IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CIVIL REVISION PETITION NO.182 OF 2018 BETWEEN:
1. M/S. M.U. MOTIWALA A PARTNERSHIP FIRM HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 868, BUDHWARPETH SONYA MARUTHI CHOWK PUNE, MAHARASHTRA - 411002 REP. BY ITS MANAGING PARTNER.
2. M/S. M.U. MOTIWALA A PARTNERSHIP FIRM HAVING ITS BRANCH OFFICE AT SHOP NO.1, PROPERTY NO.116 SRI VENKATESHWARA MARKET AVENUE ROAD, BANGALORE 560002 REPRESENTED BY ITS PARTNER SRI. RIYAZ MOHAMMED MOTIWALA.
3. SRI. RIYAZ MOHAMMED MOTIWALA PARTNER OF M/S M.U. MOTIWALA AT SHOP NO.1, PROPERTY NO.116 SRI VENKATESHWARA MARKET AVENUE ROAD, BANGALORE – 560002.
4. SRI. ISMAIL MOHAMMED MOTIWALA PARTNER OF M/S M U MOTIWALA AT NO.868, BUDHWARPETH SONYA MARUTHI CHOWK PUNE, MAHARASHTRA – 411002.
5. SRI. ASIF MOHAMMED MOTIWALA PARTNER OF M/S M U MOTIWALA AT NO 868, BUDHWARPETH SONYA MARUTHI CHOWK PUNE, MAHARASHTRA – 411002.
6. MR. ASLAM MOHAMMED MOTIWALA PARTNER OF M/S M U MOTIWALA AT NO.868, BUDHWARPETH SONYA MARUTHI CHOWK PUNE, MAHARASHTRA – 411002.
(BY Mr. M ASWATHANARAYANA REDDY, ADV.) AND:
SRI. C.S. CHANDRASHEKAR S/O LATE DR C. SATHYANARAYANA SETTY AGED ABOUT 54 YEARS RESIDING AT NO.182/6 FLAT NO.107, “LAA EMERALD” 35TH MAIN, 7TH CROSS BTM LAYOUT 2ND STAGE BANGALORE – 560068.
(BY Mr.P D SURANA, ADV.) … PETITIONERS … RESPONDENT - - -
THIS CRP IS FILED UNDER SEC.18 OF THE KARNATAKA SMALL CAUSES COURT ACT., AGAINST THE ORDER DATED: 17.03.2018 PASSED ON IA.NO.II IN S.C.NO.1407/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM COURT OF SMALL CAUSES, MEMBER, MACT-7 BENGALURU (SCH-7), BY ALLOWING THE ABOVE REVISION PETITION WITH COSTS IN THE INTERESTS OF JUSTICE AND EQUITY.
THIS PETITION COMING ON for ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.M.Aswathanarayana Reddy, learned counsel for the petitioners.
Mr.P.D.Surana, learned counsel for the respondent.
Heard on the question of admission. The petition is admitted for hearing. With consent of the parties, the same is heard finally.
2. In this petition, the petitioners has assailed the validity of the order dated 17.03.2018 by which application filed by the petitioners under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
3. Facts giving rise to filing of the petition briefly stated are that respondent filed a suit for eviction and mense profits against the petitioners in respect of suit property. The defendants have filed the written statement in which inter alia a plea was taken that the Courts of Small Causes has no jurisdiction to try the suit on the ground that the plinth area of the suit property is less than 14 Sq.mtrs. The petitioners thereafter filed an application under Order VII Rule 11(d) of the Code that since, the area of the suit is less than 14 Sq.mts, the same is being used for commercial purposes. The plaintiff ought to have filed a petition for eviction under the Karnataka Rent Act, 1999 (hereinafter referred to as ‘the Act’ for short) and could not have terminated the tenancy by serving a notice under Section 106 of the Transfer of Property Act, 1908. Therefore, the suit filed by the plaintiff is not maintainable. The respondent filed an objection to the aforesaid application, in which it was pleaded that since the petitioners are paying monthly rent of Rs.5,500/- to the respondent therefore, the provisions of the Act are not applicable and the suit filed by the respondent is maintainable. The Trial Court, by impugned order dated 17.03.2018, has held that since the petitioners are paying rent in respect of the suit property at the rate of Rs.5,500/- p.m. and the suit property is situated within the jurisdiction of Part-A of I Schedule, therefore, the provision of the Act is not applicable to the facts of the case and the suit was held to be maintainable.
5. The learned counsel for the petitioners has invited the attention of this Court to Section 2 (e) and 2 (g) of the Act. It is further submitted that the Trial Court has failed to take note of the decision of this Court in ‘K.A.HAMEED VS. JABBAR BAIG’, (2014) 2 KCCR 1095, wherein it has been held that if a suit is filed in respect of commercial premises measuring more than 14 Sq.mts., the provisions of the Act is not applicable and in case of a property used for commercial purposes of which the plinth area is less than 14 Sq.mts., the provisions of the Act would apply. It is further submitted that the interpretation putforth by the Trial Court is contrary to statute. In this connection, reference has been made to a decision of the Supreme Court in ‘VIPULBHAI M.CHAUDHARY VS. GUJARAT COOPERATIVE MILK MARKETING FEDERATION LIMITED AND OTHERS’, (2015) 8 SCC 1. On the other hand, learned counsel for the respondent has placed reliance on a decision of this Court in the case of ‘SMT.ANUPAMA RAMESH VS. SHRI VEERCHAND’, ILR 2013 KAR 4696 and has submitted that even one of the conditions mentioned in Section 2 of the Act is fulfilled, the provisions of the Act are not applicable.
6. I have considered the submissions made by the learned counsel for the parties and have perused the record. From perusal of the order, it is evident that the Trial Court has taken note of the decision in the case of ‘K.A.HAMEED (supra). However, the ratio of the aforesaid decision has not been taken note of while assigning the reasons for rejection of the application under Order VII Rule 11(d) of the Code. The Trial Court has also not taken into account the decision in the case of S.ANUPAMA RAMESH (supra). The impugned order therefore, suffers from the vice of non application of mind and has been passed in a cryptic and cavalier manner. Accordingly, the impugned order is quashed and set aside. The Trial Court is directed to decide the application afresh by a speaking order in the light of the decision referred to supra.
Accordingly, the petition is disposed of.
Sd/- JUDGE ss