M Mohammad Ghouse S/O Late ... vs K Abdul Samad S/O Late K Abdul ...
2023 Latest Caselaw 4716 Kant

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                                       RSA No. 1342 of 2007



  IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 21ST DAY OF JULY, 2023

                           BEFORE
      THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
         REGULAR SECOND APPEAL NO.1342 OF 2007

BETWEEN

      M. MOHAMMAD GHOUSE
      S/O LATE MEHABOOBSAB,
      AGE: 58 YEARS, OCC: BUSINESS,
      R/O: MEHABOOB BUILDINGS,
      FORT MAIN ROAD,
      BELLARY-583101.
                                               ...APPELLANT

(BY SRI. PALLAVI S PACHCHAPURE, ADVOCATE)

AND

1.     K.ABDUL SAMAD
       S/O LATE K.ABDUL SATTAR SAB,
       SINCE DECEASED BY HIS LRS

1.A    SMT. SABEERA
       W/O LATE ABDUL SAMAD
       AGE: 50 YEARS,

1.B    K. TAMEEN
       S/O LATE K ABDUL SAMAD
       AGE: 27 YEARS,
       OCC: DENTAL DOCTOR,

1.C    K.FAHEEM
       S/O LATE K ABDUL SAMAD
       AGE: 25 YEARS,
       OCC: I.C.I.C.I BANK EMPLOYEE,
                             -2-
                                      RSA No. 1342 of 2007




1.D   SMT. K.GOUSIA BEGUM
      D/O LATE K ABDUL SAMAD,
      AGE: 29 YEARS,

1.E   SMT. K. PARVEEN
      D/O LATE K ABDUL SAMAD
      AGE: 23 YEARS,

      ALL ARE R/O: WARD NO.2(2),
      AMBLI BAGH,
      #BANGALORE ROAD,
      BELLARY.

      *AMMENDMENT CARRIED OUT
      AS PER ORDER DTD: 12.01.2010*

                                               ...RESPONDENT


(BY SRI. GIRISH V BHAT ADV. FOR SRI. S.S.YADRAMI ADV.
FOR R1A TO R1E)


      THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE

JUDGEMENT    &   DECREE   DATED:   13.3.2007    PASSED   IN

R.A.NO.2/2004 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) &

CJM, BELLARY, DISMISSING THE APPEAL FILED AGAINST THE

JUDGEMENT AND DECREE DATED: 20.12.2003 PASSED IN OS.NO.

343/2001 ON THE FILE OF THE II ADDL.CIVIL JUDGE (JR.DN.),

BELLARY.



      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON

14.07.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY

COURT DELIVERED THE FOLLOWING.
                             -3-
                                      RSA No. 1342 of 2007



                      JUDGMENT

This is an appeal filed by the appellant under Section

100 of the Code of Civil Procedure, 1908 (for short,

hereinafter referred to as 'CPC') challenging the judgement

and decree passed in O.S.No.343/2001 on the file of the

learned II Additional Civil Judge(Jr.Dn.), Ballary, and

confirmed by the learned Principal Civil Judge(Sr.Dn.) &

CJM., Ballary, in R.A.No.2/2004.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. The brief factual matrix leading to the case are

that the plaintiff has filed a suit for eviction against the

defendant from the suit premises and also sought for

future damages. The plaintiff claim that he is the land lord

and owner of the suit scheduled property and defendant

being tenant under him on monthly rent of Rs.1,400/-. It

is also asserted that he has let out the premises in the

month of August, 1985 and since then defendant is in

RSA No. 1342 of 2007

possession of the same and in the month of March 1998,

the Government authorities, City of Ballary demolished

some portions of the premises for the purpose of

extension of Bangalore road. It is also alleged thereafter

the defendant vacated the scheduled premises and later

on he filed the suit in O.S.No.234/1998 and obtained a

decree for possession and accordingly, he took possession

of the schedule premises on monthly rent of Rs.1,400/-.

According to the plaintiff, the tenancy commences from

1st of every month and ends with the last day of said

month and plaintiff has terminated the tenancy of the

defendant by notice dated 08.06.2001 with effect from

30.06.2001. According to the plaintiff, petition premises

was a commercial premises and the rent was Rs.1,400/-

per month and the HRC Act is not applicable. Hence, the

suit for eviction and for damages.

