Karnataka High Court
K A Hameed vs Jabbar Baig on 29 November, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CIVIL REVISION PETITION NO.523/2013
BETWEEN:
K.A.Hameed
S/o Late Abdul Khader
Aged about 57 years
Residing at No.144,
Chandini Chowk Road,
Bangalore - 560 051 ....Petitioner
(By Sri S. Shaker Shetty, Advocate)
AND:
Jabbar Baig
S/o Mohammed Baig
Aged 65 years,
R/at No.46, Millers Road,
2nd Cross, Benson Town,
Bangalore - 560 046 ...Respondent
(By Sri K.K.Vasanth, Advocate)
This CRP is filed Under Section 18 of Small
Causes Court Act, against the orders dated 05.09.2013
passed in S.C.No.1176/2011 on the file of II Additional
Small Causes Judge and XXVIII ACMM, Bangalore,
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partly decreeing the suit filed for ejectment and arrears
of rent with interest.
This CRP coming on for admission this day, the
Court made the following:
ORDER
Though matter is listed for admission by consent of learned advocates appearing for the parties it is taken up for final disposal.
2. I have heard the arguments of Sriyuths S. Shaker Shetty, learned counsel appearing for revision petitioner - tenant and K.K.Vasanth, learned counsel appearing for respondent - landlord. Perused the order under challenge.
3. Sri K.K.Vasanth, learned counsel appearing for respondent - landlord has also made available the pleadings, deposition of the witnesses and exhibits marked before the Trial Court. Same is also perused by me. Parties are referred to by their rank in trial Court. 3
4. This is a tenant's Revision Petition challenging the order passed by II Additional Small Causes Judge and XXVIII ACMM, Bangalore, in S.C.No.1176/2011 dated 05.09.2013 decreeing the suit of plaintiff and directing the defendant to vacate and handover vacant possession of schedule premises to the plaintiff within two months from the date of order and directing defendant to pay damages to the plaintiff @ Rs.750/- per month for his wrongful possession from the date of the suit till the date of handing over vacant possession.
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 4 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.
6. He would elaborate his submission by contending that only after a decree having been passed for vacating petition schedule premises, a final decree for grant of mesne profits as contemplated under Order 5 20 Rule 12 CPC ought to have been passed and trial Court could not have decreed the suit for arrears of rent. On these two grounds, learned counsel appearing for tenant - revision petitioner would seek for setting aside the judgment and decree passed by the Trial Court and prays for allowing the Revision Petition. Except these two grounds he has not urged or canvassed any other contention for consideration by this Court.
In support of his submission he has relied upon following judgments:
1. AIR 1963 PUNJAB 148 (V 50 C 48): RAM CHANDER BARU RAM vs THE STATE
2. (2005)7 SUPREME COURT CASES 653:
DEVASAHYAM (DEAD) BY LRs vs. P. SAVITHRAMMA AND OTHERS
3. AIR 1967 SUPREME COURT 155 (V 54 C 29):
GOPALAKRISHNA PILLAI AND OTHERS vs. MEENAKSHI AVAL AND OTHERS 6
7. Per contra, Sri K.K.Vasanth, learned counsel appearing for respondent - landlord would support the judgment and decree passed by the Trial Court and contends that when there is no plea raised with regard to the applicability of Karnataka Rent Act, 1999, in the written statement filed before the Trial Court, such a plea should not be permitted to be raised in this revision petition. He would also submit that when undisputedly measurement of schedule premises exceeds 14 square meters, Section 2(3)(g) of the Rent Act would be attracted and filing of petition under Rent Act would not arise and it would exclude the jurisdiction of the rent court to adjudicate suit since the suit schedule premises admittedly measures more than 14 square meters and it is a non-residential premises and as such, suit filed by plaintiff after determination of tenancy under Section 106 of the Transfer of Property Act, 1908, cannot be held as one without jurisdiction. 7
He contends that when the premises used by the tenant is for non-residential purposes namely commercial purposes, defendant cannot be heard of contending that exemption carved under Section 2(3)(g) would be applicable or suit in question would not be maintainable. He would also draw the attention of Court to the written statement filed by defendant, whereunder he has admitted the tenancy and as such, he prays for dismissal of the revision petition. In support of his submission he relies upon the judgment of Full Bench of this Court in the case of ABDUL WAJID vs. A.S.ONKARAPPA reported in ILR 2011 KAR 229.
