before the trial court as per their jural relationship. 3. Therespondent/landlord filed HRC.No.221/2003 under Section 27(1)(a) & (r) of the Karnataka Rent Act, 1999. During the pendency of the said petition an application under Section 45 of the said Act was filed by the landlord on 22.2005 directing the petitioner/tenant to pay the arrears of rent from 2.2005 to 11.2007 amounting to Rs.94,792/-. On the said application an order was made on 22.2008 by the trial court stating that there was no question of the trial court to determining the arrears of rent since the same had been determined by this court and thereby directed the petitioner/tenant to pay arrears of rent on or before 13.2008 (mentioned as 13.2007 in the said order) and up to the said date. It is an admitted position that the tenant has failed to deposit the arrears of rent on or before 13.2008. When the matter stood thus, an application was filed by the tenant for re-calling the order dated 22.2008. The said application was heard and by order dated 19.4.2008 it was rejected and the tenant was called upon to show cause as to why he could not be directed to put the landlord in possession of the schedule premises by stopping all further proceedings under Section 45(4) of the Act. The case was then adjourned to 35.2008. In reply to the direction regarding show cause on 8.2008, a memo was filed stating certain reasons for the failure to deposit the rents on or before 13.2008. The case was then adjourned to 35.2008. In reply to the direction regarding show cause on 8.2008, a memo was filed stating certain reasons for the failure to deposit the rents on or before 13.2008. Subsequently, the matter was posted to 28.2008 on which date the impugned order has been passed. Aggrieved by the said order, the tenant has preferred this revision petition. .4. At this stage it is relevant to notice certain other proceedings which occurred during the pendency of the application filed under Section 45 of the Act. The petitioner/tenant have filed an application I.A.No.XVI before the trial court which was rejected and challenging the same HRRP.No.282/2006 .was preferred. By an order dated 2.2007, the said revision petition was dismissed at the stage of admission. The subject matter of this revision petition was with regard to the validity of an order dated 4.2006 regarding the appointment of Commissioner to re-measure the schedule premises. Thereafter the tenant preferred an application for re-calling of the order dated 2.2007. The said application for re-calling was also rejected by this court by order dated 12.2008, after observing that there was arrears of rent to the tune of Rs.1,49,000/-and that the tenant had failed to deposit the entire arrears of rent. As against the order dated 19.4.2008 passed by the trial court which had dismissed the application for re-calling the order dated 22.2008, HRRP.No.150/2008 was filed before this court and HRRP.No.167/2008 was filed challenging the order dated 22.2008. Both the revision petitions were heard together by this court and by order dated 17.2008 this court dismissed the revision petitions with cost of Rs.5000/-by observing that the tenant was in arrears of rent to an extent of Rs.1,49,000/-. 5. Subsequent to the dismissal of the two revision petitions, the tenant filed his reply to the show cause order passed by the trial court on 8.2008. 5. Subsequent to the dismissal of the two revision petitions, the tenant filed his reply to the show cause order passed by the trial court on 8.2008. Thereafter on 28.2008 the impugned order has been passed mainly on the ground that the earlier order of the trial court dated 19.4.2008 calling upon the tenant to show cause as to why the possession of the petition schedule premises should not be handed over to the landlord was upheld by this court in HRRP.No.150/2008 and that the only step was to proceed with the case to see whether the tenant had shown cause as to why all further proceedings should not be stopped and he should be directed to put the landlord in possession of the schedule premises as no cause was shown by the tenant and therefore, all further proceedings were stopped and the tenant was directed to put the landlord in possession of the petition schedule premises. Being aggrieved by the said order the tenant has preferred this revision petition. 6. I have heard Sri. D.R. Sundaresh, learned counsel for the petitioner and Sri.H.S. Venkatakrishna, learned counsel for the respondent. 7. It is submitted on behalf of the petitioner that the order passed by the trial court is not in accordance with the provision and object and purpose which is contemplated under Section 45(4) of the Act as the trial court has not even referred to the reply submitted by the petitioner and that there is no discussion whatsoever to the cause shown by him let alone there being any determination of the sufficiency of the said cause. He further submits that the reference made to the orders passed by this court by the trial court was with regard to the stage prior to Section 45(4) being considered and that the impugned order was with regard to the sufficiency of cause shown for the non-payment of rents and therefore, there has been failure to exercise jurisdiction under Section 45(4) and he hence