Bangalore District Court
Sri.Syed Abdul Razack @ Aazam vs Sri.Mohammed Sufiyan on 23 April, 2019
C.R.P.67 Government of Karnataka
TITLE SHEET FOR JUDGMENTS IN SUITS
Form No. 9
IN THE COURT OF THE SMALL CAUSES AT
(Civil)
Title Sheet BANGALORE.
for Present: Sri.A.SAMIULLA, B.Sc LL.B.
Judgment XIX Addl SCJ, MACT & XLI ACMM,
in Suits
(R.P.91)
Bangalore.
S.C.No.1685/2017
Plaintiff: Sri.Syed Abdul Razack @ Aazam,
S/o Syed Abdul Khader,
Aged 70 years,
R/at No.2038, 17th main,
1st cross, HAL 2nd stage,
Indiranagar, Bengaluru-560038.
(By Sri.VS)
-Vs-
Defendant: Sri.Mohammed Sufiyan,
S/o Sri.Sulaiaman Sait,
Aged 63 years,
R/at No.179, Commercial street,
Mariyamma Koil Street,
1st cross, 2nd floor,
Opp.Anand Sweets,
Bengaluru-560001.
(By Sri.AM)
Date of Institution of the Suit: 4.11.2017.
Nature of the Suit: Ejectment suit.
Date of the commencement of
Recording of the evidence: 1.3.2018.
Scch-17 2 S.C.1685/17
Date on which judgment
Was pronounced: 23.4.2019.
Total Duration: Year/s Month/s Day/s
02 5 18
(A.Samiulla)
XIX ADDL.JUDGE.
J U D G M E N T
Suit is for ejectment.
2. The say of plaintiff is that; he is the owner of schedule premises and entered into an agreement of license dated 1.10.08 with the defendant for monthly license fee of Rs.5,250/-, which was enhanced yearly and the present rate of license fee is Rs.8,000/- per month. Defendant is doing business of hand bags and leather bags and allied products. Agreement of license is for month to month which is terminable with 15 days notice. Defendant is not paying service and other charges legally payable to the authorities. Scch-17 3 S.C.1685/17 He started doing illegal acts of cricket betting and other betting's. In spite of requests he failed to stop his illegal activities, as such he is asked to vacate the premises, which he failed to do, hence legal notice dated 7.8.17 terminating the agreement of license dated 1.10.08 and 30.9.17 was issued calling upon him to vacate the premises on or before 30.9.17. In spite of service of notice he continued the possession as a trespasser, as such he is liable to pay damages @ Rs.2,500/- per day. Hence, suit is filed.
3. Defendant resisted the suit by filing written statement denying plaint averments. He contended that, he is tenant under the plaintiff from the past 30 years and his tenancy is protected under the Karnataka Rent Act, 1999. This Court has no jurisdiction to try the suit. He is aged 63 Scch-17 4 S.C.1685/17 years and depends on the business running in schedule premises, which is the only source of income of his family. Suit is filed to coerce him to pay unreasonable rents. He denied the execution of agreement of license, which is a sham document obtained by the plaintiff by fraud and misrepresentation to evade the rigor of the Karnataka Rent Act. He denied that, he was a licensee under the agreement of license on a monthly license fee of Rs.5,250/- and present rate of license fee is Rs.8,000/-. He denied service of legal notice. Denying other allegations he prayed to dismiss the suit.
4. Following points arise for consideration.
1) Whether plaintiff proves the existence of relationship of licensor and licensee between him and the defendant?Scch-17 5 S.C.1685/17
2) Whether the license is lawfully terminated?
3) Whether this Court has jurisdiction to try the suit?
4) What order or decree?
5. In guise of proving case, plaintiff examined himself as Pw.1 and documents Ex.P1 to P5 were marked. Sri.Syed Ameen was examined as Pw.2. On the other hand the defendant examined himself as Dw.1 and document Ex.D1 was marked.
6. Heard arguments from both sides. Perused written arguments.
7. Findings on the above points are as follows:
Point-1: Affirmative. Point-2: Affirmative. Point-3: Affirmative. Point-4: As per final order for the following;Scch-17 6 S.C.1685/17
REASONS
8. Point-1: Plaintiff asserted that; defendant is licensee of suit premises and present monthly license fee is Rs.8,000/-. Per contra defendant denied that he is licensee of suit premises but he contended that he is tenant under the plaintiff.
9. Before adverting to the merits and demerits of rival contentions raised by the parties to lis, let us first set at rest a technical issue crop up in the case at hand.
10. It is worth to note that; suit is filed for ejectment stating that the plaintiff is licensor and defendant is licensee. Now the moot question to be addressed herein is whether this Court can take cognizance of suit for Scch-17 7 S.C.1685/17 ejectment where the relationship of parties is licensor and licensee.
