1998 Supreme(SC) 789

1998(6) Supreme 303
Supreme Court of India
(From Karnataka High Court)
M.M. Punchhi, CJI, K.T. Thomas and S.S. Mohammed Quadri, JJ.
P.R. Deshpande -Appellant
versus
Maruti Balaram Haibatti -Respondent
Civil Appeal No. 4587 of 1995
Decided on 11-8-1998
Counsel for the Parties :
For the Appellant : Uday Sinha, Sr. Advocate, Bhawani Shanker, V. Gadnis, H.A. Raichura, Advocates.
For the Respondent : V.A. Mehta, Sr. Advocate, S.M. Sareen and M.K. Dua, Advocates.

Important Point
Where tenant gave an undertaking to vacate the premises within six months as per order of eviction passed against him, it cannot impede right of appeal and particularly the constitutional remedy u/Art. 136 of the Constitution of India.

Headnote:(i) Constitution of India-Article 136-Appeal filed under-Before High Court appellant had given an undertaking for vacating the pre­mises within six months as per order of eviction passed against him-Whether he is estopped from filing appeal against order of evic­tion in Supreme Court u/Art. 136? (No).

       Held : A party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking no court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior court or even the same court on a review the undertaking given by the party will automatically cease to operate. Merely because a party has com­plied with the directions to give an undertaking as a condition for obtaining stay he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the concerned party has given undertaking in the lower court to abide by the decree or order within the time fixed by that court. (Para 11)

       We are, therefore, in agreement with the view of Sahai and Venka­tachala, JJ, that the appeal filed under Article 136 of the Constitu­tion by special leave cannot be dismissed as not maintainable on the mere ground that appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court’s order in abeyance for some time. (Para 12)

       (ii) Karnataka Rent Control Act, 1961-Sections 29(1) and 50-Evic­tion order-Revision against-Held not maintainable as it was not accompa­nied by deposit of rent as required in Section 29-Whether bad in law? (No) - Appeal dismissed.

       Held : The words in sub-section (1) “or to prefer or prosecute a revision peti­tion under Section 50” encompass two stages. First is at the threshold when tenant files the petition for revision. Second is a stage when he prosecutes his revision. On the first stage his revision petition is not maintainable unless it is accompanied by either pay­ment or deposit of “all the arrears of rent due up to the date of payment or deposit”. If the revision is validly preferred then in the next stage of prosecution of revision the tenant has to continue to pay or deposit “any rent which may subsequently become due” until termination of the proceedings. Learned counsel for the appellant contended that the liability of the tenant under Section 29(1) of the Act would come into operation only after the court determines the amount to be paid. This argument is based on sub-section (3) but the contingency under that sub-section would arise only where there is a dispute as to the amount of rent to be paid or to be deposited. In this case the appellant filed revision petition on 20.4.1991. High Court has noticed that “admittedly, the tenant did not deposit the rent on 20.4.1991 when the revision peti­tion was filed before the learned District Judge.” The admitted position being as above, it is not open to the appel­lant now to contend that he did not make the deposit along with filing of revision petition due to want of an order from the court. Learned counsel for the appellant made an attempt to raise a contention that though the appellant did not deposit the arrears of rent along with filing the revision petition he has subsequently paid rent arrears on 27.5.1991 and hence the revision must be treated as preferred on that date. We are not disposed to countenance the said contention in this particular case for two reasons. Firstly, that the landlord-respondent filed an application under Section 29(4) of the Act before the District Court and the tenant has not taken up such a ground in the petition filed by him thereto. Secondly, even in the Special Leave Petition he has not adopted any such contention and hence the landlord, has no occasion to meet the factual situation on the basis of which the aforesaid contention is raised. In the result, we dismiss this appeal. (Paras 15 to 19)