Sri Ganesh N vs Mr N Ananthan Pillai
2023 Latest Caselaw 3382 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU         R
           DATED THIS THE 16TH DAY OF JUNE, 2023

                            BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

     CIVIL REVISION PETITION NO. 235 OF 2023 (IO)

BETWEEN:

SRI GANESH N.,
S/O LATE NATARAJ,
AGED ABOUT 38 YEARS,
R/A NO.47, 3RD MAIN ROAD,
PALACE GUTTAHALLI,
BENGALURU-560003.                           ... PETITIONER

             (BY SRI S. VENUGOPALA, ADVOCATE)

AND:

1.     MR. N. ANANTHAN PILLAI,
       S/O LATE NARAYANA PILLAI,
       AGED ABOUT 82 YEARS,
       RESIDING AT NO.80,
       1ST FLOOR, 2ND MAIN ROAD,
       PALACE GUTTAHALLI
       BENGALURU-560003.

2.     MRS. SUSHEELA,
       W/O LATE A. NATARAJ,
       AGED ABOUT 66 YEARS.

3.     MR. MANJU N.,
       S/O LATE A. NATARAJ
       AGED ABOUT 41 YEARS.

4.     MR. RAMESH N,
       S/O LATE A. NATARAJ,
       AGED ABOUT 36 YEARS.
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5.     MRS. SWATHI @ AMMU N.,
       D/O LATE A. NATARAJ
       AGED ABOUT 34 YEARS

       RESPONDENTS NO.2 TO 5 ARE
       R/AT NO.47, 3RD MAIN ROAD,
       PALACE GUTTAHALLI,
       BANGALORE-560003.                         ... RESPONDENTS

       (BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R1;
                VIDE ORDER DATED 31.05.2023,
           NOTICE TO R2 TO R5 ARE DISPENSED WITH)

      THIS CRP IS FILED UNDER SECTION 18 OF SMALL CAUSES
COURT ACT AGAINST THE ORDER DATED 07.03.2023 PASSED
ON IA No.1 IN SC.No.15125/2022 ON THE FILE OF THE XVII
ASCJ, MAYO HALL UNIT, BENGALURU, REJECTING THE IA NO.1
FILED UNDER ORDER VII RULE XI R/W SECTION 151 OF CPC TO
DISMISS THE SUIT AS NOT MAINTAINABLE AS PER SECTION
2(e)(i) AND (g) OF KARNATAKA RENT ACT.

     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.06.2023, THIS DAY THE COURT PRONOUNCED
THE FOLLOWING:
                       ORDER

This revision petition is filed challenging the order dated

07.03.2023 passed on I.A.No.1 in S.C.No.15125/2022, on the

file of the XVII ASCJ, Mayo Hall Unit, Bangalore, rejecting

I.A.No.1 filed under Order 7 Rule 11 read with Section 151 of

CPC.

2. The factual matrix of the case of the

petitioner/defendant No.3 in S.C.No.15125/2022 is that the

petitioner herein is a tenant along with respondent Nos.2 to 5

herein. It is contended that the husband of defendant No.1 and

the father of defendant Nos.2 to 5 Sri late A. Nataraj was a

tenant under the plaintiff on oral agreement in respect of ground

floor shop premises measuring 7 x 11 ft. which is morefully

described in the schedule. The said Nataraj was paying the rent

of Rs.3,000/- per month to the plaintiff and he was running a

business under the name and style M/s. Shakthi Polishing

Machines. He expired in the year 2020 and thereafter the

defendants continued to pay the rent of Rs.3,000/- per month

and thereafter the defendants stopped the payment. The

defendants are jointly running a business in the schedule

premises. The petition schedule premises is required by the

plaintiff for his bonafide use and occupation and requested the

defendants to handover the vacant possession many times, but

they did not come forward to vacate the premises and hence

issued a legal notice to quit, vacate and handover the possession

and they have given an untenable reply and hence filed a suit

seeking an order to direct the defendants to vacate and deliver

the vacant possession and also direct the defendants to pay the

arrears of rent of Rs.60,000/- from November 2020 to June

2022 and grant such other relief.

