1. This matter has been placed before us on an order of reference dated 26-6-1984, made by Sri Kulkarni, J. being of opinion that the following question arises for consideration by a Division Bench:-
'Whether a revision p6titioner, against whom an application for eviction has been made by a landlord under Section 21 of the Karnataka Rent Control Act is entitled to prefer or prosecute a revision under S. 50 of the Act or under S. 115 of the Code of Civil Procedure against an order made on an application under S. 21 or against an order made under Section 29(l) or 29(4) of the Act, without paying to the landlord or depositing with the court all arrears of rent due in respect of the premises, as required by S. 29(1) of the Act, on the ground that the dispute regarding the question of relationship of landlord and tenant is not decided finally by the revisional court itself or is still pending decision in the revisional Court?'
This question finds a place in para. 19 of the order of reference. Para 18 of the order of reference sums up the conclusion on the basis of which the reference is made and the question for consideration has been cast. The conclusion in para18 is that there appears to be conflicting decisions of his Court.
2. At the outset, we feel that since the question under reference has been decided by two Division Benches of this Court, this reference could have been avoided. In the order of reference, two decisions - one rendered by Venkatesh, J., in C.R.P. Nos. 1960, 1963, 196,i, 1966, 1968, 1969 and 1970/1980and the other rendered by late Tukol, J., in Smt. Subbamma v. Smt. S. Sharadamma (1964) 1 Mys LJ 281 have been adverted to by the learned single Judge, as taking a view, contrary to the view taken in the various other decisions rendered by the single Judges and the decision rendered by a Division Bench in Shiva v. B. Devanna, ILR (1980) 1 Kant 706. The other decisions, many of which are not adverted to in the order of reference but which have been approved by the Division Bench in Shiva's case, are- S.P. Bagali v. Srishilappa, (1977) 1 Kant LT 5 : ( AIR 1977 NOC 216), Shevade Camera Works v. Ramachandra, (1977) 2 Kant LJ 169, Ranga Naika v. Saraswathi (1971) 1 Mys LJ 447, Ayesha Biddiqua Begum v. V. V. Sheik Kutty, (1968 ) 2MysLJ5 and Shivalingappa Niranjunappa Shetty v. Dattu Appanna Kumar, (1967) 1 Mys LJ 378. In the decision in Shevade Camera Works v. Ramachandra, (1977) 2 Kant LJ 169, the decision in CRP No. 843 of 1964 disposed of on 11-2-1966, rendered by Kalagate, J., has been relied upon. The decision in Smt. S.Subbamma v. Smt; S. Sharadamma, (1964) 1 Mys LJ 281, has been adverted to by Kalagate, J., in CRP No. 843 or 1964 -and distinguished. The order of reference does advert to the decision in Shevade Camera Works v. Ramachandra, (1971) 2 Kant LJ 169. It is already shown that in Shevade Camera Works' case, the decision of Kalagate, J., has been followed with full approval. Therefore, there was no occasion to advert to the decision in Smt. Subbamma v. Smt. S. Sharadamma, (1964) 1 Mys LJ 281, i.e. in the order of reference.
3. The decision rendered by Venkatesh, J., does not make any reference to the decision rendered by the Division Bench in Shiva v. B. Devanna, ILR (1980) 1 Kant 706. Therefore, at the most, it could have been said that the decision rendered by Venkatesh, J., conflicts with the decision rendered by a Division Bench of this Court in Shiva's case and also with the decision rendered by another Division Bench of this Court in CRP No. 1222 of 1965, disposed of on 18-2-1969, which has been followed in Shevade Camera Works' case (1977) 2 Kant LJ 169. In other words, the view expressed by Venkatesh, J, appears to be contrary to the law laid down by two Division Benches of this Court. Therefore, we are clearly of the view that under such circumstances, the case could have been decided according to well established practice, convention and rule of stare decisis. Apart from the above, the law laid down in the decisions rendered by the two Division Benches of this Court prevail over the view expressed by Venkatesh, J. Pence the said decision does not lay down the correct law.
