Judgment:
ORDER
1. The tenant and landlord have both assailed an order made by the learned Judge in purported exercise of the powers under S. 29 of the Karnataka Rent Control Act (hereinafter referred to as 'the Act' for short) in the course of which the learned Judge made the following order:--
'I.A.I is allowed. The respondent is inarrears of rent of Rs. 8,500/-. That amount is to be deducted from the advance amount of Rs.20,300/- which comes to Rs. 11,800/-. Hence, the petitioner is directed to adjust the future rents against the advance amount of Rs. 11,800/- lying with the petitioner. After adjusting the said amount, the respondent is directed to pay future rents as and when they fall due.
No cost.'
The tenant assailed the said order in C.R.P. No. 2394/1992 whereas the landlord has assailed the same in C.R.P. No. 2371/1992.
2. The landlord's grievance is (that) the learned Judge was ill-advised in giving a direction to him to adjust the future rents of Rs. 11,800/-lying with him, making it clear until such adjustment is made, the tenant is not liable to pay any rents which h fixed at Rs. 850/- as against Rs. 1025/- claimed by the landlord. But the tenant's grouse is in relation to the finding that there was arrears of rent of Rs. 500/-. Mr. Chandrahasa for tenant maintains that this is a case in which the Court below ought to have held that he is not in arrears at all. Taking into consideration certain aspects of the case rate of rent having been determined by the Court at Rs. 850/- as against Rs. 1025/- claimed by the landlord, it was a clear case of tenant being found to be not due towards rental arrears at all. Counsel points out that prior to the institution of the H.R.C. case, there was exchange of notices between both sides during which it is pointed out a conspicuous omission was there to make any arrears of rent or non-payment or rents by the tenant. Counsel also invited my attention in particular to the reply issued by the tenant inter alia asserting that the tenant was a person who paid rents regularly and as a matter of fact rendered statement of accounts along with implied notice. It was then pointed out after the reply was issued, the landlord issued a rejoinder in which it was claimed that rents remitted by cheque along with the tenant's reply was not in full settlement of the rents due per month and it was a shortfall etc. etc.
3. Evidence appears to have been recorded on this disputed question as the rate ofrent, rental arrears if any etc. etc. Two issues were framed and determined by the learned Judge. Before the Court below, both sides examined themselves and closed their case, but curiously neither side appears to have produced any documentary evidence like receipts, accounts etc. regarding payment or non-payment of rent etc. It appears a suggestion was made to the tenant on behalf of the landlord that the man was signing on a voucher for having paid rents which the Counsel for tenant says that at least should have been produced by the landlord. He therefore says the landlord was really suppressing material pertaining the payment of rents and therefore he cannot possibly be called into arrears for the period from 1-6-1989 to 1-4-1992 as held by the learned Judge in the Court below.
4. May be there is some force in this submission. But then I must notice that here is a tenant who pleads non-liability for payment of rental arrears and in that situation this is a case in which of the tenant pleading discharge. The burden of establishing the same is clearly on him. He cannot possibly rely on a wayward suggestion put forward on behalf of the landlord suggesting a scheme for making payments by the tenant recorded in a receipt book which is said to be, we do not know, whether it is with the landlord or with him. But I cannot rely on such an insubstantial submission and on the basis thereof approve the finding of the learned Judge that arrears of rent as claimed for the period between 1-6-1989 to 1-4-1992 must be held proved but I would however sustain it on the ground the tenant pleaded discharge but produced no evidence. In that view of the matter, I cannot interfere with the finding recorded holding that the tenant had fallen in rental arrears in a sum of Rs. 8500/- computed at Rs. 850/- per month. I must mention the landlord does not any longer dispute the correctness of the finding recorded by the learned Judge that the rate of rent is Rs. 850/-per month and not Rs. 1025/- as claimed by him. On affirming the finding fixing the rental arrears at Rs. 8500/- the revision petition by the tenant in C.R.P. No. 2394/1992 must fail and it is accordingly held.
