Narayan Vs. Mahesh - Court Judgment

Excerpt:
karnataka rent control act, 1961 (karnataka act no. 22 of 1961) - section 21(1)(a) and 21(2) and 29. eviction petition dismissed when the tenant complied with order under section 29 in an eviction petition filed under section 21(1)(a) -- held -- the dismissal of the eviction petition without considering the cause for not paying the rent as contemplated in section 21 (1)(a) is not correct.;clauses i, ii, iii, of sub-section (2) of section 21 of the act have to be read in conjunction, if so read, the tenant in order to have the benefit of the said section has to comply with all the clauses. both the courts in this case have proceeded to absolve the tenant from the liability of being evicted only on the ground that the tenant has complied with the provisions of section 29 of the act without giving a further finding whether:;'the tenant had sufficient cause for default to pay or tender the rents within the period referred to in clause (a)'.;therefore in my opinion, the order of the learned munsiff as well as the order of the learned district judge are liable to be set-aside and is accordingly set aside. - [a.v. srinivasa reddy, j.] when order 8 rule 11 cpc is to be adhered to -- held -- it is only where there is furnishing of a copy of the plaint or petition is made mandatory that the provision of order 8 rule 11 cpc could be adhered to. as there is no such provision on the act or in the rules, making it mandatory on the part of the petitioner to serve a copy of the petition on the defendant along with notice, order 8 rule 11 cpc can have no application at all to a proceedings under the act. the order passed is without application of mind and in total disregard of the facts and circumstances of the case as also the provisions governing the procedure that ought to be mandatorily followed under the act. (b) karnataka rent act, 1999 (karnataka act no. 34/2001) - section 42 -- karnataka rent rules, 2001 -- rule 33 -- civil procedure code, 1908 ( central act no. 5 of 1908) --order 5 rule 2, order 8 rule 11 -- trial court took exception to the filing of the objection statement beyond the outer period prescribed in the civil procedure code and rejected it -- order of trial court set aside and applicability of section 42(1) of the act read with order 5 rule 2 and order 8 rule 11 cpc discussed. held: the impugned order prejudicially affects the right of the petitioners since he is estopped from meeting the case as pleaded by the respondent in her petition. in the absence of pleadings by the petitioner-tenant the court may well refuse to consider the oral evidence that maybe led by him in support of any defence that may be open to him. before passing such an order the court was duty-bound to call upon the petitioner in terms of section 42 (1) of the act to show cause why such an order should not be passed against him. it is quite regrettable that the court-below passed the order when the petitioner-tenant had not even taken a single adjournment for filing the objections. the order is passed overlooking sub-section(3) of section 42 which provides that a party is entitled to request and obtain three adjournments throughout the proceedings and the adjournments could be obtained at any stage of the proceedings. the order-sheet discloses that even this benefit had not been availed of by the petitioner-tenant for filing the statement as he had promptly filed it on the very next date of hearing. passing of the impugned order in the said facts and circumstances of the case was not only most unreasonable but highly regrettable. it smacks of an approach which is injudicious and totally lop-sided. the impugned order betrays a total lack of understanding of the laws of procedure and the manner in which they should be applied to specific instances. the impugned order is, therefore, liable to be set aside. (c) civil procedure code, 1908 ( central act no. 5 of 1908) - order 5, rule 2 , order 8, rule 11 -- karnataka rent act, 1999( (karnataka act no. 34/2001) -- section 42 --summons not accompanied by a copy of the petition --held -- copy of petition was furnished to him only on the date previous to the date of filing of the statement by the tenant. in fact, the provisions of order 8 rule 11 cpc could not have been applied at all to the case on hand as the summons was not accompanied by a copy of the petition as required under order 5 rule 2 cpc. the court-below before applying the principle enunciated in merchant and ors. v. shrinath chaturvedi, ought to have noticed that there is no legislative mandate in the present act mandating that the statement of objections is to be filed within 30, 60 or 90 days. on the contrary section 42(3) speaks of the entitlement of a party to seek for three adjournments in the entire course of the case which could be at any stage of the proceedings. the court-below failed to notice that it was by reason of the fact that such a mandate was there in the act, which was under its consideration, that the apex court while interpreting the said provision laid down the said principle. while interpreting the provisions of an act the court should try and give effect to the object