Karnataka High Court
Sri M S Vijayendra vs Sri B A Ramesh on 17 February, 2023
Bench: H.P.Sandesh
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RSA No. 198 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.198 OF 2023 (POS)
BETWEEN:
SRI M.S. VIJAYENDRA
S/O M.M. SHESHAPPA GOWDA
AGED ABOUT 52 YEARS
R/AT SIRAGAYNDA VILLAGE-577133
CHIKKAMAGALUR DISTRICT
...APPELLANT
(BY SRI RAJESH K.S., ADVOCATE)
AND:
SRI B.A. RAMESH
S/O APPU SHETTY
AGED ABOUT 51 YEARS
RA/T ANJUMAN STREET
Digitally signed
by SHARANYA T CHIKKAMAGALURU CITY-577101
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2022
PASSED IN R.A.NO.12/2022 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU AND
ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 198 of 2023
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This appeal is filed challenging the judgment
and decree dated 29.11.2022 passed in R.A.No.12/2022
on the file of the II Additional Senior Civil Judge,
Chikkamagaluru.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that the appellant herein is a
tenant in respect of the suit schedule property on a
monthly rent of Rs.2,500/- and suit schedule premises is a
commercial premises measuring 110 sq. feet situated at n
ward No.11, I.G.Road Cross, (Christian colony road),
opposite Mathias tower, Chikkamagaluu bearing municipal
Assessment No.5015/3418 and the plaintiff has issued the
notice against the defendant and inspite of service of
notice, he did not vacate the premises hence, filed a suit
for the relief of recovery of possession of the suit property.
RSA No. 198 of 2023
4. In pursuance of the suit summons, the
defendant appeared and filed the written statement
contending that the suit property has been leased out for a
monthly rent basis to him. The period of rent was 11
months starting from 01.01.2015 to 30.11.2015 as per the
agreement and he has been in possession of the premises.
As per the terms and conditions of the rent agreement,
the defendant had agreed to pay monthly rent of
Rs.2,500/- and he has paid the advance amount of
Rs.20,000/- and denied the contention that the plaintiff
has demanded the defendant to vacate and hand over the
vacant possession of the schedule premises. The lease
agreement in question provides an option to the parties to
extend the lease for a period more than eleven months
and in case, the lease is extended for a term of more than
three years, the monthly rent of the premises has to be
increased by 10%. As such continuation of the defendant
in the schedule premises as a tenant is in accordance with
the terms of the agreement. The defendant also admitted
the issuance of legal notice dated 08.12.2017 and he has
RSA No. 198 of 2023
given the reply and he is paying the rent regularly and
also contend that the suit filed by the plaintiff is not
maintainable since the measurement of the suit shop
premises is 10 x 12 feet. If the measurement of the
property is less than 1000 sq. feet, the plaintiff has to file
HRC petition, whereas, the plaintiff has filed the present
suit which is not maintainable.
5. The plaintiff, in order to prove his case
examined himself as PW1 and got marked the documents
at Ex.P1 to P4. The defendant has not led and evidence
before the Trial Court. The Trial Court after considering
both oral and documentary evidence placed on record
answered Issue Nos.1 too 3 as affirmative and additional
Issue as negative wherein a specific contention was taken
that the suit is not maintainable. Being aggrieved by the
judgment of the Trial Court, an appeal was preferred by
the defendant wherein also similar grounds are urged
contending that the original suit is not maintainable and
ought to have filed eviction petition and the First Appellate
RSA No. 198 of 2023
Court also considering the grounds urged in the appeal,
formulated the point with regard to whether the
defendant/appellant made out the relationship of landlord
and tenant between the plaintiff/respondent and
defendant/appellant is governed by the Karnataka Rent
Act, 1999 and suit is not maintainable and whether the
Trial Court fails to provide an opportunity to lead defence
evidence as contended in the appeal memo and also
formulated the point with regard that the Trial Court has
not appreciated the both oral and documentary evidence
placed on record and the First Appellate Court also on re-
appreciation of both oral and documentary evidence
placed on record answered all the points as negative and
before dismissing the appeal, Sections 2(3)(e) and (g) has
been extracted by the First Appellate Court and also taken
note of the decision reported in ILR 2013 KAR 4696 in a
case of SMT. ANUPAMA RAMESH vs SHRI VEERCHAND
and dismissed the appeal. Hence, the present appeal is
filed before this Court by the defendant/respondent.
