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2023 DIGILAW 296 (KAR)

M. S. Vijayendra v. B. A. Ramesh

2023-02-17

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission. Heard the learned counsel appearing for the appellant. 2. This appeal is filed challenging the judgment and decree dtd. 29/11/2022 passed in R.A.No.12/2022 on the file of the II Additional Senior Civil Judge, Chikkamagaluru. 3. The factual matrix of the case of the plaintiff before the Trial Court is that the appellant herein is a tenant in respect of the suit schedule property on a monthly rent of Rs.2, 500.00 and suit schedule premises is a commercial premises measuring 110 sq. feet situated at n ward No.11, I.G.Road Cross, (Christian colony road), opposite Mathias tower, Chikkamagaluu bearing municipal Assessment No.5015/3418 and the plaintiff has issued the notice against the defendant and inspite of service of notice, he did not vacate the premises hence, filed a suit for the relief of recovery of possession of the suit property. 4. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that the suit property has been leased out for a monthly rent basis to him. The period of rent was 11 months starting from 1/1/2015 to 30/11/2015 as per the agreement and he has been in possession of the premises. As per the terms and conditions of the rent agreement, the defendant had agreed to pay monthly rent of Rs.2, 500.00 and he has paid the advance amount of Rs.20, 000.00 and denied the contention that the plaintiff has demanded the defendant to vacate and hand over the vacant possession of the schedule premises. The lease agreement in question provides an option to the parties to extend the lease for a period more than eleven months and in case, the lease is extended for a term of more than three years, the monthly rent of the premises has to be increased by 10%. As such continuation of the defendant in the schedule premises as a tenant is in accordance with the terms of the agreement. The defendant also admitted the issuance of legal notice dtd. 8/12/2017 and he has given the reply and he is paying the rent regularly and also contend that the suit filed by the plaintiff is not maintainable since the measurement of the suit shop premises is 10 x 12 feet. If the measurement of the property is less than 1000 sq. 8/12/2017 and he has given the reply and he is paying the rent regularly and also contend that the suit filed by the plaintiff is not maintainable since the measurement of the suit shop premises is 10 x 12 feet. If the measurement of the property is less than 1000 sq. feet, the plaintiff has to file HRC petition, whereas, the plaintiff has filed the present suit which is not maintainable. 5. The plaintiff, in order to prove his case examined himself as PW1 and got marked the documents at Ex.P1 to P4. The defendant has not led and evidence before the Trial Court. The Trial Court after considering both oral and documentary evidence placed on record answered Issue Nos.1 too 3 as affirmative and additional Issue as negative wherein a specific contention was taken that the suit is not maintainable. Being aggrieved by the judgment of the Trial Court, an appeal was preferred by the defendant wherein also similar grounds are urged contending that the original suit is not maintainable and ought to have filed eviction petition and the First Appellate Court also considering the grounds urged in the appeal, formulated the point with regard to whether the defendant/appellant made out the relationship of landlord and tenant between the plaintiff/respondent and defendant/appellant is governed by the Karnataka Rent Act, 1999 and suit is not maintainable and whether the Trial Court fails to provide an opportunity to lead defence evidence as contended in the appeal memo and also formulated the point with regard that the Trial Court has not appreciated the both oral and documentary evidence placed on record and the First Appellate Court also on re- appreciation of both oral and documentary evidence placed on record answered all the points as negative and before dismissing the appeal, Ss. 2(3)(e) and (g) has been extracted by the First Appellate Court and also taken note of the decision reported in ILR 2013 KAR 4696 in a case of SMT. ANUPAMA RAMESH vs SHRI VEERCHAND and dismissed the appeal. Hence, the present appeal is filed before this Court by the defendant/respondent. 6. 2(3)(e) and (g) has been extracted by the First Appellate Court and also taken note of the decision reported in ILR 2013 KAR 4696 in a case of SMT. ANUPAMA RAMESH vs SHRI VEERCHAND and dismissed the appeal. Hence, the present appeal is filed before this Court by the defendant/respondent. 