4. The defendant has appeared and filed his

written statement denying the allegations and assertions

except of the fact that he was the tenant of schedule

premises and induction in the year 1985. According to

RSA No. 1342 of 2007

him, he was initially paying monthly rent of Rs.300/-

which was enhanced up to Rs.1,100/-. But disputed the

claim of plaintiff that rent is Rs.1,400/- per month. He has

specifically asserted that the suit is not maintainable in

view of amendment of HRC Act and implementation on

new Act. According to him tenancy was not properly

terminated. He admitted demolition of the building in 1998

and asserts that taking advantage of the demolition, he

was thrown out of the schedule premises by the plaintiff

and subsequently, he has filed a suit for restoration of

possession, which came to be decreed and he occupied the

premises and further he obtained necessary orders in HRC

proceedings not to withhold basic amenities. He disputed

the other claims and sought for dismissal of the suit.

5. On the basis of these pleadings, the following

issues have been framed:

"1. Whether plaintiff proves that the defendant's tenancy is legally terminated?

RSA No. 1342 of 2007

2. Whether plaintiff proves that the defendant is in illegal occupation of the premises and liable to pay the damages?

3. Whether defendant proves that this Court has no jurisdiction to try this suit as the plaint schedule premises is less than 14 Sq.mts.?

4. Whether the plaintiff is entitled to the relief sought for in the plaint?

5. What order or decree?"

6. The plaintiff was got examined himself as PW.1

and got marked 5 documents as per Ex.P.1 to Ex.P.5. The

defendant was got examined himself as DW.1 and got

marked 3 documents at Ex.D.1 to D.3.

7. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Civil Judge answered the issue Nos.1, 2 and 4 in

the affirmative while issue Nos.3 is answered in the

negative and ultimately decreed the suit of the plaintiff.

8. Being dissatisfied with this judgment and

decree, the defendant has approached the learned

Principal Civil Judge (Sr.Dn.) & C.J.M., Ballary, in

RSA No. 1342 of 2007

R.A.No.2/2004 and the learned Senior Civil Judge, after

re-appreciating the oral and documentary evidence,

dismissed the appeal by confirming the judgement and

decree of the Trial Court.

9. Being aggrieved by these concurrent findings,

the defendant is before this Court by way of this appeal.

10. Learned counsel for the appellant would

contend that admittedly it is a commercial shop and jural

relationship is admitted. However, the premises is less

than 14 sq.mts. and rent being Rs.1,100/- provisions of

the Rent Act are applicable and there is a bar for suit. He

invited the attention of the Court to Proviso to Sections

2(3)(f) of the Karnataka Rent Act, 1999 and plaintiff has

nowhere pleaded regarding percentage of renovation so as

to get benefit under the Act. He would also contend that

there is no pleading regarding measurement of suit

scheduled premises and reconstruction to the extent of

75% after demolition under taken by the Government and

hence, he would contend that matter falls within the

RSA No. 1342 of 2007

jurisdiction of the Karnataka Rent Act, 1999 and no steps

were taken for determination of renovation and no plan is

produced. He would further contend that after renovation,

first floor was put up but however under the Act,

renovation put to entire property is not relevant and

renovation to the premises in possession of the tenant

becomes relevant as per Section 3(i) of the Rent Act.

Hence, he would contend that both the Courts bellow have

failed to appreciate the oral and documentary evidence as

well as legal aspects and have committed error in

decreeing the suit. Hence, he would seek for allowing the

appeal by setting aside the impugned judgment and

decree passed by both the Courts below.

11. Per contra, learned counsel for the respondent

would support the judgement and decree passed by the

Trial Court. He would contend that there is no question of

applicability of the new Act, as demolition was made in the

year 1998 and after demolition re-construction was made

including putting of first floor and more than 75% of the

property was renovated and as such provisions of rent Act,

RSA No. 1342 of 2007

are not attracted under Sections 2(3)(f) of the Karnataka

Rent Act, 1999. He admits that the petition premises is

less than 14 sq.ft. as on today, but admittedly prior to

demolition when it was leased, it was more than 14 sq.ft.

He would further contend all the legal requirements under

Section 106 of Transfer of Property Act, 1882 have been

complied with. Hence, he would contend that the claim is

not sustainable and defendant is squatting over on the suit

scheduled premises by making false grounds. Hence, he

would seek for dismissal of the appeal.

