IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 08 TH DAY OF JULY, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM HRRP No. 157 OF 2010 BETWEEN: SMT.CHETAN J.MERLECHA, W/O SRI JAWAHARLAL, AGED ABOUT 57 YEARS, SHOP PREMISES NO.312, 3 RD FLOOR, DEVATHA MARKET, A.M.LANE, CHICKPET, BANGALORE - 560 064 PETITIONER (BY SRI R.B.SADASHIVAPPA, ADV. - ABSENT,) AND: SRI RAMESH P.JAIN, SINCE DECEASED BY LR’s 1. SRI PANNALAL JAIN, Sb BADARMAL, AGED ABOUT 75 YEARS, 2. SMT.RATHNA BAI, W/O SRI PANNALAL JAIN, AGED ABOUT 68 YEARS 3. SMT.LAD DEVI, W/O LATE RAMESH P.JAIN, AGED ABOUT 39 YEARS, 4. KUM.DEEPIKA R.JAIN, D/O LATE RAMESH P.JAIN, AGED ABOUT 18 YEARS 5. SRI ASHISH RJAIN, Sb RAMESH P.JAIN, AGED ABOUT 16 YEARS RESPONDENT NO.5 ARE MINOR REPRESENTED BY HER MOTHER SMT.LAD DEVI, ALL ARE R/A NO.11/i, 2 FLOOR, PREMA COMPLEX, MARAMMA TEMPLE STREET, AVENUE ROAD CROSS, CHICKPET, BANGALORE - 560 053 RESPONDENTS (BY SRI P.D.SURANA , ADV., AND SRI SHIVASHANKARAPPA, ADV., FOR R1-R4 - ABSENT) *** HRRP FILED U/S 46(1) OF THE KARNATAKA RENT ACT 1999, AGAINST THE ORDER DATED 26-05-2010 PASSED ON IA-i IN HRC NO.435/2004 ON THE FILE OF THE COURT OF VI ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE l.A. FILED U/O 45(1) OF KR ACT ETC. THIS PETITION IS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This is tenant’s petition under Section 46(1) of the Karnataka Rent Act, 1999, (hereinafter referred to as the Act, for brevity) assailing the order dated 26.5.2010 in HRC.435/04 on the file the VI Addl. Smafl Causes Judge, Bangalore. 2. Heard both sides and perused records in supplementation thereto. It reveals: a) Ramesh P.Jain initiated eviction action against the petitioner herein and one Navaiji Mehta under the provisions of Section 27(2),(b), (d) and (r) of the Act claiming to be the owner of the property bearing shop No.1 in the ground floor of a complex named PREMA COMPLEX bearing No.11/i, Maramma Temple Street, Avenue Road, Chickpet, Bangalore. b) In support of the clauses invoked for eviction, he alleged 1st respondent was tenant in the schedule premises on a monthly rent of Rs.500/- but had sublet it to the 2nd respondent and others to make unlawful 7 -i. ii / I 4 gain, by collecting Rs.3,000/- p.m as rent. He also alleged 1st respondent had abandoned the schedule premises and therefore he was liable to be evicted on that ground. He further averred the premises in question is required by him and his family members for their own use and occupation and thus sought eviction under clause (r) of Section 27(2) of the Act. c) During the course of proceedings, Ramesh Jam died leaving behind his wife and children who are respondents herein. They continued the eviction action. d) The eviction petition was resisted by the petitioner herein denying all the allegations made therein. However petitioner admitted he was tenant in occupation of the premises in question on a monthly rent of Rs.500/- under one Thippanna, who had collected Rs.75,000/- towards goodwill and Rs.1O,000/- as advance. He further averred Ramesh Jam after purchasing the property, demanded and received from him Rs.2,61,000/- as additional advance in addition to (/VC what was paid to the former owner. Thus he was holding Rs.3,46,000/- which was refundable by him to the petitioner-tenant. He also denied having sublet the premises or that he had abandoned the premises in favour of the 2nd respondent. e) The tenant further denied the premises is required for the own use and occupation of the Ia n dl ord S. f) In view of the material propositions in the pleadings of the parties, the case which was filed in HRC.435/04 was posted for enquiry. During the course of enquiry, on 27.11.2009 respondents filed an application under Section 45(1) of the Act seeking a direction to the petitioner herein to pay Rs38,500/- being arrears of rent for the period from 1.7.2003 to 30.11.2009 and also to pay future rents as and when it accrues. The application was filed by Lad Devi, w/o Ramesh Jam for and on behalf of other legal heirs. 6 g) Petitioner herein resisted the application reiterating his defence and denied that he was due rents from 1.7.2003 to 30.11.2009 as alleged. He pointed out that the eviction petition was filed on 16.8.2004, but the application under Section 45 was filed in 2009. Had there been any amount towards rents, the landlords would not have waited for such a long period. Besides, he also reiterated that Rs.3,46,000/- was still with Ramesh Jam and after his demise, respondents as legal heirs, are liable to refund the same. Therefore the arrears if any, could be adjusted out of the said amount and hence no action under Section 45 of the Act is warranted. h) The learned trial judge allowed the application and by the impugned order directed the petitioner to pay Rs.38,500/- towards rent within one month failing which the petitioner is directed to quit, vacate and hand over possession of the premises to the landlords. i) Assailing it, he is in revision. 3. Learned counsel for the petitioner, Sri R.B.Sadashivappa would contend, the application under Section 45(1) required detailed enquiry to decide as to wbether the tenant was due any amount. He submits even though the petitioner-tenant has highlighted that the former landlord had received from him Rs.75,000/- towards goodwill and Rs.1O,000/- as advance and after purchase, Ramesh Jam had received Rs.2,61,000/- as additional advance, the trial court has ignored the said valid defence. He submits, even though the application is under Section 45(1) of the Act, no summary order could have been passed directing the petitioner to pay or deposit rents without determining exactly what was the amount due. He submits, learned trial judge has misapplied the decision of this court in the case of SRI, SALEEM .VS. SYED YOUSUF & OTHERS reported in ILR 2010 KAR 427. 