8. Having heard the learned Advocates appearing for the parties and on perusal of the judgment and decree passed by Trial Court, as also pleadings and deposition made available during the course of arguments and after bestowing my careful attention to the case Laws relied upon by the learned 8 Advocates, I am of the view that following points would arise for my consideration:
i. Whether judgment and decree passed by the Court of Small Causes, Bangalore in S.C.No.1176/2011 dated 05.09.2013 is without jurisdiction or it suffers from any material irregularity calling for exercise of revisional jurisdiction by this Court?
ii. What order?
9. Before embarking upon answering the points formulated hereinabove, it would be necessary to state the facts, which have lead to the filing of this revision petition, which are as under:
Plaintiff had filed a small cause suit against defendant for ejectment from suit schedule property in original S.C.No.1869/2003. Plaint was ordered to be returned for being presented before proper Jurisdictional Court and as such, it came to be presented before the District & Sessions Judge, 9 Bangalore, and it was numbered as O.S.No.2687/2008. In view of the law laid down by the Full Bench of this Court in the case of ABDUL WAJID vs. A.S.ONKARAPPA reported in ILR 2011 KAR 229, plaint was ordered to be returned by the District Court for being presented before the Court of Small Causes, Bangalore and when it was so presented it came to be numbered as S.C.No.1071/2011 and suit came to be decreed on 21.02.2012. This judgment and decree was questioned by the defendant by filing a miscellaneous petition in Misc. No.60/2012. Same was allowed and it was restored by setting aside the judgment and decree dated 21.02.2012 passed in S.C.No.1071/2011 and suit came to be restored. Thereafter it came to be renumbered as S.C.No.1176/2011. Parties appeared and filed their written statement, contested the suit and tendered both oral and documentary evidence and on appreciation of evidence and scrutiny of the pleadings, 10 Trial Court has decreed the suit as already stated hereinabove, which is now sought for being revised by this Court. These facts would clearly indicate that it has taken 10 long years for the matter to reach finality at the trial Court stage.
RE. POINT NO.1:
10. An order of return of the plaint came to be passed by District and Session Judge in O.S.No.2687/2009 by virtue of law laid down in the case of ABDUL WAJID vs. A.S.ONKARAPPA reported in ILR 2011 KAR 229, whereunder it has been held as follows:
"86. Courts of Small Causes are also essentially 'Civil Courts'. This is made very much clear in sub-section (2) of Section 8 of KSCC Act. According to sub-section (2) subject to the exception specified in the Schedule and to the provision of any other law, all suits of a civil nature value of which does not exceed one lakh rupees in the area falling within Bangalore City Corporation and rupees twenty-five thousands in other 11 areas, shall be cognizable by a Court of Small Causes. Section 10 makes Code of Civil Procedure applicable to the proceedings before Court of Small Causes to the extent provided under the Code. The Rules of practice applicable to the Civil Courts as per Karnataka Civil Rules of Practice framed by the State in exercise of powers conferred by Section 122 of CPC, are also applicable to Courts of Small Causes. Thus though the phrases 'Court of Small Causes', Civil Court' and 'City Civil Court have been defined in the respective enactments, it is only for the purpose of institutional distribution of suits involving disputes of civil nature amongst these designated Courts subject to place or area within which the causes of action for the institution of suit arises. Thus, the Court of Small Causes is essentially a Civil Court, remains a Civil Court and it is not as though it is one to be excluded from the purview of the phrase 'Civil Court'.
In conclusion Full Bench has held as under:
(1) The opinion of the Division Bench that Court of Small Causes can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which KR Act applies runs contrary to the provisions of said Act as such it does not lay down correct law. In respect of the premises to which KR Act is 12 applicable, only the 'Court' specified under clause © of Section 3 of KR Act along is competent to make order for recovery of such premises on the landlord proving any one or more grounds enumerated therein.
(2) In the context of jurisdiction of Small Causes Court, a suit for recovery of possession of immovable property does not include a suit for ejectment as such, a suit for ejectment is distinct and different from suit for recovery of possession of immovable property or for recovery of any interest in such immovable property.
(3) In the context of jurisdiction of Court of Small Causes to take cognizance of a suit for ejectment, recovery of mesne profits would not amount to either recovery of an interest in the immovable property or determination or enforcement of any other right or interest in the immovable property, and the Court of Small Causes is competent to consider prayer for mesne profits against non-
statutory tenant after termination/determination of lease subject to its pecuniary 13 jurisdiction. The contrary view expressed by the Division Bench in this regard does not lay down correct law.