of the act and in so doing it should be guided by the principles of purposive construction. the court-below misled itself in applying the provision contained in order 8, rule 11 c.p.c. disregarding the fact that the petitioner-tenant could have filed the statement of objections only after the copy of the eviction petition was served on him. in the present case the same was furnished to him only on the date previous to the date of filing of the statement by the tenant. in fact, the provisions of order 8, rule 11 c.p.c. could not have been applied at all to the case on hand as the summons was not accompanied by a copy of the petition as required under order 5, rule 2 cp.c. (d) civil procedure code, 1908 (central act no. 5 of 1908) - order 5 rule 2, order 8 rule 11 -- due service -- notice served on the defendant -- without tendering a copy of the plaintiff along with --cannot be construed as "due service". revision is allowed. - the tenant had sufficient cause for default to pay or tender the rents within the period referred to in clause (a)'.5. therefore in my opinion, the order of the learned munsiff as well as the order of the learned district judge are liable to be set-aside and is accordingly set aside.orderh. rangavittalachar, j.1.this is a landlord's petition under section 115 of cpc. 2. petitioner/landlord herein filed an eviction petition against the respondent/tenant under section 21(1)(a) of the karnataka rent control act (for short the act) on the file of the additional munsiff, bagalkot on the ground that the landlord has issued a notice contemplated under section 21(1)(a) dated 24th july 1987 calling upon the letter to pay the arrears of rent for the period february '87 to july '87, monthly rents being calculated @ rs. 300/- which he had not paid. the tenant refused to accept the said notice. consequently the landlord filed an eviction petition. during the enquiry of the said eviction petition, the landlord also filed a application under section 29(1) of the act. the said application came to be allowed.the learned munsiff determined the arrears of rent that the tenant was liable to pay to the landlord as on the date of his order i.e., on 12.7.1990 @ rs. 12,000/- and directed the tenant to pay the same within one month from that day. the tenant complied with the said order. the learned munsiff however held relying on section 21(2)(i) that the tenant is absolved from the liability of being evicted under section 21(1)(a) of the act, in view of the same is consequently dismissed the eviction petition; aggrieved by the said order, landlord herein preferred a rent revision petition before the learned district judge, bijapur. the learned district judge agreed with the reasonings of the learned munsiff and by his order dated 15.2.1994 dismissed the eviction petition. these two orders are challenged in this petition.3. sri krishna s. dixit learned counsel appearing for the petitioner/ landlord contended that both the courts below have completely mis understood the scope of section 21(2) of the act. according to him the tenant in order to save himself from being evicted in the petition filed under section 21(1)(a), has to not merely comply with the provisions of section 29 but to also show 'sufficient cause' for not paying the rents within 2 months when he received or deemed to have received the notice issued to him under section 21(1)(a). this has not been done in this case and both the courts below have not applied their minds to this aspect of the matter. in support of the said contention, the learned counsel relied on a division bench judgment of this court in shiva v. devanna.4. in my opinion, the said submission has substance. it has been held in the said decision that clauses i, ii, iii, of sub-section (2) of section 21 of the act have to be read in conjunction, if so read, the tenant in order to have the benefit of the said section has to comply with all the clauses. both the courts in this case have proceeded to absolve the tenant from the liability of being evicted only on the ground that the tenant has complied with the provisions of section 29 of the act without giving a further finding whether:'the tenant had sufficient cause for default to pay or tender the rents within the period referred to in clause (a)'.5. therefore in my opinion, the order of the learned munsiff as well as the order of the learned district judge are liable to be set-aside and is accordingly set aside. since as already held by me, both the courts have not applied their minds to this aspect of the matter viz., has the tenant shown sufficient cause for non-payment of demanded rents the matter has to go back to the file of the learned munsiff to enquire and decide the question viz:'whether the tenant had sufficient cause for non payment of the rents within 2 months from the date he received or deemed to have received the notice contemplated under section 21 (1)(a) and in the light of the decision of the division bench judgment of this court referred to above.'6. having regard to the long pendency of the matter learned munsiff is directed to dispose-off the same within 6 months from the date of receipt of this order.petition allowed.

