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Bhimappa Ningappa Hiresomannawar Vs. Shrimant Parashuram Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1240 of 1970
Judge
Reported inAIR1973Kant52; AIR1973Mys52; (1972)2MysLJ108
ActsMysore Land Reforms Act, 1962 - Sections 22(1) and 42
AppellantBhimappa Ningappa Hiresomannawar
RespondentShrimant Parashuram Rao and ors.
Appellant AdvocateB.V. Deshpande, Adv.
Respondent AdvocateB.G. Sridharan, Amicus Curiae
DispositionPetition allowed
Excerpt:
.....forwhich the tenant is proposed to be evicted. --a tenant shall be deemed to have failed to pay rent payable by him to the landlord for any year if he does not pay it before the end of june next after the expiry of the year. in order to secure a right to institute proceedings for eviction of tenant on the ground of non-payment of rent, there shall be failure on the dart of the tenant to pay the rent due from, him as laid down and explained in section 22 (1) (a), the proviso and the explanation thereto of the act. under what circumstances the law recognizes nonpayment of rent on the part of a tenant as failure on his part to pay rent payable by him to the landlord for any year is provided in the explanation to section 22 (1) (a) of the act. 16. it has been consistently held in this..........act for fixing the date before which rent in cash, is to be paid and that by the notification different dates are fixed in regard to khariff and rabi crops. nextly the learned judge has considered the provisions in section 22 (1) (a) of the act and the explanation thereto. that explanation reads as follows:'a tenant shall be deemed to havefailed to pay rent payable by him to thelandlord for any year, if he does not payit before the end of june next after theexpiry of the year.'therefore, according to the learned judge, considerable difficulty would be experienced in instituting proceedings either for recovery of rent or for eviction. the learned judge has in this connection held that the landlord's right to start proceedings for eviction under section 22 (l) (a) or for recovery of rent.....
Judgment:

Nesargi, J.

1. Jagannatha Shetty, J being of the opinion that the decision in C. R. P. No. 557 of 1971 (Thattesara Subbaraya v. Chinne Gowda) and the connected petition, required to be reconsidered, has referred this revision petition to a Bench under Section 8 of the Mysore High Court Act. The said decision is by now reported in 1972 (1) Mysore Law Journal 322 = (AIR 1972 Mys 213).

2. The petitioner is tenant of lands R. Survey Nos. 105. 11, 112, 113. 157 and 153 of Hulyal village, Jamkhandi Taluk, Bijapur District, under the respondents-landlords. The respondents filed an application under Section 42 of the Mysore Land Reforms Act. 1961. (to be hereinafter referred to as the Act'), before the Land Tribunal. Jamkhandi, on 28-6-1968 against the petitioner for recovery of balance of rent due for the year 1966-67.

3. They computed the rental under Section 8 (1) (b) of the Act and claimed a balance of Rs. 4.804.00 after giving deduction of a sum of Rs. 680/-already paid by the petitioner.

4. The petitioner contended that he was to pay rent of Rs. 680/- only as per agreement entered into between him and the respondents and that he had already paid that sum. He therefore, pleaded discharge. He also contended that the application having been filed on 28-6-1968, was barred by limitation,

5. The Tribunal rejected the contention on the point of limitation and held that the balance recoverable was Rs. 1.454.00. The petitioner appealed. The District Judge also rejected the contention on the point of limitation. He modified the order passed by the Tribunal holding that the balance recover able was Rs. 1,270.00.

6. The order of the Tribunal and the judgment of the District Judge are challenged in this petition.

7. Both the authorities below have held that the tenant had failed to establish that there was an agreement to pay rent at Rs. 680/- only per year. Sri B. V. Deshpande, the learned counsel for the petitioner, did not urge anything against the finding of fact and also against the quantification of rental made by the District Judge.

8. Therefore, the only point to be considered is whether the application filed by the respondents on 28-6-1968 is or is not in time.

