Usha and Others vs Krishna

B. Veerappa, J—The petitioners who claim to be the landlords filed the above revision petition against the order dated 23.08.2012 made in rent revision No. 22/2010 on the file of I Addl. District and Sessions Judge, Dharwad.

The original petitioner Sri.Raghunath @ Bishanu filed HRC No. 100/1999 before the Prl. Civil Judge and JMFC., Hubli under the provisions of 21(1)(a)(h)(b)(c) r/w. (d) of the Karnataka Rent Control Act (for short ''the Act'') r/w. Sections 27(2)(a)(c)(e)(h)(i)(o) and (r) of the Act contending that the respondent is a monthly tenant under the petitioner of the two petition schedule premises paying a monthly rent of Rs. 45/- and Rs. 125/- p.m. described in the hand sketch and further contended that the petitioner is too aged to look after himself and his sons are the only earning members on whom he is dependent and therefore, he contended that the petition premises is required to the petitioner and his family for their a bonafide use and occupation. The petitioner contended that the respondent/tenant is acting with a mala fide intention and denying the petitioner''s claim of bona fide requirement of schedule premises, etc.

The said petition was resisted by the tenant by filing objections.

After considering the oral and documentary evidence, the HRC Court by its order dated 17.09.2010 allowed the petition filed under Section 27(2)(c) and 27(2)(e) & (i), 27(2)(h), 27(2)(r) & Section 31 of the Act with cost and dismissed the petition filed under Section 27(2)(a) and 28(2)(o) of the Act and directed the present respondent to vacate the petition premises within two months from the date of the order.

Against the said order, the respondent filed Rent Revision No. 22/2010. During the pendency of the said revision, the respondent filed application for stay under Order 41 Rule 5(2) r/w. Section 151 of Code of Civil Procedure praying to stay the operation of the impugned order. The said application was resisted by the present petitioner by filing objections contending that unless the revision petitioner/tenant paid arrears of rent, revision petition is not maintainable.

After hearing both the parties the revisional court by its order dated 23.8.12 rejected the objections and held that the revision petition filed by the tenant is maintainable.

Against the said order, present revision petition is filed.

I have heard the learned Counsel for the parties to the lis.

Sri. V.P. Kulkarni, learned Counsel for petitioner has contended that the impugned order passed by the revisional court is contrary to the mandatory provisions of Section 45 of the Karnataka Rent Act, 1999. Until and unless the arrears is paid, the tenant cannot proceed with the revision and also contended that the HRC petition filed under Section 27(2)(a) and 27(2)(o) of the Karnataka Rent Act is dismissed only on the ground that as on the date of the petition filed by the landlord the tenant was not in arrears of rent. Therefore, the same cannot be taken into consideration while allowing the revision.

Admittedly, as on the date of the revision petition filed by the petitioner/tenant he was due in arrears of rent. Therefore, he has to pay arrears of rent before filing the revision in view of the mandatory provisions of the Karnataka Rent Act. Therefore, he sought to sustain the impugned order.

Per contra, Sri. S.B. Mane, learned Counsel for respondent sought to justify the impugned order, contending that the petitioner is not the original owner and he is enjoying the leasehold rights. Therefore, the respondent/revision petitioner is not liable to pay any arrears of rent and also contended that the leasehold rights made in favour of petitioner are extinguished subsequently. Therefore, he sought to dismiss the petition.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that the present petitioner filed HRC No. 100/1999 against the respondent claiming that he is the owner of the property in question which requires for his bona fide use and occupation and sought for eviction. After contest the trial court was pleased to allow the petition filed by the landlord under Sections 27(2)(c), 27(2)(e) & (i), 27(2)(h), 27(2)(r) and Section 31 of the Karnataka Rent Act and directed the respondent to vacate the premises within two month from the date of the order. While considering Point No. 5, the Trial Court recorded a specific finding that the petitioner has contended in the petition as well as in oral evidence, that the respondent has denied the relationship of landlord and tenant between himself and petitioner and same is mala fide intention. Therefore, the respondent is liable to be evicted from the petition premises. On going through the reply notice given by the respondent as per Ex. P. 4, it is clear that no where the respondent denied the ownership of petitioner over the same. Apart from this, the respondent sent a demand draft for Rs. 3,555/- to the petitioner regarding arrears of rent. This itself will clearly goes to show that the petitioner is not entitled to claim eviction under the provisions of Section 27(2)(o) of the Karnataka Rent Act, 1999. It is true that respondent has denied the relationship of landlord and tenant between himself and the petitioner in his pleadings, but it is not sufficient to say that respondent has fully denied the ownership of petitioner over the suit property and ultimately allowed the petition filed by the landlord and granted two months time to vacate.

Though it is mandatory on the part of the tenant to pay arrears of rent before proceeding with the revision as contemplated under Section 45 of the Karnataka Rent Act, the landlord has not filed any cross objection before the revisional court, but the tenant/revision petitioner sought for stay of operation and execution of the eviction order by filing application under Order 41 Rule 5(2) of Code of Civil Procedure. That application was objected by the landlord by raising objection that the revision petitioner has to pay arrears of rent. Without adjudicating the fact whether the tenant is in arrears rents of rent or not and whether mandatory provisions of Section 45 of the Karnataka Rent Act is complied or not, the revisional court has rejected the objection raised by the petitioner and held that revision petition is maintainable.

While considering provisions of Section 45 of the Rent Act, this Court in HRRP. 100005/2015 & connected matters, disposed of on 03.07.2015 has held as follows:

"27. The decision relied upon by the learned counsel for the petitioners, in the case of SUBRAMANYA Vs. J.M.ESWARAIAH (Since dead) BY HIS LRs. AND OTHERS, reported in 2010 (5) Kar.L.J. 308, wherein the relationship between the landlord and tenant has been proved in the original proceedings. In the said case, my brother Judge has remitted the matter to the revisional court to reconsider as to whether the cause shown with reference to the rents alleged to have been paid by the revisional petitioners would amount to payment/deposit and would constitute sufficient cause as contemplated under Sub-section (4) of Section 45 of the Rent Act and then proceed to consider the revision petition on merits, if necessary and in accordance with law."

When the revision petition is maintainable, it is the duty of the revisional court to adjudicate whether tenant/revision petitioner is in arrears of rent or not. The same has not been done. Therefore, impugned order passed by the revisional court cannot be sustained in law.

Accordingly, revision petition is disposed of. The impugned order passed by the revisional court in so far as rejecting the objection filed by the petitioner for non-payment of arrears of rent is set aside. The matter is remanded to the revisional court for fresh adjudication including objection raised by the petitioner with regard to the non-payment of arrears and in view of the mandatory provisions of Section 45 of the Rent Act. It is the duty of the revisional court to adjudicate the same and decide with regard to arrears of rent due to the respondent and pass orders in accordance with law.

Taking into consideration the facts and circumstances of the case and since the revision is pending from the year 2010, the revisional court is directed to decide the dispute with regard to rent as contemplated under Section 45 of the Rent Act, 1999 or otherwise and dispose of the Revision Petition itself as expeditiously as possible.

All contentions of both sides are left open.