CASE
NO. CRP No. 541/2007 C/w etc.
JUDGES
Manjula
Chellur
D.V
Shylendra Kumar
K.N
Keshavanarayana, JJ.
Karnataka
High Court (27 Dec, 2010)
Abdul
Wajid v. A.S Onkarappa*
OPINION
OF THE FULL BENCH
Keshavanarayana,
J.:—
The
controversy which led to this reference for the opinion of the full
bench relates to the jurisdiction of Courts of Small Causes
constituted under Karnataka Small Cause
Courts Act 1964 (for short KSCC Act)
to take cognizance of the suits for ejectment by the land lord
against the tenants in respect of the premises to which the
provisions
of Karnataka Rent Act 1999 (for short KR Act)
are not applicable, and the lease of such premises having either been
determined by efflux of time limited thereby or having been
determined by a notice in accordance with law or the permission to
occupy the premises having been withdrawn.
2.
This controversy arose on account of the conflicting decisions
rendered by Learned Single Judges in three different judgments and
another learned single judge expressing the view that the
interpretation placed by the Division Bench in Smt.
Sarojamma v. K.M Venkatesh
.
ILR
2007 KAR 3309. on Article
4 of schedule to KSCC Act
and the declaration of law that;
(1)
the Court of Small Causes can take cognizance of such suits which are
filed seeking ejectment of tenants of the premises to which KR Act
applies and not in respect of the tenants/persons who occupy other
premises to which the KR Act does not apply and whose tenancy has
either been determined or has come to an end by efflux of
time or withdrawal of the same and
(2)
in respect of the ejectment of tenants of the premises to which the
KR Act does not apply, relief would have to be sought for by filing
an appropriate suit before the City Civil Court which alone can
entertain such suits even if bare ejectment or ejectment and arrears
of rent is sought, requires to be reconsidered.
Though
the order of reference does not specify the point/s on which the
opinion of the full bench is sought, after going through the orders
passed by the Learned Single Judge as well as by the Division Bench
and after hearing the Learned Counsels appearing on both sides, we
find that the opinion of the Full Bench is sought on the following
points:
(i)
Whether the Court of Small Causes constituted under KSCC
Act
has jurisdiction to take cognizance of suit filed for ejectment by
the land lord against the tenant in respect of the premises to which
KR Act does not apply, and the lease of which has either come to an
end by efflux of time limited thereby or has been duly determined by
issuing notice in accordance with law or the permission to occupy has
been withdrawn?.
(ii)
Whether the decision of the division bench in Sarojamma's case
(supra) lays down correct law?
3.
The legislative backdrop:
The
provisions
of Karnataka Rent Control Act 1961 (for short KRC Act)
which was in force up to 31/12/2001 were applicable to all categories
of the tenanted premises whether residential, commercial or premises
used for non-residential purposes. The said Act among other things
provided for the control of rents and evictions. It had provided
protection to the tenants from eviction. Section 21 contained in part
V of the said Act dealt with eviction of tenants. Jurisdiction of the
Courts to pass any order or decree for possession in respect of any
premises as defined under the Act, in favour of the land lord against
the tenant had been barred as per Sub-Sec. (1) of Section 21 of the
Act notwithstanding anything contained in any other law in force or
any contract. However proviso to sub-Section (1) empowered the Court
constituted under the Act to make an order for the recovery of
possession of premises on any one or more of the grounds enumerated
in Clauses (a) to (p). Thus only upon the land lord establishing one
or more of those grounds, the Court could have passed an order of
eviction against the tenant and direct him to deliver
vacant possession of the tenanted premises. Though the said Act was
extended to whole of the State, Section 2(3) restricted the
application of part V only to the areas specified in schedule III,
namely areas within the limits of cities under the Karnataka
Municipal
Corporations Act 1976
and the areas within a radius of three kilometers from the limits of
the said cities. Sub-Sec (7) exempted application of the entire Act
to the premises belonging to the State and Central Governments as
also premises owned by certain local bodies, statutory bodies, and
Co-operative societies etc. Section 31 which was also in Part V of
the Act exempted application of Part V to the non-residential
building the monthly rent of which exceeded five hundred rupees or
the annual rental value of which exceeded six thousand rupees.
Initially, the erstwhile Courts of Munsiff in the state were
constituted as the ‘Court’ under the Act. However, later in
respect of Bangalore City, the Court of the then Civil judge and
still later Court of Small Causes till the Act was repealed with
effect from 31-12-2001, had been constituted as the ‘Court’ under
the Act. Thus in respect of the premises situated in the areas to
which Part V was not applicable; in respect of non-residential
buildings to which Part V was not applicable as per Section 31; and
in respect of the premises to which the Act itself was not
applicable, the tenants had no protection with regard to eviction,
and the land lords of such premises were entitled to seek ejectment
of the tenant and possession of the premises upon determination of
tenancy in accordance with the general law of the land namely
Transfer of Properties Act, by filing a suit before the Civil Court
as provided by Civil Procedure Code, or in accordance with the
procedure laid down under any special law made in that regard.