9. Sri B. V. Deshpande pointed out that Section 42 (4) of the Act made Article 52 of the Limitation Act. 1963 (to be hereinafter referred to as the Act, 1963) applicable to applications filed under Section 42 of the Act, for recovery of rent and that the only modification is that the period is changed from three years to one year. He also pointed out that the State Government had, in exercise of its powers under Section 9 (1) of the Act. issued Notification S. O. 287 dated 17-1-1967 fixing 31st May as the date before which rent, payable as share in regard to rabi crops in Bijapur District, is to be paid. He, therefore, contended that the time for purposes of limitation had begun to run from 31-5-1967 in the present case and had expired by or on 31-5-1968 and, therefore, this application was not maintainable. We have to bear in mind that it is not in dispute that rabi crop had been grown in the lands hi question for the year 1966-67.

10. Sri B. G. Sridharan, the learned counsel appearing as Amicus Curiae for the respondents, however, urged that if the dates mentioned in the said Notification were to be taken as the dates from which time began to run for purpose of limitation there would be considerable difficulty in instituting proceedings either for recovery of rent or for eviction under Section 22 (1) (a) of the Act. According to him, the right of a landlord to start proceedings for eviction under Section 22 (1) (a) or for recovery of rent under Section 42 of the Act. is based upon one and the same cause of action which is non-payment of rent. He placed reliance on the decisions in (1) (1972 (1) Mys LJ 322) - (AIR 1972 Mys 213). and in Krishna Bat v, Choma Gowda (2) (1972 (1) Mys LJ 622).

11. The contention of Sri Sridharan is accepted in the very form in Thattesara Subbaraya's case 1972 (1) Mys LJ 322 = (AIR 1972 Mys 213). That decision is followed in Krishna Bai's case, 1972 (1) Mys LJ 622.

12. Both the above cited decisions are rendered by Datar J. In Thattesara Subbaraya's case, 1972 (1) Mys LJ 322 - (AIR 1972 Mys 213). Datar J. has pointed out that no provision has been made in Section 9 of the Act for fixing the date before which rent in cash, is to be paid and that by the Notification different dates are fixed in regard to khariff and rabi crops. Nextly the learned Judge has considered the provisions in Section 22 (1) (a) of the Act and the Explanation thereto. That Explanation reads as follows:

'A tenant shall be deemed to havefailed to Pay rent payable by him to thelandlord for any year, if he does not payit before the end of June next after theexpiry of the year.'

Therefore, according to the learned Judge, considerable difficulty would be experienced in instituting proceedings either for recovery of rent or for eviction. The learned Judge has in this connection held that the landlord's right to start proceedings for eviction under Section 22 (l) (a) or for recovery of rent under Section 42 of the Act is based upon the same cause of action, i. e, nonpayment of rent. The learned Judse, has on taking the above view, held that the rent becomes due to the landlord by the end of June and if it is not paid by then, the cause of action for institution of the proceedings for a recovery of rent arises and, therefore, a landlord can file an application for recovery of rent under Section 42 of the Act within one year from the end of June next after the expiry of the year.

13. With great respect to the learned Judge, we are unable to agree with the views expressed by him. Section 8 of the Act lays down that subject to the provisions of the Act and notwithstanding any law, custom, usage, agreement or the decree or order of a Court to the contrary, the rent payable by a tenant shall be paid annually. Therefore, liability of a tenant to pay rent to his landlord arises every year. Sub-sections (1) and (2) of Section 9 of the Act read as follows:

'9. Delivery of crop rent and decision of disputes regarding rent payable-

(1) Where the rent payable is a share of the gross produce, it shall be payable to the landlord at the village where the land is situated, before the date notified by the State Government in respect of the local area in, which such village is situated.

(2) Where the rent is in accordance with the agreement with the landlord payable in cash, or the landlord desires payment of the rent in cash, or the landlord fails to receive the rent in kind before the date notified under Sub-section (1), the tenant shall pay to the landlord the rent in cash, the value in cash of the rent being determined in accordance with the prices notified for that year by the prescribed authority.