requests this court to set aside the order and direct the trial court to continue the proceedings from that stage. .8. .8. Per contra, it is submitted on behalf of the respondent that the conduct of the tenant in the instant .case has to be taken into consideration for the purpose of determination of the sufficiency of cause and that the petitioner/tenant has gone on filing application after application before the trial court and not being successful has consequently filed successive revision petitioners before this court and the whole object and purpose of the petitioner is to delay and stagnate the proceedings. He further submits that admittedly there is failure to deposit the rents and the cause shown for the non-deposit of rents on or before 14.03.2008 are not sufficient in law and therefore, the exercise of jurisdiction by the trial court under Section 45(4) is justified and the same does not call for any interference by this court. 9. Taking note of the rival contentions the only point that arises for my consideration is whether the trial court was justified in exercising its power to stop all further proceedings and directing the tenant to put the landlord in possession of the petition schedule premises on the facts and circumstances of this case? 10. It is not in dispute that this court by its orders on more than one occasion had observed that the petitioner/tenant was in arrears of rent and the same was also determined to be Rs.1,49,000/- for the period of 1995 to 2003. In fact on account of the non-deposit of the rents, the application for recalling of the order dated 2.2008 passed in HRRP.No.282/2006 was rejected. No doubt this court while considering the tenant’s revision petitions had repeatedly observed that there were arrears of rent and that the tenant had not deposited the same and the revision petitions which were filed by the petitioner/tenant challenging the orders of the trial court were dismissed on merits. However, the fact remains that this court did not have an occasion to consider any order passed under Section 45 of the Act on the basis of which an application was made by the respondent/landlord before the trial court exception HRRP.No.167/08. Also during the pendency of the said application, several proceedings occurred before this court, but they had no nexus for consideration of the case under Section 45(4) of the Act. .11. Also during the pendency of the said application, several proceedings occurred before this court, but they had no nexus for consideration of the case under Section 45(4) of the Act. .11. Having become unsuccessful in the revision petition, the position became clear that the tenant was in arrears of rent and that the order passed by the trial court on 22.2008 and 19.4.2008 were upheld. It is also of significance to note that the revision petitions, which upheld the orders dated 22.2008 and 19.4.2008 was at a stage prior to the consideration of the case under Section 45(4) of the Act. After the dismissal of HRRP.No.150/2008 and HRRP.No.167/2008 which were filed against the order dated 19.4.2008 and 22.2008 respectively and in pursuance of the direction issued by the trial court on 35.2008, the tenant filed his reply on 8.2008 explaining the cause for the failure to deposit the rents on or before 13.2008. Thereafter on 28.2008 the petitioner/tenant filed one more memo with some documents. In the reply given on 8.2008 at para 2 the tenant has stated certain reasons for the failure to deposit the rents on or before 13.2008 and the same is extracted as follows: .“The respondent has thus deposited the above amount at various dates indicated above, but due to filing of the revision petition on two occasion, no explanation was given, in other words the respondent was prevented from showing cause due to the reasons which was beyond human control and further it is very much pertinent to state that he had spent huge sums of money for the treatment of both the respondent’s mother, aunt, who died within a gap of few months recently, and his business also got totally flopped as he was not able to concentrate on it due to sickness o his mother and aunt, about a year back and suffered heavy loss also. Thus natural calamities, loss in the business and prosecuting revision have all resulted in the order dated 19.4.2008, directing the respondent under Section 45(4) of the Act to show cause, why he shall not be directed to put the petitioner in possession of the petition schedule premises by stopping all further proceedings by 35.2008 and it pertinent to note that on 29.5.2008 itself, HRRP.No.150/2008 was filed and the matter i.e., trial was subsequently stayed and during the pendency of this revision another connected HRRP 167/2008 was also filed and both these revisions were dismissed on 17.2008 confirming the orders dated 22.2008 and 19.4.2008 respectively.” 12. Under Section 45(4) of the Act in the event of the tenant failing to pay or deposit the rents which are determined as arrears of rent and unless the tenant shows sufficient cause to the contrary, the court can stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision petition as the case may be. Therefore, in order to avoid an adverse order being passed the tenant has to explain the failure to deposit the arrears of rent to the satisfaction of the court in as much as the cause shown ought to be sufficient. 