Bangalore District Court
Ashrafunnisa @ Laila vs Smt. Davamani on 10 July, 2015
C.R.P.67] Government of Karnataka
Form No.9
(Civil) Title Sheet for
Judgement in
Suits
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF SMALL CAUSES, (SCCH-09)
AT BENGALURU
PRESENT: SRI MANJUNATH NAYAK,
B.A.L, LL.B.,
Judge, Court of Small Causes &
XXVI ACMM, (SCCH-09), Bengaluru.
Dated: 10th JULY 2015.
SMALL CAUSES No. 976/2014
*****
PLAINTIFF: : Ashrafunnisa @ Laila, Aged 39 years,
W/o R.P.Yousuf,
R/a No.8, 2nd A cross, C.K.C.Garden,
Lalbagh Road, Bangalore-560 027.
(By Pleader, Sri. M.Erappa Reddy)
Vs.
DEFENDANT: : Smt. Davamani, Aged 35 years,
W/o Naga,
No.2, 2nd Floor, 1st Main Road,
Mangammana Palya, Bangalore-68.
(Placed exparte)
*******
Date of Institution of suit : 27-08-2014.
Nature of the suit : Ejectment & for recovery of Arrears of
Rent.
Date of the commencement : 25-06-2015.
of recording of the evidence
Date on which the : 10-07-2015.
Judgment was pronounced
Total duration : YEARS MONTHS DAYS
00 10 13
*****
SCCH-9
S.C.No.976/2014
2
JUDGMENT
This suit is filed claiming the decree for ejectment of the defendant from the suit schedule premises and also for recovery of arrears of rent to the tune of Rs. 52,500/-.
2. The case of the plaintiff, as made out in the plaint, is as follows:-
The suit premises described in the plaint schedule is 3rd portion of house in the second floor of old house list No.28/1, Katha No.302, BBMP Katha No.28/1/302, situated at Mangammana Palya, Yellukunte, Bangalore, measuring 15 ft X 9 ft and totally measuring 135 square feets. The plaintiff is the absolute owner of the suit schedule premises. The suit schedule premises were gifted in favour of the plaintiff by her mother, as per gift deed dated 13-09-2012. The katha of the suit schedule premises stands in the name of mother of the plaintiff. The defendant is a tenant under the plaintiff's mother and in occupation of the suit schedule premises on monthly rent of Rs.2,500/-, which excludes the electricity and water charges. At the time of execution of gift deed, mother of the plaintiff attorned the tenancy and directed the defendant to pay rent to the plaintiff. The mother of plaintiff executed a rent agreement in SCCH-9 S.C.No.976/2014 3 favour of the defendant and the same is in the custody of the defendant. The plaintiff is not having copy of the said rent agreement. The defendant failed to pay the rents from October 2012. The tenancy of the defendant is a monthly tenancy commencing from 27th of each calendar month. As on 26-05- 2014, defendant was due to pay arrears of rent of Rs.47,500/-. The suit premises and other adjacent premises are required to the plaintiff for her bonafide use and occupation. The plaintiff requested the defendant to vacate the schedule premises and to pay the arrears of rent. The defendant has failed to vacate the suit schedule premises. Hence, plaintiff constrained to file this suit. The plaintiff has terminated the tenancy of the defendant and called upon him to pay the arrears of rents, vide legal notice dated 26-05-2014. Said legal notice was returned with a postal shara "left". The occupation of the schedule premises by the defendant is illegal and unauthorized, after termination of tenancy. On all these grounds, plaintiff claimed decree for ejectment of the defendant from suit premises and to direct the defendant to pay the arrears of rent to the tune of Rs.52,500/- .
3. The defendant failed to appear before this court inspite of making paper publication. Hence, defendant placed exparte.
SCCH-9 S.C.No.976/2014 4
4. To substantiate her claim, plaintiff examined before this court as PW.1 and got marked Ex.P.1 to P.12 documents.
5. I have heard the arguments.
6. The points that would arise for my consideration are:-
1. Whether the provisions of the Karnataka Rent Act, 1999 is applicable to the suit premises?
2. Whether the plaintiff is entitled for recovery of arrears of rent from the defendant as claimed in the suit?
3. What order or decree?
7. My answer for the above points are in the followings, because of my below-discussed reasons:-
Point No.1 : IN THE AFFIRMATIVE.
Point No.2 : IN THE AFFIRMATIVE.
Point No.3 : AS PER FINAL ORDER.
REASONS
POINT No.1:-
8. The plaintiff, who was examined before this court as PW.1, has reiterated the plaint averments in her examination-in- chief affidavit and deposed about her ownership over the suit premises on the basis of gift deed executed by her mother and the defendant occupying the same as a tenant under her mother. PW.1 further deposed that the tenancy was duly attorned and the defendant has failed to pay the rents from October 2012. PW-1 further deposed that she has terminated SCCH-9 S.C.No.976/2014 5 the tenancy of the defendant by issuing legal notice and requested the defendant to pay the arrears of rent and to vacate the schedule premises and defendant has not responded to the legal notice, which made her to file the present suit.
