Bangalore District Court
S.Venkateshalu vs Sri.K.Manjunatha on 20 July, 2015
C.R.P. 67] Government of Karnataka
Form No. 9
(Civil) TITLE SHEET FOR JUDGEMENTS IN SUITS
Title Sheet for
Judgment in IN THE COURT OF THE SMALL CAUSES AT BANGALORE
Suits
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
Dated this the 20th day of JULY 2015
S.C.No.325/2015
PLAINTIFF/s: S.Venkateshalu,
S/o late M.Sriramulu,
Aged about 53 years,
R/at No.285,
Gnanabharathi III Block,
Dubasipalya,
R.V.C Post,
Bengaluru-560 059.
(By pleader Sri SG)
Vs.
DEFENDANT/S : Sri.K.Manjunatha
S/o late M.Krishnappa,
Aged about 49 years,
Proprietor, Alankar Hair Dressers,
No.14, Ground Floor,
10th Cross,
Rangaswamy Temple Street,
Bengaluru-560 053.
(Exparte)
SCCH-14 2 SC No.325/2015
Date of institution of the suit: 28.03.2015
Nature of the suit (suit on pronote,
suit for declaration and possession Ejectment
suit for injunction, etc.,):
Date of the commencement of 09.07.2015
recording of the evidence:
Date on which the Judgment 20.07.2015
was pronounced:
Year/s Month/s Days
Total duration: 00 03 21
Additional Judge
Note: - The names and descriptions of all the plaintiff's and
defendants as stated in the plaints should be mentioned.
SCCH-14 3 SC No.325/2015
JUDGEMENT
This is a suit for ejectment and for damages.
2. Brief averments of the plaint are as under:
The plaintiff is the absolute owner of the property bearing New PID No.109-W0045-14, Municipal No.14, 10th cross, Rangaswamy Temple Street, Bengaluru-560053. Out of this property, a portion measuring East to West 16 feet and North to South 7 feet 6 inches in the ground floor, comprising of a non- residential/shop premises, has been let out to the defendant on rent of Rs.3,650/- per month through a registered lease deed bearing No.3754/04-05 dated 08.11.2004 for ten months from 01.10.2004 to 31.10.2004. The plaintiff has requested the defendant on several times to quit, vacate and deliver the vacant possession of the premises after expiry of lease period, but he has failed to vacate and deliver the vacant possession of the schedule premises to the plaintiff. Hence, the plaintiff has issued a legal notice on 28.01.2015 to the defendant calling upon him to vacate and handover the vacant possession of the schedule premises. But the said notice returned with shara "W/D NOT CLAIMED RETURNED TO SENDER". The said notice is deemed to have been served on the defendant. Inspite of service of notice, the defendant did not vacate and handover the vacant possession of the schedule premises. The plaintiff requires the schedule premises for his personal use and occupation. The defendant owns several properties within the Bengaluru and running hair dressers salon. The plaintiff has terminated the tenancy of the defendant from 28.02.2015. Now the defendant is holding over the property and he SCCH-14 4 SC No.325/2015 is liable to pay damages as claimed in the notice. Therefore, the plaintiff has filed this suit for ejectment of the defendant from the schedule premises and for damages.
3. The summons were not served upon the defendant in the ordinary course. Hence, summons were issued to the defendant by substitute method i.e., by paper publication. Inspite of publication of summons in newspaper, the defendant has failed to appear before the Court and hence, he is placed exparte. During the evidence, the plaintiff has examined himself as PW.1 and got marked documents as Ex.P1 to 7 and closed his side.
4. Heard the arguments and perused the records.
5. Now, the points that arise for my consideration are:
1. Whether the plaintiff has proved that the tenancy of the defendant is duly terminated?
2. Whether the suit is hit by the provisions of Karnataka Rent Act?
3. Whether the plaintiff is entitled for the relief sought for?
4. What order or decree?
6. My answer to the above points are as follows:
Point No.1: In Negative.
Point No.2: In Affirmative.
Point No.3 : In Negative.
Point No.4 : As per final order
for the following:
SCCH-14 5 SC No.325/2015
REASONS
7. POINT No.1 and 2: These points are interlinked and hence, they are taken together for common discussion. PW-1 Venkateshalu is the plaintiff and he has reiterated the entire averments of the plaint and stated that the tenancy of the defendant is duly terminated and in spite of it and in spite of issuance of notice, the defendant did not quit, vacate and deliver the vacant possession of the schedule premises and hence, he has sought for passing of Judgment and Decree against the defendant as prayed in the suit. Oral evidence of PW-1 remained unchallenged and there is nothing on record to disbelieve the same.
