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Ramachandra Bhat Vs. Rao Talithaya - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1039 of 1985
Judge
Reported inILR1986KAR3552
ActsKarnataka Rent Control Act, 1961 - Sections 21(1)
AppellantRamachandra Bhat
RespondentRao Talithaya
Appellant AdvocateB.V. Acharya, Adv.
Respondent AdvocateU.L. Narayana Rao, Adv.
DispositionPetition allowed
Excerpt:
.....even before the expiry of that period cannot be considered to be maintainable because no petition filed for eviction on the ground falling under section 21(1)(a) of the act, can be held to be valid and maintainable, if the cause of action for filing the same had not arisen or was not complete on the date it was filed.;on facts:;the notice dated 28th november 1978, does not give the description of the schedule premises except giving the door number. admittedly the door number given in the notice dated 28th november 1978 is not correct and in order to correct that only, the notice dated 10-9-1979 has been issued by the respondent-landlord. of course, it would have been possible and permissible to overlook this mistake if the description of the premises let out to the petitioner was..........is submitted that it is contrary to section 21(1)(a) of act, because the eviction petition on the ground of arrears of rent can be filed only on the expiry of two months from the date of service of notice. in other words it is submitted that cause of action for filing eviction petition -on the ground falling under section 21(1)(a) of the act, arises only on the expiry of two months from the date of service of notice, if arrears of rent are not paid within that period.5.2) on the contrary, sri u. l. narayana rao, learned counsel for the respondent-landlord, submits that prior to exhibit-pi, there was another notice dated 28th november, 1978 (ext. d-7) issued by the respondent-landlord and it was received by the petitioner on 4-12-1978. from 4-12-1978, the eviction petition, was filed.....
Judgment:
ORDER

K. A. Swami, J.

1. This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, against the order dated 1st January; 1985 passed by the learned District Judge, Dakshina Kannads, Mangalore, in Civil Revision Petition No. 148/81 affirming the order dated 23-6 1983 passed by the I Additional Munsiff, Managlore, in HRC No. 92/79 directing eviction under Section 21(1)(a) of the Karnataka Rent Control Act (hereinafter referred to as the 'Act').

2. The eviction petition was filed on two grounds falling under Section 21(1)(a) and (j) of the Act. Both the Courts have concurrently held that the respondent-landlord has failed to make oat a case that the premises are reasonably and bona fide required for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building its place of the premises sought to be demolished.

3. Though Sri U. L. Narayana Rao, learned Counsel for the respondent contends that no revision Petition was preferred against the order refusing eviction under Section 21(1)(j) of the Act ; never the less, it is open to the respondent to support the order of eviction passed under Section 21 (1) (a) of the Act, on the ground failing under Section. 21 (1) (j) of the Act.

4. Concurrent finding recorded against the landlord by both the Courts below on lite ground falling under Section-21(1)(j) of the Act, is a finding of fact. Therefore, no inter. interference is called for under Section 115 of the Code of Civil Procedure. That being so, it is not necessary to consider whether it is open to the petitioner without preferring a Revision Petition to challenge the correctness of the finding relating to the ground raised for eviction under Section 21(1) (j) of the Act.

5.1) Sri B.V. Acharya, learned Counsel for the petitionertenant, submits that even accepting the findings recorded by both the Courts below, the order for eviction passed under Section 21 (1) (a) of the Act, is unsustainable. It is submitted that the notice Ex-P1 dated 10-3-1979 was served upon the petitioner-tenant on 13-3-1979 and the eviction petition was filed on 3-4-1979. As such, even before the expiry of two months, the eviction petition was filed. Therefore, it is submitted that it is contrary to Section 21(1)(a) of Act, because the eviction petition on the ground of arrears of rent can be filed only on the expiry of two months from the date of service of notice. In other words it is submitted that cause of action for filing eviction petition -on the ground falling under Section 21(1)(a) of the Act, arises only on the expiry of two months from the date of service of notice, if arrears of rent are not paid within that period.

5.2) On the contrary, Sri U. L. Narayana Rao, learned Counsel for the respondent-landlord, submits that prior to Exhibit-Pi, there was another notice dated 28th November, 1978 (Ext. D-7) issued by the respondent-landlord and it was received by the petitioner on 4-12-1978. From 4-12-1978, the eviction petition, was filed beyond the period of two months ; that the petitioner having failed to pay the arrears of rent within two months from the dale of service of the notice - Ex. D7, the eviction petition was and is maintainable. It is also urged by Sri U. L. Narayana Rao, learned Counsel for the respondent-landlord, that admittedly, after service of notice-Exhibit P-1, the petitioner has not deposited the rent within a period of two months ; therefore, the petition cannot be held to be not maintainable.

6. Having regard to the aforesaid contentions, the following points arise for consideration :

(1) Whether the notice dated 28th November, 1978 produced as Exhibit-D7, was a valid notice ?

(2) Whether the eviction petition filed on 3rd April, 1979 on the ground of arrears of rent was maintainable in law ?