4.
When the KRC Act came into force in 1961, three different Small Cause
Courts Act
were in force in different parts of the Karnataka state namely. The
Mysore
Small Cause Courts Act 1911 (Mysore Act VIII of 1911)
in the Mysore area; The Hyderabad
Small Cause Courts Act 1330-F (Hyderabad Act 6 of 1330-Fasli)
in the Gulbarga area and The Provincial
Small Cause Courts Act 1887 (Central Act 9 of 1887) in the
Belgaum, Mangalore, Kollegal areas and the Coorg Dist. In 1964, the
State Legislature with a view to have a uniform law relating to
Courts of Small Causes in the whole state, enacted KSCC
Act
(Kar. Act 11 of 1964). This Act was brought into force with effect
from 1-6-1964.
5.
As per Section
4 of Mysore Act VIII of 1911,
which was in operation in Mysore area, all suits of the classes
specified in schedule
I in which no relief was claimed in respect of immovable property and
of which the value did not exceed Rs. 500/- was cognizable by a court
of small causes; and no other suits was so cognizable. As per the
exception to this Section which was introduced by way of an amendment
by Act VI of 1928, a suit in ejectment based on leases of immovable
property in writing, other than agricultural leases, was not a suit
in respect of immovable property within the meaning of that Section.
Consequent amendment made to schedule I as per Clause 22, permitted a
Court of small cause to take cognizance of suits in ejectment based
on leases of immovable property other than agricultural leases, which
are in writing. As per Clause 16 of the schedule I, a suit for
damages for use and occupation of immovable property (in cases where
rent is not claimable as such) was also cognizable by a court of
small causes. As per The Hyderabad
Small Causes Courts Act,
which was in force in Gulbarga area, a Court of Small Causes had
jurisdiction to take cognizance of only money suits of the value not
exceeding Rs. 1000/- arising out of contract other than a contract of
marriage and it had no jurisdiction to take cognizance of any suit in
which any immovable property or a right therein is affected by a
decree. However Section
15(1) of the Provincial Small Causes Courts Act 1887
which was in force in other areas, barred Courts of small causes from
taking cognizance of any of the suits specified in the schedule
therein. As per sub-Section (2), subject to the exceptions specified
in the schedule and to the provisions of any enactment in force, all
suits of a civil nature of which the value did not exceed Rs. 500/-
was cognizable by a Court of small causes. A suit for the possession
of immovable property or for the recovery of interest in such
property was not cognizable by a Court small cause as per Clause 4 of
the Schedule therein.
6.
Chapter III of KSCC
Act
comprising of two Sections namely Sections 8 and 9 deal with
jurisdiction of Courts of small causes. These two Sections read as
under:
Section
8: cognizance of suits by Courts of small causes.-(1) A Court of
Small Causes shall not take cognizance of the suits specified in the
schedule as suits excepted from the cognizance of a Court of Small
Causes.
(2)
Subject to the exceptions specified in the schedule and to the
provisions of any law for the time being in force, all suits of a
civil nature of which the value does not exceed “one lakh rupees”
in Bangalore
city, “twenty-five thousand rupees” in other places, shall be
cognizable by a Court of Small Causes.
Provided
that the state Government, in consultation with the High Court, may
by Notification, direct that all suits of which the value does not
exceed three thousand rupees shall be cognizable by a Court of Small
Causes mentioned in the Notification.
Section
9: Exclusive jurisdiction of Court of small causes.- Save as
expressly provided by this Act or by any other law for the time being
in force, a suit cognizable by a Court of small causes shall not be
tried by any other Court having jurisdiction, with in the local
limits of the jurisdiction of the Court of small causes by which the
suit is triable.
7.
Thus sub
Sec. (1) of Section 8
bars the Courts of Small Causes from taking cognizance of suits
specified in the schedule, though sub-Section (2) empowers Courts of
Small Causes to take cognizance of all suits of civil nature of which
the value does not exceed its pecuniary limits, of course subject to
the exceptions mentioned in the schedule. Section 9 has barred the
jurisdiction of all other Courts from trying any suit which is
cognizable by a Court of Small Causes. Therefore the Courts of Small
Causes in the state have exclusive jurisdiction to take cognizance of
suits of civil nature which are triable by the said Court. There are
as many as 40 Articles in the Schedule which includes almost all
suits of Civil nature. Only very few categories of civil suits are
cognizable by Small Causes Courts. The Article in the schedule
relevant for our purpose is Article 4 which reads as under:
(4)
a suit for the possession of immovable property or for the recovery
of an interest in such property but not including a suit for
ejectment where-
(a)
the property has been let under a lease, or permitted to be occupied,
by written instrument or orally, and
(b)
the Court of small causes would be competent to take cognizance of a
suit for the rent of the property, and
(c)
the only substantial issue arising for the decision is as to whether
the lease has been determined by efflux of the time limited thereby
or has been determined by a notice in accordance with the law for the
time being in force in respect of such lease, or the permission to
occupy has been withdrawn:
8.