3. The defendant No.3 filed the written statement

denying the averments made in the plaint. However, he contend

that the defendants' father took the premises on free of rent on

receipt of lease amount of Rs.5 lakhs in the year 1993 and the

father was required only to paid the electricity charges as and

when due. The plaintiff was to refund the lease amount to Sri

Nataraj at the time of vacating the premises and denied the

contention that they are in occupation of the premises on

monthly rent basis. The defendants have also filed an

application under Order 7 Rule 11 of CPC read with Section 151

of CPC praying this Court to dismiss the suit as not maintainable

in view of Sections 2(3)(e)(i) and 2(3)(g) of the Karnataka Rent

Act, 1999 ('the Act' for short). In support of the application, an

affidavit is sworn to wherein it is contended that the rate of rent

is Rs.3,000/- per month and the plinth area is 77 sq.ft. and

hence the Court has no jurisdiction to entertain the suit since the

same is coming under the jurisdiction of the Act and prayed this

Court to dismiss the same.

4. The plaintiff filed the statement of objections

contending that the application is highly misconceived, frivolous

and vexatious with an ulterior malafide motive and the same is

not maintainable and the application is filed only to protract the

proceedings in the case. The plaintiff denied all the averments

made in the application and contend that the defendants are not

entitled for any relief as prayed in the application.

5. The Trial Court having considered the grounds urged

in the application and also the statement of objections and while

giving reasons, extracted the provision of Sections 2(3)(e)(i) and

2(3)(g) of the Act and comes to the conclusion that the premises

is measuring 77 sq.ft. and rate of rent is Rs.3,000/- per month

and that the defendants have not made out any ground to allow

the application and rejected the application. Hence, the present

revision petition is filed before this Court by defendant No.3.

6. The learned counsel for the petitioner would contend

that the Trial Court misguided itself and exercises its jurisdiction

erroneously in rejecting I.A.No.1 filed under Order 7 Rule 11 of

CPC. The Trial Court failed to consider the averments made in

the plaint that admitted rate of rent is Rs.3,000/- per month and

also stated that the defendants being the legal representatives of

their father have continued to pay the rent and no dispute with

regard to the measurement of premises is 77 sq.ft. The learned

counsel would contend that the rent is below Rs.3,500/- per

month and the plinth area is not exceeding 14 sq.mts. and the

suit is barred under Sections 2(3)(e)(i) and 2(3)(g) of the Act

and the plaintiff has to work out his remedy under the provisions

of the Act and the same has not been considered by the Trial

Court.

7. The learned counsel for the petitioner in support of

his arguments relied upon the judgment of this Court in the case

of SMT. ANUPAMA RAMESH v. SHRI VEERCHAND reported in

ILR 2013 KAR 4696, wherein in paragraph No.7 the Court has

discussed with regard to the object of sub-Section (3) of Section

2 of the Rent Act is to exclude certain types of premises from the

applicability of the Rent Act. If the Rent Act is not applicable to

a premises in view of any of the clauses i.e., clauses (a) to (h) in

sub-Section (3), such a premises stands excluded from the

applicability of the Rent Act and that cannot be defeated by

relying on an exception in any other clause in sub-Section (3) as

a legislature will not at the same time give something by one

hand and take back the same thing by another.

8. Per contra, the learned counsel for respondent No.1

would vehemently contend that the suit is maintainable and the

very contention of defendant No.3 that the suit is not

maintainable cannot be accepted and with an intention to

protract the proceedings, an application is filed under Order 7

Rule 11 of CPC. The learned counsel would contend that the

rate of rent is Rs.3,000/- per month and premises is measuring

77 sq.ft. and the suit is maintainable and the very contention

that the Rent Act is applicable cannot be accepted.

