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2012 DIGILAW 537 (KAR)

B. Nagaraja Rao v. Shankaran

2012-07-04

H.G.RAMESH

body2012
ORDER H.G. RAMESH, J. (Oral)—This revision petition by the tenant is directed against the judgment dated 2.4.2012 passed by the trial Court, namely the Court of the V Additional Judge, Court of Small Causes, Mayohall Unit, Bangalore (SCCH 20) in the suit in S.C. No. 15337/2011 (earlier S.C. No. 15364/2005 and O.S. No. 25384/2008). By the impugned judgment, the trial Court has decreed the suit of the respondents/plaintiffs by directing the petitioner/tenant to deliver vacant possession of the suit schedule shop premises measuring 10 ft x 10 ft to the respondents within three months and the petitioner is also directed to pay damages @ 3,000/- p.m. from the date of the suit till the date of handing over vacant possession of the suit schedule shop premises. 2. Learned Counsel appearing for the petitioner/tenant has paid in cash, a sum of Rs. 715/- to the learned Counsel for the respondent/landlord in Court today towards arrears of rent relating to the petition premises. 3. I have heard Sri S. Gangadhara Aithal, learned Counsel appearing for the petitioner/tenant and Sri M.D. Raghunath, learned Counsel appearing for the respondents/landlords and perused the impugned judgment. 4. Learned Counsel appearing for the petitioner/tenant, in support of the revision petition, urged the following four contentions: (i) The suit is not maintainable as the premises was more than 15 years old as on the date of filing of the suit and hence the suit premises did not go out of the ambit of the Karnataka Rent Act, 1999 (‘the Rent Act’ for short) as provided under Section 2(3)(f) of the Rent Act; (ii) The termination of lease by giving fifteen days’ notice is not valid in law inasmuch as the Lease Agreement dated 08.07.1990–Ex.D-11 provided for one month’s notice for termination of the lease and, therefore, the termination of lease is contrary to Section 106 of the Transfer of Property Act, 1882; (iii) The suit premises is admittedly used for non-residential purposes and as its plinth area is less than 14 sq. meters, in view of Section 2(3)(g) of the Rent Act, the Rent Act is applicable and hence, the Civil Court, i.e., the Court of the Small Causes had no jurisdiction to entertain the suit; (iv) Though the suit was originally filed in S.C. No. 15364/2005 on 25.08.2005 before the Court of Small Causes, as the plaint was re-presented before the City Civil Court, Mayohall on24.3.2008, (the suit came to be re-numbered as O.S. No. 25384/2008), the date of re-presentation is to be taken as the date of filing of the suit, in which event, the suit premises was more than 15 years old as on that date and as the Rent Act would become applicable, the trial Court, i.e., the Court of Small Causes had no jurisdiction to entertain the suit. 5. On the contrary, Sri M.D. Raghunath, learned Counsel appearing for the respondents/landlords submitted that in view of Explanation II to Section 2(3)(f) of the Rent Act, 15 years period should be calculated from the date of intimation of completion of the construction to the concerned authority or from the date of assessment of property tax, whichever is earlier. He submitted that the order re-assessment of property tax – Ex.D-10 shows that the suit premises was assessed to tax with effect from 01.10.1990 and from that date, if 15 years is calculated, the suit premises was less than 15 years old as on the date of filing of the suit, i.e., 25.08.2005 and, therefore, the trial Court had jurisdiction to entertain the suit, as the suit premises, as on the date of filing of the suit, was outside the ambit of the Rent Act in view of Section 2(3)(f) of the Rent Act. 6. Nextly, he submitted that the lease deed dated 8.7.1990 at Ex.D11 was only for a period of 11 months and as it expired after expiry of the period of 11 months, it does not alter the period of notice provided under Section 106(1) of the Transfer of Property Act, 1882 for termination of the lease. 6. Nextly, he submitted that the lease deed dated 8.7.1990 at Ex.D11 was only for a period of 11 months and as it expired after expiry of the period of 11 months, it does not alter the period of notice provided under Section 106(1) of the Transfer of Property Act, 1882 for termination of the lease. He further submitted that the lease was terminated on expiry of 15 days from the date of receipt of the notice, i.e., from 2.8.2005 in accordance with Section 106(1) of the Transfer of Property Act, 1882 and the suit was filed on 25.8.2005, i.e., well beyond the stipulated period of 15 days as contemplated under Section 106 of the Transfer of Property Act, 1882.Hence the termination of the lease was perfectly in accordance with law. 7. He also submitted that as the suit premises was less than 15 years old as on the date of filing of the suit, the premises will go out of the ambit of the Rent Act in view of Section 2(3)(f) of the Rent Act, though the premises is used for non-residential purposes and though the plinth area of the suit premises is less than 14 sq. mtrs. Hence, the suit is maintainable. 