TIPPANNA LAXMAN WAGHMODE Vs. GODAVARIBAI

JUDGEMENT

(1.) THE petitioners are THE legal representatives of THE original tenant. An eviction petition was filed by THE present respondents seeking eviction of THE tenant under sec. 21 (1) (h) of THE Karnataka Rent Control Act, 1961. The landlord stated that THEy are residing in a rented premises at dharwad and that THEir landlord was pressing for THE vacant possession of THE said premises. Therefore, THEy intend to reside in THE schedule premises at hubli. Except THE schedule premises and anoTHEr small portion of THE premises occupied by one sundarabai THE landlords hsve no oTHEr premises and that THEy are seeking eviction of THE oTHEr tenant sundarabai also. The tenant contested THE claim. He stated that because he did not oblige THE landlords for a higher rent this petition has been filed. His furTHEr case is that THE landlords own several oTHEr properties. By an amendment THE tenant also raised THE plea that THE area was declared as a slum area and without obtaining permission under sec. 28 of THE Karnataka slum areas (improvement and clearance) Act, 1973 THE eviction petition was not maintainable. The trial court accepted THE case of THE landlords. The trial court has also found that since P.W. 1's son is in THE government employment, looking to THEir status, THEy are entitled to have sufficient space for THEm to live in comfort. The schedule premises consisted of 5 rooms. The family of THE landlords consisted of P.W. 1, her son, daughter-in-law and a daughter. In THEse circumstances THE requirement was held to be genuine and reasonable because apart from THE rooms for living THEre should be oTHEr accommodation for THE kitchen, sitting room, pooja room etc. The test of comparative hardship also went in favour of THE landlords because THE landlords have no oTHEr premises availabls at hubli and it was found that partial eviction was not possible in THE circumstances of THE case. On THE question that THE area has been declared as a slum, THE finding of THE tiial court is against THE contention of THE tenant. No material was placed before THE court to satisfy THE court that THE area was declared as a slum area. The legal representatives of THE tenant filed THE revision petition. During THE pendency of THE revision petition before THE court below, an i.a. was filed on behalf of THE landlords stating that THE revision petitioners were in arrears of rent even on THE date of THE filing of THE revision petition. Consequently THE petition was liable to be dismissed. The case of THE revision petitioners before THE court below was that THEre was no arrears at all, but THE said finding went against him. It was contended before me that THE learned district judge himself had permitted THE revision petitioners to deposit THE arrears of rant subsequent to THE filing of THE revision petition and THErefore THEre was no default at all by THE revision petitioners and it was not a case to invoke THE Provisions of sec. 29 of THE act. This contention was addressed at THE outsot because THE learned district judge dismissed THE revision petition solely on THE ground that THE revision petitioners did not deposit THE arrears of rent at THE time of filing THE revision petition itself and THErefore THE revision petition was not maintainable. Before THE court below an application was filed to establish that THE area was declared as a slum area. But THE said application was rejected because consideration of THE said question did not arise in view of THE dismissal of THE revision petition as not maintainable. It was contended before me that since THE revision petitioners had obtained permission of THE court below for making THE deposit, THE question of default did not arise. As per sec, 29(1) of THE act a tenant cannot prefer or prosecute a revision petition without making a deposit of THE arrears of rent or without making THE payment of rents when THE proceedings are pending. However, under sec. 29(4) THE court cannot dismiss THE revision petition in case THE tenant shows sufficient cause against such dismissal. There was some argument before me that this provision was not at all applicable if THE tenant fails to deposit THE rent prior to THE filing of THE revision petition. The question of considering THE sufficient cause against THE dismissal of THE proceedings could arise according to THE learned counsel for THE respondents only when THE tenants commit default when THE proceedings were pending in THE trial court. The learned counsel cited a few decisions for THE respective propositions, but it is not necessary for me to refer to all THEse decisions in view of THE authoritative pronouncement by a division bench of this court on this question in shiva v b. Devanns [ilr 1980 kar. 706]. At para-10 as well as in THE subsequent para, THE division bench clearly applied THE Provisions of sec. 29(4) and observed that before dismissing revision petition THE court will have to consider THE sufficiency of THE cause if any shows by THE tenant. "however, we should add that even in cases where THE tenant has failed to comply with Section 29(1) of THE act a funher safeguard is given to him under sub-section (4) of Section 29. He can show sufficier.t cause against passing an order of eviction or dismissal of revision petition. Such reasons could be oTHEr than THE one relating to nonpayment or non deposit of rent or delayed deposit as held by this court in t. Janartdhana v r. Krishnappa [1967(2) mys.l.j. 577] and i.p. hunsraj v g.s. ponnalal [1972(1) mys.l.j. 565]. The court has to pass appropriate orders depending on THE facts of each case, as to wheTHEr THE tenant has shown sufficient cause against THE passing of an order adverse to him. Therefore, except to THE extent of protection given in Section 29(4) of THE act and subject to THE right to deposit only such arrears of rent as determined summarily by THE court under sub-section (3) of Section 29, THE consequence of non-compliance, of Section 29(1) by a tenant would be, he stands deprived of his right to contest an eviction petition or to prefer a revision petition against an order of eviction and he has to suffer an order of eviction." in syed abdul wadood v state of Karnataka [ilr 1987 kar. 3679] a bench of this court following an earlier decision has observed that THE Provisions of sec. 29(4) shall not be used to penalise an innocent tenant and his conduct is very relevant before striking oi his defence or before making an order directing him to hand over possession of THE premises to THE landlord. There may be several reasons as to why THE tenant could not pay THE rent in time. Unless his bona fides are doubted and his conduct is found to be vexatious or such oTHEr reasons or circumstances are forthcoming, THE court would not take THE drastic step of striking of THE defence of THE tenant or order his eviction immediately. If THE contention of THE learned counsel for THE respondents is to be accepted, THE question of considering THE sufficiency of THE cause does not arise. If THE rent is not deposited prior to THE filing of THE revision petition, THE resultant position will be quite arbitrary. There may be very genuine cause wherein a tenant could not make THE deposit in spite of his best efforts for whatever reason and if such a tenant is to be non-suited by THE dismissal of his revision petition as not maintainable, THE forum created by THE legislature to consider THE case on merits will be denied to such a tenant. That cannot be THE intention of THE legislature at all. Language of sec. 29(4) in no way negatives THE applicability of THE consideration of sufficiency of THE cause even when THE tenant is not able to deposit THE rent or pay THE same before or at THE time of fiiing THE revision petition. No doubt THE burden will be entirely on THE tenant to establish THE sufficiency of THE cause. Since THE decision of THE court below is based on an erroneous view of THE Provisions of sec. 29 and since THEre has been no consideration of THE case under sec. 29(4) of THE Act, THE said order will have to be set aside. In THE result, for THE reasons stated above, this petition is allowed and THE order under revision is set aside. The matter is remanded to THE court below for fresh consideration in accordance with law in THE light of THE observations made above. The parties are directed to be present before THE district court at hubli on 5th october, 1990 to take note of THE furTHEr proceedings. Petition allowed.