12. This Court while admitting the appeal by order

dated 13.06.2007 has framed the following substantial

question of law:

"Whether the Courts below were justified in holding that the scheduled premises is reconstructed to the extent of more than 70% and therefore, the Karnataka Rent Act, 1999 is not attracted, as such the suit for ejectment is maintainable?"

13. Having heard the arguments and after perusing

the records, now certain undisputed aspects are relevant

for consideration. It is admitted that the suit scheduled

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RSA No. 1342 of 2007

property is a commercial property bearing door No.70,

ward No.II, Bangalore Road, situated in Ballary. It is also

an admitted fact that the plaintiff is the owner of the suit

scheduled premises and defendant is a tenant running

audio and electronic business. It is also an admitted fact

the suit premises was let out to the defendant in the year

1985, on initial monthly rent of Rs.300/-. It is further

admitted in the month of March, 1998, the front portion of

the structure was demolished by public authorities for

widening of Bangalore road. It is further an undisputed

fact that subsequently, the defendant filed in

O.S.No.234/1998 and obtained a decree for possession on

the ground that he was illegally thrown out of the

premises under the pretext of demolition.

14. According to the defendant, the monthly rent of

the scheduled premises is Rs.1,100/- but plaintiff claim

that it is Rs.1,400/-. In this regard it is relevant to

consider Ex.P.2, which is the objection statement filed by

the defendant in earlier proceedings, wherein he has

admitted that monthly rent is Rs.1,400/-. Further in Ex.P.3

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RSA No. 1342 of 2007

which is a copy of the plaint filed by the plaintiff in

O.S.No.234/1998, he has admitted that the tenancy is

monthly tenancy from 1985. Hence, the contention of the

defendant that tenancy commences on 5th of every month

and ends on 4th of next month holds no water and even

otherwise it makes no sense at all. The other contention

that the monthly rent is Rs.1,100/- as contended by the

defendant cannot be accepted in view of his admission

regarding monthly rent being Rs.1,400/- in earlier

proceedings initiated by him as well as the plaintiff. Hence,

the said ground is also not available to him.

15. The main contention of the defendant is that

Provisions of the Karnataka Rent Act, 1999 are applicable

since the premises is less than 14 sq.mts. There is no

serious dispute of the fact that notice under Section 106

Transfer of Property Act, 1882 came to be issued by the

plaintiff to the defendant. It is also an undisputed fact that

the plaintiff has leased out the petition premises which

was earlier measuring more than 14sq.mts. and after

demolition, it was less than 14sq. mts. DW.1 admitted

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RSA No. 1342 of 2007

that the length of suit premises was 26 feet. and after

demolition, it is only 15 feet. Hence, it is evident that 11

feet length of the shop was reduced after demolition in

operation by the public authorities. The width of premises

is admittedly 8 feet.

16. Learned counsel for the appellant/defendant is

harping on the Section 2(3)(g) of the Karnataka Rent Act,

1999 on the ground that the premises was less than 14

sq.mts., but admittedly, when it was let out, it was more

than 14 sq.mts. But subsequently it was reduced. But at

the same time, Section 2(3)(f) the Karnataka Rent Act,

1999 is relevant for consideration which states as under:

"2. Application of the Act.-

    (1) xxxxx


    (2)     Xxxxx

(3) Nothing contained in this Act shall apply,-

(a) to any premises belonging to.-

(i) the State Government or the Central Government or a local authority;

(ii) a Muzarai or religious or charitable institution;

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RSA No. 1342 of 2007

(iii) a Wakf.

Explanation.- If any doubt arises whether any institution referred to in sub-clause (ii) and (iii) above is a muzarai or religious or charitable institution or a wakf, the decision of the Divisional Commissioner shall be final.

(b) to any building belonging to a Co-operative Society registered or deemed to be registered under the Karnataka Co- operative Societies Act, 1959 (Karnataka Act 11 of 1959) or the Multistate Co-operative Societies Act, 1984 (Central Act 51 of 1984);

(c) to any building belonging to a Market Committee established under the Karnataka Agricultural Produce Marketing Regulation Act, 1966 (Karnataka Act 29 of 1966);

(d) to any tenancy or other like relationship created by a grant from the State Government or the Central Government in respect of any premises taken on lease or requisitioned by the State Government or the Central Government;

(e) to any premises, deemed rent on the date of commencement of this Act or the standard rent of which exceeds.-

(i) three thousand five hundred rupees per month in any area referred to in Part A of the First Schedule; and

(ii) two thousand rupees per month in any other area.

