Bangalore District Court
P.K.Ayesha @ Shanu vs Sampath Kumar on 15 June, 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: 15th JUNE 2015.
SMALL CAUSES No. 986/2014
*****
PLAINTIFF: : P.K.Ayesha @ Shanu, Aged 44 years,
W/o Late Abdul Khadar
R/a No.3, 3rd Cross, C.K.C.Garden,
Lalbagh Road, Bangalore-560 027.
(By Pleader, Sri. M.Erappa Reddy)
Vs.
DEFENDANT: : Sampath Kumar, Aged 35 years,
Father's name not known
Sri.Ayyappa Tele Communications
No.2, Ground Floor, 1st Main Road,
Mangammana Palya, Bangalore-68.
(By Pleader, Sri K.Ramsingh)
*******
Date of Institution of suit : 01-09-2014.
Nature of the suit : Ejectment & Arrears of Rent.
Date of the commencement : 26-02-2015.
of recording of the evidence
Date on which the : 15-06-2015.
Judgment was pronounced
Total duration : YEARS MONTHS DAYS
00 09 15
*****
SCCH-9
S.C. 986/2014
2
JUDGMENT
This suit is filed claiming the decree for ejectment of the defendant from the suit schedule premises and also for arrears of rent to the tune of Rs. 69,300/-.
2. The case of the plaintiff, as made out in the plaint, is as follows:-
The suit premises described in the plaint schedule is a shop No.2, in the ground floor of old house list No.28/1, Katha No.302, BBMP Katha No.28/1/302, situated at Mangammana Palya, Yellukunte, Bangalore, measuring 9.5 ft X 13 ft and totally measuring 123.5 square fts. 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.3,300/-, which excludes the electricity and water charges. At the time of execution of gift deed, mother of the plaintiff also attorned the tenancy and directed the defendant to pay rent to the plaintiff. The mother of plaintiff executed a rent agreement in favour of the defendant SCCH-9 S.C. 986/2014 3 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 26-5-2014, defendant was due to pay arrears of rent of Rs.62,700/-. The suit premises and other adjacent premises are required to the plaintiff for 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, the plaintiff constrained to file this suit. The plaintiff has terminated the tenancy of the defendant by calling 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.69,300/- .
SCCH-9 S.C. 986/2014 4
3. The defendant appeared before this court through her counsel. But, not filed the written statement in spite of giving sufficient opportunities to him.
4. To substantiate her claim, plaintiff examined before this court as PW.1 and one witness as PW-2 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 SCCH-9 S.C. 986/2014 5 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 the tenancy of the defendant by issuing legal notice and also requested the defendant to pay the arrears of rents and to vacate the schedule premises, but the defendant has not responded to the legal notice, which made her to file the present suit.
9. The plaintiff examined her mother Smt.V.P.Fathima as PW-2 and she deposed that, as per the sale deed dated 05- 09-2001, she and her husband have purchased the building, wherein, the schedule property is a portion. PW-2 further deposed that, after the death of her husband on 29-3-2005, she became the absolute owner of the said property and katha was changed in her name. PW-2 further deposed that on 13-9-2012, she gifted 2nd floor of the building to the plaintiff. PW-2 further deposed that the defendant occupied the schedule premises as a tenant on monthly rent of Rs.3,300/- and after the execution of gift deed, she has informed the defendant to pay the rent to the SCCH-9 S.C. 986/2014 6 plaintiff and the defendant has agreed for the same. PW-2 further deposed that defendant has not paid the rent subsequently.
10. The plaintiff has produced the original 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.
11. As I said earlier, though the defendant appeared before this court through his counsel, he has not filed the written statement inspite of giving opportunity to him. Due to the defendant not filing the written statement, plaint averments remained unchallenged. PW.1 and 2 were not cross-examined. Therefore, their oral testimony and documents produced by the plaintiff as per Ex.P.1 to Ex.P.12 remained unchallenged. Absolutely there is no rebuttal or contradictory evidence to disbelieve the undisputed pleadings and unchallenged evidence of the plaintiff.
12. Since the plaint averments remained unchallenged, this court has to accept the plaintiff's version regarding the jural SCCH-9 S.C. 986/2014 7 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, the rate of rent of the schedule premises is Rs.3,300/-p.m. The measurement of the schedule premises, as pleaded in the pliant schedule, shows that it measures 9.5 ft x 13 ft, totally measuring 123.5 square ft. According to the plaintiff, the suit schedule premises is a shop premises. Now 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, 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. Only if the provisions of the Karnataka Rent Act 1999 is not applicable to SCCH-9 S.C. 986/2014 8 the suit premises, this suit for ejectment, before this court, is maintainable. Even though, defendant has 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, the provisions of the Karnataka Rent Act 1999 is not applicable to those premises. Since the plaintiff has described the suit schedule premises as a shop in the plaint, let me accept the plaintiff's version and hold that the schedule premises is a non residential premises. If this court considers the measurement of the suit schedule premises as shown in the plaint schedule, the plaintiff has shown the measurement of the suit schedule premises as 9.5 ft x 13 ft and total measurement as 123.5 square ft., which is much less than 14 square meters. 14 square meters is equalant to 150 square feets. But, as per the plaint SCCH-9 S.C. 986/2014 9 averments, the total measurement of the schedule premises is 123.5 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 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 123.5 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 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 SCCH-9 S.C. 986/2014 10 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, the schedule premise is shown as portion of the old house. Though the plaintiff has stated the schedule premises as a shop, she has not specifically not pleaded as to the actual purpose, for which the schedule premises is being used by the defendant. Let me accept and assume for the sake of argument 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, the suit premise is situated within the Bengaluru Municipal 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 within Rs.3,500/-, then the provisions of the SCCH-9 S.C. 986/2014 11 Karnataka Rent Act 1999, is applicable to this premises. In this particular case, even as per the plaint averments, the rate of rent of the suit premises, as on the date of filing of the suit, was Rs.3,300/- 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, the plaintiff has to file a petition under the provisions of Karnataka Rent Act, 1999, 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, the landlord can evict a tenant, 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 this regard, before the competent court. Since the dismissal of the suit for ejectment is on the ground of applicability of the Karnataka Rent SCCH-9 S.C. 986/2014 12 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.69,300/- being the arrears of rent from October 2012 till 26-05-2014. 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 the defendant has not come before this court to deny the rate of rent or to prove the payment of rent to the plaintiff. Hence, I SCCH-9 S.C. 986/2014 13 hold that the plaintiff is entitled for the decree for recovery of Rs.69,300/-, being the arrears of rent, from October 2012. 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.69,300/- to the plaintiff, being the arrears of rent from October 2012 to May 2014.
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.
Draw decree accordingly.
****** (Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 15th day of June 2015) (MANJUNATH NAYAK), Judge, Court of Small Causes & XXVI ACMM, Bengaluru.
SCCH-9 S.C. 986/2014 14 ANNEXURE List of witnesses examined on behalf of plaintiff:
PW.1 Smt.P.K.Ayesha @ Shanu PW.2 Smt.V.P.Fathima
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 Extract 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. ()()()()()