9. The learned counsel in support of his arguments

relied upon the unreported decision of this Court passed in CRP

No.338/2013 dated 05.12.2023 and contend that the issue

has been considered with regard to decreeing the suit whether

the Court has got the jurisdiction to entertain the suit and

discussed in detail Section 2(3)(g) of the Act and also discussed

the Full Bench decision of this Court in the case of ABDUL

WAJID v. A.S. ONKARAPPA reported in 2011(4) Kar.L.J.414

and extracted paragraph No.86 of the judgment. The Court of

Small causes has 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

peculiar limits, in respect of the premises to which the Karnataka

Rent Act is not applicable. The learned counsel referring this

judgment would contend that the Karnataka Rent Act is not

applicable.

10. Having heard the learned counsel for the petitioner

and the learned counsel for respondent No.1 and also the

reasons assigned for the dismissal of application, the point that

arise for the consideration of this Court is:

"Whether the Trial Court has committed an error in dismissing the application filed under Order 7 Rule 11 of CPC and the order impugned suffers from infirmity"?

11. Having heard the respective learned counsel and also

considering the material on record, it is the contention of the

plaintiff that the father of the defendants was a tenant on a

monthly rent of Rs.3,000/- and the petition premises is a

commercial premises having measurement of 7 x 11 ft. i.e., 77

sq.ft. On the other hand, it is the contention of defendant No.3

that he is not a tenant on monthly rent of Rs.3,000/- and the

plaintiff has collected an amount of Rs.5 lakhs and the same is

refundable amount at the time of vacating the premises and he

is not in arrears of rent as claimed in the suit. Having

considered the pleadings of the parties, it is the contention of

the defendants that they are in the premises by making the

payment of Rs.5 lakhs and not paying any rent every month.

There is no dispute with regard to the measurement of the

premises which is in question. This Court would like to refer to

the proviso of Sections 2(3)(e)(i) and 2(3)(g) of the Act, which is

extracted hereinbelow:

2. Application of the Act. - (1) xxxxxxxxxxx (2) xxxxxxxxxxxxxx (3) Nothing contained in this Act shall apply.-

(a) xxxxxxxxxxxx

(b) xxxxxxxxxx

(c) xxxxxxxxxxxx

(d) xxxxxxxxxxxx

(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;

             (f)   Xxxxxxxxxxxxxxxxx

(g) to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square metres used for commercial purpose.

12. This Court would like to refer to some of the

judgments of this Court in a similar set of facts. This Court in

HRRP No.7/2016 along with HRRP No.41/2016 decided on

02.03.2021 in the similar grounds urged before the Court with

regard to Sections 2(3)(e) and 2(3)(g) of the Act having

discussed in detail comes to the conclusion that from the

conjoint reading of the above provisions, it is crystal clear that

clause (e) of sub-section (3) of Section 2 of the Act could be

made applicable only when the standard rent or deemed rent

does not exceed Rs.3,500/- per month. In such a case, it is

immaterial whether the demised premises is residential or non-

residential as on the date of commencement of the Act and

apparently for this reason, the legislature has used the

expression "any premises" in clause (e). As per this clause, the

quantum of "deemed rent" or "standard rent" that would

determine the applicability or non-applicability of the provisions

of the Act and not the nature of the premises as erroneously

held by the Trial Court.

