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Tatanagar Transport Corporation Vs. Dharmapal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1571 of 1982
Judge
Reported inILR1985KAR2621
ActsKarnataka Rent Control Act, 1961 - Sections 31
AppellantTatanagar Transport Corporation
RespondentDharmapal
Appellant AdvocateT.R. Rangaraju, Adv. for Kesvy and Co.
Respondent AdvocateC.R.V. Swamy, Adv.
Excerpt:
.....premises is residential or non-residential.;the salient considerations for determining whether a building is residential or non-residential, laid down, are :;(i) the instrument of tenancy specifically and explicitly declaring purpose of letting ;;(ii) in the absence of such instrument, direct evidence-aliened concerning purpose of letting adduced ;;(iii) in the absence of such evidence, court to consider user of the premises by tenant as acquiesced by landlord, the user and acquiescence affording a basis for an inference of agreement between parties as to purpose of letting.;on the facts, the premises was held to be a non-residential one let out for non-residential purposes. - karnataka stamp act, 1957 section 3: [anand byrareddy,j] instruments chargeable with duty - petitioner..........a residential or non-residential one. it is held that for the purpose of determining whether the building isresidential or nonresidential, one has to bear in mind a few salient considerations : (i) where there is an instrument oftenancy specifically and explicitly declaring the purpose of the letting as residential or non-residential, no difficultygenerally arises, (ii) where there is no such instrument of tenancy the question will have to be considered on the basis of direct evidence-aliened concerning the purpose of the letting,which may be adduced in a case; (iii) if no such evidence too is forthcoming, the court can only look at the evidenceconcerning the user of the premises by the tenant down to the date of the application for eviction as acquiesced in by the landlord. for such.....
Judgment:
ORDER

Hakeem, J.

1. In this revision petition under Section 56 (1) of the Karnataka Rent Control Act, 1961, (hereinafter referred to as the ('Act'), the tenant has challenged the legality and correctness of the order of the Trial Court whereby he has been directed to vacate and deliver possession of the premises in question to the landlord.

2. The brief facts necessary for the purpose of this case are as follows:

The premises in question consists of a ground floor, 1st floor and the 2nd floor, situated at Siddaiah Road, Bangalore city. The tenant (respondent herein) is a partnership firm, admittedly carrying on transport business in the premises. The landlord sought for eviction of the tenant on the grounds under Section 21 (1) (h) and (p) of the Act. The rent of the premises is Rs. 900/- per month, the tenancy month being the calendar month.

3. The landlord's case is that he was earlier living in a rented house. In pursuance of an eviction order dated 19-2-1974 passed in H.R.C. No. 199/1968, he was forced to vacate the said rented premises and has since beenaccommodate in a friend's house. As such, he requires the premises in question for hisbona fide use and occupation i.e., for the purpose of his residence as well as to commence his own business therein. The tenant resisted the landlord's claim mainly on the ground that the premises in question is a non-residential one, and the rent for which being more than Rs. 500/- per month, the jurisdiction of the Court to entertain the Petition is clearly barred by virtue of the provisions of Section 31 of the Act.

4. The Trial Judge on an appreciation of the evidence on record has held that the premises is being used both for non-residential and residential purposes and hence the bar placed under Section 31 of the Act will not be applicable to the premises in question. After holding the said point in favour of the landlord and assuming jurisdiction to deal with the landlord's petition for eviction of the tenant under Section 21(l) (h) of the Act, the Trial Judge has found that the land-lord's requirement of the premises is bona fide andreasonable, and that greater hardship will be caused to him in the event of the eviction order being refused.

5. Mr. T.R. Rangaraju, learned Counsel for the tenant contended before me that the learned Trial Judge misdirected himself in assuming jurisdiction to entertain the petition and further failed to apply the real criteria for determining, the question whether the premises is a residential ornon-residential one. According to the learned Counsel, the premises in question is a non-residential one and the purpose for which it is leased to the tenant was also non-residential thereby attracting the bar of jurisdiction of the Court under Section 31 of the Act. On the other hand, Mr. C.R.V. Swamy the learned Counsel for the landlord sought to justify the finding of the Trial Court regarding the nature of thepremises and its use, which according to him was not entirely for non-residential purpose.

6. Section 31 reads as under :

'31. Exemption in respect of certain buildings:

Nothing contained in this put shall apply lo a non-residential building the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees.

Provided that the exemption under this Section shall not apply :

(i) to any building taken on lease by a public authority or by an educational institution ; or

(ii) to any building occupied by more than one tenant each paying monthly rent exceeding five hundred rupees or an annual rent not exceeding six thousand rupees.'

7. It appears that the premises in question was let out to the tenant in or about the year 1972 under a written lease deed. Both the parties haveneither produced nor relied upon the said document However, the fact that a portion of the premises namely, the 2nd floor, was being used by its manager of the tenant firm to stay therein admittedly for security reasons is not disputed. It has been elicited in the evidence of the landlord that he had leased the entirebuilding for the purpose of using it as godown and also for business purpose of the tenant. He has further admitted that previously he was himself carrying on business in theschedule premises.

8. In T. Dakshina Moorthy - v. - Thulja Bai and Another, : AIR1952Mad413 (FB) a Full Bench of the Madras High Court had occasion to deal with the question as to criteria for determining whether the building is a residential or non-residential one. It is held that for the purpose of determining whether the building isresidential or nonresidential, one has to bear in mind a few salient considerations : (i) where there is an instrument oftenancy specifically and explicitly declaring the purpose of the letting as residential or non-residential, no difficultygenerally arises, (ii) where there is no such instrument of tenancy the question will have to be considered on the basis of direct evidence-aliened concerning the purpose of the letting,which may be adduced in a case; (iii) if no such evidence too is forthcoming, the Court can only look at the evidenceconcerning the user of the premises by the tenant down to the date of the application for eviction as acquiesced in by the landlord. For such user and such acquiescence afford a safe basis for an inference of agreement between the parties as to the purpose of the letting.

9. In Smt. Saira Khatoon - v. - State of Karnataka and others, : AIR1983Kant205 (DB) a Division Bench of this Court has observed :

'The determining factor in deciding whether a building is a residential or non-residential building is the purpose for which a building is let or to be let. A building cannot be treated as a residential building unless it is let or can he let for residential purpose in its present condition. If it cannot be used for such purpose unless some additions or alterations are made, it cannot be treated as residential building within the meaning of that expression in Section 31C (i) Proviso.'

10. In the instant case on the admission of the landlord himself, it is clear that the premises in question was being treated as a non-residential one at all points of time and in fact it was let out to the respondent firm for non-residential purpose only, namely for the purpose of having theirgo down in the ground floor portion and the 1st and 2nd floor for their business purposes. It is further clear that the premises in question was let out to the tenant for purelynon-residential purpose.

11. There is also no evidence in the instant case to show that any portion of the premises has the necessary amenities for its use for residential purposes; or whether the premises admits of any such alterations so as to convert any portion thereof for residential use. The admitted and established facts in the instant case lead to the irresistible conclusion that the premises in question is anon-residential one and was in fact let out for non-residential purposes. As such, it is clear that the Trial Court's jurisdiction to entertain the eviction petition was clearly barred under the provisions of Section 31 of the Act.

12. In the view I have taken as above, the Civil Revision Petition is allowed. The impugned order of the Trial Court dated 19-10-1981, made in HRC No. 1169/1980, on the file of the 12th Additional Small Causes Judge, Bangalore City, is set aside and the said eviction Petition is dismissed.


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