(3) *****

In our opinion, it is, plain that Sub-section (1) of Section 9 of the Act empowers the State Government to issue notification fixing the date before which rent payable as share of gross produce is to be paid by the tenant to the landlord and that too at the village where the land is situated. It is clear that the State Government is not empowered by this provision to issue notification in regard to rent payable otherwise than as share of the gross produce. The Notification in question has been issued by the State Government under this provision of law. By the said Notification two classes of crops are made; they are khariff and rabl. Two different dates, viz. 31st March and 31st May in regard to these crops respectively have been fixed by the State Government as the dates before which tenants are required to pay the rent payable as share of gross produce at the village where the land is situated. Of course different dates are fixed in regard to different area. The above mentioned dates are in regard to lands situated in Bijapur District. Sub-section (2) of Section 9 of the Act lays down that (1) if there is an agreement between the landlord and the tenant to pay rent in cash, it shall be paid in cash; (2) if the landlord desires payment of the rent in cash, though it is payable in kind, the tenant shall pay the same in cash to the landlord; and (3) if the landlord fails to receive the rent that is payable in kind from the tenant before the date notified by the State Government by a notification issued under Sub-section (11 of Section 9 of the Act, the tenant shall pay that rent in cash after determining its value in accordance with the prices notified for that particular year as provided in the provisions of the Act and the Rules framed thereunder. The resultant position, therefore, is that the rent payable in kind as a share of the gross produce will have to be paid by the tenant before the dates notified by the State Government in the notification issued by it under subsection (1) of Section 9 of the Act. In other words, those dates are the due dates by which rent is to be paid. Hence, we have no hesitation in holding that those dates are the dates by which the rent legally becomes due from the tenant. A9 already pointed out, column 3 of Article 52 of the Act. 1963, as applicable to rent recovery proceedings under the Act, prescribes the dates when the arrears of rent become due as the point of time from which period of limitation of one year begins to run. We do not see why the above mentioned two dates and in the case on hand the date 31st May, cannot be regarded as the date from which time for computation of the period of limitation of one year begins to run. The duty of the Courts is to give effect to all the provisions of a Statute unless it becomes impossible to do so. In the case on hand, it is not open to the Court to disregard the provisions of law merely because the law has prescribed different due dates in regard to different kinds of crops.

14. When a tenant fails to pay rent due from him to a landlord, the landlord can institute proceedings under Section 42 of the Act. by filing an application thereunder for recovery of the rent in arrears. Apart from the period of limitation fixed in Sub-section (4) of Section 42 of the Act, no other restriction is placed in the way of exercise of 'this right of the landlord. The only other thing found In Sub-section (1) of Section 42 of the Act is, a suit or other proceeding in this regard will not lie in any Court i. e, in the regular manner. Another consequence that follows because of the non-payment of rent by a tenant is the coming into existence of a right in the landlord to institute proceedings for eviction of the tenant. Certain restrictions are placed by the Act in Section 22 in the exercise of this right by landlord. Section 22 (1) (a) of the Act reads as follows:

'22. Eviction of Tenant for Default,etc.,-- (1) Notwithstanding any agreement,' usage, decree or order of a Courtof law or anything contained in anyenactment or law repealed by Section 142or in any other law in force before thecommencement of such enactment or lawand subject to the provisions of Section 14, no person shall be evicted fromany land held by him as a tenant excepton any of the following grounds, namely:(a) that the tenant has failed to pay therent of such land on or before the duedate during two consecutive years, provided the landlord has issued every yearwithin three months after the due date,a notice in writing to the tenant that hehas failed to Day the rent for that year;

(b)*****

Provided that no tenant shall beevicted under this Sub-section unless thelandlord has given six months notice inwriting informing the tenant of his decision to terminate the tenancy and theparticulars of the ground for such termination, and within that period the tenant has failed to remedy the breach forwhich the tenant is proposed to be evicted.

