VENKATESH THIMMAIAH GURJALKARversusS.S. HAWALDAR

               VENKA TESH THIMMAIAH GURJALKAR                                  A
                                     v.
                            S.S. HA WALDAR

                           OCTOBER 15, 1997

          [DR. A.S. ANAND ANDS. RAJENDRA BABU, JJ.]                            B


      Karnataka Rent Control Act, 1961 : Sections 21 and 51.

      Non-residential premises-Tenant-Eviction of-Shop let out by father
of respondent to the father of appellant-Death of tenant-Eviction C
proceedings filed by respondent-Landlord--C/aim resisted by tenant's son--
Ground that his father had taken the shop on rent in his capacity as Manager
of Hindu undivided family and as such he had inherited the tenancy rights-
Claim rejected by Trial Court-First Appellate Court held that the appellant
had not inherited tenancy right-Landlord had not established ground of D
eviction-Therefore his e11iction petition was not maintainable-High Court
allowed the revision preferred by respondent-landlord-Hence appeal before
Supreme Court-Held, the appellant had not inherited the tenancy, since the
premises in question were non - residential premises-Since the appellant
was not a tenant and had not inherited the tenancy, a petition under Section E
21 of the Act for his eviction was not maintainable-If the respondent wanted
to recover possession of the premises from th~ appellant, he had to take
recourse to filing a suit for possession and not by filing an eviction petition.

     K. Abdul Subhan v. A.K. Satyanarayana Setty, 1984(2) Karnataka Law
Journal72,approved.                                                            F'
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3727of1990.

     From the Judgment and Order dated 26.10.83 of the Kamataka High
Court in C.R.P. No. 1019of1981.
                                                                               G
     Ms. K. Sarada Devi for the Appellant.

     The following Order of the Court was delivered :

     This Civil Appeal is directed against the judgment and order of the Hi~
                                    @7                                         H
    498                       SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Court ofKarnataka dated 26.10.1983 in Civil Revision Petition No. 1091/81.
    The facts and circumstances in which the appeal arises need a brief notice
    at this . stage.

           The suit premises is a shop, which was let out by the father of the
B respondent • landlord, to one Thimmaiah, father of the appellant in or about
     1940 for running a hair cutting saloon at a monthly rent of Rs. 40. There was
    a family partition and the suit premises fell to the share of the respondent •
     landlord, who thereafter became the owner and the landlord of the demised
    premises. According to the pleadings of the parties, in 1972, the original
    tenant Thimmaiah fell ill and stopped paying rent of the premises from January
C 1974 onwards. A notice was issued by the respondent· landlord to Thirnmaiah
    terminating his tenancy and asking hiin to hand over the vacant possession
    of the suit premises. That notice was issued to him on 10.1.1974. Despite the
    notice having been received by Thimmaiah, he did not vacate the premises          -:
    and hand over the possession to the landlord • respondent. Thimmaiah died
D on 12.7.1974. The appellant carried on the hair cutting business in the dimises
    premises and sent rent of the premises to the respondent · landlord, who,
  · however, refused to receive the same on the plea that the appellant was not
 • his tenant and was in unlawful possession of the premises. A notice was
    issued by the landlord to the appellant on 29.7.1974 calling upon him to hand
    over the vacant possession of the demised shop. Since, the notice did not
E evoke any response, the landlord - respondent filed a petition under Section
    21 read with Section 51 (2) of the Kamataka Rent Control Act, 1961 for eviction
    of the appellant in the court of Principal Munsiff, Bijapur. The petition was
    resisted by the appellant. It was asserted that the appellant had been carrying
    on the hair cutting business along with his father and that the shop which
F had been taken on lease by his father was taken by him in his capacity as
    a Manager of the Joint Hindu Family of which the appellant was also a
    member. On that basis, the claimed that he had inherited the tenancy rights
    in the. premises and that those rights did not come to an end on the death
    ofThimmaiah.
G         The Principal Munsiff, after recording the evidence came to the
    conclusion that the premises had not been taken by Thimmaiah as a Manager
    of the Hindu Joint Family and also that the appellant had not inherited the
    tenancy rights of Thimmaiah, who was a statutory tenant at the time of his
    death. Accordingly, on 18.11.1976, the petition for eviction was granted. The
H   order of the Principal Munsiff was challenged by the appellant in revision
                          V.T.GURJALKARv. S.S. HAW ALDAR                          499
      before the learned District Judge, Bijapur. By a detailed order, the learned       A
      District Judge held that the appellant was not a tenant within the meaning of
      Section 3(r) of the Mysore Rent Control Act, 1961 (hereinafter referred to as
      the Act). The learned District Judge further held that the respondent· landlord
      had not established any of the grounds under Section 21 (1) of the Act and,
      therefore, the petition for eviction was not maintainable. The revision petition   B
      was, accordingly, allowed and the order of eviction passed by the learned
      Principal Munsiffwas set aside. The respondent· landlord preferred a revision
      petition in the High Court against the order of the District Judge. The High
      Comt allowed the r~vision petition, set aside the order of the District Judge
      and restored that of the Principal Munsiff.
                                                                                         c
            We have heard Ms. K. Saradi Devi, learned counsel for the appellant.
      Learned counsel submits that since all the three courts have concurrently
=f-   found that the appellant was not a tenant within the meaning of Section 3(r)
      of the Act, the courts ought to have held that the petition for eviction under
      Section 21 of the Act was not competent to recover possession from the             D
      appellant and should have dismissed the eviction petition filed by the
      respondent • landlord.

             From a perusal of the orders of all the three courts, we find that it has
      been concurrently found by them that the premises had not taken on lease
                         a
      by Thimmaiah as Manager of Hindu Joint Family. It has also been found              E
      that the appellant had not inherited the tenancy, since the premises in question
      were non-residential premises and, therefore, tenancy was not heritable. This
      finding of the courts below is fortified by a Judgment of the Division bench
      of the Kamataka High Court in K Abdul Subhan v. A.K. Satyanarayana
      Setty, reported in ( 1984) 2 Karnataka Law Journal, 72 wherein after an analysis   F
      of various provisions of the Act, it has been authoritatively laid down that
      there is no provision in the Act for transmission of tenancy in regard to non-
      residential premises under the Act. In that vievy of the matter, learned counsel
      for the appellant is right to contend that since the appellant was not a tenant
      and had not inherited the tenancy, a petition under Section 21 of the Act for      G
      his eviction was not maintainable. If the respondent wanted to recover
      possession of the premises from the appellant, he had to take recourse to
      filing a suit for possession and not by filing an eviction petition. The learned
      District Judge while hearing the revision was, therefore, perfectly right in
      coming to the conclusion that the respondent - landlord was not entitled to
      file the application for eviction, more particularly, because the landlord had     H
                                                                                         .L




    500                     SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.              "' ...
A not mentioned any of the grounds contained in Section 21 (I) of the Act in
    the petition seeking eviction either. The High Court, therefore, fell in error
    in upsetting the wel) considered judgment and order of the learned District
    Judge dated 4.3.1977. This appeal consequently succeeds and is allowed. The
    order of the High Court dated 26.10.1983 is set aside and that of the District
B   Judge dated 4.3.1977 restored. Since, the respondent is not present, there
    shall be no order as to costs.

    T.N.A.                                                       Appeal allowed.