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2003 DIGILAW 896 (KAR)

MOHAMAD SAIFUDDIN v. SOMASHEKARA ADIGA

2003-10-28

body2003
( 1 ) THIS revision is filed under Section 115 C. P. C. by the landlord aggrieved by the order dated 24-8-2000 passed in HRCRP No. 32/98 on the file of the II Addl. District Judge, Kolar, allowing the petition and setting aside the order dated 27-7-1998 passed in HRC No. 3/94 on the file of the Prl. Civil Judge (Jr. Dvn.), Kolar. ( 2 ) THE petitioner-landlord filed the petition under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 claiming that he requires the petition premises for his own use and occupation. The landlord stated that he does not possess any other premises for his use and occupation and for want of accomodation he is putting up in the resident of his brother. It is his further case that though he is a graduate he could not secure any job. It is stated that he is unemployed and does not have proper accomodation for his stay and, therefore, he requires the petition premises for both residential and non-residential purpose. The respondent-tenant contested the petition. The Rent Court allowed the petition. The respondent took the matter in revision before the Court-below allowed the revision petition and dismissed the petition filed by the landlord for eviction. Being aggrieved by the dismissal of the eviction petition, the petitioner-landlord has presented the present revision. ( 3 ) DURING the pendency of this revision petition, the Karnataka Rent Control Act, 1961 was repealed in toto and in its place the Karnataka Rent Act, 1999 was enacted (the Act for short ). The Act brought about substantial changes in the matter of regulating rent and eviction. The present Act contains provisions which provide for immediate eviction of tenants of State or Central Government Employees, members of Armed Forces, Widows, handicapped persons and persons above the age of 65 years under certain circumstances. Section 70 (2) (b) of the Act stipulates that all cases and proceedings pending at the commencement of the Act shall be continued and disposed off by the Court in accordance with the provisions of the present Act. Therefore, while considering this revisions this Court has to be guided by the provisions of the Act. "mr. Section 70 (2) (b) of the Act stipulates that all cases and proceedings pending at the commencement of the Act shall be continued and disposed off by the Court in accordance with the provisions of the present Act. Therefore, while considering this revisions this Court has to be guided by the provisions of the Act. "mr. K. Raghavendra Rao, learned counsel for the tenant, submitted with lot of emphasis that the petition premises is predominantly used for commercial purpose and, therefore, the provisions of the Act would have no application as the total plinth area of the petition premises exceeds 14 sq. metres. It is his submission that in the absence of any lease deed to subordinate the principal purpose for which the premises was rented out, the Courts have to look to the main or dominant purpose of user of the premises in order to determine the question whether the premises is residential or non-residential. He submits that the petition premises is predominantly used for commercial purposes and, therefore, it would invite the inapplicability clause contained in Section 2 (3) (g) of the Act. As regards the claim of the landlord under Section 21 (1) (h) of the old Act and the present Section 27 (2) (r) of the Act, it is his contention that the landlord has sufficient accomodation and there is no imminent need for him to seek possession of the petition premises for his own use and occupation be it for his residence or for establishing a business. " ( 4 ) BOTH the learned Counsel placed reliance on PRINCIPAL STEEL AND ENGG. WORKS VS. PREM DEVA NIRANJAN DEVAL TAYAL, (2003) 2 S. C. C. 236. The question arose before the Apex Court in the said case as to how the purpose of tenancy must be deduced where written terms between the parties are vague or doubtful. Adverting to the various tests that the Court should adopt in such a situation the Apex Court observed:"premises are capable of being classified into residential and non-residential depending on the purpose of letting. This is the board classification. Adverting to the various tests that the Court should adopt in such a situation the Apex Court observed:"premises are capable of being classified into residential and non-residential depending on the purpose of letting. This is the board classification. Question of construction and determining the purpose of letting may pose difficulty when the premises are let for mixed, composite or dual purposes i. e. , where the entire premises are allowed to be used for an overlapping purpose or the premises forming the subject-matter of one tenancy are allowed to be used for purposes more than one. In such a case it cannot be said that the premises would cease to be of either category i. e. , they would be neither residential or non-residential. Rather it would be necessary to find out what is the main and dominant purpose of letting as distinguished from subsidiary, ancillary or incidental purpose. "mr. Raghavendra Rao heavily relies on the above statement of law of the Supreme Court and contends that the petition premises being predominantly used for commercial purpose, these proceedings abate because of the applicability of the Act to these proceedings. ( 5 ) THE decision in