8. Lastly, he submitted that the date of filing of the suit is 25.8.2005, when the plaint was originally filed before the Court of Small Causes in S.C. No. 15364/2005 and that date only has to be considered to calculate the age of the suit premises and not the date of re-presentation of the plaint, i.e., on 24.03.2008, as the plaint was again sent back to the Court of Small Causes.6. Now, let me examine the contentions urged: (i) Re. maintainability of the suit: The Lease Deed is dated 8.7.1990 and is marked as Ex.D-11; if that date is taken as the date of completion of construction, certainly the suit premises will be more than 15 years old as on 25.08.2005, i.e., the date of filing of the suit in S.C. No. 15364/2005 and the Rent Act would apply. But in view of Explanation II to Section 2(3)(f) of the Rent Act, it is not permissible to take that date. ‘Date of completion of construction’ shall be the date of completion as intimated to the concerned authority or the date of assessment of property tax, whichever is earlier. But in view of Explanation II to Section 2(3)(f) of the Rent Act, it is not permissible to take that date. ‘Date of completion of construction’ shall be the date of completion as intimated to the concerned authority or the date of assessment of property tax, whichever is earlier. In the present case, admittedly as per Ex.D-10, the suit premises was assessed to property tax with effect from 01.10.1990. From that date, if the age of the building is calculated, it will be less than 15 years as on the date of filing of the suit, i.e., 25.8.2005. Therefore, the contention that the suit is not maintainable is devoid of merit. (ii) Re. validity of termination of the lease: Admittedly, the suit was filed after 15 days from the date of receipt of the notice by the petitioner/tenant. The termination notice is dated 1.8.2005 and received by the petitioner on 2.08.2005. The suit was admittedly filed on 25.8.2005. Though the Lease deed – Ex.D-11 dated 08.07.1990 provided for one month’s notice for termination of the lease, the said lease admittedly had expired on expiry of 11 months. Therefore, the rights and liabilities of the parties are governed by the provisions of the Transfer of Property Act, 1882. In that view of the matter, the termination of lease by giving fifteen days’ notice is in accordance with Section 106 of the Transfer of Property Act, 1882. (iii) Re. Section 2(3)(g) of the Rent Act: Under Section 2(3)(g) of the Rent Act, if the plinth area of the premises is less than 14 sq. mtrs. and is used for non-residential purposes, the provisions of the Rent Act will apply to such premises. But in the present case, as the suit premises was less than 15 years old as on the date of filing of the suit, the suit premises, as on the date of filing of the suit, was outside the ambit of the Rent Act and hence Section 2(3)(g) of the Rent Act had no application to the suit premises as on the date of filing of the suit. In my opinion, Section 2(3)(f) is independent of Section 2(3)(g) of the Rent Act as the words employed in Section 2(3)(f) is “to any premises constructed……”. (iv) Re. In my opinion, Section 2(3)(f) is independent of Section 2(3)(g) of the Rent Act as the words employed in Section 2(3)(f) is “to any premises constructed……”. (iv) Re. date of presentation of the plaint: This last contention relates to whether the date of original presentation of the plaint, i.e., 25.08.2005or the date of re-presentation of the plaint before the City Civil Court, i.e., 24.03.2008, which resulted in re-numbering the suit as O.S. No. 25384/2008, is to be taken into consideration to calculate the age of the suit premises. Admittedly, the plaint was originally presented on 25.08.2005 before the Court of Small Causes in S.C. No. 15365/2005. Though the plaint was re-presented before the City Civil Court on 24.03.2008 and the suit was re-numbered as O.S. No. 25384/2008, it was again sent back to the Court of Small Causes and was given the present number, i.e., S.C. No. 15337/2011. Hence, the original date of presentation of the plaint, i.e., 25.08.2005 is to be taken to calculate the age of the suit premises. Therefore, this last contention is also devoid of merit. The revision petition is devoid of merit. No ground to admit the revision petition. Accordingly, the revision petition is dismissed. As stated above, the suit was originally filed in the year 2005.Therefore, this is not a fit case to grant any further time to vacate the suit premises. However, in the interest of justice, I deem it appropriate to grant three months’ time to the petitioner to voluntarily vacate and to deliver vacant possession of the suit premises to the respondents/landlords. Revision petition dismissed.