01 December 2004
Supreme Court


Case number: C.A. No.-004533-004533 / 2001
Diary number: 8764 / 2000
Advocates: M. K. DUA Vs



CASE NO.: Appeal (civil)  4533 of 2001



DATE OF JUDGMENT: 01/12/2004


JUDGMENT: J U D G E M E N T                         

       This appeal by special leave is directed against the Judgement of  the High Court of Karnataka at Bangalore dated 13th April, 2000 in  H.R.R.P No.227 of 2000. The appellant before us is a tenant and the  respondents are the  landlords. By the impugned judgement and order  the High Court has dismissed the Revision Petition preferred by the  appellant holding that the arrears of rent had not been paid or deposited  by the appellant as required, in the manner contemplated by Section 29  of the Karnataka Rent Control Act, 1961 (hereinafter referred to as "the  Act") before filing of the Revision Petition, and that                                                  ...2/-


no explanation had been given for not depositing the rent before filing  the Revision Petition under Section 50(1) of the Act.

       The facts of the case are not in dispute.

       The respondent-landlords filed a petition for eviction of the  appellant under Section 22(1)(h) and 22(1)(p)of the Act which was  disposed of by the Small Causes Court allowing the petition and passing  an order of eviction against the appellant by judgement and order of  February 4, 2000. The appellant preferred a Revision Petition before the  High Court on 6th April, 2000 under Section 50(1) of the Act. Before  preferring the Revision Petition he had neither deposited nor paid the  arrears of rent, but he sent the same by money order to the landlords on  11th April, 2000. The matter came up before the High Court on 13th  April, 2000 when the High Court passed the impugned order dismissing  the Revision Petition for non compliance with requirements of Section  29 of the Act.                                         ...3/-


       Counsel for the appellant argued before us that there was, in fact,  no delay in filing the Revision Petition as also in payment of arrears of  rent and therefore, the High Court was in error in dismissing the  Revision Petition on that ground. Counsel for the respondent has  supported the order of the High Court and drawn our attention to the  relevant provisions of the Act.

       The relevant part of Section 29 of the Act provides as follows :-

       "29.Deposit and payment of rent during the pendency of



proceedings for eviction.-

       (1)     No tenant against whom an application for eviction  has been made by a landlord under Section 21, shall be entitled to  contest the application before the Court under that Section or to  prefer or prosecute a revision petition under Section 50 against an  order made by the Court on application under Section 2(1) unless he  has paid or pays to the landlord or deposits with the Court or the  District Judge or the High Court, as the case may be, all arrears of  rent due in respect of the premises upto the date of payment or  deposits and continues to pay or to 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 the termination of  the proceedings before the Court or the District Judge or the High  Court, as the case may be.



       (2)     The deposit of the rent under sub-section (1) shall be  made within the time and in the manner prescribed and shall be  accompanied by such fee as may be prescribed for the service of the  notice referred to in sub-section (5).

       (3)     x x x x x x x  

       (4)     If any tenant fails to pay or deposit the rent as  aforesaid, the Court, the District Judge or the High Court, as the  case may be, shall unless the tenant shows 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 petition, as the case may be.

       (5)     x x x x x x x"

       Sub-Section (2) of Section 29 provides that the deposit of the rent  under sub-section (1) shall be made within the time and in the manner  prescribed, which means that the deposit of rent must be made in the  manner prescribed and within the time provided by the Rules. Section 50  which provides for a revision to the High Court or the District Judge is  as follows :-

       "50. Revision.(1) The High Court may, at any time call for  and examine any order passed or proceeding taken by the Court of  Small Causes or the Court of Civil Judge under this Act or any  order passed by the Controller under Sections 14, 15, 16 or 17 for  the purpose of satisfying itself as to the legality or correctness of  such order or proceeding and may pass such order in reference  thereto as it thinks fit.



       (2)     The District Judge may, at any time call for and  examine any order passed or proceeding taken by the Court of  Munsiff referred to in sub-clause (iii) of clause (d) of Section 3 for  the purpose of satisfying himself as to the legality or correctness of  such order or proceeding and may pass such order in reference



thereto as he thinks fit. The order of the District Judge shall be final.

       (3)     The costs of and incidental to all proceedings before  the High Court or the District Judge shall be in the discretion of the  High Court or the District Judge, as the case may be."

       Rule 9 is the relevant Rule which prescribes the manner and time  within which the deposit as contemplated by Section 29 shall be made.  The relevant Rule is quoted below :-

       "Rule 9. Deposit of rent under Section 29.-  (1) The time within which a deposit of rent under sub-section (1) of  Section 29, may be made shall be fifteen days of the last date fixed in  the agreement of tenancy with the landlord for payment of the rent  or in the absence of such agreement fifteen days from the last date of  the month next following that for which the rent is payable."                     It will thus be seen that Section 50 which provides for a revision  to the High Court against the order of the Court of Small Causes, as in  this case, does not prescribe a limitation for preferring the                                                  ...6/-


revision. In fact the power has been conferred upon the High Court and  the District Judge to act suo motu, but it is not disputed before us that the  aggrieved party also may invoke that provision and seek relief.   