13. Admittedly, in the instant case there was failure to deposit arrears of rent as ordered by the trial court and the trial court had rightly directed the tenant to show cause or explain the reasons for his failure. However, when the explanation was given by the tenant on 8.2008 there has been no reference to the same in the impugned order let alone there being any determination as to whether the cause shown was sufficient or not in law. No doubt every tenant who is in occupation of the premises is duty bound to pay the rents on time and particularly when an order of determination of arrears of rent is made by a court, he is all the more bound to pay the arrears of rent as per the direction of the court and within the time fixed by the court. However, the legislature in its wisdom has considered the circumstances or a situation where the tenant on account of certain reasons which should be sufficient in law and explained by him to the satisfaction of the court can wriggle out of a situation where the rigour of Section 45(4) is not made applicable. Therefore, the key words under Section 45(4) are tenant showing sufficient cause with regard to the failure of payment of arrears of rents within the time fixed by the court. .14. In the instant case although reply dated 8.2008 was filed to the direction to show cause, issued by the court below on 35.2008 without making any reference to the said explanation, the trial court has straight away passed the impugned order while observing that the respondent/tenant had not .made any efforts to show cause as to why he should not be directed to put the landlord in possession of the schedule premises by stopping all further proceedings. The non-consideration of the relevant material placed by the petitioner and non-determination as to whether that explanation offered by the tenant was sufficient cause or not for the failure to deposit the rents on or before 13.2008 is an error apparent on the face of the record. Hence for the simple reason alone the impugned order is liable to be set aside. 10.15. At this stage it is of relevance to consider the citations relied upon by both the sides. 116. Learned counsel for the petitioner has relied upon a decision reported in 1990 (supplement) SCC 213 (N.T. Bharathi Vs. Hotel Olympia) which arose under Section 29(1) & (4) of the Karnataka Rent Control Act, 1961 as it then existed wherein it has been held that opportunity must be given to show cause or offer explanation for the short fall in the deposit of arrears of rent and since in the said case no opportunity had been given the dismissal of the revision petition by this court as not maintainable was set aside by the Hon’ble Supreme Court and a direction was given to afford opportunity to the parties and thereupon to dispose of the revision petition. 117. 117. In the instant case though the trial court rightly directed the petitioner herein to show cause for his failure to deposit the rents and on filing of the reply to the same as already noted above by me, there has been no consideration or reference and hence there has been denial of opportunity to the petitioner on account of the non-consideration of the explanation by the trial court as opined by the Hon’ble Supreme Court in the above Judgment and hence the order impugned has to be set aside on the basis of the above decision. 118. Another decision relied upon by the learned counsel for the petitioner is reported in ILR 2006 Karnataka 1966 (Sri.K.Chandrashekara Vs. S. Ganesha & Others) which is a case pertaining to Section 43 of the Act which deals with a situation when there is a dispute of relationship of landlord and tenant and the said decision is relied upon to content that even if there is no enquiry postulated under Section 43 of the Act, the requirement of holding enquiry cannot be dispensed with. Any order, visiting the parties with serious consequences cannot be passed without holding an enquiry. Though this decision is not directly applicable to the facts and circumstances of the case on hand, the only inference which can be drawn is that there cannot be a failure of natural justice by non-consideration of relevant material prior to a passing of an order which has serious consequences. .19. Learned counsel for the respondent has referred to a decision reported in AIR 1980 SC 954 (Mranalini B. Shah & Another Vs. Bapalal Mohanlal Shah) to contend that the tenant must pay rents punctually and regularly and that in the absence of there being regular deposit of rents which is a mandatory requirement in law, the tenancy court cannot treat payments made at the whims and fancies of the tenant as compliance of Section 12(3)(b) of the Bombay Rents Hotel and Lodging .House Rates Control Act, 1947. Though there can be no opinion to what has been observed by the Hon’ble Supreme Court in this case but in the absence of there being any material as to whether Section 12(3)(b) is in pari materia with Section 45 of the Act, not much reliance can be placed on the said decision in the context of the question that arises in the instant case. 120. 