- 1 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200425 OF 2018 (INJ) C/W REGULAR SECOND APPEAL NO.200426 OF 2018 IN R.S.A.NO.200425 OF 2018 BETWEEN: SRI.D. SRINIVAS S/O D. PRALHADAYYA AGED ABOUT 75 YEARS, OCC: RETIRED GOVT. SERVANT, R/O: K.G.NAGAR, BANGALORE. …APPELLANT (BY SRI R.S.SIDHAPURKAR, ADVOCATE) AND: SRI.MOHAMMED JAVID S/O ABDUL KHADAR, AGED ABOUT 56 YEARS, OCC: BUSINESS, R/O: H. NO.9-8-69/2, MADDIPET, RAICHUR – 584 101. …RESPONDENT (BY SRI SHIVANAND PATIL, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 JUDGMENT AND DECREE DATED 22.09.2018 PASSED IN R.A.NO.55 OF 2015 BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C., AT RAIHCUR CONFIRMING THE JUDGMENT AND DECREE DATED 04.06.2015 PASSED IN O.S.NO.228 OF 2011 BY THE LEARNED II ADDITIONAL CIVIL JUDGE AT RAICHUR AND DECREE THE SUIT WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY. IN R.S.A.NO.200426 OF 2018 BETWEEN: SRI.D. SRINIVAS S/O D. PRALHADAYYA AGED ABOUT 75 YEARS, OCC: RETIRED GOVT. SERVANT, R/O: K.G.NAGAR, BANGALORE. …APPELLANT (BY SRI R.S.SIDHAPURKAR, ADVOCATE) AND: SRI.MOHAMMED JAVID S/O ABDUL KHADAR, AGED ABOUT 56 YEARS, OCC: BUSINESS, R/O: H. NO.9-8-69/2, MADDIPET, RAICHUR – 584 101. …RESPONDENT (BY SRI SHIVANAND PATIL, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 22.09.2018 PASSED IN R.A.NO.46 OF 2015 BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C., AT RAIHCUR REVERSING THE JUDGMENT AND DECREE DATED 04.06.2015 PASSED IN O.S.NO.228 OF 2011 BY THE LEARNED II ADDITIONAL CIVIL JUDGE AT RAICHUR AND DECREE THE SUIT WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 THESE REGULAR SECOND APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) These two appeals are listed for admission. 2. These two appeals are arise from the Judgment in O.S No.228/2011 on the file of II Additional Civil Judge, Raichur and R.A Nos.46/2015 and 55/15 on the file of III Additional Senior Civil Judge, Raichur. 3. The suit for eviction of the defendant and also for mense profit of Rs.1,500/- per month from the date of the lease agreement till the date of delivery of possession came to be decreed in part. The Trial Court granted a decree for delivery of possession. However, the relief of mense profit is rejected. 4. Aggrieved by the aforementioned Judgment and Decree, the defendant filed R.A No.46/2015 on the file of Senior Civil Judge, Raichur and the plaintiff filed R.A No.55/15 challenging the decree rejecting the mense profit. In terms of - 4 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 the common judgment passed by the First Appellate Court, the plaintiff’s appeal is dismissed, and the defendant’s appeal is allowed. The decree for possession is set aside on the premise that the extent of the suit property is less than 14 Sq.mtrs, as such, the Court has no jurisdiction and jurisdiction is excluded under the provisions of the Karnataka Rent Act, 1999 (hereinafter referred to as ‘Rent Act, 1999’). 5. Aggrieved by the aforementioned judgment and decree of the First Appellate Court, the plaintiff is in the second appeal. 6. After considering the materials on record, following two substantial questions of law arise for consideration. i) Whether the First Appellate Court is justified in holding that the extent of the suit property is less than 14 sq.mts. ii) Whether the Trial Court and the First Appellate Court are justified in refusing the claim for mense profit. 7. Since the issue involved in the case lies on the mense profit, then on the consent of both learned counsel, the appeal is heard on merit. - 5 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 8. Learned counsel for the plaintiff / appellant would contend that the First Appellate Court committed an error in holding that the Civil Court does not get the jurisdiction to try the eviction suit. Despite, the Commissioner’s report clearly reveals that the extent of the suit property is more than 14 sq.mtrs. The First Appellant Court erred in holding that the extent of the suit property is less than 14 sq.mtrs, by only considering the carpet area of the premises. The First Appellate Court could not have excluded the width of the wall and should also be taken into consideration to determine the extent of the premises. 9. In so far as the relief of mesne profit is concerned, it is urged that, the defendant has not paid the agreed rent of Rs.1,500/- pm and the mense profit of Rs.1,500/- pm, being extremely reasonable amount. The Court could not have rejected the bill of payment of mesne profit. 10. Learned counsel for defendant / respondent on the other hand would contend that, both the Courts have concurrently held that the extent of the property is less than 14 sq.mtrs and the contention that it is more than 14 sq.mtrs. - 6 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 is based on pure fact and same cannot not be urged in the second appeal. The Court is only required to consider the appeal on questions of law. As far as contention relating to mesne profit, it is urged that, the evidence is not lead to claim profit and thus, would urge to dismiss the appeals. 