IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28 TH DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM CRP No. 254 OF 2006 BETWEEN: SRI M.PARASMAL, Sb MISRIMAL, AGED ABOUT 72 YEARS, CARRYING BUSINESS AT NO.123, MAMULPET, BANGALORE REP BY LR’s GPA HOLDER SURESH KUMAR, S/0 M.PARASMAL, R/AT NO.3, MAMULPET, BANGALORE - 53 SINCE DEAD BY L.Rs.: 1(a) P.UTTAM CHAND S/0 LATE M.PARASMAL, AGED ABOUT 5 YEARS 1(b) P.GAUTHAM CHAND S/O LATE M.PARASMAL, AGED ABOUT 50 YEARS 1(c) P.PRAKASH S/O LATE M.PARASMAL, AGED ABOUT 48 YEARS 1(d) P.SURESH KUMAR S/0 LATE M.PARASMAL, AGED ABOUT 46 YEARS 1(e) P.DINESH KUMAR S/0 LATE M.PARASMAL, AGED ABOUT 40 YEARS 1(f) P.NAVRATAN 5/0 LATE M.PARASMAL, AGED ABOUT 36 YEARS 1(g) SUNITHA D/O LATE M.PARASMAL W/O SUNIL KU MAR .PETITIONERS (BY SRI P.D.SURANA, SRI B.M.MAHESHWARA, SRI SHIVASHARANAPPA.N AND SRI MUKESH KUMAR RD., ADV’s.,) AND: 1. M/S SHA SAMARATHAMAL SUM ERMAL AND SONS, NO.29L, MAMULPET, BANGALORE - 560 053 REPRESENTED BY DINESH KUMAR, S/0 LADMUUI. 2. SRI DINESH KUMAR, Sb LADMULJI, NO.29, MAMULPET, BANGALORE - 560 053 RESPONDENTS (BY SRI K.SURYANARAYANA RAO AND SRI CHANDAR S. RAO ADV., FOR Ri AND SRI H.J.SANGHVI, ADV., FOR R2) CRP FILED U/S 18 OF THE SMALL CAUSES COURTS ACT AGAINST THE JUDGMENT AND DECREE DATED 18-02- 2006 PASSED IN SC.KLNO.1906/2003 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, (,j t I 3 (SCCH NO.1) DISMISSING THE SUIT FOR EJECTMENT AND POSSESSION AS NOT MAINTAINABLE. THIS Ptii I iON IS COMING ON FOR ORDERS THIS DAY, THE COURT MADE ThE FOLLOWING: ORDER The Landlord’s revision under Section 18 of the Small Causes Courts Act, against the Judgment In S.C. No. 1906/2003 on the file of Judge, Small Causes Court, Bangalore dismissing the suit. 2. Heard the learned counsel on both sides. 3. The contextual facts which needs reference are: LM.Parasmai, the petitioner filed a suit in OS No.1906/2003 against the firm MIs Sha Samarathmal Suremai & Sons and also against one Dinesh Kumar, seeking their eviction from the premises described in the schedule to the petition on the premise that he is the owner of the said premises in which father of the defendant No.2 was inducted as Tenant. He commenced business and was carrying on it under the name and style of M/s Sha 4 Samarathmal Suremal & Sons. Transaction of lease is documented in deed of lease executed on 04-02-1960, in pursuance to which building was let on Rs.400/- it was increased to Rs.625/-. After demise of the father of defendant No.2, defendant No.2 continued to carry on business in the same premises. 4. It is further averred that ground floor of the schedule premises is more than 14 sq. ft. while the first floor is lesser area than the ground floor. In terms of the lease of the year 1960 defendant was inducted as Tenant. Petitioner called upon the respondent to vacate the premises, but they declined. Hence, notice terminating the tenancy was issued calling upon to vacate the premises by the end of July 2003, as is evidenced from the statutory notice dated 13-06-2003. That notice was also not complied. 5. The 2 nd respondent resisted the proceedings on his behalf and on behalf of 1 st respondent denying all averments in the plaint and questioned the maintainability of the suit. He categorically denied that the premises leased is non residential building. It is further averred that the 5 • ground floor is shop and 2 nd floor is residential unit were they are residing. They denied knowledge that respondent No.1 had executed deed of lease dated 04.02.1960 InItially for Rs.400/- and increased later to Rs.625/-. Seeking protection under the provisions of the Karnataka Rent Act they averred that the tenancy Is not single tenancy, but separate units. In this regard they averred they are paying Rs.350/- as rent for the ground floor and Rs.275/- for first floor where they are residing. They also denied that father of the respondent No.2 had executed deed of lease referred to above. Describing the claim as Ill-motivated they sought dlsmlssai of the suit. Besides, they questioned jurisdiction of the trial Court to entertain the suit. 6. Based on material propositions in their pleading the parties lead evidence. The petitioner on his part examined one Suresh Kumar as PW1 while respondent No.2 examined himself as DW1. Six documents were filed In support by the petitioner while respondents — defendants flied 10 documents, which comprise rent receipts. 