Shri Basavalinga vs Shri Mohan Raja

K.N. Keshavanarayana, J.—Over-ruling the office objections, the appeal was heard regarding admission.

This Miscellaneous Second Appeal Sled under Order 43 Rule 1(u) of C.P.C. is directed against the judgment and order dated 04.09.2008 passed by the Additional Civil Judge (Sr.Dn.), Hassan, in R.A. No. 18 of 2008 whereunder the Lower Appellate Court after setting aside the order of the trial Court dismissing the suit on the basis of finding on Preliminary issue and remanding the suit to the trial Court for recording findings on other issues.

The appellant is the defendant while the respondent is the plaintiff in the trial Court The plaintiff filed the suit in O.S. 221 of 2006 on the file of the Principal Civil Judge (Sr.Dn.) and JMFC-II, Hassan, against the defendant for ejectment from the suit schedule shop. According to the plaintiff, defendant is the tenant of the shop premises measuring East-West 10 ft and North-South: 12 ft. on a monthly rent of Rs. 1,250/- and the defendant became the tenant of premises w.e.f. 10.07.2003. It is also his contention that the building of which the suit schedule property forms part, was constructed in early part of 2003 and the defendant became the first tenant of the schedule shop premises. The suit for ejectment was filed after terminating the tenancy of the defendant by issuing notice on the ground that the provisions of the Karnataka Rent Act, 1999 (hereinafter referred to the as the ''Act'') are not applicable to the premises in question. The defendant upon appearance, apart from other defences, contended that the suit is not maintainable, as the premises in question is used for commercial purpose and its plinth area is less than 14 Sq. Mts, as such, the Act is not applicable.

The trial Court framed several issues including issue regarding jurisdiction of the Court to entertain the suit in the light of the provisions of the Act The parties led evidence. However, the trial Court proceeded to record a finding on Issue No. 3 treating it as a Preliminary Issue, as it was touching the jurisdiction of the Court to entertain the suit Having regard to the admitted fact that the plinth area of the premises in question was less than 14 Sq.Mts and since the premises was used for commercial purposes, the trial Court in the light of the provisions of Section 2(3)(g) of the Act held that, the provisions of the Act are applicable to the premises in question, as such, the suit for ejectment is not maintainable. Accordingly, the trial Court answered Issue No. 3 in the affirmative and dismissed the suit of the plaintiff holding that the Court has no jurisdiction to entertain the same.

Being aggrieved by the said order, the plaintiff filed appeal before the Lower Appellate Court. The principal contention raised before the Lower Appellate Court was that the trial Court has completely ignored the fact that the provisions of the Act are not applicable to the premises in question, as the building was constructed in the year 2003, and as per the provisions of Section 2(3)(f) of the Act, the provisions of the Act, are not applicable for a period of 15 years from the date of construction of the building. Therefore, the finding of the Court below on preliminery issue is perverse and illegal and is liable to be set aside. The Lower Appellate Court having found that the plaintiff has specifically pleaded in the plaint that the building was constructed in the year 2003 alter obtaining a licence from the Municipality in the year 2002 and that the defendant became the first tenant of the premises in the year 2003, held that the provisions of Act are not applicable to the building for a period of 15 years from 2003 in the light of the provisions of Section 2(3)(f) of the Act In that view of the matter, the Lower Appellate Court held that the suit is perfectly maintainable before the Civil Court and the finding of the trial Court on preliminary issue is perverse and illegal. Therefore, the Lower Appellate Court set aside the finding of the trial Court and the order of dismissal of the suit as not maintainable and directed the trial Court to hear the parties on other issues and record its finding thereon. It is against the said order of remand, the defendant has presented this appeal

I have heard the learned Counsel appealing for the appellant Perused the judgments of the Courts below. I see no merit in this appeal Admittedly the defendant/appellant is the tenant in the schedule premises, which is a shop premises having plinth area of 120 Sq.Ft. It is also an undisputed fact that the defendant became the tenant of the schedule premises w.e.f. 10.07.2003. The evidence placed by the plaintiff on record as noted by the Lower Appellate Court indicates that, the plaintiff obtained the building licence from the Municipality as per Ex.P.9 in the year 2002 and thereafter, the City Developmental Authority issued a Commencement Certificate as per Ex.P10 in the year 2002 and thereafter the city construction of the building was commenced and completed in the year 2003. The Appellate Court also noticed that, in the plaint the plaintiff has made specific averments regarding the year in which the building was constructed. It was also noticed that the defendant in his written statement has not controverted the said averment made in the plaint Perusal of the order of the trial Court indicates that the it has totally failed to consider the evidence placed on record to find out as to whether the provisions of the Act are applicable or not to the premises in question. The trial Court merely proceeded on the ground that the schedule premises is used for commercial purposes and its plinth area is less than 14 Sq. Mts. and therefore, in view of Section 2(3)(g) of the Act, the provisions of the Act are applicable to the premises in question. However, the trial Court totally overlooked the fact that since the building has not yet completed 15 years from the date of its construction, the provisions of the Act are not applicable as provided in Section 2(3)(f) of the Act Under these circumstances, the Lower Appellate Court has rightly held that the order of the trial Court is erroneous and contrary to the provisions of Section 2(3)(f) of the Act Learned Counsel for the appellant did not rightly dispute the fact that the provisions of the Act are not applicable to the building for a period of 15 years from the date of its construction. Under these circumstances, I see no error in the judgment of the Lower Appellate Court in setting aside the findings of the trial Court on preliminary issue. After setting aside the findings of the trial Court on the preliminary issue, the Lower Appellate Court in exercise of its power under Order 41 Rule 23, has remanded the case to the trial Court for hearing the parties on other issues and to record findings thereon.

In the light of the discussions made above, I see no ground to admit this appeal Hence, the appeal is rejected.