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2010 DIGILAW 870 (KAR)

Mary George v. N. D. H. Enterprises

2010-08-06

A.S.PACHHAPURE

body2010
Judgment :- Misc.Cvl. 9339/2010 is filed under Section 45(4) of the Karnataka Rent Act, 1999, praying to stop all further proceedings in the above case. ORDERS ON MISC.CVL.9339/2010 AND MISC.CVL.9338/2010 1. These applications have been filed by the landlord under Section 45 (4) of the Karnataka Rent Act, 1999 (hereinafter called as ‘the Act of 1999’ for short) to stop all further proceedings and to make an order directing to put the landlord in possession of the premises or dismiss the revision petitions. 2. The facts relevant for the purpose of these applications are as under: The applicant herein is the landlord and is respondent in these revision petitions, whereas the opponent in these petitions is the tenant in possession of the petition premises and has filed these revision petitions against the eviction decrees passed in HRC Nos.560/1999 and 564/1999 vide order dated 15-04-2004 under Section 5 of the Act of 1999 by the Chief Judge of the Small Causes Court. 3. I will be referring to the parties as landlord and tenant for the purpose of convenience. 4. The landlord filed HRC Nos.560/1999 and 564/1999 seeking eviction of the tenant of the ground under Section 21 (1) (h) and (j) of the Karnataka Rent Control Act, 1961 (hereinafter called as ‘the Act of 1961’ for short) against the tenant in the Court below. The Trial Court after adopting all the formalities, completed the enquiry and after hearing the counsel for both the parties and on appreciation of the material on record granted a decree of eviction under Section 5 of the Act of 1999 and aggrieved by the order of eviction, the tenant has approached this Court by filing these revision petitions. 5. During the pendency of the proceedings before the Trial Court, the Act of 1961 was repealed and the Karnataka Rent Act, 1999 came into force with effect from 5.12.2001. As the provisions of the new Act were applicable to the premises in question, situated at Mission Road, Bangalore, the proceedings were continued before the Trial Court and the request of the landlord on the application under Section 21 (1) (h) and (j) of the Act of 1961, was considered under Section 27(2) (r) of the Act of 1999 and the relief sought on that ground was dismissed and the order came to be passed under Section 5 of the Act of 1999. This order has been challenged by the tenant in these revision petitions filed under Section 46 (1) of the Act of 1999. 6. During the pendency of these revision petitions, the landlord/respondent herein has filed these applications under Section 45 (4) of the Act of 1999 and in support of these applications in both the cases, affidavits have been filed, wherein the landlord states that the rent of the premises at Rs.50/- p.m. in HRRP No.469/2004 and Rs.32/-in HRRP No.510/2004 was neither deposited nor paid and that in the first revision petition, the rent for 23 months amounting to Rs.1150/-is due and in the second petition, the rent for 38 months amounting to Rs.1216/-is due and that the tenant has committed default in the matter of payment of rent promptly and has not deposited the same. He also states that the tenant has no cause to withhold the payment or deposit of the rent and that therefore, the further proceedings in these revision petitions are liable to be stopped. 7. The tenant has filed the statement of objections denying the allegations made and states that he had paid the upto date rent and in HRRP No.469/2004, a money order for Rs.1,200/- converting the rent from July 2006 to June 2008 was sent on 19.7.2007 and the said money order was refused by the landlord. Again on 12.9.2008, he once again sent the money order for a sum of Rs.1,800/-covering the rent from July 2006 to June 2009 and the same was refused. Finally, a sum of Rs.2,400/-was sent by money order dated 7.8.2009 covering the rent from July 2006 to June 2010 and the same has been accepted by the landlord. In these circumstances, he has sought for the rejection of the application filed in HRRP No.469/2004. 8. In HRRP No.510/2004, it is contended in the objection statement that the landlord refused to receive the rent from January 2010 and that he is ready to pay the rent from January 2010 for seven months at the rate of Rs.32/- p.m. amounting to Rs.224/-if the landlord/respondent is ready to receive the same. It is the further contention of the tenant that the application is highly belated and has been filed with the malafide intention to drag the litigations and therefore on these grounds, has sought for the dismissal of this application. 9. It is the further contention of the tenant that the application is highly belated and has been filed with the malafide intention to drag the litigations and therefore on these grounds, has sought for the dismissal of this application. 9. In turn, the landlord filed an affidavit stating that the rent of Rs.2,400/- has not been received on 8.8.2009 as contended by the tenant in the affidavit and that the acknowledgement of money order produced by the tenant is neither signed by the landlord or by any other co-owners of the property and no payment has been received. 10. It is in these circumstances, that I have heard the learned counsel for both the parties. The point that arises for my consideration is: “Whether in a revision petition filed by the tenant against an order of eviction passed under Section 5 of the Act of 1999, an application under Section 45 (4) of the Act of 1999, is maintainable in law?” 11. It is the contention of the learned counsel for the applicant/landlord that the revision petitions have been filed by the tenant and in the circumstances, he submits that the tenant has no right to prefer or prosecute the revision petitions filed under Section 46 of the Rent Act of 1999, unless he has paid or pays to the landlord or deposits with the Court all arrears of rent and other charges due in respect of the premises upto the date of the payment and continues to pay or deposit any rent which may subsequently become due. Therefore, he submits that as the revision petitioner/tenant has failed to pay or deposit the rent as aforesaid and has not purforth any sufficient cause to the contrary, he requests that all the further proceedings in these revision petitions will have to be stopped by an order directing to put the landlord in possession of the premises or dismiss these revision petitions. It is also his contention that the applications filed by the landlord before the Trial Court was initially under Section 21 (1)(h) and (j) of the Act of 1961 and subsequently under Section 27 (2) (r) of the Act of 1999 and the provisions of Section 45 (4) of the Act of 1999 are very much applicable to these revision petitions filed by the tenant. The counsel has also referred to the decisions of this Court which will be referred hereafter. 