8. The plaintiff has produced registered lease deed, Khatha certificate, Khatha extract, tax paid receipts pertaining to schedule premises which are marked as Ex.P1 to 4. These documents reveal that the plaintiff is the owner of property bearing Municipal No.14, situated at 10th cross, Rangaswamy temple street, Bangalore, that the schedule premises is the part of property bearing Municipal No.14 and it is leased in favour of the defendant vide registered lease deed dated 01.11.2004, that the lease was for a period of 10 years from 01.11.2004 to 31.10.2014 on a monthly rent of Rs.2,400/- which was subject to enhancement from time to time and present rent is Rs.3,650/- per month. There is nothing on record to disbelieve the contents of Ex.P1 lease deed. The lease of the defendant came to an end on 31.10.2014. There is no evidence that the lease under Ex.P1 is further extended. Therefore, it can be SCCH-14 6 SC No.325/2015 said that the lease granted in favour of the defendant stood terminated by efflux of time i.e., on the expiry of lease period mentioned in Ex.P1.
9. Ex.P5 is copy of notice and Ex.P6 consists of postal covers which disclose that on 28.01.2015, the plaintiff has issued legal notice to defendant calling upon him to quit, vacate and deliver the vacant possession of the schedule premises on or before 28.02.2015 or else he shall be liable to pay damages/mesne profits @ Rs.25,000/- per month, that the said notice was sent by RPAD to two addresses of the defendant and both the postal covers returned not served as not claimed. The postal shara indicates that the notice is deemed to have been served upon the defendant. There is nothing on record to believe that the defendant has replied the notice. As per the notice, the tenancy of the defendant stood terminated on 28.02.2015.
10. The plaintiff has produced 3 photographs to show that the defendant owns several properties in Bangalore and runs saloons therein. Those photographs are not sufficient to believe that the building appearing therein are the properties of the defendant. Hence, the said photographs are not useful to prove the case of the plaintiff. Oral evidence of PW-1 is corroborated by the contents of Ex.P1 to 6 which collectively substantiate the averments of the plaint. The lease was granted in favour of the defendant for a fixed term and it was expired on 31.10.2010. The plaintiff has issued notice to defendant terminating his tenancy SCCH-14 7 SC No.325/2015 with effect from 28.02.2015, but whether such termination of lease is lawful and valid is a question of law to be decided by the Court.
11. The plaintiff has described the schedule premises in para No.3 and in the schedule of the plaint. The said description is as under;
"All that part and parcel of a non-
residential/shop premises, situated at No.14, Ground floor, 10th cross, Rangaswmay Temple Street, Bengaluru-560 053, measuring East to West:16 feet(sixteen feet) and North to South:7'6'(seven feet six inches) in all measuring 121.6 sq.ft with water and electricity amenities and bounded on:
East by : Naryanappas property,
West by : Road,
North by : Remaining portion of the same
property: and
South by : Sambandha Chari's Property".
It is an admitted fact that the schedule premises is measuring 16'X7.5' and its total measurement is 121.6 Sqft. It means, the total area of the schedule premises is less than 14 sqmtr. Section 2(3)(g) of Karnataka Rent Act reads as under;
"Sec.2(3) of Karnataka Rent Act reads as under; (Relevant portion) Sec.2(3) Nothing contained in this Act shall apply;
(a)..............
(b)...............
(c)...........
(d)..........
(f)....................SCCH-14 8 SC No.325/2015
(g) to any premises used for non-
residential purpose but excluding premises having a plinth area of not exceeding fourteen square meters used for commercial purpose;
(h)......."
The above provision makes it clear that a commercial premises less than 14 Sqmtrs falls within the purview of Karnataka Rent Act. The schedule premises is a commercial premises having total area of 121.6 Sqft. Thus, the schedule premises comes within the purview of Karnataka Rent Act.
Section 27(1) of Karnataka Rent Act read as under;
"Regulation of Eviction;
Protection of tenants against Eviction;-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the Landlord against a tenant, save as provided in sub-
section (2)".
The above provision makes it clear that the tenancy of a person in respect of property coming within the purview of Karnataka Rent Act can not be terminated by any agreement or by any notice and he may be evicted from property only on the SCCH-14 9 SC No.325/2015 grounds provided U/s 27(2) of Karnataka Rent Act. The expiry of lease period does not apply to a premises which falls within the purview of Karnataka Rent Act. The defendant is a statutory tenant. He can only be evicted from schedule premises on the grounds mentioned in Sec.27(2) of Karnataka Rent Act. The plaintiff has to file a petition before HRC Court for eviction of the defendant from the schedule premises on any of the grounds mentioned in Sec.27(2) of the said Act. The suit for ejectment of defendant is barred by the provisions of Sec.27(1) of Karnataka Rent Act and hence, I answer points as above.
