Karnataka High Court
Sri M.N. Sudarshan vs V. Murali Narayana on 3 July, 2007
Equivalent citations: ILR2007KAR3415, 2008(1)KARLJ500, AIR 2007 (NOC) 2351 (KAR.), 2007 (5) AIR KAR R 430, 2007 A I H C 3483, (2008) 1 KANT LJ 500
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
JUDGMENT Ajit J. Gunjal, J.
1. Admit. The records are secured and since the subject matter of the appeal lies in a narrow compass, it is taken up for final disposal. During the course of this judgment, the parties would be referred to as per their ranking in the trial court.
2. The defendant being aggrieved by the judgment and decree dated 31-8-2006 passed by the learned trial judge in OS No. 6804/2004 decreeing the suit of the plaintiff for ejectment and also for damages, is before this Court.
3. Facts germane for the disposal of these proceedings can be summarized as follows;
The case of the plaintiff is that the defendant is a tenant in respect of a portion of first floor of the premises bearing No. 70, New No. 70/2, Mamulpet, Bangalore 560 053. The defendant occupied the suit schedule property by taking over a business concern and requested the plaintiff to recognize him as a tenant. It is thereafter the plaintiff recognized him as a tenant in respect of the suit schedule property. The tenancy in respect of the suit schedule property is a monthly tenancy. The defendant agreed to pay rent of Rs.500/- per month on or before 10th of every month and started the business in the schedule property. The lease period initially was for a period of 11 months w.e.f from 2-3-1988 and the same came to an end on 1-2-1989. Thereafter, the tenant has been paying monthly rents and has continued to occupy the suit schedule property as a tenant. The defendant was irregular in payment of rent and after innumerable request, he sent a Demand Draft for Rs. 10,000/- Since the defendant was a chronic defaulter, the plaintiff was not willing to continue him as a tenant in respect of the suit schedule property. Consequently, a notice terminating the tenancy of the defendant and calling upon him to deliver vacant possession was issued. A demand was also made for arrears of rent of Rs.4,000/- and for damages and mesne profits at the rate of Rs.5,000/- per month. The said notice was received by the tenant and a reply was sent. Even after service of notice, the defendant did not vacate the suit schedule property and hence the suit is filed for ejectment, damages and for mesne profits.
Defendant entered appearance and contested the matter. According to him, the suit schedule property is residential premises and it consists of two rooms, kitchen-cum store, one bathroom and water closet. Since the predominant purpose for which the suit schedule property is taken on lease is residential, the question of vacating the premises would not arise. It is the case of the defendant that suit schedule property was taken as a residential unit and he is carrying on the business in sarees in a small portion of the premises to an extent of 5' x 5', hence the suit for possession is not maintainable. He would also interalia contend that the quit notice issued by the plaintiff is not in conformity with Section 106 of the Transfer of Property Act. He would also state that he is not in arrears of rent and that he is not liable to pay damages/mesne profits.
The learned trial Judge on consideration of the evidence both oral and documentary has decreed the suit directing the defendant to deliver vacant possession and further has determined damages.
3. Sri Shivakumar, learned Counsel appearing for the defendant would press into service only one point in as much as the predominant purpose for which the premises was taken on lease was residential and only in a portion of the premises the saree business is being carried on. Since the predominant purpose is residential in character, the suit for ejectment is not maintainable. The relationship of landlord and tenant is not at all disputed by him. He would rely on a ruling of the Apex Court in the case of Nilesh Nandkumar Shah v. Sikandar Aziz Patel .
4. Sri. Abhinav, the learned Counsel for the plaintiff would support the judgment and decree passed by the learned trial Judge. He submits that there is nothing on record to establish that the defendant was staying in the premises and the predominant purpose is one of non-residential character. He would submit that Ex.P7 is the lease deed, the essential purpose was for carrying on business. He would also submit that the impugned judgment and decree of the learned trial Judge granting decree for possession cannot be faulted,
5. It is to be noticed that during the course of the proceedings in this court a commissioner was appointed so as to ascertain the purpose for which the premises is being used, whether it is for residential or for non residential. The commissioner has filed a report indicating that the premises is being used exclusively for business i.e., non-residential. The defendant has filed his objections to this report interalia contending that he was not at all informed about the inspection and the said Commissioner's report is required to be eschewed.
6. The only question that requires to be considered at the hands of this court is whether the lease in favour of the defendant is a composite tenancy or an integrated tenancy for dual purpose as has been held by the Apex court in AIR 2002 SC 3073.
7. During the course of trial, the plaintiff has examined himself as PW-1 and on his behalf eight documents are marked As Ex.P1 to P8. Defendant has examined his General Power of Attorney as DW-1 and on his behalf Ex.D1 to D5 are marked.
