Narayana Reddy vs Kashinath Rao Patil

N.D.V. Bhat, J.—This Revision Petition is preferred against the order dated 1-6-1987 passed by the VIIth Additional Small Causes Judge, Bangalore City in S.C. No. 2514 of 1985. The facts relevant for the disposal of this revision petition, briefly stated, are as under:

Plaintiff-respondent filed a suit against the instant petitioner-defendant praying for a decree in the sum of Rs. 5,000/-, the same being the advance paid by him to the defendant at the time of his entry in the petition premises as a lessee. It was the case of the plaintiff that he was a tenant of the defendant for the period from 1-11-1979 to 31-1-1984. According to him, he was paying a rent of Rs. 600/- p.m. from 1-11-1979 to 31-1-1982 and thereafter, defendant gave him one more room which was constructed by him. According to him, he paid different amounts as detailed in the plaint in all amounting to Rs. 43,200/-. Plaintiff ceased to be a tenant from 1-2-1984. He demanded the amount of Rs. 5,000/- paid by him as advance at the time of his entry. He also demanded the excess rent said to have been paid by him to the defendant. Defendant promised to pay the amount and in fact, paid Rs. 200/- and Rs. 100/- in cash and also supplied milk worth Rs. 1,000/- from Moti Mahal Hotel of which defendant is the owner. Having regard to the same, plaintiff restricted his claim only to the amount of Rs. 5,000/- which he had paid by way of advance to the defendant when he entered petition premises as a lessee. On these allegations, plaintiff prayed for a decree in the sum of Rs. 5,000/- together with interest and costs.

Defendant who is the instant revision petitioner resisted the suit of the plaintiff. While it is admitted by him that plaintiff was inducted in the suit premises on 1-11-1979, defendant denied the allegation made by the plaintiff that he ceased to be a tenant after 31-1-1984. Defendant asserted that plaintiff continued to be a tenant till 28-4-1984. According to defendant, the rent towards the suit premises was Rs. 600/- p.m. initially; but subsequently plaintiff took one more room and rent was enhanced to Rs. 1,000/- p.m. from 1-11-1981 and the same rent continued till 31-12-1982 and from 1-1-1983 rate of rent was further enhanced to Rs. 1,200/- p.m. by mutual consent till the plaintiff vacated the premises or 28-4-1984. According to the defendant, the rent due from the plaintiff for the period from 1-11-1979 to 28-4-1984 was Rs. 51,600/- and plaintiff had paid a total sum of Rs. 43,200/- and that therefore, after deducting the amount of Rs. 5,000/- which was made over by the plaintiff to the defendant by way of advance an amount of Rs. 3,400/- was still due from the plaintiff. It was also averred by the defendant that on 8-1-1985 plaintiff issued a cheque for Rs. 1,000/- towards part payment of the arrears still due from him; but the cheque was dishonoured when it was presented to the Bank. The allegation made by the plaintiff that the said cheque was given to the defendant towards the supply of milk of Moti Mahal Hotel of which defendant is the owner. It was asserted by the defendant that Moti Mahal Hotel was not engaged in milk vending business. Defendant prayed for the dismissal of the suit.

The lower Court, examined plaintiff Kashinath Rao Patil. Ex.P-1 to P-7 were marked for the plaintiff. Defendant N. Narayana Reddy examined himself. No documents were marked for the defendant. The lower Court on a consideration of the evidence on record and for the reasons reflected in its Judgment dated 1-6-1987 decreed the suit of the plaintiff for a sum of Rs. 5,000/-. The Judgment and decree of the lower Court are challenged in this Revision Petition.

I have heard Sri H.R. Venkataramanaiah, learned Advocate arguing the case for Smt. B.K. Subbalakshmi, learned Counsel for the petitioner and Sri Kashinath Rao Patil respondent in person who incidentally is also an Advocate.

The point for consideration is as to whether the order questioned in revision is legal and proper?

It is seen that the lower Court on a consideration of the evidence on record reached a conclusion that the rent for the premises was initially Rs. 600/- p.m. and that the same was enhanced to Rs. 1,000/- p.m. from 1-1-1981. In other words, the contention raised by the defendant that the rent was raised from Rs. 600/- to Rs. 1,000/- p.m. from 1-1-1981 was accepted by the lower Court. This can be seen from para-5 of its Judgment. However, the lower Court did not accept the plea of the defendant that the rent was further increased to Rs. 1,200/- p.m. from 1-1-1983 as can be seen from para-8 of its Judgment.

It is further seen that the lower Court has reached a conclusion that plaintiff did not continue as a tenant in the suit premises after 31-1-1984. This can be seen from its finding at para-8 of its Judgment.

