A.M. Abdul Khader vs Barnard Lobo

This petition u/s 50 of the Karnataka Rent Control Act, 1961 as it stood prior to the amendment by Act 31 of 1975 (hereinafter referred to as the ''Act''), is directed against the order dated 11-9-1974 passed by the District Judge. South Kanara, Mangalore on I. A. No. III in H.R.C. Appeal No. 108 of 1973. By the said order, the learned District Judge has dismissed the appeal of the petitioner tenant.

The respondent-landlord filed an application under Clauses (h) and (j) of the proviso Section 21 (1) of the Act praying for vacant possession of the schedule premises. The trial Court allowed the application and as against that order, the petitioner tenant filed H.R.C. Appeal No. 108 of 1973. During the pendency of the appeal the landlord filed I. A. No. III u/s 29 (1), (2) and (4) of the Act contending that the tenant had deposited the rent only upto 31-7-1973 and had not deposited the rent thereafter and as such, the order u/s 29 (4) of the Act dismissing the appeal was to be passed. The tenant contended that the deposit of rent up-to-date had been made, but when notice of the deposit was sought to be served on the counsel for the landlord by the counsel of the tenant, the counsel for the landlord refused to accept the notice and, therefore, I. A. No. Ill ought to be dismissed.

The learned District Judge has observed in the course of his order that the rent up-to-date had been deposited, but it was not accompanied by the prescribed fee for issue of notices. On this basis, he has further on observed that the question whether the counsel for the tenant had notified the counsel for the landlord as and when the deposit was made and that the counsel for the landlord had refused to take notice need not agitate his mind, because the law, according to him, was that a deposit unaccompanied by the prescribed fee was not in law deposit of rent. He has relied upon the decision of this Court in K.J. Acharya v. L. Ravindra Rao (1965 (1) Mys LJ 221). He has not gone into the question whether various items of deposit taken into consideration by him had Or had not been made within the period prescribed by law for payment of rent.

The tenancy in this case is according to English calendar month. Therefore, the law would be that the rent should be paid within 15th of the succeeding month. When that is so, deposit of rent in Court will have to be made within that period and the fact that such deposit has been made will have to be notified to the landlord. It is with the object of securing notice to the landlord that Rule 9 of the Rent Control Rules lays down that prescribed fee for issue of notice to the landlord should also be paid along with the deposit. It is not the law that even if the landlord has been notified in some other manner, the tenant should fail for non-payment of the prescribed fee. Therefore, it is clear to my mind that the learned District Judge has mechanically applied the decision in K.J. Acharya''s case.

It was the duty of the District Judge to find out in the first instance whether various items of deposit had been made within the time allowed by law. If any deposit is made beyond the time allowed by law, then it becomes Immaterial whether it is accompanied by the prescribed fee for issue of notice or whether it is not accompanied by such a fee, as it is clear that such a deposit of rent would not be payment of rent according to law so as to take away the case from the ambit of Section 29 (1) of the Act. He has totally ignored this aspect of the matter while it was incumbent upon him to go into this aspect before reaching the conclusion on I. A. No. III.

In view of what has been expressed in regard to the position of law, in the paragraph preceding in the above paragraph, the view expressed by the learned District Judge that whether the counsel for the tenant had or had not notified the counsel for the landlord as and when the counsel for the tenant made the deposit in Court need not agitate his mind, is not sound, because if, in fact, after making such deposit, the counsel for the tenant had notified the counsel for the landlord, then it would be sufficient notice to the landlord and as such, non-payment of the prescribed fee along with the deposit would not come in the way of the tenant so far as the provisions of Section 29 (1), (2) end (4) of the Act are concerned.

In view of the foregoing reasons, the order dated 11-9-1974 passed by the District Judge, South Kanara, Mangalore on I. A. No. III in H.R.C. Appeal No. 108 of 1973, is set aside. The matter is remitted to the District Judge for fresh disposal according to law bearing in mind the observations made in the body of this order. No order as to costs in the circum stances of the case.

Petition allowed.