IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.206/2019 BETWEEN:
SRI V.A. VENKATESH S/O LATE V.A. AMBAS AGED ABOUT 60 YEARS NO.89, KILARI ROAD BENGALURU-560 053.
[BY SRI. THIMMAIAH K.H., ADV.] AND:
SRI Y. NARASIMHAIAH S/O LATE YERAPPA AGED ABOUT 85 YEARS R/AT NO.71, 7TH CROSS MALLESHWARAM BENGALURU-560 003.
[BY SRI. A.N. KRISHNASWAMY, ADV.] ... PETITIONER ... RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF SMALL CAUSES COURT ACT, AGAINST THE ORDER DATED 19.02.2019 PASSED ON I.A.NO.2 IN S.C.NO.749/2018 ON THE FILE OF THE VI ADDITIONAL SMALL CAUSES JUDGE AND XXXI ACMM, REJECTING I.A.NO.2 FILED UNDER ORDER 7 RULE 11 (d) R/W U/S 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is directed against the order dated 19-2-2019 in S.C.No.749/2018 on the file of the VI Additional Small Causes Judge and XXXI ACMM, Bengaluru, whereby I.A.No.2 filed under Order VII Rule 11(d) of CPC is rejected.
2. The petitioner is defendant and respondent is plaintiff in S.C.No.749/2018 filed praying for ejectment against the defendant to quit, vacate and hand over vacant possession of the plaint schedule premises in favour of the plaintiff.
3. On issuance of notice, the defendant appeared and filed written statement, contending that the suit is not maintainable since the suit schedule property measures less than 14 sq.meters and the rent paid is Rs.3,000/- per month.
4. The plaintiff filed his objection to the application contending that only the suit averments to be taken into consideration while considering the application filed under Order 7 Rule 11(d) of CPC. As per the suit averments the rent of the schedule premises is fixed at Rs.8,000/- per month excluding the other charges like Water and Electricity. He submits that the suit is maintainable and prays for rejection of the application. The trial Court vide impugned order dated 19.02.2019 rejected the application filed by the defendant. Hence the present revision petition.
5. Heard the learned counsel for the petitioner and learned counsel for the respondent.
6. Learned counsel for the petitioner would submit that the suit filed by the plaintiff for ejectment of the defendant would not be maintainable, since the suit schedule premises is less than 14 sq.ft and the rent is fixed at Rs.3,000/- per month, hence the eviction petition is barred by law under Section 2 (3) (e) (i and g) of the Karnataka Rent Act, 1999 (for short ‘the Act’). Learned counsel invites attention of this Court to paragraph 4 (iii) of the written statement and submits that the specific contention is that the suit is not maintainable as per Section 2 (3) (e) (i) and (g) of the Act. It is his submission that the Court will have to look into the written statement averments also while deciding the application filed under Order VII Rule 11 (d) of CPC.
7. Per contra, learned counsel for the respondent - plaintiff submits that while deciding the application filed under Order VII Rule 11(d) of CPC only the suit averments will have to be looked into and the written statement filed by the defendant would be of no consequence. It is further submitted that as per the suit averments rent was fixed by the parties at Rs.8,000/- per month, which is averred in the plaint at paragraph 2. Hence he submits that the suit for ejection would be maintainable as the rent is more than Rs.3,500/- per month, wherein the defendant carries on business in the schedule premises, thus prays for dismissal of the revision petition. Further the learned counsel relies upon the decision of this Court in GOUSMOHIDDIN Vs. FAZALULLA AND OTHERS reported in 2017 (1) KCCR 190 wherein this Court has held, plea that the suit premises is less than 14 square meters the suit is not maintainable, is an issue which requires trial. Thus prays for dismissal of the revision petition.
8. On hearing the learned counsel for the parties and on perusal of the material on record, the only point that arise for consideration is as to "Whether the trial Court is justified in rejecting the application filed by the petitioner herein under Order VII Rule 11(d) of CPC ?
The suit filed by the plaintiff is for eviction of defendant from the suit schedule premises. Paragraph 2 of the plaint reads as follows :-
"2. The Plaintiff submits that plaintiff is the absolute owner of the property bearing No.89, Ground Floor, Kilari Road, Bangalore measuring 6 ¾ x 19 feet more fully described hereunder the schedule and hereafter referred to as the schedule premises and the Defendant is permitted to stay for 6 months as a permissible tenant in respect of the schedule premises from February 2016 on a rent of Rs.8,000/- per month excluding other charges like electricity and water. A sum of Rs.1,00,000/- was given by the defendant as advance/refundable security deposit through cheque bearing No.328257 drawn on Andhra Bank"
9. A perusal of the above would indicate that the property measures 6 3/4 ft and 19 ft and the rent is fixed at Rs.8,000/- per month excluding the other charges like Electricity and Water. But the defendant disputes the said rent stated in the plaint and submits that the rent paid by the defendant is only Rs.3,000/- per month. When there is a dispute with regard to rent between the parties and with regard to area of the premises and as to whether he is carrying on business in the said premises, are matter for trial. It is settled position of law that while deciding the application filed under Order VII Rule 11(d) of CPC only the plaint averments will have to be looked into and the averments made in the written statement cannot be looked into as it is of no relevance. This Court in the decision of GOUSMOHIDDIN Vs. FAZALULLA AND OTHERS reported in 2017 (1) KCCR 190 at paragraph 6 it is held as follows :-
"6. In the light of the contentions, firstly with regard to the size of the property, it is seen that though the boundaries have been indicated in the Schedule-A to the plaint, the indication of the total extent has been mentioned therein. The property bears a single revenue number viz., CTS No.2108-
C. If that be the position, though two small wooden units measuring 7 ft x 6ft is in occupation of the petitioner herein since the tenant is the same and the same are adjoining to each other with a single number, certainly a petition of the said nature at this stage cannot be rejected based on an application filed under Order 7, Rule 11(d) inasmuch as these are matters of evidence which will have to be ultimately decided."
Whether the suit property, which is used for commercial purpose is less than 14 sq.mtrs and whether the rent is Rs.8,000/- as claimed or whether the rent is Rs.3,000/- is a matter for trial. Thus I am of the view, that the trial Court has not committed any material or jurisdictional error in passing the impugned order. Accordingly, Civil Revision Petition is rejected. All contentions of the parties are left open.
Sd/- JUDGE NG* CT:bms