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2013 DIGILAW 648 (KAR)

BATA INDIA LTD. v. A. S. MANSOOR

2013-06-07

K.N.KESHAVANARAYANA

body2013
JUDGMENT K.N. KESHAVANARAYANA, J.-This appeal by the defendants No. 1 and 2 in O.S. No. 8677/2007 on the file of the XLIV Additional City Civil and Sessions Judge, Bangalore is directed against the judgment and decree dated 22.11.2011 passed in the said suit filed by the respondent/plaintiff directing the defendants to vacate and handover vacant possession of the suit schedule premises to the plaintiff within three months from the date of the judgment and further directing an enquiry to be held under Order 20, Rule 12 of CPC for the mesne profits payable from the date of the suit till the date of delivery of vacant possession of the suit schedule premises. 2. During the course of this judgment, I shall refer the parties herein with reference to their ranking in the trial Court. 3. Plaintiff filed the suit for eviction of the defendants inter alia contending that the defendants are the tenants in occupation of the suit schedule shop on a monthly rental of Rs. 40/- and their tenancy was duly terminated by issuing notice as required under law and they were called upon to quit and deliver vacant possession of the shop premises. In spite of service of notice, the defendants have failed to deliver the vacant possession of the premises. 4. The defendants contested the suit inter alia on the ground that the suit is not maintainable for the reason that the rent of the premises is only Rs. 40/- per months therefore, the annual rent would be less than Rs. 1 lakh. As such, the suit is not maintainable before the City Civil Court. The defendants further contend that the plaintiff is not the land lord but merely a rent collector therefore, he cannot maintain the suit. 5. Further, it was contended that the plinth area of the schedule premises does not exceed 14 Sq. Mtrs, as such the tenants are entitled for the protection provided under the provisions of the Karnataka Rent Act, 1999, therefore, the Civil Court has no jurisdiction to entertain the suit. 6. On the basis of the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves the existence of relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit schedule property? 2. If so, whether the plaintiff has validly terminated the tenancy by legal notice dated 27.10.2005? 3. 6. On the basis of the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff proves the existence of relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit schedule property? 2. If so, whether the plaintiff has validly terminated the tenancy by legal notice dated 27.10.2005? 3. Whether the suit as brought is not maintainable? 4. Whether the description of the property is correct? 5. Whether the plaintiff is entitled to the reliefs claimed? 6. What order or decree? 7. In support of his case, the plaintiff examined himself as PW.1 and produced documentary evidence Exs.P1 to 62. On the other hand, the official of the defendants was examined as DW.1. However, they did not produce any documentary evidence. 8. After hearing both sides and on appreciation of the oral and documentary evidence, the trial Court by the Judgment under appeal held all the issues in favour of the plaintiff and against the defendants. The trial Court rejected all the contentions raised by the defendants in the written statement. Consequently, the suit of the plaintiff was decreed and the defendants were directed to quit and deliver vacant possession of the suit schedule premises to the plaintiff. Aggrieved by the said Judgment, the defendants are in appeal before this Court. 9. I have heard Sri. Y. Rajendraprasad Shetty, learned counsel for the appellants and Sri. A.R.K. Usmani, learned counsel for the respondent and perused the judgment under appeal. The point that arise for consideration is: "Whether the Court below is justified in decreeing the suit and directing the defendants to vacate the premises and handover the vacant possession of the same to the plaintiff?". 10. It is not in dispute that the defendants are in occupation of the schedule premises as tenants thereof. It is also not in dispute that the defendants took the lease of the premises from the father of the plaintiff. The defendants have not disputed the fact that the father of the plaintiff has died. Therefore, it does not lie in the mouth of the defendants that, plaintiff is only a rent collector. In view of the provisions contained under Section 116 of the Indian Evidence Act, the defendants being tenants of the premises are estopped from denying the title of the lessor. 11. Therefore, it does not lie in the mouth of the defendants that, plaintiff is only a rent collector. In view of the provisions contained under Section 116 of the Indian Evidence Act, the defendants being tenants of the premises are estopped from denying the title of the lessor. 11. In the schedule to the plaint as indicated in the decree, the measurement of the schedule shop is mentioned as 121/2 feet × 121/2 feet. The learned trial Judge during the course of the judgment has noticed that the learned counsel for the defendants in the written arguments has admitted that the schedule shop measures 12 V2 feet × 121/2 feet. Thus, the total plinth area of the shop premises would be 156.25 square feets. 