Karnataka High Court
P.R. Radhakrishna Setty And Sons ... vs A.N. Satish Babu on 22 October, 2003
Equivalent citations: 2004(2)KARLJ223, 2004 AIR - KANT. H. C. R. 2354, 2004 AIHC 4655, (2004) 2 KANT LJ 223, (2004) 2 RENCJ 143, (2004) 2 RENCR 388, (2004) 2 RENTLR 238, (2004) 2 KCCR 1084
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. The petitioner is the tenant and respondent is the landlord. The landlord filed petition under Section 21(1)(h) and (p) of the Karnataka Rent Control Act, 1961 (now repealed, hereinafter called as the 'Act'), seeking eviction of the tenant on the ground that the landlord require the petition schedule premises for the bonafide use and occupation to start his own business in silk and that the tenant acquired a suitable alternate premises. The tenant resisted the petition denying the case of the landlord. After trial, the Trial Court by its judgment dated 27-7-2001 allowed the petition and granted six months time to the tenant to vacate and deliver vacant possession of the premises. Being aggrieved by the same, the tenant filed this revision petition seeking to set aside the order of eviction and to dismiss the eviction petition.
2. During the pendency of this revision petition the Act was repealed and the Karnataka Rent Act, 1999 (hereinafter referred to as 'the Rent Act') was enacted. A memo was tiled by the Counsel for the petitioner stating that the petition schedule premises exceeds 14 square metres and hence the revision petition abates under Section 70(2)(c) of the Rent Act, in view of the decision of this Court in Mercury Press, Bangalore v. Ameen Shacoor and Ors., 2003(3) Kar. L.J. 505 (DB) : ILR 2002 Kar. 2304 (DB) In order to ascertain the measurement of the schedule premises, Court Commissioner was appointed. The Commissioner has filed his report along with some photographs of the premises. In the report the Commissioner has furnished measurements of the shop mentioned in the eviction petition, as per the boundaries mentioned in the sale deed and the actual plinth area excluding the walls. Objections are filed by the petitioner to the Commissioner's report. The grievance of the petitioner is that the walls and the plywood affixed to the same are excluded while taking the measurements and if, the same are taken into consideration, the measurement of the petition premises exceeds 14 sq. mtrs.
3. Now, let me examine the contention of the petitioner regarding the extent of the premises in question. The contention raised by the petitioner cannot be countenanced and the same deserves rejection for the reasons stated in the succeeding para.
4. As per Section 2(3 )(g) of the Rent Act, the Rent Act is not applicable to non-residential premises excluding the premises having a plinth area of not exceeding 14 square metres used for commercial purpose. What is important is "plinth area used for commercial purpose". The word "used" assumes importance. Therefore, only the area used for commercial purpose shall be taken into consideration. In such an event, walls cannot be used and as such their measurements need not be taken. According to the Commissioner's report, the plinth area measures East to West 9.5' towards North and 8' towards South and North to South 15.5'. Thus, the premises used for commercial purpose is not more than 14 sq. mtrs. R. W. 2 examined before the Trial Court has admitted that the petition schedule premises does not measure more than 14 sq. mtrs. Hence, the objections filed to the Commissioner's Report and the contention taken regarding the extent of the petition schedule premises are untenable and rejected. The decisions relied upon in this regard have no application to the present case.
5. Now, coming to the merits of the case, the relationship of landlord and tenant between the parties is not in dispute. So also, the rate of rent is also not in dispute. The eviction ordered under Clause (p) of Section 21 (1) of the Act is liable to be set aside. As per the said provision, eviction can be ordered only if, the tenant acquires possession of a vacant premises. The premises purchased by the son of the tenant situated at No. 176/1, Kota Subbaiah Setty Lane, Huriopet, Avenue Road Cross, Bangalore-53 was tenanted and it was not vacant. Eviction of a tenant cannot be ordered on mere acquisition of a premises unless vacant possession of the same is obtained. In this case, since the tenant has not obtained possession of the acquired premises, the eviction ordered by the Trial Court under Clause (p) is bad in law and liable to be set aside.
6. Insofar as the eviction ordered under Clause (h) of Section 21(1) of the Act is concerned, it is not in dispute that the landlord is doing business with his father. That means, he has got experience in silk business which is proposed to be done in the schedule premises. The intention of the landlord to do his own business and for which he require the petition schedule premises cannot be said not bonafide or unreasonable. In fact, in the cross-examination dated 8-1-2001 the tenant has admitted as under.--
"It is true the petitioner is young person like me. It is true naturally he intends to improve his business. It might be true that the petitioner (sic) is having experience in this business because he is running business from long-time as long as 20 years".
The schedule premises is suitable for running silk business. Therefore, the Trial Court was justified in ordering eviction of the tenant under Section 21(1)(h) of the Act.
7. Having regard to the size of the petition premises, it being too small, partial eviction is not feasible. The Trial Court rightly ruled out partial eviction.
8. So far as comparative hardship is concerned, the tenant has admitted that he has not made any efforts for alternative premises despite filing eviction petition against him. He has also not taken any steps as on today to evict the tenant in the premises acquired by him. The attempt made in this regard was given-up. That means, the tenant is not bothered about anything. Petitioner/tenant further admitted that he is doing business in wholesale and retail silk and cheque discounting. He is also doing auditing. Quite naturally his turnover runs to several lakhs of rupees and he is capable of securing alternative accommodation by paying even more rent. On the other hand, the landlord being young person, intends to do his own business. For (hat purpose he requires the petition premises. Hence, much hardship will be caused to him if, eviction is not granted. On the other hand, even if little inconvenience and hardship is caused to the tenant, he is capable of withstanding the same. But, he cannot be allowed to squat over the property for ever and deprive the landlord of his intention to carry on his own business in the petition schedule premises.
9. For the foregoing reasons, the revision petition is dismissed. The tenant is granted nine months time to vacate and delivery vacant possession of the petition schedule premises to the landlord subject to the condition that he shall file an affidavit by giving an undertaking that he shall pay rents regularly and deliver vacant premises to the landlord immediately after the period granted by this Court to him for vacating the premises.