9. The plaintiff has produced the gift deed dated 13-09- 2012 as per Ex.P.1. The certified copy of sale deed dated 05- 09-2001 is marked as per Ex.P.2. Ex.P.3 to P.9 are the tax paid receipts. Ex.P.10 is the katha extract. The legal notice is marked as per Ex.P.11. The postal envelope is marked as per Ex.P.12.
10. As I said earlier, in spite of making paper publication, defendant failed to appear before this court and placed exparte. Due to the defendant failing to appear before this court and not filing the written statement, plaint averments remained unchallenged. PW.1 was not cross-examined. Therefore, her oral testimony and documents produced by the plaintiff as per Ex.P.1 to Ex.P.12 remained undisputed. Absolutely there is no rebuttal or contradictory evidence to disbelieve the undisputed pleadings and unchallenged evidence of the plaintiff.
11. Since the plaint averments remained unchallenged, this court has to accept the plaintiff's version regarding the jural SCCH-9 S.C.No.976/2014 6 relationship of landlord and tenant between the plaintiff and the defendant, plaintiff's ownership over the suit schedule premises, defendant occupying the same as a tenant, rate of rent, arrears of rent and also about measurement of the suit premises, as pleaded in the plaint.
13. As per the plaint averments, rate of rent of the schedule premises is Rs.2,500/-p.m. The measurement of the schedule premises, as pleaded in the pliant schedule, shows that it measures 15 ft x 9 ft, totally measuring 135 sq. ft. The plaintiff has not specifically pleaded in the plaint, as to the purpose for which the suit schedule premises is being used by the defendant. Before proceeding to consider the plea of the plaintiff regarding ejectment and termination of tenancy of the defendant, this court has to consider, as to whether this suit filed for ejectment before this court, under the provisions of the Transfer of property Act, by terminating the tenancy of the defendant, is maintainable or not. For filing the suit for ejectment before this court, under the provisions of Transfer of Property Act, by terminating the tenancy, it should be demonstrated before this court that the provisions of the Karnataka Rent Act 1999 is not applicable to the suit premises.
SCCH-9 S.C.No.976/2014 7 Only if the provision of the Karnataka Rent Act 1999 is not applicable to the suit premises, this suit for ejectment, before this court, is maintainable. Even though defendant has not appeared before this court and not filed the written statement by disputing the maintainability of the suit, still it is the duty of this court to consider the question of maintainability and jurisdiction of this court to entertain the suit, before passing the decree for ejectment.
14. So far as applicability of provisions of the Karnataka Rent Act 1999, to any premises are concerned, we are governed by Sec. 2(3)(e) and 2(3)(g) of the Karnataka Rent Act 1999. As per Sec. 2(3)(g), if any premises is used for non-residential purpose and its measurement exceeds 14 square meters, provisions of the Karnataka Rent Act 1999 is not applicable to those premises. The plaintiff has not specifically pleaded in the plaint, as to which purpose the suit premises is being used, either residential or non-residential. Now let me assume for the sake of arguments that the suit premises is a shop used for commercial and non-residential purpose. If this court considers the measurement of the suit schedule premises, as shown in the plaint schedule, plaintiff has shown the measurement of the suit SCCH-9 S.C.No.976/2014 8 schedule premises as 15 ft x 9 ft and total measurement as 135 square ft., which is much less than 14 square meters. 14 square meters is equalant to 150 square feets. But, as per the plaint averments, the total measurement of the schedule premises is 135 square feet's, which is much less than the 14 square meters. When the total measurement of the schedule premises is less than the 14 square meters and if it is being used for non residential purpose, provisions of the Karnataka Rent Act 1999 is applicable to it. This view of mine is based upon the decisions of our Hon'ble High Court reported in 2002 (2) Kar.L.J. 159 (ILR 2002(2) Karnataka 1461 (Saptagiri Complex, Bangalore and others vs Bhupathi Naidu) and 2004(2) Kar.L.J. 223A (P.R.Radhakrishna Setty and Sons Company, Bangalore vs A.N.Satish Babu) Similar view was also expressed in a subsequent decision of the Hon'ble High Court, reported in 2009(1) Kar.L.J. 233 (K.Thimmegowda vs B.S.Nagaraj Rao(since deceased) his Lrs) In view of the ratio laid down in those decisions and the pleadings in the plaint, that the suit premises is a shop measuring 135 square feets, which is less than the 14 square meters, I have to say that the provisions of the Karnataka Rent Act 1999, is applicable to the schedule SCCH-9 S.C.No.976/2014 9 premises. When the provisions of Karnataka Rent Act, 1999 is applicable to the suit schedule premises, this suit for ejectment filed before this court, by terminating the tenancy of the defendant under the provisions of Transfer of property Act, is not maintainable.