12. Section 2 of the Karnataka Rent Act, 1999, deals with the application of the Act. Section 2(3) sets out the nature of the premises to which the provisions of the Act are not applicable. According to clause (g) of Section 2 (3), the Act is not applicable to a premises used for non residential purpose, but excluding the premises having plinth area of not exceeding 14 Sq. Mtrs. being used for commercial purposes. In other words, though the provisions of the Act are not applicable to non-residential purpose, an exception is carved out to the effect that the provisions of the Act are applicable to a non-residential premises having the plinth area not exceeding 14 square meters being used for commercial purposes. In view of the fact that the schedule shop measures 156.25 Sq. fts, which is more than 14 Sq. Mtrs., the provisions of the Act are not applicable to the premises in question. 13. Therefore, the second contention urged by the defendants regarding maintainability of the suit before the Civil Court has been rightly rejected by the Court below. There is absolutely no substance in the said contention. The Court below has not committed any error in holding that the suit was maintainable and that the provisions of the Karnataka Rent Act are not applicable to the premises. 14. In view of the fact that the provisions of the Rent Act are not applicable in view of the provisions of Section 2 (3) (g), the quantum of rent of the premises is not of any significance to decide the jurisdiction of the Court. 14. In view of the fact that the provisions of the Rent Act are not applicable in view of the provisions of Section 2 (3) (g), the quantum of rent of the premises is not of any significance to decide the jurisdiction of the Court. Therefore, the said contention has been rightly rejected without any basis. Having regard to the fact that the defendants are admittedly the tenants of the schedule premises and since they have not disputed the fact that their tenancy has been terminated by issuing a notice as required by law, the defendants have absolutely no right to continue in possession of the premises and their possession from the date of termination of the tenancy became unauthorized. Therefore, the plaintiff is entitled to seek possession of the same. 15. Having regard to the facts and circumstances of the case, the trial Court is justified in decreeing the suit and directing the defendants to deliver vacant possession of the schedule premises. The judgment under appeal is sound and reasonable regard being had to the facts and circumstances and the evidence on record. The judgment under appeal does not suffer from any illegality or irregularity warranting interference by this Court. I find no merits in this appeal, as such the appeal is liable to be dismissed. 16. At this stage, the learned counsel for the appellants sought for grant of some reasonable time to vacate the premises. It is further contended that the premises being non-residential and used by the defendants for business purpose, if they are directed to deliver the possession immediately, they would suffer greater hardship, therefore they require some reasonable time to find an alternative premises. 17. The suit was filed in the year 2007. The suit came to be disposed of on 22.11.2011, nearly about four years thereafter. The appeal came to be filed on 01.02.2012, almost when the time granted by the trial Court to vacate the premises was expiring. The defendants continued to remain in possession of the premises on account of the interim order granted by this Court on 14.02.2012. For more than 11/2 years, the defendants have enjoyed the benefit of the order of stay granted by this Court. Merely because the premises is a non residential one and used for commercial purposes, it cannot be a ground to grant longer time to the defendants. For more than 11/2 years, the defendants have enjoyed the benefit of the order of stay granted by this Court. Merely because the premises is a non residential one and used for commercial purposes, it cannot be a ground to grant longer time to the defendants. The defendants have enjoyed the premises for nearly six years after the termination of the tenancy. 18. Under these circumstances, I am of the considered opinion that leniency cannot be shown to the defendants in the matter of granting time to vacate the premises. Nevertheless, since the defendants are using the shop premises for business purpose, some time is required to be granted to them to vacate the premises for finding an alternative premises. The defendants are company called M/s. Bata India Limited. It is not as if the defendants have no other premises in Bangalore as this company has various outlets in different parts of the city. In this view of the matter, I am of the considered opinion that interest of justice would be met by granting three months time to the defendants to vacate the premises and handover vacant possession of the same to the plaintiff. 19. In this view of the matter, the appeal is dismissed. The judgment and decree passed by the trial Court is affirmed. However, the defendants are granted three months time from today to quit and deliver vacant possession of the premises to the plaintiff.