7. The learned trial Judge noticing grounds In the petition and the defence held the provisions of Karnataka 6 Rent Act, 1999 (In short ‘the Act’) was applicable and suit flied for ejectment was not maintainable. Consequently, the suit Is dismissed. Assailing It this revision is filed. 8. However, during pendency of this petition a question was raised as to whether the Court of Small Causes has jurisdiction to entertain the suit for ejectment In view of the ruling of the Division Bench of this court In the case of SAROJAMMA vs K.M.VENKATESH reported in ILR 2007 KAR 3309. On reference by the learned single Judge the issue has been considered by larger Bench. In view of rendition of judgment by Larger Bench holding that the Small Causes Court has jurisdiction to entertain suit for ejectment, that Issue does not survive for consideration now. 9. The learned counsel Mr. Surana, for petitioner would contend that trial Court has seriously erred In dismissing the suit despite evidence on record. In this regard he referred to Ex.P2 deed of !eased dated 04.02.1960 by which premises was rented out, and establishes that parties are knit by jural relationship of Landlord and Tenant. He would further contend the transaction of lease is single tenancy In respect of two 7 portions, one in ground floor and one in first floor. Both are commercial units. The respondent — Tenant was granted lease of the premises to carry on business In bangles. The first floor was used for storing and ground floor was used as a selling place. Therefore, the tenancy was single tenancy. He denied averments in the counter that rent was payable separately for residential and non-residential premises. He placed reliance on the following decisions to contend that trial Court has seriously erred in ignoring the material evidence on record regarding maintainability of suit and jurai relationship: 1. 2001 MR - Kant.H.C.R 1170 2. MR 1963 SC 468 3. MR 2000 ANDHARA PRADESH 417 4. MR 1989 SC 1470 5. AIR 1965 SC 716 6. AIR 1975 RAJASTHAN 23 7. MR 1964 ALLAHABAD 350 8. AIR 1973 SC 584 9. AIR 1960 SC 655 10. MR1963SC698 11. AIR 1964 SC 461 12. 1972(2) KAR.LJ. 202 13. 1972(2) MYS.L.J. 402 14. 1998(5) KAR.LJ.308 15. MR 1975 GUJARAT 1 10. The learned counsel Mr. Sanghvi for respondent No.2 and Sri K.Suryanarayana Rao for respondent No.1, have supported the impugned judgment. 11. Learned counsel Mr. K.Suryanarayana Rao for the i’ respondent submits, petitioner has described the 1 st respondent as a concern and shown 2 nd respondent as its proprietor. Therefore, if the 1 st respondent is a proprietary concern, no action in law is permissible against it. If the firm was owned by the 2’ respondent, then the action is against an individual. He submits petitioner does not dispute that the 1 st responent is a proprietary concern, established by Ladmuiji and upon his death, all legal heirs have succeeded to it and should be brought into party array. He submits evidence establishes 2 respondent father started the proprietary concern and after his demise, the tenancy has devolved on his legal heirs by virtue of Section 5 of the Rent Act amongst his legal heirs. 12. As only the 2’ defendant-Dinesh Kumar has been brought into the party array, it renders the proceedings not maintainable. In other words, his 9 contention is, eviction action against the proprietary concern Is not permissible. 13. The second contention is, as the tenancy is not one but two, one suit for eviction was not maintainable. In this regard, he and the learned counsel for the 2 respondent contend that the 1st floor is a residential unit, while the ground floor is a commercial unit. The 2 td respondent has been payng rents at Rs.275/- p.m. for the residential unit and Rs.350/- for the non-residential premises. Therefore, separate eviction proceedings were necessary. 14. The third ground is as first floor unit is residential portIon In occupation of all the heirs of the deceased tenant, they are entitled to protection of Section 5 of the Rent Act. Therefore, eviction proceedings only against one of the heirs is not maintainable. 