4. Several other grounds are urged against the impugned order. 8 5. In negation of these grounds, Sri P.D.Surana and Sri Shivashankarappa, learned counsel for the respondents would submit, respondents had sought eviction of the petitioner invoking clauses (b), (c) and (r) of Section 27(2) of the Act and unless the tenant deposits rents, he has no right to contest the proceedings. Whatever may be the defence of the tenant, he has no option but to deposit the rents. Referring to the proceedings before the trial court, he submits the tenant has not paid rents from 2003 till the impugned order was passed in 2010 which disentitles him to contest the proceedings and righty the trial court has directed him to pay rent in a sum of Rs.38,500/- and on failure, directed him to vacate the premises. 6. Keeping in mind what is urged by both sides, I have examined the records made available. 7. It admits of no doubt that even though eviction proceedings were initiated in the year 2004, the allegation that the tenant is due rents was made for the 9 first time on 27.11.2009 through the application under Section 45(1) of the Act. The tenant has disputed the allegations and claims to have paid rents regularly. Therefore, a bona fide dispute has arisen for decision. 8. It is material to note even though Section 45 makes it mandatory that no tenant against whom an application for eviction has been made by the landlord under Section 27, shall be entitled to contest the application before court under that section or to prefer or prosecute the revision petition under Section 46 against the order made by the court on an application under Section 27 of the Act, unless he has paid or pays to the landlord or deposits with the court or district judge or the High Court, as the case may be, all arrears of rent and other charges due in respect of the premises upto the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid until termination of the proceedings before the court or 10 district judge or the High Court, as the case may be. It is material to note when there is an allegation by the landlord that the tenant is due rents and has not paid or deposited the rents, Section 45(3) comes into play. 9. Sub-section (3) of Section 45 of the Act specifically mandates ‘where there is any dispute as to the amount of rent or other charges to be paid or deposited under sub-section (1), the court shall, on the application made to it either by the tenant or landlord and after making such enquiry as it deems necessary, determine summarily the rent to be so paid or deposited.’ The phraseology of the provision leaves no doubt that if the tenant disputes the allegation of the landlord that he is due rents or other charges, an enquiry is required to be conducted to determine the amount to be paid or deposited by the tenant. 10. In the instant case, though there is allegation by the respondents though their application under Section 4 45(1) of the Act that the petitioner-tenant has not paid rents from 1.7.2003 to 30.11.2009, the tenant has not only disputed it but also averred that Rs.3,46,000/- is still with the landlords which may be adjusted towards arrears if any. In view of such defence, the trial court ought to have held an enquiry to determine summarily the amount due to be paid by the tenant. It is seen from the observation of the learned judge in paragraph- 6 of the order that he was conscious of the fact that the claim made by the landlords that the tenant is due Rs.38,500/- as against the tenants claim that Rs.3,46,000/- was still in possession of the landlords, required a detailed enquiry, but has applied the decision in the case of SALEEM (supra) to summarily direct the tenant to pay Rs.38,500/- within a month from the date of the order. Such order is, undoubtedly, passed without any enquiry having been conducted. 11. Besides, it is noticed on failure of depositing such amount within one month, the trial court has 12 directed the tenant to vacate the premises in question. Thus the first part of the impugned order directs the tenant to pay or deposit the said amount and the second part directs him to vacate the premises on failure to deposit the amount. Necessarily the order has to be decided applying sub-section (4) of Section 45 of the Act which envisages ‘if any tenant fails to pay or deposit rent as aforesaid, the court, district court or the High Court, as the case may be, shall unless the tenant has shown sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision, as the case may be.’ The extracted provision makes it clear that if the tenant has failed to pay or deposit the rent as determined in sub-section (3), he has to be called upon to show cause against such default. Only when the tenant fails to show sufficient cause for the default, proceedings could be stopped with a direction to put the landlord in possession of the premises. is 12. In the instant case, without considering the cause shown by the tenant, no order could have been passed directing his eviction or directing him to put the landlord in possession of the premises. In view of the legal position referred to above, the impugned order can hardly be sustained. The learned trial judge has, without conducting an enquiry, on the mere assertion of the landlords-respondents, has directed the tenant to pay Rs.38,500/- and has further directed him to vacate the premises on failure to pay the said amount within one month. 13. In this view, the impugned order is set aside. The trial court is directed to decide the application filed under Section 45(1) of the Act after conducting an enquiry to determine the actual amount to be paid as rent and dispose of the same in accordance with law. Sd/ TTrr’ J UiJ4%z4Th VK/VGH