VENKATESH THIMMAIAH GURJALKAR versus S.S. HAWALDAR

Citation: [1997] SUPP. 4 S.C.R. 497 · Decided: 15-10-1997 · Supreme Court of India · Bench: A.S. ANAND, S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

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. 
Ms. K. Sarada Devi for the Appellant. 
The following Order of the Court was delivered : 
G 
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 rev

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