Abdul Rasheed vs Syed Mohamed

The revision by the tenant is directed against the order dt. 4.10.1980, passed by the District Judge, Mysore in H.R.C.R.P. 13 of 79, confirming the order dt. 21st November, 1978, passed by the Prl. First Munsiff, Mysore on I.A.I. in H.R.C. 363 of 77.

The landlord had filed the petition under S. 21 (1) (a) and (h) of the Karnataka Rent Control Act 1961. While the said case was pending, the landlord filed I.A.I under S. 29 (4) of the Karnataka Rent Control Act (for short ''the Act'') alleging that the oppoenent tenant had fallen in arrears of rent to the tune of Rs. 800 upto 25.9.1973 and hence he had no right to contest the petition.

The oppoenent tenant by his objections admitted the arrears of rent but urged that since the petitioner did not accept the rent, he had fallen in arrears, that he could not pay the same within a, short time.

The Munsiff on consideration of the material passed the following Order:

"I.A.I is allowed holding that the respondent is in arrears of rent of Rs. 800 up to 25.9.1978 and he is directed to pay the same within 30 days from today failing which he shall be evicted from the suit schedule premises. Further it is ordered and decreed that the respondent is also directed to pay the subsequent rent as and when it becomes due."

Thereafter the Munsiff passed an order on 21.11.1978 alleging that as the tenant had not complied with the order, the necessary decree be drawn up. Being aggrieved by this order, the opponent tenant approached the District Judge in revision. The District Judge in turn dismissed the revision. Hence the revision by the landlord.

S. 29 (1) of the Act says, no tenant against whom an application for eviction has been made by a landlord under section 21, shall be entitled to contest the application before the Court under that section or to prefer or prosecute a revision petition under section 50 against an order made by the Court on an application under section 21 unless he has paid or pays to the landlord or deposits with the Court of the District Judge or the High Court, as the case may be, all arrears of rent due in respect of the premises up to the date of payment or deposits and continues to pay or to deposit any rent which may subsequently become, due in respect of the premises at the rate, at which it was last paid or agreed to be paid, until, the termination of the proceedings before the Court, or the District Judge or the High Court, as the case may be. S.29 (2) speaks about the deposit of the rent within the time and the deposit should be accompanied by such fees as may be prescribed for service of notice. S. 29 (3) lays down that if there is any dispute as to the quantum of rent, the court should determine the same summarily. S. 29 (4) of the Act reads as: ''If any tenant fails to pay or deposit the rent as aforesaid, the Court, the District Judge, or the High Court as the case may be, shall unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision petition, as the case may be''. Therefore, a perusal of. S. 29 (1) to (4) clearly shows that the court should first determine the arrears of rent due from the tenant to the landlord and call upon the tenant to pay the. said arrears within the time fixed by it. If the tenant fails to pay within the fixed time, the court will have to give an opportunity to the tenant to show cause and after hearing the tenant about the sufficiency or otherwise of the cause shown by the tenant, the court may stop further proceedings and make an order directing the tenant to put the landlord in possession. A composite order of the type involved in this case, passed by the Munsiff, contravenes the provisions of S. 29 (1) to (4) of the Act. The Rent Act is an ameliorative and social piece of legislation. The object of the Act is to give the tenant sufficient opportunity to correct his mistakes and give him an opportunity to pay the rental arrears and thus save him from the eviction to the extent possible. After all many tenants may not be in a position to pay the rental as and when it falls due for numerous reasons. S. 29 speaks of four different stages viz., (1) determination of the arrears, (2) giving time to the tenant to pay the arrears, (3) giving him opportunity to show cause if he fails to pay within the prescribed time, and (4) in the event of the tenant failing to show sufficient cause, then the court should stop further proceedings and direct the tenant to put the landlord in possession of the property. Therefore the composite order passed by the courts below in question is clearly an error and violation of S. 29 (1) to (4) of the Act. It is not as if the Court had no jurisdiction to pass the order in question. The courts below did have the jurisdiction. But the order passed by them smacks of an error and is in violation of the mandatory provisions of S. 29 (1) to (4). I am aware of the Division Bench ruling of this court in Guruputrappa Phakirappa. vs. Hashimbi, (1977) 2 Kar.L.J. 6. It was also a case where a composite order of the very same type had been passed by the Munsiff. The said order was put in execution and the executing court held that as the tenant had defaulted to pay the rental arrears within the time fixed, the decree holder was entitled to proceed with the execution. The judgment debtor preferred an appeal against that order and the order of the trial court was confirmed. The tenant approached this court in revision. It was urged before this Court in the said case that the said decree was one made without jurisdiction and, therefore a nullity and the execution petition should have been dismissed. It was urged for the respondent in the said case that the court had jurisdiction to pass an order of eviction in terms it did and the order cannot be said to be without jurisdiction or a nullity and even if the order was not in accordance with the provisions of S. 21(2)(b) of the Act, it was only an error and the decree was not one without jurisdiction and its validity cannot be questioned in execution proceedings and the remedy of the judgment debtor was only to have the decree corrected in appeal or otherwise. That the composite order of the type passed in this case is an error and is in violation of S. 29(1) to (4) of the Act, cannot be disputed.

Therefore the only remedy left to the tenant is to get the said order corrected by an order of this Court in revision. What was held by the Division Bench was that the executing court cannot go behind the decree and it must be executed according to its tenor. It was not a case of want of inherent jurisdiction. The order sought to be executed, even according to the Division Bench rulings was an error and in violation of the mandatory provisions of S. 29 (1) to (4). Therefore the principle laid down in the said Division Bench case will not be of much help in the, present case as the tenant in this case has filed the prent revision to get corrected the error committed by the courts below in passing the composite order.

The learned counsel Sri. Raghupathy for the revision petitioner quoted Babu v. Nawab Khan, (1982) 1 KLC 186. In para 12 it is clearly stated that the courts should first determine the rental arrears and then call upon the tenant to pay the arrears within the time to be fixed and that thereafter the second stage would arise namely that the court in the event of the tenant failing to deposit the arrears should give an opportunity to the tenant to show sufficient cause as to why the proceedings should not be stopped. It further says that if the tenant fails to show sufficient cause for not stopping further proceedings, then alone the court must pass an order stopping the proceedings and directing the tenant to put the landlord in possession. In that case the tenant was given many opportunities to pay the arrears and inspite of it the tenant failed to pay and hence an order was made. Even an order of this type was found fault with by this Court. The learned counsel Sri. Raghupathy then relied on Chinnamarkathain v. Ayyavoo, AIR 1982 SC 137. It is stated in para 20 as, ''when the Revenue Divisional Officer allows time to a cultivating tenant for deposting the arrears of rent in pursuance of the provisions of cl. (b) of sub-sec. (4) of S. 3 of the Act, he cannot simultaneously pass a conditional order of eviction which is to take effect on a default to occur in future. An order of that type can in terms of the section, only be passed if the cultivating tenant fails to deposit the sum as directed.''

Therefore, in the result, the orders passed by the Munsiff on 20th Octr., 1978 and 21.11.1978 and the order passed by the District Judge confirming the said orders, are hereby set aside. The revision is allowed. The matter is sent back to the Munsiff Mysore for fresh disposal in accordance with law in the light of the directions given above. The learned counsel Sri. Raghupathy for revision petitioner tenant is directed to keep his client or the local advocate present in the Prl. First Munsiff Court, Mysore for receiving further instructions on 5.9.1983. The Munsiff should issue notice to the landlord and after service of notice on him, he should proceed to dispose of the matter. No costs in this revision.