15. The following case laws are cited in support of such contentions: 1. AIR 1977 NOC 96 (Delhi) 2. AIR 1977 NOC 97 (Gau) 3. AIR 1977 NOC 98 (Gau) 4. AIR 1977 NOC 99 (Gau) 10 5. AIR 1977 NOC 100 (Him Pra) 6. AIR 1968 BOMBAY 294 7. AIR 1968 BOMBAY 298 8. AIR 1980 ALLAHABAD 300 9. AIR 1980 ALLAHABAD 302 10. AIR 1977 ORISSA 182 11. AIR 1977 ORISSA 183 12. AIR 1977 ORISSA 184 13. AIR 2002 SC 3073 14. AIR 2002 sc 3079 15. AIR 1968 MADRAS 203 16. AIR 1968 MADRAS 207 16. The contentions of both sides have received my consideration and I have examined records in supplementation thereto. 17. It reveals in eviction action by M.Parasmal (since deceased), he categorically averred 1 St respondent/defendant is a proprietary concern and 2 d respondent/defendant is the present proprietor. There is also a categoric mention that for all intent and purposes, Dineshkumar21d respondent/defendant is the tenant. Similarly, Dineshkumar, in his written statement, has categorically admitted he is the son of Ladmulji who had started the defendant concern, viz, SHA SAMARATHAMAL SUMERLAL & SONS in the premises in question. But what he contends is, tenancy was originally between the landlord and his grandfather. After the expiry II of his grandfather, his father Ladmulji became the tenant and after the death of Ladmuiji, he has continued the said business. Therefore, there Is no dispute that the 2 nd defendant-Dineshkumar contested the proceedings throughout as the only successor of the proprietor of l respodent/defendant proprietorship concern. 18. There is also no dispute that tenancy in favour of the proprietary concern or the proprietor comprises 2 portions, a resldential portion in the 1 g floor and a non residential portion in the ground floo(, granted vide exhibit P2. AccordIng to the landlord, he had let out the said portions only for carrying on commercial activity, i.e. for business. In this regard, he has further averred that the ground floor Is the place where respondents are carryIng on business while the l floor Is used as a godown to store the products. In other words, it is stated that both the portions are non-residential units. 19. The landlord has not accepted genuinety of rent receipts Exs.D1 to D1O, but relies on Ex.P2 to contend it is a single transaction in respect of the two portIons. Ex.P2 Is the lease deed by which the tenancy Is created. Learned 12 counsel, Sri Surana for the petitioner-landlord would submit under Ex.P2, two portions are let out which fact is not denied by the 2x respondent therefore, it is a single tenancy. Merely because the tenant is using the 1 g floor for residence, it cannot be segregated from the other portion which is commercial. He draws my attention to the cross- examination of the tenant wherein he admits that of late they are using the 1 floor for residence. Relying on such answer, he submits it is one more ground to seek evIction for contravention of the terms of tenancy In using a non residential portion for residential use. 20. Though such attempt was made by the learned counsel, It must be noticed Exs.D1 to D10 produced by the tenant show they are receipts issued acknowledging receipt of rent. While Rs.350/- p.m. is shown as rent for the ground floor, Rs.275/- p.m. is for the l floor. Though the landlord disputes such contention, as these documents are unlmpeached, It Is acceptable In evIdence. Since it spells out separate rent was collected for the two portions, tenancy has to be considered as split tenancy, one pertaining to the portion in the 1 floor and the other in 13 respect of the portion in the ground floor. As It Is elicited on behalf of the landlord that the 1st floor is used for resIdence, It has to be held It is the residential portion. So far as the ground floor is concerned, there is no dispute it is a non-residential portion, pllnth area of which more than 14 sq.feet. Thus, the provision of the Rent Act would not apply to it. The suit filed by the landlord was, therefore, maintainable, in respect of ground floor. 