4. The undisputed facts are that the respondent-landlord filed an application under clauses (a) and (h) of the proviso to Section 21(l) of the Karnataka Rent Control Act (hereinafter referred to as the Act) as against the petitioner seeking eviction of the petitioner. The petitioner contended that there was no relationship of landlord and tenant. The trial court went into that question as that involved decision on jurisdictional fact. After going into that question, the trial court passed an order holding that the relationship of landlord and tenant between the parties had been established and that the petitioner-tenant was in arrears of rent to the tune of Rs. 66,250/- from 1-10-1979 to 29-2-1984. The trial court passed its order noting that the petitioner is, liable for all penal consequences as contemplated under See.29(4) of the Act. This order is challenged in this revision petition.
5. Admittedly the petitioner-tenant did not deposit the arrears of rent as found due by the trial court while preferring this civil revision petition.
6. In view of the fact that the petitioner did not deposit the rent and further had not paid the arrears of rent to the landlord, the Office of this Court raised an objection about the maintainability of the revision petition. On 11-6-1984, Kulkarni, J., passed the following order:
'Office objection is kept open. Office to number the petition and post it for admission on 15-6-1984'.
Ultimately the matter came up before the very teamed Judge on 26-6-1984. The following order was passed:
'Heard. Admit. Issue ad interim stay'.
Thereafter this order of reference has been passed.
7. In CRP No. 843 of 1964 disposed of on 11-2-1966, Kalagate, J., has, after distinguishing the decision in Subbamma's case (1964)1 Mys LJ 281, held that when the trial Court has found that the relationship of landlord and tenant has been established the petitioners tenants are liable to deposit the rent under Section 29(l) of the Act, i.e., while preferring the revision petition. As already pointed out, this decision has been followed in Shevade Camera Works' case ((1977) 2 Kant LJ 169). In Shevade Camera Work's case, two other decisions have been followed with approval - the one rendered by a Division Bench in CRP No. 1222 of 1965, disposed of on 18-2-1969 and the other one rendered by a single Judge in CRP No. 1945 of 1973, disposed of on 28-11-1973. In CRP No. 1745 of 1973, the decision in CRP No. 843 of 1964 has been followed with approval. Reference has also been made to the decision of the Division Bench in CRP No. 1222 of 1965, to hold that the petitioners are not entitled to prosecute or contest the revision petition in view of the provisions of S. 29(t) of the Act.
8-9. Sri Shekarashetty, learned Advocate appearing on behalf of the petitioner-tenant argued that Sec. 29(l) of the Act deals only with an order passed under Sec. 21 of the Act and therefore it cannot at all be said that the impugned order is an order passed under Sec. 21 of the Act as, what is clearly intended by Sec. 29(t) of the Act is final order passed under Sec. 21 of the Act.
10. In CRP No. 843 of 1964, the order in question was order on the finding whether the relationship of landlord and tenant had been established. So also was the question in CRP No. 1745 of- 1975. The order in, question in Shevade Camera Works v. Ramachandra (1977) 2 Kant LJ 169 was the one passed under S. 29(3) of the Act in regard to the fixing of rent by holding a summary enquiry as provided therein. The order impugned in Hanumantha Bhatta v. Gopalakrishna Kedilaya (CRP No. 1222 of 1965) was an order passed under S. 29(4) of the Act. The order in Shivalingappa Niranjunappa Shetty v. Dattu Appanna Kumar (1967) 2 Mys LJ 378 was an order passed under S. 29(4) of the Act. The decision in Ayesha Biddiqua Begum v. V. V. Sheik Kutty (1968) 2 Mys LJ 5 has been rendered by a Division Bench on a reference made by a learned single Judge in regard to the scope and effect of an order passed under S. 21(a)(b) vis-a-vis an order under S. 29(4) of the Act. The impugned order in Ranga Naika v. Saraswathi (1971) 1 Mys LJ 447 had been passed under S. 29(l) and (4) of the Act. The order assailed in S. P. Bagali v. Srisailappa (1977) 1 Kant LJ 5: (AIR 1977 NOC 216) was under S. 29(4) of the Act.