7.1) POINT NO.(1): It is not in dispute that in Exhibit -D7, the property in respect of which the rent was demanded was described as Door No, 1-18-1271. Whereas, the schedule premises bears Door No. 1-18-1270, The Supreme Court in Chimanlal -v.- Mishrilal, : [1985]2SCR39 has held that :

'A valid notice demanding arrears of rent relatable to the accommodation let to the tenant from which be is sought to be evicted is a vital ingredient of the conditions which govern maintainability of the suit for eviction on the ground specified in Section 12(1)(g) of the Act, for unless a valid demand is made no complaint can be laid of non-compliance with it, and consequently, no suit for ejectment of the tenant in respect of the accommodation yet lie on that ground.'

7.2) The facts of the aforesaid decision of the Supreme Court were that the notice dated 21st October, 1959 did not relate to the entire accommodation let out to the tenant therein. It only described a portion of the accommodation. Therefore, it was held that the notice was not valid. In the instant case, the notice dated 28th November, 1978 does not give the description of the schedule premises except giving the Door Number. Admittedly, the Door number given in the notice dated 28th November, 1978 is not correct and in order to correct that only, the notice dated 10-9-1979 has been issued by the respondent-landlord. Of course, it would have been possible and permissible to over-look this mistake if the description of the premises let out to the petitioner was contained in the notice Ex. D-7. The notice did not contain the description of the schedule premises apart from the Door number, so as to identify the schedule premises. In the absence of any such description, it is not possible to hold that the notice dated 28th November 1978 related to the schedule premises, that too when the respondent-land lord himself tried to correct it and issued a fresh notice.

7.3) There is also another valid reason for holding that the notice dated 28th November, 1978 is not valid in law, Both the Courts have come to the conclusion that the petitioner-tenant had not paid the rent from September 1978. It is also not in dispute that the rate of rent of the premises is Rs. 45/-per mouth. It is also not in dispute that the petitioner-tenant sent the rent for the months of September and October 1978 (during those months) by Money-order at the rate of Rs. 45/- per month and those money orders were not received by the respondent-landlord and were returned on the ground that the rent of the premises was Rs. 75/- per month. In view of the undisputed fact that the rent of the premises was and is Rs. 45/- per mouth; the tendering of the rent by the petitioner for the months of September and October 1978 at the rate of Rs. 45/- per calendar month, as the tenancy month in the instant case is also the calendar month, was a valid tender of the rent ; and the respondent-landlord refused to receive it without any justification. Therefore, it is not possible to hold that the petitioner was in arrears of rent for the months of September and October 1978. Notice on the ground of arrears of rent under Section 21(1)(a) of the Act, can be given and such notice is valid only if the tenant has been in the arrears of the rent legally recoverable. On 20-11-1978, the petitioner was not in arrears of rent. Therefore, even locked from this point of view also, the notice dated 28th November 1978 is not valid in law and as such it has no effect. Accordingly, Point No. 1 is answered in the negative.

8.1) POINT NO. (2) : The eviction petition in question was filed on 3-4-1979. No doubt, the respondent-landlord, in the eviction petition, has relied upon both the notices produced as Exhibits P-1 and D-7. As far as Exhibit D-7 is concerned, it has already been held that it is not valid and as such it has no effect in the eye of law. Therefore, now it has to be determined whether the respondent-landlord can maintain the eviction petition in question on the basis of Ex-P1. Admittedly, the eviction petition is filed even before the expiry of two months from the date of service of notice-Exhibit P1. Section 21(1)(a) of the Act, reads thus ;

'21. Protection of tenants against eviction :

(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant :

Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely :

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of payment for the arrears of rent has been served on him by the landlord by tender or delivery either personally to the tenant or to a member or servant of his family at his residence (or if such tender of delivery is not practicable) by affixture to a conspicuous part of the premises;'

8.2) From the aforesaid provisions, it is clear that the ground falling under Section 21(1)(a) of the Act, is available only if a tenant commits default in payment of arrears of rent within two months from the date of service of notice. Admittedly, on the date of filing the eviction petition, two months had not expired from the date of service of notice-Ex. P1 Therefore, no cause of action had arisen on the date the eviction petition was filed. The contention of Sri U.L. Narayana Rao, Learned Counsel for the landlord, is that two months mentioned in Clause (a) of Sub-section (1) of Section 21 of the Act, relates to payment of the arrears of the rent by the tenant and it does not bar the landlord from filing the eviction petition. It is not possible to accept this contention. When the cause of action for filing the eviction petition on the ground of non-payment of arrears of rent inspite of due notice, arises only on failure to pay the arrears of rent within two months from the date of service of notice ; the eviction petition filed even before the expiry of that period cannot be considered to be maintainable because no petition filed for eviction on the ground falling under Section 21(1)(a) of the Act, can be held to be valid and maintainable, if the cause of action for filing the same had not arisen or was not complete on the date it was filed. Hence, I hold that the eviction petition filed by the respondent landlord on the ground of arrears of rent falling under Section 2l(1)(a) of the Act, filed on 3-4-1979 was and is not maintainable The petitioner-tenant was not in arrears of rent. He had paid all the arrears of rent due upto-date, on 6-9-1979 along with the objections Thereafter also, he has not been in arrears of rent.

9. For the reasons stated above, this-Civil Revision petition is entitled to succeed. It is accordingly allowed. The order for eviction passed by the Court of first instance and affirmed by the District Judge is hereby set aside. The Petition filed by the respondent-landlord for eviction on the ground falling under Section 21(1)(a) of the Act. is also dismissed.


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