The lower Court is shown to have based its conclusion with reference to the rate of rent of the suit premises from time to time on preponderance of probabilities. The fact that the rent was paid in the multiple of Rs. 1,000/- p.m. for the relevant period did weigh with the lower Court in reaching its conclusion. Further, the trial Court has also taken into consideration one or two other aspects which are dealt with by it in its Judgment in this connection.

The finding of the lower Court with reference to the rate of rent, in my opinion, cannot be found fault with. I am not inclined to agree with Sri H.R. Venkataramanaiah that the total amount payable for the period during which the defendant was a tenant would work out at Rs. 51,600/-, for reasons more than one. In the first place, as pointed out earlier, the trial Court has arrived at its conclusion with reference to the rate of rent in the context of crucible of probabilities. In this connection, it is required to be noted that u/s 47 of the Karnataka Rent Control Act every landlord shall give a written receipt to the tenant for any amount at the time when such amount is received by him in respect of any premises in such form and in such manner as may be prescribed. Under Rule 11 of the Karnataka Rent Control Rules, a receipt to be given for the amount of rent received in respect of any premises shall be in Form No. VII and a duplicate is required to be retained by him. The said Form is as under:

"Form of receipt in duplicate.

Serial No. .................... Date....................

Name of the landlord.............................

Address of the landlord.............................

Received with thanks from Sri/Smt.................a sum of Rs.

in figures).......... Rs. (in words).....................

per...............for the period...................for the

premises..........this day the.................day of the month

of...............in the year................Signature of thumb

impression of the landlord."

If therefore, the landlord had issued receipt in the Form prescribed, the same would have by necessary implication reflected the rate of rent also. The landlord - defendant (revision petitioner) has not produced any such duplicate receipts. Having failed to do so, he cannot ask the Court to depend upon his ipse dixit to contend that the rate of rent for the period from 1-1-1983 was Rs. 1,200/-. However, the finding of the lower Court that the rate of rent was enhanced to Rs. 1,000/- p.m. from Rs. 600/- p.m. from 1-1-1981 cannot be said to be wrong in the context of the probabilities pointed out in the Judgment of the trial Court. It is necessary to notice here that one more room was actually given to the plaintiff and that therefore, the version of the defendant that the rent was enhanced from Rs. 6007-p.m. to Rs. 1,000/- p.m. is accepted. I am not prepared to accept the submission of Sri Kashinath Rao Patil that the rent fixed by a written document cannot be altered by a subsequent oral agreement. Section 92 of the Evidence Act pressed into service by Sri Kashinath Rao Patil has no application to such a situation.

In so far as the question of duration of lease is concerned, the trial Court has given its finding that defendant continued as a lessee only till 31-1-1984 and not till 28-4-1984, as contended by the defendant. In this context, the trial Court has relied on the receipt at Ex.P-1 as also the slips marked at Ex.P-5 to P-7 in particular and has reasoned out from the totality of the circumstances that the lessee did not continue as such beyond 31-1-1984. This aspect is dealt with by the lower Court at para-8 of its Judgment. On a perusal of the reasons assigned by the lower Court, it is not possible to disagree with the finding given by the lower Court in this behalf.

The net result emerging from the discussion made hereinabove is that plaintiff was a lessee under the defendant for the period from 1-11-1979 to 31-1-1984. Further the rate of rent payable by plaintiff to the defendant was Rs. 6007- p.m. from 1-11-1979 to 31-12-1980 and Rs. 1,0007- p.m. for the period from 1-1-1981 to 31-1-1984. If that be so, the total amount of rent payable by the defendant at the aforesaid rates for the relevant periods, that is to say, at the rate of Rs. 600/- p.m. for 14 months (from 1-11-1979 to 31-12-1980) and at the rate of Rs. 1,000/- p.m. for 37 months (from 1-1-1981 to 31-1-1984) would work out at Rs. 45,400/- (Rs. 8,400/- + Rs. 37,000/-).

It is admitted by the plaintiff in his plaint itself that the total amount paid by him was Rs. 43,200/-. It is seen that the lower Court had decreed the amount of Rs. 5,000/- which the plaintiff had admittedly paid to defendant by way of advance at the time of entry into the premises in question. The lower Court at para-10 of its Judgment has held that the rent of Rs. 8,400/- as claimed by the defendant was not due from the plaintiff as on 31-1-1984. It is also pointed out by the lower Court that if at all there was any arrears the landlord was at liberty to recover the same by instituting a proper proceeding and since he was not chosen to do that the lower Court proceeded to pass a decree for Rs. 5,000/- given as advance by the plaintiff to the defendant.