11. It is manifest from the aforementioned facts, that in all the said decisions, this Court has laid down the law under S. 29(l) of the Act that before preferring a revision petition or an appeal, as the case may be, the tenant has got to either pay off the arrears of rent due till then, to the landlord or deposit the same in Court i.e. to enable him to prefer the revision petition. None of the orders impugned in the aforementioned decisions were the final orders passed under S. 21. Therefore, we have no hesitation to hold that this Court has consistently understood the words 'against an order made by the Court an application under S. 2l' occurring in Section 29(l) of the Act as any order made by the trial Court on an application under S.21 of the Act.: Sri Shekara Shetty argued that in none of the decisions this aspect of the matter has been specifically adverted to and the law laid down. We are not impressed by this submission in view of the reasons already narrated.
12. A reference has been made by the learned single Judge in, the course of the order of references, to the decisions of the Supreme Court, particularly in regard to the provision in S. 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) (hereinafter referred to as the Bombay Act). That provision reads as follows:
'Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), 'the Court shall pass a decree for eviction in any such suit for recovery of possession.'
13. We are quite unable to see how this provision can be said to compare with the provision contained in S. 29(l) of the Act. While interpreting this provision, the Supreme Court has, in Jashwantrai Mulkchand v. Anandilal Bapalal : 2SCR350 observed in paragraph 6 to the effect that since the dispute continued, the case was not governed by clause (a) but by Clause (b) and the High Court was in error in applying the former clause and reversing the decisions based on the latter. Clause (b) of the Bombay Act reads as follows:
'(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.'
14. It is apparent that much assistance has been sought by the petitioner by what has been held by the Supreme Court, while considering as to when the suit can be regarded as having finally decided. The argument of Sri Shekarashetty is that so long as the revision petition is pending, it will have to be held that the question regarding the relationship of landlord and tenant between the parties is not yet finally decided. That is what has been exactly gone into by Kalagate, J., in CRP No. 843 of 1964. How the same principle has been followed and approved has been already narrated in the preceding paragraph.
Moreover, the context in S, 12(3)(b) of the Bombay Act is apparently different from the context in Section 29 of the Act.
15. If such an interpretation is accepted, it no doubt leads to an anomaly, as even though the petitioner is not required to pay or deposit the arrears of rent before preferring a revision petition, he would have to pay the rents due till then and deposit rents accruing due during the pendency of the revision petition; and it not he would be liable for action under Section 29(4) of the Act as is clear from the later part of Sec. 21 of the Act. Therefore, this argument would, in our considered opinion, amount to mere hairsplitting and is devoid of any substance.
16. Sri Shekarashetty lastly argued that in Shiva's case (ILR (1980) 1 Kant 706) the Division Bench has, in para10 of the decision, laid down, that even under such circumstances an opportunity to show sufficient cause has to be given to the petitioner-tenant particularly when the revision petition has already been admitted and it has to be dismissed.
17. Reading of paragraph 10 of the decision does not convince us that the proposition of law is enunciated as canvassed by Sri Shekarashetty. Para 10 deals with two sets of circumstances - (1) when a tenant fails to pay arrears of rent while contesting a proceeding either in a trial Court or revisional court and (2) when a tenant fails to deposit the arrears of rent while preferring a revision petition. When these two sets of circumstances are borne in mind, then there would be no occasion to understand the law enunciated in paragraph 10 in the manner canvassed by Sri Shekarashetty. Moreover, it is seen from the records that the Office objection raised was specifically ordered to be kept open when this matter was admitted. When it is in law found, that the Office objection has to be sustained, the only order that can be passed is, that this revision petition is to be rejected as not maintainable in law.
18. In view of the foregoing, we reject the revision petition as not maintainable in law. No order as to costs.
19. Petition dismissed.