PRINCIPAL STEEL AND ENGG. WORKS, supra, ahs dealt with the issue of determination of the purpose of tenancy exhaustively and in para 16 of the order, the Apex Court dealt with a case where the premises is put to dual use. Laying down the principle that putting a part of residential premises to an ancillary use would not render it a non-residential premises the Court observed:"for the purpose of Section 14 (1) (e) of the Act, so long as the principal and dominant purpose of letting is residential merely because a mixed user of the premises or user of a part or incidental or ancillary user of the premises is permitted for activities other than residential, the purpose of letting the premises would not cease to be residential and the premises would continue to be governed by Section 14 (1) (e) of the Act. "it is not in dispute that the premises even when it was let out was let out for mixed user. It is also the case of the tenant that he resides therein while, at the same time doing business in a portion of the premises. "it is not in dispute that the premises even when it was let out was let out for mixed user. It is also the case of the tenant that he resides therein while, at the same time doing business in a portion of the premises. The size of the portions used as residential and shop premises has been elicited in the cross-examination of the tenant as follows:"in the light of the clear-cut evidence that emerges from the admissions made by the tenant, it follows that the predominant purpose of the tenancy is residential and that the user of the portion of the premises as shop is purely incidental and therefore cannot be construed as a factor for determining the purpose. How the determination has to be done in such situations is also brought out by the Apex Court in para 25 of its aforesaid decision. Hence it is wrong to contend that the enactment of the explanation is suggestive of the legislative intent that even incidental user for commercial or other purposes if accompanied by the consent of the landlord would take the premises out of the expression premises let for residential purposes. ( 6 ) THIS Court also had occasion to deal with a similar contention in SMT. K. S. MUDDUGOWRAMMA VS. P. SURYANARAYANA, ILR 2003 KAR, 775. Disagreeing with the contention putforth that the premises is a non-residential and, therefore, the Court had no jurisdiction to determine the issues arising before it, this Court observed in para 8. A building which reasonably accommodates a residential user is residential accomodation. The possibility of putting a part of it for commercial use or the actual user of a portion for commercial use by the tenant, alter on, after getting into the premises even if it be with the permission of the landlord would not render it a non-residential premises. The premises we are concerned with in the present case was let out for residence, is even now being used as a residence, is suitable otherwise for residence and is being credibly demanded for the petitioners residence. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated as residential premises. Residential suitability being the basic consideration, putting into use a part of the premises for non-residential purpose could not take it out of the place of residential premises. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated as residential premises. Residential suitability being the basic consideration, putting into use a part of the premises for non-residential purpose could not take it out of the place of residential premises. Therefore, unless a building was let out for non-residential purpose, is being exclusively used as non-residential purpose and is incapable of being used for residential purpose it could not be termed as a non-residential premises. Thus, on an overall consideration of the evidence available on record it must be held that the dominant purpose of the tenancy was residential and, therefore, the present proceedings is not hit by Section 2 (3) (g) of the Act. ( 7 ) IN so far as the submission of the learned counsel that the petitioner is not the landlord of the premises, the same cannot be permitted to be urged in this revision in the light of the clear admission made by the tenant in the reply notice Ex. P2 given by him. At para 1 of the reply notice the tenant has conceded:it is true that my client is a tenant of the schedule premises on a monthly rent of Rs. 200/- therefore that submission should fall to the ground. It is also submitted by Mr. Raghavendra Rao that the landlord is conveniently residing with his brother and he is also having a shop premises where he is running an hardware shop and, therefore, his claim for self-occupation cannot be granted by the Court as he has an alternate suitable accomodation. There is overwhelming evidence on record to show that the brothers have portioned the properties and the petition premises has fallen to the share of the petitioner-landlord and his stay at present in the portion belonging to his brother is purely gratis and, therefore, that is all the more a good reason for granting the relief sought for by the landlord in the present petition. ( 8 ) IN the result, for the reasons stated above, this revision petition is allowed. The order passed by the Court-below is set aside. The petition is allowed under Section 27 (2) (r) of the Act granting three months time to the respondent-tenant to quit and deliver vacant possession of the premises to the petitioner-landlord. --- *** --- .