8. EX.P7 is the lease agreement dated 10-2-1988 between the plaintiff and defendant. The only recital which is relevant and which is required to be looked into is the purpose for which the suit schedule property is leased. Paragraph 2 of the lease deed would read as under;
Whereas the lessee who is already in occupation of the schedule premises having taken over the business as going concern, requested the lessor to recognize him as his tenant, and enter into a lease agreement, with him in regard to the Schedule portion.
9. A perusal of this clause in the lease deed would give an indication that the suit schedule property was taken over by the defendant as a going concern and he himself requested the plaintiff to recognize him as a tenant and a fresh lease deed was required to be entered into between them.
10. Sri. Shivakumar, learned Counsel for the defendant would rely on Clause (I), which according to him gives sufficient indication that the predominant purpose for which the suit schedule property is taken on lease is for residential purpose. The said clause reads as under;
Use of Premises: The lessee may also use the premises for non-residential/business purposes. The Lessee shall keep the leased premises in good condition and order and shall not cause or suffer any damage thereto.
11. Indeed a reading of first sentence of Clause (I) would show that the defendant was permitted to use of the premises for non-residential/business purpose. But however, by that one sentence it can not be inferred or presumed that the premises in question is being used essentially for residential purpose and not for carrying on saree business. Indeed any document is required to be read in its entirety and isolated sentence cannot be picked out to buttress a contention, A reading of the entire lease deed would clearly give an indication that the defendant has purchased a going concern and he requested the plaintiff to recognize him as a tenant. Apparently, there is no recital in the lease deed, which would indicate that any part of premises could be made use of for residential purpose. Converse inference cannot be drawn on the basis of a sentence in Clause (I) that the predominant purpose of the premises is residential.
In deed there are certain other facts which would go against the defendant to hold that he is occupying the premises for residential purpose. The defendant has produced as many as 13 documents but a perusal of these documents do not indicate that the premises is being used for residential purpose. Indeed to prove that the said premises is being used for residential purpose the defendant could have produced documents like electricity bill, ration card, gas connection etc., which are required for day to day living. None of these documents are forthcoming. In fact oral evidence is also not forthcoming to show that the premises is being used for residential purpose. Indeed the neighbours could have been examined to prove that the premises is being used for residential purpose. That part of the evidence is not forthcoming and it is to be presumed that such evidence is withheld or that the evidence of this nature is not available. In the absence of any material, the contention of the learned Counsel for the defendant that the premises is used for residential purpose cannot be accepted.
In the case referred to by the learned Counsel for the defendant, it is to be noticed that the Apex Court has dealt with composite tenancy as well as integrated tenancy, which is for dual purpose. In the case of composite tenancy need may arise for determining the dominant purpose of letting. However the theory of dominant purpose or principle of predominant purpose of letting is irrelevant in the case of tenancy of integrated nature. Indeed there would be demarcation of the premises for which it is to be used. The protection of Rent Act would be available if there is clear demarcation of the area for which they are put to use. The case on hand is not a case of integrated tenancy but it is a case of composite tenancy. In a composite tenancy certainly a need would arise to determine as to the predominant purpose of the tenancy. Aperusal of Ex.P-7 would clearly indicate the predominant purpose for which the premises was let out was for non residential purpose i.e., for carrying on saree business. Since the predominant purpose is not mentioned here, assuming for the sake of argument that a portion of the area is being occupied as a living quarter mat would not par take the character of residential, the defendant has not produced any document that would support his case.
Plaintiff has produced two additional documents Ex.P8 and P9 which are in the nature of voter's list. Aperusal of these documents would also indicate that the defendant has been residing elsewhere but not in the premises in question.
In so far as the Commissioner's report is concerned, it is to be noticed that the said report is not required to be looked into for proper disposal of this appeal. The objections to the Commissioner's report would disclose that as on the date when the Commissioner had gone to inspect the property, there was a bereavement in the family of the defendant and the defendant was not available. Be that as it may. The Commissioner's report will not advance the case of either the plaintiff or the defendant. The appeal is decided on the evidence let in by the parties during trial.
If the evidence on record, documents produced, terms of lease deed and the interpretation given by the Apex court is considered, I am of the view that the findings recorded by the learned trial Judge that the premises is being used predominantly for non-residential purpose cannot be faulted.
Having perused the material on record, I am of the view that the judgment and decree passed by the learned trial Judge does not call for any interference. There is no merit in this appeal. This appeal stands dismissed.
12. At this stage, learned Counsel for the defendant seeks some time to quit and deliver vacant possession of the premises to the plaintiff. Having regard to the nature of business which the defendant is carrying on, time till end of March, 2008 is granted to quit and deliver vacant possession of the premises in question to the plaintiff. This grant of time is subject to the defendant filing an affidavit in this court within four weeks from today incorporating the following conditions;
1. That the defendants shall not induct any third party into the suit schedule premises;
2. That they shall pay the agreed amount for use and occupation of the suit schedule premises during the period between 1st of July, 2007 to 30th of March, 2008;
3. That they shall not drive the plaintiff to file an execution petition;
4. That they shall not seek any further extension of time.