P. Mailvaganam @ Babu vs A. Kannan Muthu

A.S. Bopanna, J.—The petitioner is calling in question the order dated 16.06.2009 passed in HRC No. 10114/2008. By the said order, the Court below has allowed IA-V and directed the petitioner herein to deposit the arrears of rent from 1.10.2006 to 31.2.2009 at the rate of Rs. 1,000/- per month.

Heard the learned Counsel appearing for the parties and perused the petition papers.

The contention of the learned Counsel for the petitioner while (sic) the said order is that the Court below has not properly appreciated the materials on record. It is contended that the Court below was not justified in relying only on the document at Ex.P17 to come to the conclusion that the said rents are due. The learned Counsel would point to the agreement of lease produced at Annexure A to this petition to indicate that under the said document what has been agreed is the lumpsum rental and no monthly amount as claimed is payable. It is therefore contended that the Court below could not have come to its conclusion that the amount by way of monthly arrears is due from the petitioner. Learned Counsel for the petitioner would also point out that the application filed by the petitioner herein u/s 45(3) of the Karnataka Rent Act (''the Act'' for short) seeking determination of the alleged rent is still pending before the Court below. Without disposing of the application filed by the petitioner herein, the present order could not have been passed.

Since the learned Counsel for the respondent at the outset contended that the petition is not maintainable. The learned Counsel for the petitioner by placing reliance on the decision of the Hon''ble Supreme Court in the case of Committee of Management and Anr. v. Vice Chancellor and Ors. Civil Appeal No. 7319/2008 contended that the existence of alternate remedy should not be a ground to dismiss the petition on the ground of maintainability.

On the other hand the learned Counsel for the respondent while seeking to support the order dated 16.6.2009 which is impugned in this petition would point out that the agreement of lease relied on by the learned Counsel for the petitioner is in respect of the portion as indicated in the agreement viz., the residential portion of the property. In addition to the said portion, the petitioner is also in occupation of the shop premises with regard to which the present eviction petition is filed. It is further pointed out that in respect of the portion which is the subject, matter of the agreement of lease dated 3.01.2005 a separate suit for ejectment has been filed and as such this would indicate that, in respect of two portions, two separate legal proceedings have been initiated. Further it is pointed out that the petitioner herein in his cross examination has admitted with regard to, the deposit of rents by way of drawing of cheques in favour of the respondent in respect of the earlier periods and as such the amount as demanded in the proceedings is the amount due to be paid by the petitioner herein. Accordingly, the Court below was justified in relying on Ex.P17 viz., the reply to the notice. Learned Counsel apart from the merits would once again assert that the petition itself is not maintainable in view of the provision contained in Section 46 of the Act.

Having considered the rival contentions, sice there was also a contention with regard to the maintainability of the petition, I am of the view that the judgment relied on by the learned Counsel for the petitioner is not of any assistance in the present facts in as much as in the instant case, there in an alternate and (sic) remedy of revision before this Court itself and therefore this is not one of the circumstances as indicated in the said judgment. Though I am of the said opinion, I have proceeded to consider the petition on merits since it is seen it is seen that the present petition was filed before this Court on 9.7.2009 and at this stage even if the petitioner is relegated to the alternate remedy, it would be only by way of another revision petition before this Court itself and as such in the present facts, I do not deem it necessary to dispose of on the question of maintainability.

Having said so, in so far as the facts of the present case is concerned. It is seen that the Court below was considering the application in IA-A filed by the respondent herein u/s 45 of the Karnataka Rent Act. In such circumstances, even though the petitioner herein had also filed an application u/s 45(3) of the Act and that the learned Counsel for the petitioner contends that the said application has not yet been disposed of, in any event, the finding to be rendered by the Court below would be a similar finding in respect of the said application also since both the said applications have been filed by the parties u/s 45 of the Karnataka Rent Act and therefore, mere non-disposal of the said application cannot be a ground to hold that the present order is not sustainable. At best the said application will render itself as infructuous.

Therefore, in that view, a further perusal of the order would indicate that the Court below has come to the conclusion that the arrears as claimed by the respondent Herein for the periods 1.10.2006 to 31.3.2009 at the rate Rs. 1,000/ per month is payable by the petitioner. In this regard, though the learned Counsel, for the petitioner has relied on the agreement at Annexure-A to this petition, as pointed out by the learned Counsel for the respondent, the preamble to the agreement has referred to the residential portion in premises No. 70/51, Jewellers Street, Bangalore-1 being the subject matter of the said agreement, even though in the schedule ultimately it is only indicated by way of the number and the boundaries. Further the petition filed has also referred to the present, properly. At this juncture, what would be the most relevant aspect is that as per the contention of the respondent, one portion being the shop premises and the other being residential portion under the said agreement are evidently considered as two portions and as such two separate legal proceedings, one by the present eviction petition and another by way of civil suit is instituted. These aspects of the matter would indicate that in fact the parties are concerned with two separate portions which have been let out. In that view, if the reply to the legal notice at Ex.P17 is perused, the same relates to the premises to which the eviction proceedings has been initiated wherein the respondent had claimed for the rents for the said period and in reply to the same, it has been stated that the monthly rents are being paid by the petitioner herein. Further the reference to the cross examination portion of the petitioner herein before the trial Court would indicate that he has admitted the fact of having paid the monthly rents in respect of the premises for earlier periods by way of cheque. When that is the position, the petitioner cannot at this stage contend that no monthly rents were payable in respect of the premises.

It is no do not true that the document at Ex.P19 dated 31.1.2005 is a (sic) which is said to have been issued by the petitioner herein. Though the learned Counsel for the petitioner places reliance on the same to indicate that the premises has been converted into a single (sic) what is noticed from the said letter is that the said two premises were separate and in fact while raking the premises, the petitioner herein has been permitted to have an opening by way of approach to the residential portion and in the said letter, there is also an undertaking that the same would be restored after the expiry of the lease period.

Therefore keeping all these aspects of the matter in view, if the order of the Court below is perused, the reliance placed by the Court below at Ex.P17 to come to its conclusion would indicate that the case put forth by the respondent herein was probable and if the petitioner had taken up the contention that the monthly rents are paid, it was incumbent on the petitioner to prove that the rents were paid for the said periods as claimed in the notice. Hence I am of the view that the Court below was justified, in its conclusion and the order impugned in this petition does not call for interference.

Accordingly, the petition being devoid of merit is dismissed. No order as to costs.