12. Point No.3: The plaintiff has proved that the period mentioned in lease agreement is expired on 31.10.2014, that he has issued notice as required U/s 106 of T.P.Act, but the schedule premises measures less than 14 Sqmtrs and provisions of Karnataka Rent Act are applicable to the schedule premises. The defendant is a statutory tenant. He can only be evicted from the schedule premises by filing a petition for eviction under the provisions of Karnataka Rent Act and the suit hit by the provisions of Section 27(1) of Karnataka Rent Act. Hence, the plaintiff is not entitled for the relief sought for and I answer the point in negative.
[
13. POINT No.4: In view of above discussion and findings, I proceed to pass following:
SCCH-14 10 SC No.325/2015ORDER The suit of the plaintiff is dismissed.
No cost.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 20th day of July 2015.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 11 SC No.325/2015
SCHEDULE All that part and parcel of a non-residential/shop premises, situated at No.14, Ground floor, 10th cross, Rangaswmay Temple Street, Bengaluru-560 053, measuring East to West:16 feet(sixteen feet) and North to South:7'6'(seven feet six inches) in all measuring 121.6 sq.ft with water and electricity amenities and bounded on:
East by : Naryanappas property,
West by : Road,
North by : Remaining portion of the same property: and
South by : Sambandha Chari's Property.
(Basavaraj Chengti)
XVI ADDL.JUDGE,
Court of Small Causes,
BANGALORE.
SCCH-14 12 SC No.325/2015
ANNEXURE
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PLAINTIFF AND DEFENDANTS:
PW.1 S.Venkateshalu
Defendants Nil.
Ex.P1 Lease Deed'
Ex.P2 Khatha certificate
Ex.P3 Khatha Extract
Ex.P4 Tax paid Receipt
Ex.P5 Copy of legal Notice
Ex.P6 Postal covers(2 in Nos)
Ex.P7 Photographs (2 in nos)
Defendant's Nil
XVI Addl.Judge,
Court of Small Causes,
Bangalore.
SCCH-14 13 SC No.325/2015
Dt.20.07.2015
P-SG
D-Exparte
For Judgment.
Judgment pronounced in open court vide separate judgment.
ORDER The suit of the plaintiff is dismissed.
No cost.
XVI ADDL.JUDGE, Court of Small Causes, Bangalore.
SCCH-14 14 SC No.325/2015DECREE S.C.C.H.NO.14 IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
CLAIM: Suit filed on prays for directing defendant to This suit coming on for final disposal before Sri.Basavaraj Chengti., XVI ADDL.JUDGE, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount towards costs.
Given under my hand and the seal of the Court this Day of 2014.
DY. REGISTRAR, COURT OF SMALL CAUSES, Bangalore.
SCCH-14 15 SC No.325/2015MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee __________________________ Total of Rs. _________________________ Amount payable by the defendant to the plaintiff is Rs.
Decree Drafted Scrutinised by DY. REGISTRAR, COURT OF SMALL CAUSES, BANGALORE.
Decree Clerk SHERISTEDAR SCCH-14 16 SC No.325/2015
5. It is the contention of Sri S. Shaker Shetty, learned counsel appearing for revision petitioner that the exemption clause of Section 2(3)(g) of the Karnataka Rent Act, 1999 (hereinafter referred to as 'Rent Act' for the sake of brevity), would not be applicable to the facts and circumstances of the case and plaintiff ought to have filed an eviction petition for evicting the defendant from suit schedule premises by filing a petition under the provisions of the Rent Act and he could not have terminated the tenancy by issuance of notice under Section 106 of the Transfer of Property Act, 1908 and as such, the very suit filed by the plaintiff is not maintainable. He would also contend that even if defendant has not raised a plea with regard to jurisdiction, consent of the defendant would not confer jurisdiction on the Court and as such, non raising of plea regarding lack of jurisdiction would not prevent the defendant from raising said contention before this Court. As such, he contends that suit ought to have been dismissed by Trial Court as not maintainable.
(emphasis supplied by me)
11. Let me now examine as to whether jurisdiction of the Small Cause Court is excluded to adjudicate the suit or in other words whether plaintiff ought to have filed a petition for ejectment under Karnataka Rent Act, 1999. Exclusion clause as found in Karnataka Rent Act, 1999, pressed into service with regard to its applicability is traceable to Section 2(3)(g) and same is extracted hereinbelow:
12. Let me examine as to whether the said exclusion clause is applicable to the facts on hand or not. The schedule premises undisputedly measures 15 feet on eastern side and 16 on feet western side and 26 feet on northern side and 25 feet on southern side. In other words East to West it measures 15+16/2 and North to South it measures 26+25/2 which would be 15.5 feet East to West and 25.5 feet North to South and sum total of it would be 395.25 sq. ft (15.5 ft X 25.5 ft). In view of the same, it cannot be construed that plinth area of the suit schedule premises is less than 14 square meters, later part of Section 2(3)(g) being attracted to the facts of the case.
