Dr. (Mrs.) Smita Jain vs Mr. N.A. Parameshwar

Narayana Swamy, J.—The defendant in SC No. 1206/2012 on the file of the 18th Addl. Small Causes Judge, Bangalore has filed this revision petition challenging the order dated 23.9.2013. the grounds urged by the petitioner is that the premises in occupation is a non residential commercial premises measuring 105 sq. ft., for the purpose of jurisdiction u/s. 2(3)(g) of the Karnataka Rent Act and not under the Transfer of Property Act. The learned counsel referred sub-section (g) of Section 2(3) and submitted that since the plinth area is not exceeding 14 sq. meters, the case should have been filed under the provisions of Karnataka Rent Act and as against the same, the petitioner preferred suit under the provisions of Transfer of Property Act. The petitioner herein filed IA No. 3 under Order 7 Rule 10 of CPC with a prayer to reject the suit on the ground of jurisdiction. The said IA came to be dismissed.

In support of his submission, the learned counsel referred the judgments in Civil Appeal No. 5912/2002 between Mrs. M. Subbarao & Sons Vs., Yashodamma & Ors. And judgment in RFA No. 2065/2011 between Smt. Mallamma & others Vs., Sri Maruthi & Ors. And another judgment in RFA No. 1603/2005 between M/s. Karam Chand Thappar (CS) Ltd., Vs., M/s. Bux Ranka Developers (P) Ltd., & another and submitted to set aside the order passed by the court below.

On the other hand, the learned counsel for the respondent by relying upon the judgment reported in Smt. Anupama Ramesh Vs. Shri Veerchand, submitted that sub-section (g) of Section 2(3) has been interpreted by this Court wherein it has been held that further exception provided in sub-clause (g) cannot be a ground to defeat the object of exception as provided u/s 2(3). By referring the provisions of Rent Act, the learned counsel submitted that exceptions provided under (a) to (h) in Section 2(3) of the Rent Act exclude the jurisdiction. Admittedly, the case of the petitioner falls under sub-clause (e) of Section 2(3) and not sub-clause (g). The exception provided under clause (g) cannot take away the main exception provided therein. It is further emphasized that when the Act itself excludes the non residential premises notwithstanding whether it is within 14 sq. meters or more it is the T P Act which is applicable.

I have heard both. Section 2(3) spells out that this very Act does not apply if it falls under clauses (a) to (h). The petitioner is paying rent of more than Rs. 3,500/- which falls under the T P Act and the very premises is used for non residential purpose and the petitioner is running a dental clinic, the area of which whether exceeds 14 sq. meters or not it does not decide. Since the case of the respondent falls under clauses (e) & (g), the exception provided under clause (g) cannot be taken into account to defeat the purpose of exceptions. This Court in the judgment referred above in Smt. Anupama Ramesh Vs. Shri Veerchand, held that "it cannot be defeated by relying upon the extent provided in clause (g) on the ground that the premises is used for commercial purpose and its plinth area does not exceed 14 sq. mtrs." Para-7 is extracted for convenience:

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 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. The exception provided in some of the Clauses in sub-Section (3) will come into play, if the premises is not excluded from the applicability of the Rent Act under any of the other clauses. To illustrate, the Rent Act is not applicable to any premises belonging to the State Government or the Central Government or a local authority in view of Clause (a). This can''t be defeated by relying on the exception provided under Clause (e) on the ground that the rent of the premises does not exceed the limit stipulated therein. Similarly, if the area of a premises used for commercial purpose is more than fourteen square meters, it stands excluded from the applicability of the Rent Act in view of Clause (g). This can''t be defeated on the ground that its rent is less than the amount stipulated in Clause (e). To give one more instance, if a premises is excluded from the applicability of the Rent Act under Clause (e), it can''t be defeated by relying on the exception provided in Clause (g) on the ground that the premises is used for commercial purpose and its plinth area does not exceed fourteen square meters.

The interpretation given by this Court in the judgment referred above is clearly applicable in this case. Accordingly, I do not find any ground to interfere with the order passed by the court below. Revision Petition is dismissed.