Thus, though a suit for recovery of possession of immovable property
or any interest there in is not cognizable by a Court of Small
Causes, a suit for ejectment is cognizable by a Court of Small Causes
provided the three conditions enumerated in Clauses
(a) to (c) of Article 4
of the Schedule are fulfilled. In the light of Sec. 8(2), even such
suits for ejectment should be within the pecuniary limits of the
Court of Small Causes as prescribed therein.
9.
The Karnataka Court Fees and Suits
Valuation Act 1958 for short KCFSV Act
was enacted to amend and consolidate laws relating to Court fees and
valuation of suits in the state of Karnataka. Section 41 deals with
suits between landlord and tenant. As per sub-Section (2) in a suit
for recovery of immovable property from a tenant including a tenant
holding over after the termination of tenancy, fee shall be computed
on the premium, if any, and the rent payable for the year next before
the date of presenting the plaint. As per Section 50, in the absence
of a specific provision in the Act or in any other law regarding
value of the suit for the purpose of determining the jurisdiction of
the Courts, value for the purpose of computing the fee payable under
the Act shall be the value for the purpose of the jurisdiction also.
10.
KR Act which came into force on 31/12/2001 repealed KRC Act. This
piece of legislation was enacted to provide for regulation of rent
and eviction of tenants, in certain areas of the state of Karnataka
and for the matters connected therewith or incidental thereto. As per
sub-Sections
(1) and (2) of Section 2
read with Part A of first schedule and the second schedule, the
provisions of the entire Act are applicable to the areas within the
limits of cities constituted under the Karnataka Municipal
Corporation Act 1976
and within a radius of 3 km from the limit of such cities. Except
Sections 20 to 22 occurring in chapter IV which deals with
registration of middlemen or estate agents, all other provisions of
the Act are applicable to the areas mentioned in Part-B of first
schedule namely areas within the limits of the City Municipal
councils constituted under Karnataka Municipalities Act 1964.
Sub-Section (3) of Section 2 of the Act exempts the application of
the entire Act to the premises specified in Clauses (a) to (h). As
per Clause (a), premises belonging to the State Government, Central
Government, a local authority, a Muzarai or religious or charitable
institution and a Wakf: as per Clause (b) buildings belonging to
Co-operative societies: as per Clause (c) buildings belonging to
Market Committees established under the Karnataka Agriculture Produce
Marketing Regulations
Act 1966
are exempted from the application of the Act. As per Clause (d) the
Act is not applicable to any tenancy or other relationship created by
a grant from the State or the Central Government in respect of any
premises taken on lease or requisitioned by such Government. As per
Clause (e) the Act is not applicable to any premises of which deemed
or standard rent exceeds Rs. 3500/- per month if it is situated in
any area referred to in part-A of first schedule and Rs. 2000/- per
month in any other areas. As per Clause (f) the Act is not applicable
to any premises for a period of fifteen years from the date of its
construction or substantial renovation. As per Clause (g), the Act is
not applicable to any premises used for non-residential purpose
excluding premises having a plinth area not exceeding fourteen square
meters used for commercial purposes. As per Clause (h) the State
Government by a notification can exempt all or any of the provisions
of the Act to any building or group of buildings in the interest of
public. Thus the Act is not applicable to majority of the premises
situated in the areas to which it is extended and tenants have no
protection from eviction and the land lords of such premises are
entitled to recover possession of such premises by filing a suit for
ejectment before the Civil Court after determination of lease as
provided by Section 111 of T.P Act.
JUDICIAL
PRECEDENTS:
11.
From the various decisions of this Court, it is noticed that till the
repeal of KRC Act and advent of KR Act on 31/12/2001, there was
consistent opinion that in respect of the premises to which part V of
KRC Act was not applicable by virtue of Section 31, and the tenancy
of which had been determined as provided by Section 111 of TP Act, a
suit for ejectment only was cognizable by Court of small causes
subject to the pecuniary jurisdiction, though there was some
controversy as to whether a suit filed for ejectment and also for
mesne profits for the use and occupation of the premises after the
determination of the tenancy was cognizable by a court of small
causes.
12.
In Ramesh
P Seth v. Krishnamoorthy
.
