A decree for ejectment passed by a Civil Court, in respect of premises governed by the Karnataka Rent Control Act, 1961, cannot be sustained if Section 31 of the Act, which exempted non-residential premises from the purview of Part V of the Act, is struck down during the pendency of the appeal.

( 1 ) THIS appeai is preferred against the Judgment and decree dated 31st October, 1979 passed in OS No. 203/1977 by the Principal Civil judge, Civil Station, Bangalore.

( 2 ) THE appellant was the defendant in the suitand the respondent was the plaintiff. Therefore, in this Judgment the parties will be referred to as the defendant and the plaintiff.

( 3 ) THE suit was filed for possession of the suitschedule properties and for past mesue profits from 2nd November, 1977 to 16th November, 1977 and also for future mesne profits from the date of suit till recovery of possession at the rate of Rs. 5,000/- p. m. and for costs and other reliefs.

( 4 ) THE suit scheduled premises as describedin the plaint is as follows:"schedule all those pieces and parcels of land together with the two storeyed building standing thereon, numbered for purposes of identification as No. 1-L for the ground floor and L-1 for the first floor, with fixtures and fittings therein, situated in Kasturba Road, in the Civil Station of Bangalore, together with the servants room and garage attached, but excluding only the garage and servants room belonging to the cottage on the eastern side of the ground Dfloor. "

( 5 ) THE suit schedule premises was leased tothe defendant on a rent of Rs. 2,000/- p. m. Therefore, the plaintiff filed the aforesaid suit for possession on the ground that the. suit schedule premises was a non-residential premises leased on a monthly rent of more than Rs. 500/-, therefore, it was exempted from the purview of Part V of the Karnataka Rent Control Act (hereinafter referred to as the Act) and as such the plaintiff was entitled to seek a decree for possession in a court other than the Court as defined in the Act.

( 6 ) THE defendant resisted the suit and contended that the plaintiff was not entitled to adecree for possession. In the light of the pleas raised by the parties, the trial Court raised the following issues:"1. Whether plaintiff proves that the suit premises are a non-residential premises?2. Whether she further proves that she properly terminated the tenancy of the defendant?3. If so, is she entitled for possession of the suit property?4. Is she entitled for mesne profits as prayed for?5. Whether plaintiff has a right to file the suit?6. Whether this Court had jurisdiction to try this suit in view of the provisions of Karnataka Rent Control Act?7. To what decree or order?addl. Issue-1: Whether the defendant proves that the plaintiff is estopped from seeking eviction?"the trial Court answered Issue Nos. 1 to 3,5 and 6 in the affirmative and on Issue No. 4 a separate enquiry into past and future mesne profits was ordered. Consequently, it decreed the suit for vacant possession of the suit schedule property and further directed a separate enauiry into past and future mesne profits payable by the defendant from 2-11-1977 under Order 20, Rule 12 of C. P. C.

( 7 ) BEING aggrieved by the aforesaid Judgment and decree, the defendant has come up in appeal. In the light of the contentions urged on both sides, only two points arise for consideration. They are:1) Whether the decree for ejectment passed by the Court other than the one defined in the Act, in respect of the premises governed by the Act is sustainable in law?2) Whether the decisions in C. K. Mohammed kunhi v State of Karnataka and Others, 1989 (1) Kar. LJ. 109 and M/s. Hameed and hameed Enterprises vm/s. Nicky's Parlour, 1989 1 ( (KAR)) 835, have laid down the law correctly?

( 8 ) POINT Nos. 1 and 2:- Points 1 and 2 are considered together as the same can conveniently beconsidered together. The trial Court has recorded a finding that the premises in question is a non- residential premises. In the light of the evidence on record, we do not consider that the said finding recorded by the trial Court suffers from any illegality. Therefore, we agree with the reasons given by the trial Court for coming to a conclusion that the premises in question is a non- residential premise