11. This Court has considered the contentions raised at the bar and perused the records. 12. There is no dispute that, in case the extent of the property seems to be 14 sq.mtrs, then the Rent Act, 1999 is not applicable and the parties have to seek remedy under Section 106 of the Code of Civil Procedure (for short ‘Code’) and the Civil Court then gets the jurisdiction. Thus, the question is whether extent of the property is in excess of 14 sq.mtrs or not. To substantiate the contentions, the Court Commissioner is appointed. The report of the Court Commissioner would reveal that the carpet area of the shop is 11.8 feet towards East – West and 12 feet towards North – South. Admittedly, carpet area if calculated, would come to less than 14 sq.mtrs. However, it is also relevant to notice that the Court Commissioner has measured the width of the wall in - 7 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 the suit property. Width of the western wall is 27.08 inches and the width of the 50% of eastern wall is 12.5 inches. Section 2(3)(g) of the Rent Act, 1999, which provides for restriction of 14 sq.mtrs in so far as commercial premises is concerned and uses the expression “plinth area”. Thus, it is evident that, it is not the carpet area that is taken into determine the extent of the property, but it is the plinth area. When the statute itself uses the expression “plinth area”, one has to take into consideration the space acquired by the wall and when that is taken into account, it is apparent that the extent of the property is more than 14 sq.mtrs. Hence, the Civil Court gets the jurisdiction. 13. The report of the Court Commissioner is not properly appreciated by the Trial Court as well as the First Appellate Court. Though, the learned counsel for the respondent would contend that it is a pure question of law, what is require to notice is whether the decision is based on the question relating to the extent of land which is rendered by wrongly interpreting the most vital documentary evidence missing in the report of the Court Commissioner. The law felicitate that, in case a vital documentary evidence is either - 8 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 ignored or only it is proved and thereafter the decision is rendered, same would be a question of law under Section 100 of the code. 14. Thus, this Court is of the view that, findings of the Trial Court that the suit property measures less than 14 sq.mtrs and the findings of the First Appellate Court that the property measures less than 14 sq.mtrs are erroneous, it requires interference as the finding has asserted erroneous judgment by wrongly excluding the jurisdiction of the Civil Court. 15. As far as the mesne profit is concerned, there is no dispute that Rs.1,500/- pm is the rent payable to the premise. To the specific question put by the Court, learned counsel for the respondent has admitted that rent is not paid since the suit is filed for eviction. In case the plaintiff is claiming higher profit than the monthly rent, then, there has to be an evidence to justify the claim for amount higher than the agreed monthly rent. Since the plaintiff’s claim for the mesne profit is on par with monthly rent, there is no need to lead any further evidence relating to mesne profit payable. Admittedly, after filing of the suit, no rent is paid. Under these circumstances, - 9 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 both Courts have erred in not passing the decree for mesne profit. 16. It is noticed that, till today from the date of the suit, the defendant is in arrears of rent. The defendant is occupying the property. 17. It was without saying that, rental value would have been much higher than what it was 20 years ago. To that extent, the plaintiff has suffered loss. The amount payable to the plaintiff was unjustly retained by the defendant and the plaintiff is deprived of making use of the said rent. The plaintiff is also required to pay the property tax. 18. Under these circumstances, this Court also deems it appropriate to award interest at the rate of 6% p.a. on the arrears of rent payable by the defendant. 19. Hence the following: ORDER i) Appeals are allowed. ii) Impugned judgment and decree dated 22.09.2018 in R.A No.46/2015 and R.A - 10 - NC: 2025:KHC-K:2505 RSA No. 200425 of 2018 C/W RSA No. 200426 of 2018 No.55/2015 on the file of III Additional Senior Civil Judge, Raichur and the judgment and decree in O.S No.228/2011 dated 04.06.2015 on the file of II Additional Civil Judge, Raichur are set aside. iii) The defendant shall pay the arrears of rent along with interest at the rate of 6% p.a. from the date when the rent became due till its payment. iv) The defendant is not entitled to resist the execution proceedings, unless the arrears of rent ordered by this Court is deposited before the Executing Court. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM List No.: 1 Sl No.: 49