12. Per contra, it is the contention of the counsel for the tenant that the application under Section 45 (4) of the Act of 1999 is not maintainable as the revision preferred by the petitioner/tenant is against an order under Section 5 of the Act of 1999 and as the application filed by the landlord on the ground under Section 27 (2)(r) of the Act of 1999 was rejected, the landlord cannot invoke the provisions of Section 45 (4) of the Act of 1999 to stop the proceedings. On these grounds, the counsel has sought for the dismissal of the applications. 13. It is not in dispute that the landlord filed the eviction petitions on the ground under Section 21 (1)(h) and (j) of the Act of 1961 and during the pendency of the proceedings, the said Act was repealed and the new Act i.e., Karnataka Rant Act, 1999 came into force with effect from 31.12.2001. As the provisions of the new Act were very much applicable to the premises in question, the proceedings were continued for eviction of the tenant on the ground under Section 27 (2) (r) of the Act of 1999. Further, after recording the evidence and hearing the parties, the Trial Court rejected the petitions so far as the grounds made out under Section 27 (2) (r) of the Act of 1999, but granted a decree of eviction on the ground under Section 5 of the Act of 1999. So aggrieved by these orders in both these cases, these revision petitions have been filed. 14. Further, the provisions of Section 29 of the Act of 1961 inclusive of sub clauses (1) to (5) are pari-materia similar to those under Section 45 (1) to (5) of the Act of 1999. These provisions pertain to deposit and payment of rent during the pendency of the proceedings for eviction. Therefore, as contended by the counsel for the landlord, an application has been filed to stop the proceedings on the ground that the tenant has failed to pay or deposit the rent and there is no sufficient cause to the contrary and hence, he has requested to stop all further proceedings and dismiss the revision petitions. Therefore, as contended by the counsel for the landlord, an application has been filed to stop the proceedings on the ground that the tenant has failed to pay or deposit the rent and there is no sufficient cause to the contrary and hence, he has requested to stop all further proceedings and dismiss the revision petitions. As the question of maintainability has been raised on the ground that the application is not maintainable, as there is no order against the tenant under Section 27 (2) (r) of the Act of 1999, which is equivalent to the provisions of Section 21 (1)(h) and (j) of the Act of 1961. Undisputedly, the order passed by the Trial Court is under Section 5 of the Act of 1999 on the ground that the tenant died and the legal representatives who contested the petition cannot continue the tenancy after the expiry of five years from the date of death of the original tenant. 15. Now, as could be seen from the provisions of Section 45 of the Act of 1999, it reads as under: “45. Deposit and payment of rent during the pendency of proceedings for eviction – (1) No tenant against whom an application for eviction has been made by a landlord under section 27, shall be entitled to contest the application before the Court under that section or to prefer or prosecute a revision petition under section 46 against an order made by the Court on application under section 27 unless he has paid or pays to the landlord or deposits with the Court or the District Judge or the High Court, as the case may be, all arrears of rent and other charges due in respect of the premises upto the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the termination of the proceedings before the Court or the District Judge or the High Court, as the case may be.” As per this provision, the tenant against whom an application for eviction has been filed under Section 27 is not entitled to contest the application before the Court in which it has been filed unless he deposits or pays all the arrears of rent. So when the proceedings were pending before the Court below, the tenant who was the respondent had no authority to contest the petition which was admittedly filed under Section 27(2)(r) of the Act of 1999. So this portion of the provisions of Section 45 (1) of the Act of 1999 apply when an application is pending in the trial Court and so far as the revision is concerned, the provision states that no tenant shall prefer or prosecute a revision petition under Section 46 against an order made by the Court on the application under Section 27 unless he has paid or pays or deposits with the Court all arrears of rent upto the date of the payment (The underline is mine). SO this second part of Section 45 (1) of the Act of 1999 applies in a case where the tenant has preferred a revision under Section 46 of the Act against an order made by the Court on the application under Section 27. 