11. To answer the moot question let us straight away rely on a decision reported in ILR 2006 KAR 4704, B.Krishnappa V/s Smt.Chandrika, wherein the Hon'ble Court at Para 18 deals with the jurisdiction of Court of Small Causes as per Section 8 of the Karnataka Small Causes Courts Act, 1964. At Para 19 it is held that; keeping in mind these provisions it is noticed that in the instant case the plaintiff has come up with specific plea that he has withdrawn the permission granted to the defendant to be in occupation of the schedule premises/or that he has revoked the license. In such a suit no issue arises for determination either relating to title or interest of the plaintiff or defendant in respect of the immovable property in question. Scch-17 8 S.C.1685/17 Thus the suit is the suit simplicitor for ejectment of the occupant on revocation of licence and therefore, the Small Causes Court has the jurisdiction to grant relief sought for.
12. In the light of discussion supra it can be safely conclude that the present suit for ejectment filed by the licensor against licensee is cognizable by this Court.
13. In the instant case, defendant denied the existence of relationship of licensor and licensee between him and the plaintiff. On the other hand he contended that, he is tenant under the plaintiff and tenancy is protected under the Karnataka Rent Act.
14. To demonstrate the relationship of licensor and licensee the plaintiff relied on Ex.P1 i.e., agreement of licence dated 1.10.08 executed between him and the Scch-17 9 S.C.1685/17 defendant. In written statement at Para 7 it is pleaded that, agreement of license dated 1.10.08 is a sham document and obtained by the plaintiff by fraud and misrepresentation to evade the rigor of the Karnataka Rent Act. In cross-examination of Pw.1 it is suggested that, except in the last page (Ex.P1) the signature of defendant is not forthcoming in remaining pages, he admits the same. It is suggested that, he has produced Ex.P1 by replacing first four pages of the document and first page of Ex.P1 was replaced after defendant signed the document and by misrepresenting the defendant that the document is required for income tax purpose, he has obtained the said document, he denied the same. In cross-examination Dw.1 stated that the Ex.P1 bears his signature. Scch-17 10 S.C.1685/17
15. It is pertinent to note that the suggestions made to the plaintiff by the defendant during the course of cross- examination manifest that the defendant admits the signature on Ex.P1 and its execution. But his specific contention is that the document is obtained by playing fraud upon him. In these circumstances the burden of proof is on the defendant to plead and prove the fraud played upon him. Here, except a self serving statement absolutely there is nothing on record to establish the plea of fraud raised by the defendant.
16. It is argued that the lease deed (Ex.D1) dated 30.10.1986 is an undisputed document, which shows the relationship of plaintiff and defendant is land lord and tenant, and not licensor and licensee. It is true Ex.D1 lease deed is an undisputed document. Ex.D1 is dated 30.10.1986 Scch-17 11 S.C.1685/17 whereas Ex.P1 is dated 1.10.2008, which shows that at the inception the relationship was of landlord and tenant and subsequently it is converted into licensor and licensee. Thus the contention raised holds no water.
17. In the background of above discussion it can be safely conclude that the plaintiff successfully demonstrated the existence of licensor and licensee relationship between him and the defendant. Hence, point-1 is answered in affirmative.
18. Point-2: Plaintiff stated that; the agreement of license is month to month and terminable by 15 days notice. To establish the termination of license, he has produced documents viz., legal notice dated 7.8.17, postal receipts and acknowledgments marked at Ex.P3 to 5 respectively. Scch-17 12 S.C.1685/17
19. The recitals of agreement of license (Ex.P1) depict that, the period of license is 11 months and monthly licensee fee is Rs.5,250/-. Said recitals manifest the license was for month to month.
20. In cross-examination the Dw.1 admits that, he has received Ex.P3 (legal notice) and he has not replied it. This categorical admission coupled with postal acknowledgments which carries presumptive value manifest that there is no quarrel whatsoever in respect of issuance of termination notice and its due service to the defendant.
21. It is worth to note that Section 106 of Transfer of Property Act was amended by the Transfer of Property (Amendment) Act, 2002, wherein sub section 3 of Section 106 reads thus, A notice under sub-section (1) shall not be Scch-17 13 S.C.1685/17 deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub- section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
22. In the case in hand notably there is written agreement of licence and it is on monthly basis. Thus it will fall in the second limb of Section 106 of Transfer of Property Act requiring 15 days prior notice to terminate it. Here termination notice was issued on 7.8.17, which is served on 8.8.17. Suit was filed on 4.11.17, which is filed after 15 days from the date of service of termination notice. Thus the determination of license is valid. Hence point-2 is answered in affirmative.
