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PETITIONER: VENKATESH THIMMAIAH GURJALKAR

       Vs.

RESPONDENT: S.S. HAWALDAR

DATE OF JUDGMENT:       05/10/1997

BENCH: A. S. ANAND, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This Civil  Appeal is directed against the judgment and order or  the High  Court of  Karnataka 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 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  1974 onwards.   A  notice was  issued  by  the respondent -  landlord to  Thimmaiah terminating his tenancy and asking  him 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  on 12.7.1974.  The appellant carried  on  the  hair  cutting  business  in  the demises 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 evoke  any response, the landlord - respondent filed a petition under Section 21 read with Section  51(2) of  the Karnataka 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 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, he claimed that he had inherited the tenancy

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rights in the premises and that those rights did not come to an end on the death of Thimmaiah.      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  death.    accordingly,  on  18.11.1976,  the petition for  eviction  was  granted.    The  order  of  the Principal  Munsiff   was  challenged  by  the  appellant  in revision before  the learned  District Judge, Bijapur.  By a detailed order,  the learned  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 was,  accordingly,  allowed  and  the order of  eviction passed  by the  learned Principal Munisff was set  aside.   The  respondent  -  landlord  preferred  a revision petition in the High Court against the order of the District  Judge.    The  High  Court  allowed  the  revision petition, set  aside the  order of  the District  Judge  and restored that of the Principal Munsiff.      We have  heard Ms.  K. Saradi Devi, learned counsel for the appellant.   Learned  counsel submits that since all the three courts  have concurrently 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 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 and  not been  taken on  lease by  Thimmaiah  as  a Manager of  Hindu Joint Family.  It has also been found 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 Karnataka  High Court  in K.  Abdul Subhan Vs. A.K. Satyanarayana Setty reported in (1984 (2) Karnataka Law Journal, 72) wherein after an analysis 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 view 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 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  not mentioned  any of the grounds contained in Section 21(1)  of the  Act in  the petition seeking eviction either.   The  High  Court,  therefore,  fell  in  error  in upsetting the  well 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 Judge dated 4.3.1977 restored.  Since, the respondent is not

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present, there shall be no order as to costs.