N BENUKA Vs. VIJAYA T BELGAUMKAR

JUDGEMENT

(1.) THIS petition is filed under Section 115 of the Code of Civil procedure challenging an order made by the Court of Small causes, Bangalore. An eviction petition was filed by the respondent under Section 21 (1) (a) and (h) of the Karnataka Rent control Act. An order of eviction ex parte was passed against the petitioner. The petitioner preferred a miscellaneous petition under Order 9, Rule 13 of the Code of Civil Procedure to restore the petition. During the pendency of those proceedings an application was filed under Section 29 of the Karnataka Rent control Act stating that the petitioner has not paid the rents or deposited the same in Court as and when they became due and therefore action should be taken under Section 29 (4) of the karnataka Rent Control Act. The Trial Court considered the said application. In opposition to the said application the petitioner stated a sum of Rs. 85,000/- is still in deposit with him and therefore that sum could be adjusted towards the arrears of rent. While the stand of the respondent-landlord is that even if deductions are given to such sums still rent is due to be paid to the owner. Apart from that it was contended that the building in question had been newly constructed and within one week thereafter the same had been let out. Therefore the provisions of section 18 would not be attracted to such a case. The Trial Court referred to these objections and the reply filed by the owner and postponed the consideration of that question. However, he found the petitioner was due in a sum of Rs. 67,985-50 ps. by way of arrears and current rent in a sum of Rs. 10,559-52 ps. and such sum should be paid within the time stipulated therein. The petitioner has called in question the said order on the ground that the application filed under Section 29 of the Karnataka rent Control Act is not maintainable in a proceeding filed under the provisions of the Code of Civil Procedure to set aside the ex parte order of eviction. Secondly it is contended that the Trial court erred in directing the deposit of the sums of rent without adjusting the advance paid by him arid it is stated that rent due is subsequently paid.

(2.) THE learned Counsel for the respondent contended that the application filed under Order 9, Rule 13, Civil Procedure Code read with Rule 29 of the Karnataka Rent Control Rules must be construed as the relatable to proceedings arising under the Rent control Act under Section 21 thereof and therefore Section 29 was necessarily attracted to such a case. Secondly it was submitted that the tenant in any event is not entitled for adjustment of the advance as prescribed under Section 18 (2) of the Act, since the premises is a new premises and the said provision is not applicable to such premises. When the matter came up for consideration before our learned Brother Sadashiva j. , felt that this matter needs to be considered by a Division bench and referred the matter to it after adverting to a decision of this Court in B. Vasanthy Urs v Shahtajkhan. In that decision the question that fell for consideration was whether an application filed by the owner of the premises under Section 29 of the Karnataka Rent Control Act would be maintainable in to miscellaneous proceedings initiated in respect of ex parts, order or not. It was held that miscellaneous proceedings under Order 9, Rule 13, Civil Procedure Code had been initiated in respect of an eviction order passed under the Rent Control Act and therefore the provisions of the Act are equally applicable to proceedings initiated under Order 9, Rule 13 read with Rule 29 of the Rent Control Rules.

(3.) THE learned Counsel for the petitioner submitted that on the language of Section 29 of the Act the debar applicable under section 29 of the Act to raise a defence or prosecute a proceeding is only relatable to petition under Section 21 of the Rent Control act or a Revision petition filed under Section 50 of the Act and not otherwise. Now what is to be seen in a matter of this nature is when a petition for eviction is filed and such a petition cannot be defended except by compliance with the provisions of Section 29 of the Act, then in a off-shoot of that proceedings whether it could be said Section 29 would not be attracted or not. A proceeding arising under Order 9, Rule 13, Civil Procedure Code read with Rule 29 of the Rent Control Rules has no independent existence apart from the proceedings initiated under Section 21 of the Act by the owner. If the main proceeding cannot be defended except by compliance with the provisions of Section 29 of the Act by sheer force of logic it can be said its subsidiary proceedings arising thereto shall also be defended or prosecuted only after complying with Section 29 of the Act, otherwise the entire scheme and basis of the Act would be lost. Any other interpretation would lead to startling result. A tenant cannot be allowed to remain ex parte and defend without paying the arrears of rent in eternally terminal. So also (sic) in a proceeding that may arise under Section 115 of the Code against an order of eviction passed under Section 21 of the Act. Therefore we do not find any doubt arising in the matter and the view taken in B. Vasanthy Urs case, supra, is in agreement with the sound and well-settled principles of law. Hence we have no hesitation in respectfully agreeing with the view expressed therein. Thus the first contention advanced by the petitioner stands rejected.