15. In para-2 of the plaint, plaintiff has stated that the schedule premises is a portion of the old house. Even in the plaint schedule, schedule premise is shown as portion of the old house. As I said earlier, plaintiff has not specifically pleaded as to the actual purpose, for which the schedule premises is being used by the defendant. Now let me accept and assume for the sake of arguments that the suit premises is a residential premises. So far as the applicability of the provisions of Karnataka Rent Act, 1999 to the residential premises are concerned, we are governed by section 2(3)(e) of the Karnataka Rent Act 1999, which provides that, if any premises, which is having deemed rent or the standard rent of more than Rs.3,500/- within the area referred in Part-A of First Schedule or the rent exceeds Rs.2,500/- per month any other area, the provisions of the Karnataka Rent Act 1999 is not applicable. In this case, suit premise is situated within the Bengaluru Municipal SCCH-9 S.C.No.976/2014 10 Corporation. So, it is within the area in Part-A of the Schedule-I. Therefore, if the rate of rent of the suit premises is less than Rs.3,500/-, then the provisions of the Karnataka Rent Act 1999, is applicable to this premises. In this particular case, even as per the plaint averments, rate of rent of the suit premises, as on the date of filing of the suit, was Rs.2,500/- p.m., which is less than Rs.3,500/- specified in Sec.2(3)(e) of the Karnataka Rent Act 1999. Therefore, I have to say that the Karnataka Rent Act 1999 is applicable to the suit premises. Under such circumstances, even assuming for a while that the schedule premises is a residential premises, still the suit for ejectment filed by the plaintiff before this court, under the provisions of the Transfer of Property Act, by terminating the tenancy of the defendant, is not maintainable. Hence, to get the possession of the schedule premises, plaintiff has to file a petition, before the competent court, under Sec.27 of the Karnataka Rent Act 1999. It is only on establishing any one of the grounds set out under Sec.27 of the Karnataka Rent Act 1999, plaintiff can evict this defendant from the suit premises, because he is a protected tenant under the provisions of the Karnataka Rent Act 1999. Therefore, it is open for the plaintiff to initiate suitable action in SCCH-9 S.C.No.976/2014 11 this regard, before the competent court. Since the dismissal of the suit for ejectment is on the ground of applicability of the Karnataka Rent Act 1999, to the suit premises and there is no finding on merits in this regard, it would not come in the way of the plaintiff for his success in the petition to be filed under the provisions of the Karnataka Rent Act 1999. Considering all these aspects, I have to hold that the suit for ejectment filed by the plaintiff is not maintainable before this Court. Hence, I answer Point No.1 in the Affirmative.
POINT No.2:
16. This point is regarding the decree for arrears of rent claimed by the plaintiff. Though this court has no jurisdiction to try the suit for ejectment, because of the applicability of the Karnataka Rent Act, 1999 to the suit premises, still this court is empowered to grant the decree for arrears of rent, as the said relief comes within the preview of the powers of the Small Causes Court. The plaintiff claimed the a decree for recovery of arrears of rent to the tune of Rs.52,500/- being the arrears of rent from October 2012 till the date of filing this suit. When the plaintiff alleges that the defendant is in arrears of rent, burden is upon the defendant to positively prove the payment of rent. But SCCH-9 S.C.No.976/2014 12 the defendant has not come before this court to deny the rate of rent or to prove the payment of rent to the plaintiff. Therefore, the plaintiff is entitled for the decree for recovery of Rs.52,500/-, being the arrears of rent, from October 2012 to the date of filing this suit. Hence, I answer point No.2 in the affirmative.
POINT No.3:
17. In view of my above findings, the suit filed by the plaintiff is deserves to be partly decreed with costs, for the relief of arrears of rent and liable to be dismissed for the relief of ejectment. Hence, I proceed to pass the following orders:
ORDER The suit filed by the plaintiff is partly decreed with costs in the following terms.
The defendant is hereby directed to pay
the arrears of rent to the tune of
Rs.52,500/- to the plaintiff, being the
arrears of rent from October 2012 till the date of filing this suit.
The suit of the plaintiff for relief of ejectment is dismissed, as the provisions of Karnataka Rent Act 1999, is applicable to the suit schedule premises.
SCCH-9 S.C.No.976/2014 13 Draw decree accordingly.
****** (Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 10th day of July 2015) (MANJUNATH NAYAK), Judge, Court of Small Causes & XXVI ACMM, Bengaluru.
()()()()() ANNEXURE List of witnesses examined on behalf of plaintiff:
PW.1 Smt.Ashrafinnusa @ Laila List of documents exhibited on behalf of plaintiff:
Ex.P.1 Original Gift Deed dated: 13.09.2012 Ex.P.2 Certified copy of the sale deed Ex.P.3 to P.9 Tax paid receipts.
Ex.P.10 Katha certificate. Ex.P.11 Legal Notice Ex.P.12 Postal Envelope
List of witnesses examined on behalf of defendant:
-NIL-
List of documents exhibited on behalf of defendant:
-NIL-
(MANJUNATH NAYAK), Judge, Court of Small Causes & XXVI ACMM, Bengaluru. ()()()()() SCCH-9 S.C.No.976/2014 14