Judgment:
ORDER

H. Rangavittalachar, J.

1.This is a landlord's petition under Section 115 of CPC.

2. Petitioner/landlord herein filed an eviction petition against the respondent/tenant under Section 21(1)(a) of the Karnataka Rent Control Act (For short THE ACT) on the file of the Additional Munsiff, Bagalkot on the ground that the landlord has issued a notice contemplated under Section 21(1)(a) dated 24th July 1987 calling upon the letter to pay the arrears of rent for the period February '87 to July '87, monthly rents being calculated @ Rs. 300/- which he had not paid. The tenant refused to accept the said notice. Consequently the landlord filed an eviction petition. During the enquiry of the said eviction petition, the landlord also filed a application under Section 29(1) of the act. The said application came to be allowed.The learned Munsiff determined the arrears of rent that the tenant was liable to pay to the landlord as on the date of his order i.e., on 12.7.1990 @ Rs. 12,000/- and directed the tenant to pay the same within one month from that day. The tenant complied with the said order. The learned Munsiff however held relying on Section 21(2)(i) that the tenant is absolved from the liability of being evicted under Section 21(1)(a) of the act, in view of the same is consequently dismissed the eviction petition; Aggrieved by the said order, landlord herein preferred a Rent Revision Petition before the learned District Judge, Bijapur. The learned District Judge agreed with the reasonings of the learned Munsiff and by his order dated 15.2.1994 dismissed the eviction petition. These two orders are challenged in this petition.

3. Sri Krishna S. Dixit learned counsel appearing for the petitioner/ landlord contended that both the Courts below have completely mis understood the scope of Section 21(2) of the act. According to him the tenant in order to save himself from being evicted in the petition filed under Section 21(1)(a), has to not merely comply with the provisions of Section 29 but to also show 'Sufficient Cause' for not paying the rents within 2 months when he received or deemed to have received the notice issued to him under Section 21(1)(a). This has not been done in this case and both the Courts below have not applied their minds to this aspect of the matter. In support of the said contention, the learned Counsel relied on a Division Bench Judgment of this Court in SHIVA v. DEVANNA.

4. In my opinion, the said submission has substance. It has been held in the said decision that Clauses i, ii, iii, of Sub-section (2) of Section 21 of the Act have to be read in conjunction, if so read, the tenant in order to have the benefit of the said section has to comply with all the clauses. Both the Courts in this case have proceeded to absolve the tenant from the liability of being evicted only on the ground that the tenant has complied with the provisions of Section 29 of the act without giving a further finding whether:

'The tenant had sufficient cause for default to pay or tender the rents within the period referred to in Clause (a)'.

5. Therefore in my opinion, the order of the learned Munsiff as well as the order of the learned District Judge are liable to be set-aside and is accordingly set aside. Since as already held by me, both the Courts have not applied their minds to this aspect of the matter viz., has the tenant shown sufficient cause for non-payment of demanded rents the matter has to go back to the file of the learned Munsiff to enquire and decide the question viz:

'Whether the tenant had sufficient cause for non payment of the rents within 2 months from the date he received or deemed to have received the notice contemplated under Section 21 (1)(a) and in the light of the decision of the Division Bench Judgment of this Court referred to above.'

6. Having regard to the long pendency of the matter learned Munsiff is directed to dispose-off the same within 6 months from the date of receipt of this order.

Petition allowed.