ORDER
H.V.G. Ramesh, J.
1. This revision is by the landlord aggrieved by the rejection of the eviction petition filed by him in HRC 200/2002. Eviction petition was filed under Section 40 of the Karnataka Rent Act, 1999 by the landlord seeking for possession of the vacant open space measuring 40 x 80 ft. bearing No. 14, Situate at I Main Road, Seshadripuram, Bangalore for his bonafide requirement
2. After filing of the petition, during pendency, respondent filed an IA under Order 7 Rule 11(a) & (d), CPC to reject the plaint After hearing the parties, the trial court has dismissed the eviction petition filed by the landlord while allowing the application filed by the respondent Hence, this revision.
3. Heard the counsel for the respective parties.
4. The trial court after enquiry and after hearing both sides has noted that it is admitted that the open space mentioned in the schedule was let out to the respondent At the time of letting out the open site there was no structure on the vacant she put up by the landlord and as per the lease deed, the tenant was permitted to construct temporary structure. The trial court has also noted that Section 40 is a special provision regarding recovery of possession of & vacant site excluding the building let out to the tenant and the court can direct appropriate orders. However, it has arrived at an erroneous conclusion that in view of Section 40 of the new Act, the petition filed under Section 27(2)(r) is not maintainable and that Section 40 would only apply in respect of vacant land which can be severed from the rest of the premises let out to the tenant By a different reasoning the trial court has rejected the petition. Further, it has also noted that no such similar provision like Section 21(1)1) of the Rent Control Act, 1961 is provided under the 1999 Act and it appears by mis-interpretation, the trial court has allowed the IA filed by the tenant by dismissing the petition filed by the landlord.
5. At the outset, the trial Judge failed to note that the application itself is filed under Section 40 of the 1999 Act and not under Section 27(2)(r). A glaring error has been committed by the trial court in observing so without noticing under what provision the petition was filed.
6. It is the argument of the respondent’s counsel that the open site is used for commercial purpose, and as such, in view of the bar under Section 2(3)(g) of the Act, since the area exceeds 14 sq.mtrs, eviction petition is not maintainable and the landlord ought to have moved a petition under the Transfer of Property Act or under the general law.
7. Per contra, counsel for the landlord submitted that Section 40 is very much clear and it refers to filing of eviction petition to take possession of vacant open land which is a non-agricultural land and has been let out
8. Section 40 is a special provision regarding vacant building sites which provides, notwithstanding anything contained in Section 27 where any premise is let out comprising of vacant land and as per the Municipal Regulations, it is permissible to erect any building for residential or any other purpose, the landlord proposing to erect such building is unable to obtain possession of the land, he could very well move the Rent Court under Section 40 and it is for the Rent Court to satisfy in the circumstances and if it is possible to sever out any built up area on the open space, it can direct such severance or place the landlord in possession of the vacant land or the trial court can direct, on such requirement, the tenant to vacate and hand over vacant possession of the land to the landlord. In the contingency where there is a vacant land and a building situate, after determining the open area, that could be directed to be handed over to the landlord, for the rest of the building area available, the court can refer the matter to the Rent Controller to determine the rent in respect of that area. It is necessary to show that the area let out consists of an open space as well as building and if it is possible to sever the open space from the building, the open area has to be handed over to the landlord and in respect of the building area, the rent has to be determined separately. But, if it is only open land, question of severance does not arise and it is for the tenant to vacate and hand over possession of the premises. Though Section 2(3)(g) relates to a non-residential area, it necessarily speaks of built up area and not the open area. In the circumstances, the argument of the tenant that the petition is not maintainable cannot be accepted The order of the trial court is also erroneous in not noticing the fact that application is filed under Section 40 and it has not noticed the provision which says notwithstanding anything contained in Section 27, such an order has to be made by the court when the tenant has not agreed to vacate and hand over possession.
9. In that view of the matter, the finding of the trial court is erroneous. Hence, the impugned order is set aside. Matter is remanded back to the trial court for reconsideration as provided under Section 40 of the Act and dispose of the same expeditiously, in accordance with law. Parties to bear their own costs.