Scch-17 14 S.C.1685/17
23. Point-3: Defendant argued that the schedule premises measures less than fourteen square meters, as such this Court has no jurisdiction to try the suit, as the defendant got protection under the Rent Act.
24. In plaint schedule the measurement of property is shown as 25.74 square feet, which shows that the suit premises is less than fourteen square meters. On the basis of plinth area measuring less than fourteen square meters the defendant is contending that this Court is not having jurisdiction to entertain the suit.
25. It is worth to note that the defendant in cross- examination has categorically stated that he is paying monthly rent of Rs.8,000/-. Thus the undisputed facts are, Scch-17 15 S.C.1685/17 the suit premises measures less than fourteen square meters and the rate of rent is Rs.8,000/- per month.
26. Defendant relied on Section 2(3)(g) of Karnataka Rent Act, 1999, wherein it is stated that; the Rent Act is not applicable to the premises let out for commercial purpose having a plinth area of not exceeding fourteen square meters.
27. On the other hand, plaintiff urged that the rate of rent is Rs.8,000/- per month, as such provision of Rent Act is not applicable. He relied on Section 2(3)(e) of Rent Act, which envisages that; to any premises, deemed rent on the date of commencement of this Act or the standard rent of which exceeds i) three thousand five hundred rupees per month in any area referred to in part A of the first Scch-17 16 S.C.1685/17 schedule, and ii) two thousand rupees per month in any other area, Rent Act is not applicable.
28. The rival contentions supra reveal that the facts situation on hand comes within the purview of above narrated two conditions. Now the moot question is to make applicable of provisions of Rent Act satisfaction of both conditions is warranted or not.
29. To clarify this situation let us rely on a decision reported in ILR 2013 KAR 4696 (Anupama Ramesh V/s Veerchand), wherein the situation was that, the plinth area of the suit premises exceeds fourteen square meters but the rate of rent does not exceed Rs.2,000/- per month. In that scenario the trial Court held that Rent Act is applicable. The Hon'ble High Court in Para 6 held that; Scch-17 17 S.C.1685/17
The object of sub-Section (3) of Section 2 of the Rent Act is to exclude certain types of premises from the applicability of the Rent Act if the Rent Act is not applicable to a premises in view of any of the clauses i.e., clauses (a) to (h) in sub-Section (3), such a premises stands excluded from the applicability of the Rent Act and that cannot be defeated by relying on an exception in any other clause in sub-Section (3) as a legislature will not at the same time give something by one hand and take back the same thing by another. The exception provided in some of the clauses in sub-Section (3) will come into play, if the premises are not excluded from the applicability of the Rent Act under any of the other clauses. To illustrate, the Rent Act is not applicable to any premises belonging to the State Government or the Central Government or a local Scch-17 18 S.C.1685/17 authority in view of clause (a). This cannot be defeated by relying on the exception provided under clause (e) on the ground that the rent of premises does not exceed the limit stipulated therein. Similarly, if the area of a premise used for commercial purpose is more than fourteen square meters, it stands excluded from the applicability of the Rent Act in view of clause (g). This cannot be defeated on the ground that its rent is less than the amount stipulated in clause (e). To give one more instance, if a premises is excluded from the applicability of the Rent Act under clause (e), it can't be defeated by relying on the exception provided in clause (g) on the ground that the premises is used for commercial purpose and its plinth area does not exceed fourteen square meters.
Scch-17 19 S.C.1685/17
Above discussion manifest that the application of Rent Act is excluded if any one of the conditions are satisfied. In the case at hand the rate of rent is Rs.8,000/- per month, as such Rent Act is not applicable to the facts at hand though the plinth area is less than 14 square meters. Thus this Court is having jurisdiction to try the suit.
30. Point-4: Discussion supra makes it clear that the plaintiff establishes the jural relationship, legal termination of license and entitlement for possession. Hence Court proceeds to pass the following;
ORDER Suit is decreed with costs.
Defendant is directed to vacate the suit premises and handover vacant possession to the plaintiff within two months from the date of decree. Scch-17 20 S.C.1685/17
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 23rd day of April, 2019) (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.
ANNEXURE List of witnesses examined on behalf of Plaintiff: P.w.1- Sri.Syed Abdul Razack @ Aazam. Pw.2: Sri.Syed Ameen.
List of exhibits marked on behalf of Plaintiff:
Ex.P.1 Agreement of license.
Ex.P.2 12 rent receipts
Ex.P.3 Legal notice dated 7.8.17.
Ex.P.4 2 postal receipts.
Ex.P.5 2 speed post acknowledgments.
Defendant:
D.w.1: Sri.Mohammed Suffiyan.
List of exhibits marked on behalf of Defendant:
Ex.D.1 C/c of lease deed dated 30.10.1986.
(A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.