6. The counsel mainly contend that both the Courts have failed to take note of the very proviso of Sec. 2(3)(e) and (g) of the Karnataka Rent Act and even though it is contended that the suit is not maintainable, committed an error in decreeing the suit of the plaintiff and confirming the same by the First Appellate Court hence, this Court has to frame substantial question of law. 7. Having heard the learned counsel appearing for the appellant and also on perusal of the material available on record it discloses that in the petition, specifically contended that suit schedule premises is the commercial premises measuring 110 sq. feet and the same is situated at Chikkamagaluru and no dispute with regard to the payment of rent of Rs.2, 500.00 and no doubt, if the premises is not exceeds 14 square feet, the Rent Act is applicable and at the same time, the Court has to take note of the rate of rent and to that effect also the Trial Court in paragraph 18 to 20 taken note of Sec. 2(3) of the Act and also the provision of the Act and comes to the conclusion that provision of the Act will not applicable to the premises enumerated under Sec. 2(3)(a) to (h) of the Act. According to Sec. 2(3) (e)(i) and (ii) of the Act, if the rate of rent exceeds 3, 500/- per month to a premises situated in any area referred to in Part-A of the first schedule; and Rs.2, 000.00 per month to any other area, the provision of the Act are not applicable. 8. Having considered the said proviso and also taking into note of monthly rent of Rs.2, 500.00 and same was admitted by the defendant in the written statement, the Trial Court comes to the conclusion that HRC petition could not be filed and suit has to be filed. 8. Having considered the said proviso and also taking into note of monthly rent of Rs.2, 500.00 and same was admitted by the defendant in the written statement, the Trial Court comes to the conclusion that HRC petition could not be filed and suit has to be filed. The First Appellate Court also taking note of the principles laid down in the case of ANUPAMA RAMESH (referred supra), considered the material available on record and in paragraph 14 after extracting the principles laid down in the judgment comes to the conclusion that the schedule premises is below 14 square feet and using the same for the commercial purpose and rent is more than Rs.2, 000.00 therefore, the Karnataka Rent Act is not applicable in view of Sec. 3(2)(e). The rate of rent is not in dispute and in the written statement, it is admitted that while entering into the agreement, the rate of rent was fixed as Rs.2, 500.00 and also contend that the same is subject to the enhancement of 10% for every three years. When such pleading is made by the defendant in the written statement itself, when the rate of rent is Rs.2, 500.00, the contention of the appellant cannot be accepted. This Court also in R.S.A.No.1767/2022 dtd. 6/2/2023 discussed in detail with regard to the very same argument was canvassed by both the counsel and in detail discussed the same and also taken note of the principles laid down in the judgment reported in ILR 2013 KAR 4696 (referred supra) and in paragraph 12 this Court held that no dispute with regard to the dimension of the premises in which the appellant is running the business in that suit premises is measuring only 90 square feet and also not exceeds 14 square meters and also when the rate of rent is more than Rs.2, 500.00 per month, the applicability of Rent Act does not arise and the Court has to take note of both the rent as well as the area which is sought for eviction. In paragraph 13, it is held that the provisions of the Act is very clear that if the rate of rent is more than Rs.2, 000.00 per month in respect of a commercial premises, the Karnataka Rent Act is not applicable and Sec. 106 attracts for initiation of proceedings against the tenant by issuing the quit notice. In paragraph 13, it is held that the provisions of the Act is very clear that if the rate of rent is more than Rs.2, 000.00 per month in respect of a commercial premises, the Karnataka Rent Act is not applicable and Sec. 106 attracts for initiation of proceedings against the tenant by issuing the quit notice. But the fact that issuance of quit notice is not in dispute and in this case also the issuance of quit notice was not disputed and the defendant has categorically admitted that quit notice was issued. When such being the case, the very contention of the counsel for the appellant cannot be accepted. Hence, I do not find any grounds to admit the appeal and to frame substantial question of law invoking Sec. 100 of CPC. 9. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. The appellant is given three months time to vacate and hand over the vacant possession of the suit premises in favour of the respondent from today. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.