120. In AIR 1989 SC 291 (Manmohan Kaur Vs. Surya Kant Bhagwan) which has been relied upon by the learned counsel for the respondent, it has been stated that the delay or failure to deposit the rents has to be properly explained and if that delay has been properly explained then the court has discretion to excuse the delay. But if the delay has not been properly explained, the court has no discretion to excuse the delay. Therefore, the court should consider that whether the delay has been properly explained or not. In construing that question the court in the scheme of the administration of justice must take a constructive and purpose oriented approach, otherwise the element of discretion would come into play. He placed reliance on this decision to submit that the explanation give by the petitioner for non-deposit of rent could not have been accepted by the trial court and therefore, the trial court was justified in holding that there was no sufficient cause shown for the non-deposit of rent. But there is not material forthcoming from the impugned order that there has been a consideration of the explanation offered by the petitioner herein and in fact it would now be incumbent upon the trial court to consider the issue in the light of this decision in view of the impugned order being set aside in this revision. 121. In1991(1) KLJ page 90 (Sudhakar Vs. Smt. Lakshmamma) which is a decision of this court in the case of Syed Abdul Waddod Vs. State of Karnataka (ILR 1987(4) Kar. 3679 wherein it has been pointed out where rent had not been paid by the tenant without a valid cause, he fails to discharge his basic obligation nor gain the benefit under the lease. Therefore, before passing any order of eviction under clause (4) of Section 45 of the Act, the validity of the cause shown or the sufficiency of cause shown must be gone into by the court which is considering the application under the said provision. This court has also cautioned while referring to Section 29(4) as it then existed that the 1961 Act which empowers the court to strike out a defence in an eviction proceeding is in the nature of penal provision and should be exercised sparingly and in extreme cases as observed by the Supreme Court in the case of M/s.Santhosh Mehta Vs. This court has also cautioned while referring to Section 29(4) as it then existed that the 1961 Act which empowers the court to strike out a defence in an eviction proceeding is in the nature of penal provision and should be exercised sparingly and in extreme cases as observed by the Supreme Court in the case of M/s.Santhosh Mehta Vs. Omprakash & Others reported in AIR 1980 SC 1664 that principle will have to be borne in mind while considering the explanation or delay committed by him. When no explanation is offered, the question of invoking the said principle does not arise, but if the explanation has been offered by the tenant, then it is the duty of the court to consider the same on merits in order to determine the sufficiency of cause. The said observation of the court were made in the context of the contention raised by the tenant in the said decision that the proceeding under Section 29(4) which is in pari material with Section 45(4) of the Act have to be taken at different stages and that a composite order could not be made as such and said contention was repelled. 122. One other contention raised by the learned counsel for the respondent is on the conduct of the tenant in firstly, all not depositing the rents on time and thereafter filing several revision petitions and recalling applications and thereby trying to hoodwink the orders of the trial court as well as this court by not depositing the rents on time. 123. In my view it is not necessary to express any opinion on this aspect of the matter at this stage, since the trial court would have to consider the cause shown by the petitioner/tenant in not depositing the rents in time and that any observations made on this submission may hamper consideration of the explanation offered by the tenant by the court below. 124. For thereasons stated above, the impugned order dated 28.2008 is set aside and the matter is remanded back to the trial court with a direction to consider the reply dated 8.2008 filed by the petitioner/tenant in accordance with the provisions of Section 45 of the Act and thereafter to pass orders in accordance with law. 19.25. 124. For thereasons stated above, the impugned order dated 28.2008 is set aside and the matter is remanded back to the trial court with a direction to consider the reply dated 8.2008 filed by the petitioner/tenant in accordance with the provisions of Section 45 of the Act and thereafter to pass orders in accordance with law. 19.25. At this stage it is submitted by the learned counsel for the respondent that the petition for eviction was initiated as early as in the year 2003 and therefore, time may be fixed for the trial court to consider the matter under Section 45 of the Act. I find considerable force in the submission made by the learned counsel for the respondent. The trial court is directed to re-consider the issue under Section 45(4) of the Act within a period of one month after the appearance of the parties before the trial court. Since both the parties are represented by counsel, it is ordered that the parties shall appear before the trial court on 11.2008.