13. This Court also taken note of Section 2(3)(g) of the

Act and having considered the material comes to the conclusion

that the premises in question is non-residential premises used

for commercial purpose having plinth area of less than 14

sq.mts. Therefore, only HRC is maintainable for eviction of the

respondents. In the case on hand also, admittedly the plaintiff

has pleaded that the rate of rent is Rs.3,000/- per month and

the proviso of Section 2(3)(e) of the Act is very clear that to any

premises, deemed rent on the date of commencement of the Act

or the standard rent of which exceeds Rs.3,500/- per month in

any area referred to in Part A of the First Schedule of the Act will

not apply. In the case on hand, rate of rent is Rs.3,000/- per

month. This Court would like to refer to First Schedule of the

Act. Areas within the limits of cities constituted under the

Karnataka Municipal Corporation Act, 1976 and within a radius of

3 kms. from the limit of the said cities which comes under Part

A. In the case on hand, the part and parcel of the immovable

property being ground floor shop premises measuring 7 x 11 ft.

facing towards II Main Road, Palace Guttahalli, situated in a

portion of the property bearing No.80, II Main Road, Palace

Guttahalli, Bangalore and the same comes within Part A of First

Schedule of the Act and the rent is below the standard rent of

Rs.3,500/- per month and hence Section 2(3)(e) of the Act is

applicable to the facts of the case on hand.

14. No doubt, if the premises is measuring more than 14

sq.mts., the Rent Act is not applicable. But in the case on hand,

admittedly it measures 77 sq.ft. and if it exceeds, the same

would be out of the jurisdiction of the Act. The Act is made

applicable to a non-residential premises used for commercial

purpose having a plinth area of less than 14 sq.mts. In the case

on hand also the area is less than 14 sq.mts. and there is no

dispute with regard to the said fact. When such being the case,

Section 2(3)(g) of the Act is clear that if the premises exceeds

14 sq.mts., the Act is not applicable. If it is less than 14

sq.mts., even if it is a non-residential premises used for

commercial purpose, the Act is made applicable to a non-

residential premises used for commercial purpose having the

plinth area of less than 14 sq.mts.

15. This Court in CRP No.182/2018 decided on

16.01.2019 held that even one of the conditions mentioned in

Section 2 of the Act is fulfilled, the provision of the Act are not

applicable and considered the judgment of this Court in the case

of Smt. Anupama (supra). This Court in its judgment passed in

CRP No.452/2013 dated 16.01.2014 held that if the rate of

rent is more than Rs.3,500/- per month, it will fall under the

Transfer of Property Act. This Court in its order passed in

R.S.A.No.1767/2022 dated 06.02.2023 held that if the rate

of rent is more than Rs.2,000/- per month in respect of a

commercial premises, the Rent Act is not applicable and Section

106 of the Transfer of Property Act is applicable since the

premises comes within the purview of Part B of First Schedule of

the Act.

16. Having considered the principles laid down in the

judgments referred supra and also having considered the

material and facts, the rate of rent is Rs.3,000/- per month as

pleaded by the plaintiff and the premises is undisputedly

measuring only 77 sq.ft. and the same is below 14 sq.mts. The

very contention of the learned counsel for respondent No.1 that

the Small Causes Court is having the jurisdiction and rightly filed

the suit relying upon the judgment of this Court cannot be

accepted. On the other hand, the learned counsel for the

petitioner has made out a case that the Karnataka Rent Act is

applicable since the rate of rent is less than Rs.3,500/- per

month and standard rent in respect of the premises which is Part

A of First schedule of the Act and also premises is measuring

less than 14 sq.mts even though the premises is a commercial

premises, the Rent Act is applicable and hence cannot invoke the

jurisdiction of the issuance of notice under Section 106 of the

Transfer of Property Act. The Trial Court committed an error in

not considering the very proviso of Sections 2(3)(e) and 2(3)(g)

of the Act and the order passed by the Trial Court is against the

statute and hence it requires interference of this Court. Hence, I

answer the point in the affirmative.

17. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is allowed.

(ii) The order of the Trial Court dated 07.03.2023 passed on I.A.No.1 in S.C.No.15125/2022, is set aside.

(iii) The application filed by the learned counsel for

Rule 11 of CPC is allowed.

(iii) The respondent is given liberty to approach the Court under the Karnataka Rent Act.

Sd/-

JUDGE

MD