16. On this aspect of the matter, the learned counsel for the landlord relied upon the decision of this Court reported in ILR 1990 Kar.2269 (Sudhakar vs. Lakshamma) wherein it has been held that the continuity in payment of rent on the part of the tenant is a must to participate in the proceedings and once the rate of rent is determined, no fresh determination is necessary and a statutory protection to the tenant could be only in a circumstance when he is prevented by reasons beyond control or bonafide reason, if a case is made out under Section 29 (4). He has also placed reliance on another decision of this Court reported in ILR 1993 (3) Kar.L.J.192 (Ramachandrappa v. Nagarathna Bai) wherein the same principle has been laid down by this Court. Further, he has relied upon the decision reported in AIR 1985 KARNATAKA 95 (Medical Research Laboratory Private Limited v. K.C.Ajith) wherein the Court taking into consideration the provisions of Sections 50, 21(1) and 29 of the Act of 1961 held when there was an order on an application for eviction and the tenant had filed a revision petition, the relationship was disputed and the rent was not deposited, the revision is not maintainable in law. 17. 17. So as could be seen from the principle laid down in the decision referred to supra, a tenant against whom an application for eviction has been made by a landlord under Section 27 cannot contest an application before the Court under that section or prefer or prosecute a revision petition under Section 46 against an order made by the Court on an application under Section 27, unless he pays to the landlord or deposits with the Court all the arrears of rent. So here is a case where the tenant has filed a revision petition and in HRRP No.469/2004, as could be seen from the affidavit filed in support of the application, the landlord has stated that the arrears of rent is said to be for 23 months amounting to Rs.1,150/-from 1st June 2008 till the date of the application. In the objection statement, the tenant contends that on 19.07.2007, he sent money order for a sum of Rs.1,200/- which covers rent from July 2006 to June 2008 and the said money order was refused. He further states that again on 12.9.2008, he sent a money order for a sum of Rs.1,800/- covering rents from July 2006 to June 2009 and the landlord refused the same. Finally, on the third occasion, an amount of Rs.2,400/- was sent through money order on 7.8.2009 which covers rents from July 2006 to June 2010 and the same has been accepted by the respondent. Leaving apart the question as to whether this rent has been received by the landlord or not, as admitted by the tenant himself in his objection statement, he did not deposit the rent as and when it was due. His objection statement itself reveals that the rent from July 2006 to June 2008 was sent by money order. 18. Even in HRRP No.510/2004, the arrears of rent is said to be Rs.1,216/- the rent for 38 months prior to the date of the application and the objection statement reveals that the rent is due from January 2010 and that the tenant is ready to pay the rent for 7 months at the rate of Rs.32/- p.m. amounting to Rs.224/-. Here in this case as well, the rent upto the date has not been paid or deposited in Court. 19. Here in this case as well, the rent upto the date has not been paid or deposited in Court. 19. Even as could be seen from the objection statement in both the cases, the tenant has not made out sufficient cause for non-payment of the rent promptly every month as prescribed under the rules. In the circumstances, the vital question would be as to whether the proceedings will have to be stopped. 20. The revision petition has been filed under Section 46(1) of the Act of 1999 against an order under Section 5 of this Act and in this context, the applicability of Section 45 (1) to (5) is necessary to be considered. What Section 45 (1) provides is that the tenant who prefers or prosecutes a revision petition under Section 46 against an order made by the Court on an application under Section 27 has to pay the rent to the landlord or deposit the same in the Court. So considering this requirement, it is necessary that the revision preferred or prosecuted by the tenant has to be against an order under Section 27 of the Act. But the present revision petitions are not against an order under Section 27, but are against an order under Section 5 of the Act of 1999. So far as the application of the landlord filed under Section 27 (2) (r) of the Act of 1999, it comes to an end by the time his request for eviction on the ground under Section 27 is rejected by the Trial Court and there is no revision against the order under Section 27 rejecting the request of the landlord. Furthermore, the order under Section 27 will have to be against the tenant, then only the provisions of Section 45 of the Act of 1999 would apply and the landlord may move an application to stop the proceedings under Section 45 (4) of the Act. So when the landlord’s petition filed under Section 27 (2) (r) of the Act of 1999 was dismissed and the tenant had challenged the order of the Trial Court passed under Section 5 of the Act, the revision petition preferred under Section 46 is not against an order under Section 27 of the Act of 1999 and therefore, the applications filed under Section 45 (4) of the Act of 1999 by the landlord are not maintainable. 21. 21. So as could be seen from the provisions of Section 45 of the Act of 1999, the tenant is not contesting the application of the landlord filed under Section 27 of the Act or has not preferred a revision or prosecuting a revision filed under Section 46 against an order made by the Court on an application under Section 27 and therefore, the landlord has no right to seek the relief to stop the proceedings and the dismissal of the revision petitions. To invoke the provisions of Section 45, it is necessary that there shall have to be an order against the tenant under Section 27 and that the tenant had preferred a revision or prosecuting a revision and it is in such circumstances that an application under Section 45 (4) of the Act of 1999 could be maintained by the landlord. So taking into consideration these all facts and circumstances, I am of the opinion that the applications filed by the landlord in both the cases under Section 45 (4) of the Act of 1999 are not maintainable in law. Hence, I answer the point in negative and proceed to pass the following: ORDER The applications are dismissed.