21. I have already referred to the stand taken by the landlord and respondents 1 and 2 whIch spells out though the tenancy Is admitted, establishing jural relationship of landlord and tenant between the petitioner and the tenants, It Is not a single tenancy. Tenancy relates to two portions, a residential portion In the 1 floor and a non-residential portion in the ground floor. For these reasons, I am constrained to hold the suit filed by the petitioner seeking eviction of the tenant In respect of the ground floor which is more than 14 sq.feet in plinth area was maintainable, while the relief sought by the landlord seeking eviction from the residential portion in the 1 floor was not grantable In the suit, as the said portion is subject to the provisions of the a1 13 Rent Act granting protection to the tenants against eviction except on any other grounds enumerated in sub-section (2) of Section 27 of the Rent Act. With this finding, we have to now consider what is the consequence. 22. Regarding other grounds the contention of Sri Suryanarayana Rao and Sri Sanghvi that the suit should have failed because all the legal heirs of Ladmulji are not brought on record has to be examined with reference to the fact situation, In the suit, Dineshkumar-2 respondent did not dispute he is the proprietor of the 1 st defendant firm, though belatedly he did contended there are other heir of Ladmalji but, he did not dispute, it is he who is continuing to be in possession after demise of his father, the tenant. Therefore, in the absence of plea the other heirs are also using ground floor before the trial court, it cannot be said that the suit was not maintainable on the ground that all the legal heirs of Ladmulji are not brought on record. This is so because the ground floor is a non-residential portion as canvassed by the respondent himself and even if there were to be any other legal heir left behind by the original tenant, eviction action would not have been frustrated in view of 15 the law laid down by several decisions of the apex court as also this court. Reference could, be made to the decision of this court in the case of COL.W.E.SATYANARAYANA (RETD.) vs SIlT JANAKIANMAL AND ANOTHER reported in AIR 2001 Kant.HCR1170 where, considering the question of impleadlng of necessary parties In an eviction action, it is held when eviction action is in respect of a non-residential premises, on death of the original tenant, If all the legal heirs are not brought on record, the petition would fail. This is because who succeeded to tenancy in respect of residential premises is to be ascertained for protection granted to the legal heir of the tenant in occupation of the residential portion. Besides, such plea will be tenable as if the Kamataka Rent Act is applicable. 23. At this juncture, reference could also be made to Section 5 of the Act which deals with inheritable right of tenancy. SectIon 5 spells out the category of persons who will succeed to tenancy. It reads thus: ‘INHERITABILITY OF TENANCY.- (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in S 16 the order, namely, (a) spouse; (b) son or daughter or where there are both son and daughter both of them; (c) parents; & (d) daughter-in-law, being the widow of his predeceased son. Provided that the successor had ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant: Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter Is owning or occupying a premises in the local area In reiation to the premises let. (2) If a person, being a successor mentioned in sub-sectIon (1), was ordinarily living In or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies, such successor shaii acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished. Explanation.- For the removal of doubts, it is hereby dedared that, (a) where, by reason of sub-section (2), the right of any successor to continue in possession of the premises becomes 17 extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises but if there is no other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be; (b) the right of every successor, referred to in sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs.” Therefore, the language of Section 5 spells out that merely because a person is the iegai heir of the deceased tenant wiil not become entitled to the hereditary right of tenancy, unless it is shown that he or she had ordinarily lived or carried on business In the premises with the deceased tenant as a member of his family upto the date of his death and was also depending on the deceased tenant. In the absence of proof ofo such circumstance, no legal heir could seek the right of hereditary tenancy. 