M KAMALAKSHA SHETTY Vs. MIZAR ANNAPPA PAI

JUDGEMENT

(1.) This is a tenant's revision petition under S. 115 of the C.P.C. against the order of the learned District Judge, Dakshina Kannada, Mangalore, made in exercise of his power under sub-sec.(2) of S.50 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act) reversing the order of the learned Munsiff dismissing the eviction petition filed by the landlord for non-payment in accordance with the provisions contained in Cl. (a) of sub-sec. (1) of S. 21 of the Act. That the tenant was in arrears of rent was not in dispute. The Munsiff took note of the fact that the tenant had deposited all arrears of rent with interest subsequent to the period of two months after receipt of notice from the landlord. The cause shown by the tenant before the trial Court was that his business had suffered loss and therefore he was not in a position to pay the arrears of rent within the period of two months stipulated in the notice. That statement was accepted by the learned Munsiff and the petition was dismissed. The landlord aggrieved by that order, preferred a revision petition to the District Judge. The learned District Judge reversed it having regard to the decision of this Court on the ground that the cause shown was not sufficient to warrant dismissal of the petition. He held that the loss sustained by the petitioner in his business which was dealing in electrical goods was not supported by any documentary evidence except the oral assertion.

(2.) Aggrieved by the same, Shri G. K. Shevgoor, learned Counsel for the petitioner, has contended in this Court that the cause shown was sufficient as held by this Court in the case of Gopichand Balwantharao v. Pundalik Govindappa, (1977) 1 Kant U 38. It is true such is the view taken by a learned single Judge of this Court but then that was in respect of a case for non-residential premises where the tenant was carrying on the business which had incurred loss. But then the learned Judge took note of the existence of S. 29 of the Act to come to the conclusion that if the rent was paid soon after the petition was presented for eviction, then the Court would be without jurisdiction to pass an order of eviction under S. 21(1) of the Act. The Supreme Court in the case of S. Sundaram v. V. R. Pattabhiraman, AIR 1985 SC 582 while construing a corresponding provision under the Tamil Nadu Buildings (Lease and Rent Control) Act has held that there is no defence against eviction, if there has been wilful default in the payment of rent after receipt of notice from the landlord to pay the same. In fact, the Supreme Court has emphasised that in such cases it is no concern of the Court to investigate whether the tenant was a defaulter prior to the issue of the notice. But the question would be whether the tenant has paid or has not paid the rent after receipt of notice within the period prescribed in the Statute. The time prescribed is two months, there is no dispute. That notice was served on the tenant also is not in dispute. That the tenant did not pay the rent is not in dispute. If that is so, then the default in payment of rent must be explained by sufficient cause to make it not a wilful default. Mere fact that business suffered loss is not a good reason. In fact, the loss in this case indicates that business was carried on till about the middle of 1979 well after the notice was issued. Therefore, if the business had to continue, the learned District Judge reasoned there should be some assumption that it fetched him some profit. If that profit was not used to pay the rent for the residential house, loss in the business would not be sufficient cause.

(3.) I have in another case held that judicial approach in determining wilful default or accepting sufficient cause is one and the same. The expressions are used in the same context in different statutes. In the Limitation Act the Court is empowered to condone the delay if sufficient cause is shown. Under O. 9 of the C.P.C. a suit may be restored if it is dismissed for default or for non-prosecution or for non-appearance of the defendant, if sufficient cause is shown for default or non-appearance. There is a catena of judicial rulings showing what constitutes sufficient cause. It cannot be exhaustively dealt in any one case. In other words, on the facts of this case, if the Court were to accept the loss in business as sufficient cause for non-payment of rent, in all cases where losses are pleaded it must be held to be sufficient cause. Then there is no purpose in having S. 21(1)(a) of the Act. For this reason, there is no merit in the petition and it is liable to be rejected and it is so rejected.