Explanation.- "Deemed rent on the date of commencement of this Act" shall be the rent calculated in the manner provided in section 7, together with revision, if any, as provided in section 9 and decreased in the case of premises constructed after the commencement of this Act at the same rate as the rate of enhancement stipulated in the Third Schedule to reflect the position on the date of commencement of

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RSA No. 1342 of 2007

this Act;

(f) to any premises constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years from the date of completion of such construction or substantial renovation.

Explanation-I.- A premises may be said to be substantially renovated if not less than seventy-five percent of the premises is built new in accordance with the criteria prescribed for determining the extent of renovation;

Explanation-II.- 'Date of completion of construction' shall be the date of completion as intimated to the concerned authority or of assessment of property tax, whichever is earlier, and where the premises have been constructed in stages the date on which the initial building was completed and an intimation thereof was sent to the concerned authority or was assessed to property tax, whichever is earlier.''

(g) xxxxx

(h) xxxxx

(4) xxxxx

(5) xxxxx"

17. Hence, it is evident that under Section 2(3)(f)

for 15 years the provisions of the Karnataka Rent Act,

1999 are not applicable, when there is a major renovation

of more than 70%. It is the contention of learned counsel

for the appellant/defendant that plaintiff has not produced

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RSA No. 1342 of 2007

any document or approved plan in this regard. He further

contends that the construction of the first floor cannot be

considered.

18. It is important to note here that PW.1 was

examined and his examination-in-chief itself, he has

specifically asserted that the renovation was more than

75% pertaining to suit property. This aspect was not

challenged by way of cross-examination of PW.1. Now it is

argued that under Section 3(i) the definition of premises is

only applicable to premises in occupation of tenant.

Though there is no dispute about this aspect, but the fact

remains that entire front portion was demolished, which

has compelled the plaintiff to demolish the entire structure

and reconstruct it. When the entire structure is

reconstructed by the plaintiff, as admitted, the renovation

is more than 70% and defendant himself has not disputed

this aspect. Hence, the arguments that in the absence of

pleadings in this regard, the petition is not maintainable,

cannot be accepted. No doubt, the construction of the first

floor which is admitted cannot be taken into account for

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RSA No. 1342 of 2007

consideration of renovation, but when it is an admitted

fact that entire construction was demolished and re-

constructed, then it amounts to new erection and

renovation is more than 70%. Under such circumstances,

the Karnataka Rent Control Act, 1961 cannot be made

applicable in view of clause 2(3)(f) of the Karnataka Rent

Act, 1999 and hence, the said contention raised by the

learned counsel for the appellant holds no water.

19. Admittedly, the defendant is enjoying the

petition premises since 1985. He has also asserting only

rent of Rs.1,100/- as against his admission in earlier

proceedings to the extent of Rs.1,400/-. He is enjoying

petition premises since 1985 with a gap of two or three

years when the petition premises were demolished and he

was evicted. There is no issue regarding statutory

compliance of issuance of notice under Section 106 of the

Transfer of Property Act, 1882.

20. Under these circumstances, the contention of

the defendant/appellant that the renovation is not more

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RSA No. 1342 of 2007

than 70% cannot be accepted. His conduct and non-cross-

examining PW.1 in this regard, completely falsifies his

defence. Looking to these facts and circumstances, it is

evident that both the Courts below have justified in

holding that scheduled premises is reconstructed to the

extent of more than 70%. Both the Courts bellow have

appreciated the oral and documentary evidence in detail

and the judgment and decree of the Courts below does not

suffer from any illegality, perversity or infirmity so as to

call for any interference by this Court. As such the

substantial question of law is answered accordingly in the

affirmative. As such, the appeal lacks any merits and does

not survive for consideration. Accordingly, I proceed to

pass the following:

ORDER

i) The appeal is dismissed.

ii) However, the appellant/defendant is granted two

months' time from today for vacating the suit

premises.

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RSA No. 1342 of 2007

iii) Under this circumstance, there is no order as to

costs.

Sd/-

JUDGE

SSP