       Counsel for the parties submitted before us that in the absence of  a provision providing  for a limitation the High Court of Karnataka has  held that such a revision must be preferred within 90 days. It was so laid  down in the case of P. Kannaswamy Versus B.L. Shankaranarayana  Shetty AIR 1977 Karnataka 72. A subsequent decision of the same  Court in Obalappa Versus Alamelamma  AIR 1983 1 Rent Control  Reporter 258 has clarified that the period of 90 days though not a period  of limitation prescribed by law, is all the same a guidance for the  exercise of discretion in such matters. Without going into the correctness  of these decisions we proceed on the basis that a revision could be  preferred within 90 days, though Section 50 does not lay down the  limitation for preferring such a revision.



       In view of the above if a revision is filed within 90 days as laid  down by the aforesaid decisions of the Karnataka High Court, and the  arrears of rent is not deposited within the period of 90 days, the situation  poses no difficulty, because in that event the Court may dismiss the  revision unless the revisionist is able to satisfy the Court that he had  sufficient cause for not making the deposit within such time. In the  instant case we are faced with a different situation. The revision was  preferred against the order of the Small Causes Court dated 4th  February, 2000 on 6th April, 2000. The revision petition, therefore, was  filed within time. The arrears of rent were paid on 11th April, 2000.  Therefore, by the time the revision came up for hearing before the High  Court on 13th April, 2000, the arrears of rent had already been paid  within the period allowed for preferring the revision petition. In these  circumstances, we are of the view that the revision petition should have  been entertained on merit and the High Court should not have dismissed  it on the ground of limitation. The Court should have





treated the Revision as duly presented on April 6, 2000, the date on  which the payment was made.

       Counsel for the respondents submitted that Rule 29 prescribes the  period within which the deposit should be made. We have examined  Rule 29 to ascertain within what period, according to the Rule, the  deposit or payment of the arrears of rent should have been made.  Unfortunately, the Rule is not happily worded. In our view it has not  prescribed a time limit for deposit of rent in a revisional proceeding  under Section 50 even though Section 29 directly refers to such a  proceeding. This may perhaps be on account of the fact that the Act  itself does not prescribe a limitation for invoking the revisional  jurisdiction under Section 50. However, if it were permissible to  compute the limitation under Rule 9, in view of the fact that we do not  know the last date contemplated in the agreement of tenancy for  payment of rent, we may compute the limitation on the basis of time  prescribed in the last part of sub-section (1) namely "15 days from the  last                                                  ...9/-          


date of the month next following that for which the rent is payable".

       In the instant case the order of eviction was passed on 4th  February, 2000. In the absence of any evidence to the contrary we take it  that rent for the month of February was due and payable. The month  next following that for which the rent is payable will be the month of  March, 2000, and 15 days from the last day of March would be the 15th  April, 2000. Even if we so compute the limitation period allowed for  depositing the arrears of rent, the payment made on 11th April, 2000 was  well within time. We are, therefore, of the view that there was in fact no  delay in paying the arrears of rent reading Section 29 of the Act with  Rule 9 of the Rules. Even otherwise in principle we are supported in our  conclusion by the decision of this Court in The Commissioner of  Income Tax, Bombay Versus M/s Filmistan Ltd. 1961 3 SCR 893.  That was a case under the Income Tax Act and the question arose in the  



context of Section 30 of the Act which provided for appeals against  orders of assessment. The proviso as contained in Section 30(1) read as  follows :-

       "Provided that no appeal shall lie against an order under sub- section (1) of section 46 unless the  tax has been paid."

       The objection by the department was that the appeal was barred  by limitation since the tax had not been paid when the appeal was  preferred. Negativing this contention this Court held :’

       "The controversy between the parties revolves round the  words "no appeal shall lie." The contention which was raised before  us was that these words mean that there is no right of appeal till the



tax is paid and therefore if the tax has not been paid the  memorandum of appeal cannot be filed and if filed it is merely a  waste paper. In our opinion the meaning of the words "no appeal  shall lie" in the proviso is not that no memorandum of appeal can be  presented. All that it means is that the appeal will not be held to be  properly filed until the tax has been paid. If, for instance, the  memorandum of appeal is filed on the 20th day, i.e., 10 days before  the period of limitation expires and the tax is paid within the rest of  the 10 days, the appeal will be a proper appeal; it will be within time  and no question of limitation will arise but if the tax is paid after the  period of limitation has expired it will be taken to have been filed on  the day when the tax is paid even though the memorandum of  



appeal was presented earlier and within the period of limitation.  The question will then have to be decided whether there was  sufficient cause for condonation of delay and that is exactly what the  Tribunal had ordered and that in our opinion is the effect of the  proviso to Section 30(1) read with sub-section (2) of Section 30 of the  Act."                   We therefore, allow the appeal and remit the matter to the High  Court for disposal of the revision petition on merit. Since the need of the  landlords as claimed by them is urgent as they require the premises for  their bona fide personal need, we request the High Court to dispose of  the revision petition as early as possible. It was also brought to our  notice that during the pendency of the appeal before this Court no rent  has been deposited. Unfortunately, neither the appellant voluntarily  deposited the rent each month as and when it fell due, nor did the  respondents seek a direction from this Court to the appellant to deposit  the rent each month. However, we direct the appellant to deposit the  arrears of rent due as on 30th November, 2004 within a period of four  weeks from today.  



       The parties are at liberty to move the High Court and seek further  directions for the deposit of rent in future. If the rent as directed by us is  not deposited within the  period of four weeks from today, it will be  open to the High Court to dismiss the revision petition on that ground  alone. The parties are directed to appear before the Registrar General of  the Karnataka High Court on 17th January, 2005 when he shall intimate  the parties the probable date of hearing.

       This appeal is allowed with no order as to costs.