Explanation.-- A tenant shall be deemed to have failed to pay rent payable by him to the landlord for any year if he does not pay it before the end of June next after the expiry of the year.' Therefore, it is clear to our mind that a landlord does not get a right to institute proceedings for eviction of a tenant in every case of non-payment of rent by a tenant. To say that the landlord's right to start proceedings for eviction under Section 22 (l) (a) or for rent under Section 42 of the Act are based upon the same cause of action i. e. non-payment of rent, may not be quite appropriate. In view of what is plain from the provisions contained in Section 22 (1) (a), the proviso and the Explanation thereto, of the Act the right to institute proceedings for eviction on the ground of non-payment of rem. does not come into existence simultaneously with the right to institute proceedings for recovery of arrears of rent. Eight to institute proceedings for recovery of arrears of rent by filing an application under Section 42 of the Act comes into existence immediately after the due date before which a tenant fails to pay the rent, when the rent is payable as share of gross produce. In order to secure a right to institute proceedings for eviction of tenant on the ground of non-payment of rent, there shall be failure on the Dart of the tenant to pay the rent due from, him as laid down and explained in Section 22 (1) (a), the proviso and the Explanation thereto of the Act. Under what circumstances the law recognizes nonpayment of rent on the part of a tenant as failure on his part to pay rent payable by him to the landlord for any year is provided in the Explanation to Section 22 (1) (a) of the Act.

15. Bearing in mind the above background, it is to be considered whether the provisions of Section. 22 (l) (a), the proviso below it and the Explanation thereto, of the Act in any way affect the provisions of Section 42 of the Act so far as the case on hand is concerned.

16. It has been consistently held in this proceeding that the petitioner has failed to establish that there was any agreement entered into between him and the respondents in regard to rent payable in respect of the lands in question. In this connection it is to be remembered that the rent held payable on facts is on the basis of l/5th share of the gross produce as provided in Section 8 of the Act. Therefore, the rent held payable by the petitioner to the respondents is evidently a share of the gross produce. Section 42 of the Act commences with non obstante clause 'notwithstanding anything contained in any agreement or in any law for the time being in force.' In view of this clause, it would not be in our opinion correct to read the provisions of Section 22 either into or along with the provisions of Section 42 of the Act. It is evident to our mind that Section 22 (1) (a) of the Act deals only with the rights of landlords to evict tenants on the grounds of default in payment of rent The provisions of Section 22 (1) (a) of the Act lay down under what circumstances it should be regarded that the tenants have committed such defaults in payment of rent so as to make them liable for eviction from the lands held by them. These provisions do not lay down anything relating to the dates on which rents become due from tenants. It is in this view of the matter that the Legislature has in its wisdom provided the Explanation below Section 22 (1) of the Act laving down that non-payment of rent by a tenant before the end of June next after the expiry of the year in question amounts to such a default so as to make him liable for eviction from the lands held by him. It is then that the landlords can proceed 10 take steps by issuing notice etc. and complying with the other provisions mentioned in Section 22 (1) (a) of the Act to secure a right to institute proceedings for eviction of the tenant. Therefore, we are clearly of the view that the date mentioned in the Explanation below Section 22 (1) of the Act cannot be held to be the date on which the rent legally becomes due in any year. In the result, the decision in Thattesara Subbaraya's case. 1972 (1) Mys LJ 322 = (AIR 1972 Mys 213), stands overruled.

17. The decision in Krishna Bai's case. 1972-1 Mys LJ 622. deals with the following questions:

(1) Whether due date for payment of rent would be 30th June next after the expiry of the year in question;

(2) Whether a landlord can give a notice under Section 22 of the Act within three months after 30th June of the year in question; and

(3) Whether the notice required to be Issued under Section 22 of the Act and also a notice determining the tenancy under Section 106 of the Transfer of Property Act, can be combined in one notice issued.

Datar J. who rendered the decision has held that due date for payment of rent would be 30th June next after the expiry of the year in question as mentioned in the Explanation below Section 22 (1) of the Act. of course, following the earlier decision in Thattesara Subbaraya's case. 1972 (1) Mys LJ 322 = (AIR 1972 Mys 213). This decision also, so far as it relates to the question of due date for payment of rent stands overruled.

18. In view of the foregoing reasons, we hold that the application, filed by the landlords on 28-6-1968, has been instituted beyond the period of limitation! prescribed under Sub-section (41 of Section 42 of the Act and. hence, cannot be entertained. We, therefore, allow this revision petition and set aside the orders passed by the Land Tribunal. Jamkhandi on 14-11-1969 in R. R. C. No. 64 of 1968 and by the District Judge. Bijapur, on 15-7-1970 in MLR Appeal No. 36 of 1970.

19. There will be no order as to costs under the circumstances of this case.


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