RSA No. 198 of 2023
6. The counsel mainly contend that both the
Courts have failed to take note of the very proviso of
Section 2(3)(e) and (g) of the Karnataka Rent Act and
even though it is contended that the suit is not
maintainable, committed an error in decreeing the suit of
the plaintiff and confirming the same by the First Appellate
Court hence, this Court has to frame substantial question
of law.
7. Having heard the learned counsel appearing for
the appellant and also on perusal of the material available
on record it discloses that in the petition, specifically
contended that suit schedule premises is the commercial
premises measuring 110 sq. feet and the same is situated
at Chikkamagaluru and no dispute with regard to the
payment of rent of Rs.2,500/- and no doubt, if the
premises is not exceeds 14 square feet, the Rent Act is
applicable and at the same time, the Court has to take
note of the rate of rent and to that effect also the Trial
Court in paragraph 18 to 20 taken note of Section 2(3) of
RSA No. 198 of 2023
the Act and also the provision of the Act and comes to the
conclusion that provision of the Act will not applicable to
the premises enumerated under Section 2(3)(a) to (h) of
the Act. According to Section 2(3) (e)(i) and (ii) of the Act,
if the rate of rent exceeds 3,500/- per month to a
premises situated in any area referred to in Part-A of the
first schedule; and Rs.2,000/- per month to any other
area, the provision of the Act are not applicable.
8. Having considered the said proviso and also
taking into note of monthly rent of Rs.2,500/- and same
was admitted by the defendant in the written statement,
the Trial Court comes to the conclusion that HRC petition
could not be filed and suit has to be filed. The First
Appellate Court also taking note of the principles laid down
in the case of ANUPAMA RAMESH (referred supra),
considered the material available on record and in
paragraph 14 after extracting the principles laid down in
the judgment comes to the conclusion that the schedule
premises is below 14 square feet and using the same for
RSA No. 198 of 2023
the commercial purpose and rent is more than Rs.2,000/-
therefore, the Karnataka Rent Act is not applicable in view
of Section 3(2)(e). The rate of rent is not in dispute and
in the written statement, it is admitted that while entering
into the agreement, the rate of rent was fixed as
Rs.2,500/- and also contend that the same is subject to
the enhancement of 10% for every three years. When
such pleading is made by the defendant in the written
statement itself, when the rate of rent is Rs.2,500/-, the
contention of the appellant cannot be accepted. This
Court also in R.S.A.No.1767/2022 dated 06.02.2023
discussed in detail with regard to the very same argument
was canvassed by both the counsel and in detail discussed
the same and also taken note of the principles laid down in
the judgment reported in ILR 2013 KAR 4696 (referred
supra) and in paragraph 12 this Court held that no dispute
with regard to the dimension of the premises in which the
appellant is running the business in that suit premises is
measuring only 90 square feet and also not exceeds 14
square meters and also when the rate of rent is more than
RSA No. 198 of 2023
Rs.2,500/- per month, the applicability of Rent Act does
not arise and the Court has to take note of both the rent
as well as the area which is sought for eviction. In
paragraph 13, it is held that the provisions of the Act is
very clear that if the rate of rent is more than Rs.2,000/-
per month in respect of a commercial premises, the
Karnataka Rent Act is not applicable and Section 106
attracts for initiation of proceedings against the tenant by
issuing the quit notice. But the fact that issuance of quit
notice is not in dispute and in this case also the issuance
of quit notice was not disputed and the defendant has
categorically admitted that quit notice was issued. When
such being the case, the very contention of the counsel for
the appellant cannot be accepted. Hence, I do not find
any grounds to admit the appeal and to frame substantial
question of law invoking Section 100 of CPC.
9. In view of the discussions made above, I pass
the following:
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RSA No. 198 of 2023
ORDER
The appeal is dismissed.
The appellant is given three months time to vacate
and hand over the vacant possession of the suit premises
in favour of the respondent from today.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