24. In this case, 2 respondent-Dineshkumar has not brought out through his pleadings or evidence that there are other legal heirs of the original tenant. He has also not brought out that even if there are such heirs, they p-i 18 were either living or carrying on business with him in the premises in question. Therefore, I am satisfied non impleading of all legal heirs, if any, of the deceased tenant, Ladmulji does not affect the maintainability of the suit filed by the landlord. Hence, this ground urged by the respondents is over-ruled. 25. Based on the discussion, I am satisfied that the landlord was entitled to an eviction order to evict the respondents from the non-residential portion of the premises as he had terminated the tenancy by issuance of statutory notice as envisaged under Section 106, Transfer of Property Act. Therefore, the decree passed by the trial court dismissing the suit is certainly unsustainable. 26. This takes us to the next question as to what will be the position in respect of the 1 st floor. As discussed in paragraphs supra, since the 1st floor is shown to be a residential portion, and as per Exs.D1 to D10, tenant has shown separate rent was paid in respect of that portion, he is entitled to protection provided by Section 27(1) of the Rent Act. Hence, the eviction of the tenant in respect of that portion, could be only on any of the grounds envisaged c) 19 in sub-sectIon (2) of SectIon 27 of the Rent Act and not by Issuing of notce terminating tenancy under SectIon 106 of the TP Act. In this view, the relief sought in the suit seeking eviction of the respondents from the 1 flodr portion was not grantable md to this extent, the suit was not maintainable. 27. WIth this conclusion, we have to see whether as contended by the learned counsel, Sri Suryanarayana Rao and Sri Sanghvi, the entire suit had to fail, because no decree could have been passed In respect of the residential portion In the 1 floor. Had the tenant taken the contention that it is a composite tenancy under one transaction and common rent was payable, it could have been held that tenancy cannot be split to order eviction from the portion. But since the tenant himself has assertively contended that tenancy is not either composite tenancy or singie tenancy and as he has put forward the plea that there are two tenancies, one relating to the non-residential portIon in the ground floor, and the other, a residential portion In the 1 g floor, such ground Is untenable. Even accepting the tenant’s contention that there are two tenancies, certainly cii ‘7 20 the order of eviction in respect of the non-residential portion in the ground floor was grantable, while eviction actIon in respect of the 1 floor was not permissible In the original suit. 28. In the result, the judgment and decree passed by the trial court in S.C.1906/03 is liable to be set aside. However, the suit is decreed only in respect of the non residential premises and not in respect of the residential premises in the 1 floor. At this juncture, Sri Surana submits landlord’s right to seek eviction of the tenant from the 1st floor may be saved. I accept this request and accordingly, the right of the landlord to seek eviction of the respondent-tenant in the manner provided under law Is reserved. 29. In the result, the petition succeeds In part, The judgment and decree passed by the trial court dismissing the suit, S.C.1906/03 Is set aside. The suit shah stand decreed directing evIction of the respondent-tenant In respect of the shop premises measuring 12’ x 22’ forming a portion in the ground floor of premises no.29, (Old No.111), BeehI Basavanna Temple Street, Mamulpet, 21 Bangalore-560 053, (exduding the residential portion in the 1st floor). The tenant is granted a year’s time from today to quit, vacate and hand over vacant possession of the premises to the landlord, without causing any impediments and subject to payment of monthly rents regularly. Sd/a JUDGE VKIvgh