5-6. Adverting to the revision petition filed by the landlord viz. C.R.P. No.2371/ 1992, (sic) the contention of Mr. Bhat for the landlord, the Court cannot give a direction to the landlord to adjust the excess payments made against incoming rents since that appears to be the correct position based on the provision of the Act under S. 18(2)(b), it is relevant to set forth both clauses (a) and (b) of Section 18(2) of the Act which reads as follows:--
'18. Unlawful Charges not to be Claimed or Received:--
(1) xx xx xx xx xx xx (2) Where the fair rent of a building has not been so determined,--
(a) no person shall after the commencement of this part receive or stipulate for the payment of any sum as premium or pugree or any consideration whatsoever in cash or kind, in addition to the agreed rent;
(b) save as provided in clause (a) any sum or consideration paid in excess of the agreed rent whether before or after the commencement of this Part in consideration of the grant, continuance or renewal of the tenancy the building after such commencement shall be refunded or returned by the landlord or other person to the person by whom it was paid or at the option of such person otherwise adjusted by the landlord or other person.'
7. This is a case in which the tenant has paid admittedly an advance of Rs. 20,000/-and odd. If the rent was only Rs. 850/- per month, the landlord could not have received anything more than two months rent by way of advance as enjoined by proviso to S. 18(1)(a) of the Act which reads as under:--
'18(1) Where the fair rent of a building has been determined -
(a) no person shall claim, receive or stipulate for the payment of any sum as premium or pugree or any consideration whatsoever in cash or kind, in addition to such fair rent or save as provided in Ss. 16 and 17 any rent in excess of such fair rent :
Provided that the landlord may receive or stipulate, for the payment of an amount not exceeding two months' rent by way of advance;'
From the above it is clear that this is a case in which the landlord has received something more than advance permissible under the statute. But then that does not give the Court a right to issue a direction as has been done in the instant case asking the landlord to adjust future rents under a scheme evolved by the Court as indicated in the portion of the order extracted hereinbefore. Sub-cl. (b) of S. 18(2) makes it clear that adjustment by the landlord of excess rents paid and received by the landlord may be done and could be done provided the tenant calls upon the landlord to make such adjustment by exercising the option left open to him under clause (b) of S. 18(2). The Supreme Court in Nand Lal v. Ganesh Prasad, : AIR1988SC1821 sets out the dicta as follows:--
'BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT (3 of 1947), S. 8(2) -- EVICTION SUIT --ARREARS OF RENT -- ADJUSTMENT OF EXCESS PAYMENT TOWARDS ARREARS -- TENANT MUST CALL UPON LANDLORD TO DO IT -- HE CANNOT SEEK SUCH RIGHT IN SUIT FOR EVICTION. (BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT (16 of 1977), S. 8(2) at page 1823:
Without the tenant calling upon the landlord to adjust the excess payments towards the arrears of rent, he cannot seek such a right in the suit filed by the landlord by way of defence in the suit for eviction.
Though S. 8(2) deals with payment of excess rent for buildings for which the fair rent has been determined or re-determined by the Controller, the same principle, in the absence of a different prescription under the Act, has to govern the buildings for which the rent is payable in accordance with the terms of the contract between the parties. It, therefore, follows that even if the rent for the building leased out to the tenant had not been determined by the Controller but had beenfixed by the parties themselves, the right to seek adjustment of the excess payments made by the tenant has to be in accordance with the principle set out in S. 8(2).'
8. Apart from the acknowledged position in law as above, I must notice that S. 8(2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act is in pari materia with S. 18(2)(b) of the Act. In that sitution, the dictum of the Supreme Court in Nand Lal v. Ganesh Prasad applies on all fours, with the result, without the tenant exercising his option to call upon the landlord to adjust the excess rents paid by him, the Court on its own could not have made such a direction. But then, notwithstanding the said direction made by the Court as aforesaid, which in the circumstances could not have been made, it will be open to the tenant even now to call upon the landlord to adjust the advance amount towards future rents. With this observation, I must make an order deleting the direction given by the Court below to the landlord asking him to adjust the future rents against the advance amount lying with him. At the same time, notwithstanding this order, I make it clear that it is open to the tenant to exercise his option to call upon the landlord to make that adjustment, in which event, the landlord is bound to comply with such a demand even without the intervention of the Court. In the result, C.R.P. No. 2394 of 1992 fails the connected revision petition viz., C.R.P. No. 2371/1992 stands, allowed in terms of above. No costs.
9. Order accordingly.