SCCH-14 17 SC No.325/201515. Perusal of the judgment of Punjab High Court relied upon by Sri S. Shaker Shetty, learned counsel for tenant - revision petitioner would indicate that it was rendered in the context of a criminal prosecution initiated against the salesman of an establishment alleging that he was selling the product namely one packet of tea at the premises, which was being used as godown. In this background, the Full Bench has examined the definition of a "commercial establishment" as defined under Section 15 of the Punjab Shops and Establishments Act, 1958, to arrive at a conclusion that the place at which alleged offence had taken place is not a shop as defined under the said Act and as such, offence having taken place at a place known and called as godown, it was held by their lordships that said premises would not come within the definition of 'commercial establishment' as defined under the said act. As noted hereinabove the Full Bench was examining the correctness of prosecution launched against salesman. There cannot be any dispute with regard to proposition that in criminal prosecution words will have to be read strictly and there cannot be any different interpretation other than plain reading of a statute particularly when criminal prosecution is initiated. The analogy extended for a definition of shop or Commercial establishment as defined under Punjab Shops and Commercial Establishments Act, 1958, cannot be extended to the provisions of the Karnataka Rent Act, 1999. The words used under the Rent Act is "non-residential purpose" and "commercial purpose". If the building is used for "non -residential purpose" and if it is more than 14 square meters, it would take away the jurisdiction of the Court under Karnataka Rent Act, 1999 or if the premises measures less than 14 square meters and it is being used for non-residential or commercial purpose then provisions of Rent Act would be attracted. At the cost of repetition it has to be noticed that in the instant case measurement of schedule premises as described in the schedule would clearly indicate that plinth area of the petition schedule premises is exceeding 14 square meters namely, it is measuring 395.25 sq. ft. As such, it cannot be held or construed that the provisions of the rent Act would be applicable to the facts on hand or plaintiff ought to have initiated eviction proceedings under the Karnataka Rent Act, 1999 and he could not have filed a suit after determining the tenancy under Section 106 of the Transfer of Property Act, 1908.
SCCH-14 18 SC No.325/201516. Section 2(3)(g) is an exemption provision which has an exception clause in-built. A careful perusal of Clause (g) would indicate that provisions of the Rent Act would be applicable to the premises having a plinth area not exceeding 14 square meters used for commercial purpose. In other words, it means provisions of the Act would be applicable to smaller premises which has an area less than 14 square meters. All other non-residential premises other than premises having plinth area of more than 14 square meters would not fall within the purview of the Rent Act. Clause (g) uses both expression 'non-residential' and 'commercial'. The first part of clause (g) uses the expression 'non- residential purpose' and in the second part expression used is 'commercial purpose'. The Karnataka Rent Act does not define 'commercial purpose' or 'commercial building'. In view of the same, the meaning should be found out with reference to the provisions of the Act and the object which the Act seeks to achieve. Hence, it would not be proper to refer to the meaning given to the expression in other statutes. The meaning of the word must be gathered from the context in which it is used. It would not be sound principle of construction to interpret expression used in one Act with reference to the other used in another Act. If the premises is used for non-residential purposes, it will be covered by the earlier part of clause (g) or in the event of premises being used for commercial purpose and it measures more than 14 square meters it would be covered under later part of clause (g) and in either of these two eventualities provisions of Rent Act would not be applicable. In this background, when the facts on hand are examined, it would clearly indicate that undisputedly the schedule premises in question was taken on lease by the defendant for godown purposes and it measures 395.25 sq.ft. and as such, exception found in the exemption clause namely, 2(3)(g) cannot be pressed into service by the defendant - revision petitioner to contend that a petition under the Rent Act ought to have been filed. Contention raised in this regard is without merit and it is hereby rejected. In that view of the matter, first contention of Sri Shaker Shetty, learned counsel for tenant - revision petitioner stands rejected.
SCCH-14 19 SC No.325/2015Sec.2(3) of Karnataka Rent Act reads as under; (Relevant portion) Sec.2(3) Nothing contained in this Act shall apply;
(a)..............
(b)...............
(c)...........
(d)..........
(f)....................
(g) to any premises used for
non-residential purpose
but excluding premises
having a plinth area of not
exceeding fourteen square
meters used for
commercial purpose;
(h).......