It is seen what is stated earlier that the total amount payable by the plaintiff to the defendant would work out at Rs. 45,400/- and the total amount actually paid by the plaintiff to the defendant was Rs. 43,200/-. In other words, the amount paid by the plaintiff to the defendant fell short of Rs. 2,200/-. It will have to be seen as to whether the defendant was entitled to adjust the advance received by him towards the said amount of Rs. 2,200/-. it is not disputed that the amount of Rs. 5,000/- received by the defendant at the time of plaintiff''s entry into the premises in question was received by way of advance. It is not anybody''s case that the fair rent in respect of the building in question was determined. In this view of the matter, it would follow that the provisions of Section 18(2) of the Karnataka Rent Control Act, 1961 (in short the Act) would be attracted to the facts of the case. It would be indeed convenient cull out the provisions of Section 18(2) (a) & (b) of the Act which reads as under:

"18. Unlawful charges not to be claimed or received -

(1) xxx xxx xxx

(2) Where the fair rent of a building has not been so determined -

(a) no person shall after the commencement of this part receive or stipulate for the payment of any sum as premium or pugree or any consideration whatsoever in cash or kind, in addition to the agreed rent.

(b) save as provided in Clause (a) any sum or consideration paid in excess of the agreed rent whether before or after the commencement of this part in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement shall be refunded or returned by the landlord or other person to the person by whom, it was paid or at the option of such person otherwise adjusted by the landlord or other person."

A Division Bench of this Court in Zahira Begum Vs. Visalakshi, had occasion to examine the scope and ambit of Section 18(2)(a) & (b) of the Karnataka Rent Control Act. In the said case it is pointed out that even security deposit or advance would come within the mischief of Section 18(2) of the Act. Incidentally I was also one of the Judges to the said Division Bench. Having regard to the Decision of the Division Bench of this Court it is clear that the amount which the defendant had received from the plaintiff was contrary to law and that amount was immediately refundable. I may hasten to add here that in the said case, this Court has taken the view that it was liable to be adjusted towards the arrears of rent in respect of which an application u/s 29 of the Act for stopping further proceedings was made. It was in the context of the said circumstances that this Court took the view that the landlady was liable to adjust the advance towards the arrears of rent. In the instant case, the question for consideration is as to whether the landlord was entitled to adjust the advance taken by him towards the arrears. This question wilt have to be answered in the context of the language of Section 18(2)(b) of the Act. The said provision is already culled out hereinabove. It would go to show that the "sum" or "consideration" shall have to be refunded or returned by the landlord or other person to the person by whom it was paid or at the option of such person otherwise adjusted by the landlord or other person. It is therefore, clear that adjustment of the advance can be done at the option of the person who has paid the said amount and not by the landlord on his own. If the intention of the Legislature was otherwise the expression "at the option of such person" would not have been used by the Legislature. Any other interpretation would run contrary to the language reflected in Section 18(2)(b) of the Act. When the mandate of the said Sub-section is that the landlord shall have to refund or return the said amount to the person who had paid the same and that it can be adjusted only at the option of the person who had paid the same, it is obvious that adjustment by the landlord on his own without reference to the tenant or his option is not at all permissible. I may hasten to add here that the Division Bench did not consider this aspect and what the Division Bench has said with reference to the adjustment is that the landlord was liable to adjust the amount in the context of the circumstances relating to an application filed by the landlord u/s 29 of the Act, praying for stopping further proceedings, on the count that the tenant had not paid the rent uptodate. Such is not the situation here. In the instant case, no doubt the defendant took up a contention that he has adjusted the advance amount. What the defendant has stated in his written statement, among other things, is as under:

"After deducting the advance amount of Rs. 5,000/- paid by the plaintiff, the plaintiff is still due in a sum of Rs. 3,400/-."

Such a contention would in substance amount to a contention as to adjustment only. This position is very clear as can be seen from the Decision of this Court in TOWN MUNICIPAL COUNCIL v. M. MAHALINGAPPA 1975 (1) KarLJ 379. In other words the said plea is a plea relating to adjustment and not a plea, as to set off. As pointed out earlier, the question of landlord adjusting the amount towards the advance which he received in contravention of the provisions of Section 18(2) of the Act does not arise since adjustment u/s 18(2) of the Act in respect of such a sum is permissible "only at the option of such person" who paid such advance. It is not the contention of the defendant - revision petitioner in this case that the amount received towards the advance was adjusted towards any arrears at the option of the lessee. In this view of the matter, it would follow that the only remedy left open to the instant revision petitioner with reference to the recovery of the amount towards arrears of rent was to file a suit He cannot, however, escape his liability to refund the said amount having regard to the mandate of Section 18(2) of the Act.

For the reasons stated hereinabove, I do not find any merit in this revision petition and the same is liable to be dismissed. Accordingly, the revision petition is dismissed with costs.