(4) Court of Small Causes have jurisdiction to take cognizance of not only a bare suit for ejectment but also a suit for ejectment with a prayer for recovery of mesne profits or damages, subject to its pecuniary limits, in respect of the premises to which KR Act is not applicable. The interpretation placed by the Division Bench in Sarojamma's case, on clause (b) of Article 4 of Schedule to KSCC Act does not lay down the correct law.
(5) The suits for ejectment with or without prayer for rent, mesne profit or damages, pending before the Civil Courts, either upon re-
presentation of plaints pursuant to decision in Sarojamma's case, or presented afresh after Sarojamma's case, the value of the subject-matter of which is within the pecuniary limits of the Court of Small Causes, shall be transferred to the Court of Small Causes, which on receipt of such records shall proceed from the stage at which they were pending 14 before Civil Court and dispose them of in accordance with law.
(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:
"2. (3) Nothing contained in this Act shall apply-
(a) Xxxxxxxx
(b) Xxxxxxxx
(c) Xxxxxxxx
(d) Xxxxxxxx
(e) Xxxxxxxx
(f) xxxxxxxx
(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;
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(h). xxxxxxxxxx."
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.
13. Insofar as contention regarding words "non- residential purpose" or "commercial purpose" being 16 found in Section 2(3) (g) Provisions of Rent Act would be applicable, is to be examined with utmost circumspection for the reasons that would unfold hereinbelow.
It is not in dispute that premises in question is used for godown purposes. It is the contention of Sri Shaker Shetty, learned counsel appearing for the defendant that in view of admitted use of schedule premises as 'godown', is itself sufficient to arrive at a conclusion that it is 'commercial premises' and it would fall within the provisions of Rent Act or in other words, landlord ought to have filed an eviction petition as per provisions of the Rent Act. The words used in Clause (g) of Section 2(3) would have a bearing for examining the said contention and the words used therein is "to any premises used for non residential purposes". If the premises in question is used for non-residential purposes and if it measures less than 14 square meters 17 then exclusion clause would not operate or in other words the Rent Act would be attracted, as otherwise not.
14. A premises let out for residence, if being used for non-residential or commercial purpose, that by itself would not be sufficient to conclude that it is for commercial purpose. The dominant purpose for which it has been let-out will have to be looked into namely the purpose for which it has been let out. It is not the case of defendant in the instant case that it is a residential premises. If a building is let-out for a non-residential purpose, it is sufficient enough to arrive at a conclusion that the provisions of Rent Act would not be applicable. However, if the said premises measures less than 14 square meters then Rent Act would be attracted. Defendant cannot be heard to contend that schedule premises having been used for non-residential purpose or commercial purpose and even when its plinth area is 18 above 14 square meters in such circumstances also Rent Act would be applicable. If the plinth area of the schedule premises exceeds 14 square meters, it would fall outside the purview of Rent Act. In view of the fact that petition schedule premises is being used as a godown and it measures 395.25 sq. ft. Hence, it has to be necessarily held that in view of petition schedule premises measurement exceeding 14 square meters provision of Rent Act would not be applicable.
15. 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 19 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, 20 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 21 Act, 1999 and he could not have filed a suit after determining the tenancy under Section 106 of the Transfer of Property Act, 1908.
16. 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 22 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 23 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.
17. Insofar as issue regarding directing the defendant to pay damages @ Rs.750/- per month is concerned it would clearly indicate that parties to the lis have tendered evidence. Though plaintiff contended that he is entitled to damages @ Rs.10,000/- per month, Trial Court has taken into consideration the location of the petition schedule premises, which is at Razel 24 Market, Shivajingar, Bangalore, by modest estimate and determined the damages payable @ Rs.750/- per month, which is based on evidence tendered by the parties and as such it cannot be considered either as exorbitant or on the higher side.
18. In view of the evidence having tendered by the parties and same having been analyzed by the Trial Court, question of directing the parties to determine the mesne profits by taking recourse under Order 20 Rule 12 would not arise when particularly plaintiff has valued the suit as less than Rs.1,00,000/- and same being within pecuniary jurisdiction of Small Causes Court. In that view of the matter second contention raised by Sri Shaker Shetty, learned counsel for tenant
- revision petitioner cannot be accepted and it stands rejected.
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19. Hence, for the reasons aforestated I pass the following:
ORDER i. Revision petition is hereby dismissed.
ii. Judgment and decree dated 05.09.2013 in S.C.No.1176/2011 is hereby affirmed.
However, considering the fact that the tenant has been carrying on the business from past 30 years, I am of the considered view that the ends of justice would be met, if time is granted upto 31.12.2014 to quit and vacate suit schedule premises.
Accordingly decree stands modified.
iii. No costs.
Sd/-
JUDGE
DR