ILR
2002
Karnataka 565., the point that arose for consideration before a
Learned Single Judge of this Court was;
“To
a tenancy to which the Karnataka Rent
Control Act
applies, however, to which the Part V of the Act does not apply, what
would be the position of the tenant after determination of the
tenancy by termination or by efflux of time?”
In
the light of the definition of ‘tenant’ occurring in Section
3(r) of KRC Act
and the decision of the Division Bench of this Court in B.S
Giridhar…
v. P.V Shetty…. . ILR
1984 KAR 1115. it was ruled that a tenant continuing in
possession of a non-residential building the monthly rent of which
exceeded Rs. 500/-, even after the determination of the tenancy,
continues to be a tenant as such he is liable to pay the agreed rent
to the landlord even after determination and his possession of the
premises after the determination of tenancy would not become
unlawful, therefore, question of such tenant paying damages for use
and occupation of the premises for the period subsequent to
determination of lease does not arise. In view of this it was further
ruled that when the building has been let under a lease or permitted
to be occupied by a written instrument or orally and if the monthly
rental of the leased premises exceeds Rs. 500/-, the owner/land lord
of such premises can maintain a suit for ejectment of the tenant from
the premises and also claim for rent of the property after
termination of tenancy and if the value of the subject matter of such
suit does not exceed Rs. 25,000/- (subsequently enhanced to Rs.
1,00,000/- in respect of Bangalore City) the suit is cognizable by
Court of small causes.
13.
In Bangalore
Printing & Publishing Co. Ltd. v. Soukar T. Premnath* .
ILR
2004 Karnataka 98., (disposed of on 22/10/03) another Learned
Single Judge of this Court was considering the correctness of the
order passed by the Court of Principal Civil Judge (Jr. Dn.) Mysore,
in a suit for ejectment in respect of the premises to which the
provisions of KR Act were not applicable, rejecting the application
filed by the defendant for amendment of his written statement. By way
of amendment the defendant therein wanted to urge a plea that the
suit filed for ejectment is cognizable by Court of small causes as
per Section
8(2) read with Article 4 of schedule to KSCC Act
and as the value of the subject matter of the suit was within the
pecuniary limits of the Court of small causes and in view of the
exclusion of the jurisdiction of the Civil Court to try such suit
cognizable by Court of small causes as per section 9, the Civil Court
had no jurisdiction to try the said suit. In this regard the
petitioner therein (the defendant in the suit) placed reliance on the
decision in Ramesh P Seth's case (supra). As admittedly the plinth
area of the premises was more than 14 square meters and the premises
was being used for non-residential and commercial purposes, in view
of Section
2(3)(g) of KR Act, the said Act
was not applicable to the premises involved in that suit. Therefore
this Court held that the relationship of the parties therein in
relation to the subject premises is governed by provisions of TP Act
and not the Rent Act. This Court further observed that upon the
determination of tenancy of a tenant of such premises as required by
section 111 of TP Act, if the tenant does not vacate and continues in
possession of the premises, his status will not continue to be that
of a tenant which is otherwise the case of the tenants governed by
the provisions of Rent Act and in such a circumstance the right of
the lessor is only to file a suit for possession to recover the
premises by approaching the ordinary civil court and not Rent Court.
Thereafter, the Court referring to Sections
8, 9 and Article 4 of KSCC Act
further held that as the said Act itself makes distinction between a
suit ‘for possession’ and a ‘suit for ejectment’, a suit for
ejectment in the context would only mean cases where suit for
possession are not covered, while a suit for possession could only
mean in all cases where a transaction is governed by the provisions
of TP Act, therefore the remedy of the lessor against the lessee on
the determination of lease is to file only a suit for possession
before an ordinary Civil Court and such a suit cannot be termed as a
suit for ‘ejectment’ and since a suit for possession is one of
the suits excepted from the cognizance of the Court of Small Causes,
in view of Section
8(1) read with Article 4,
the jurisdiction of ordinary Civil Court is not excluded. The
decision in Ramesh P Seth's case was distinguished on the ground that
in that case by virtue of Section 31 of KRC Act only part V of the
said Act relating to protection of tenants against eviction was made
not applicable to the premises involved therein which was a
non-residential building the monthly rent of which exceeded Rs. 500/-
while in all other respects the KRC Act was applicable to the
premises, in the light of the decision of this Court in Giridhar's
case, the relationship of landlord and tenant did not snap
notwithstanding the termination of tenancy as per Section 111 of TP
Act, as such, the landlord was required to file only a suit for
ejectment and since the value of the subject matter of the suit in
Ramesh P Seth's Case was within the pecuniary jurisdiction of the
Court of small causes, the suit was cognizable by Court of small
causes only therefore the Court was right in ordering return of
plaint in that case.
14.
In Khandelwal
Brothers and Co. Ltd v. G.S Nisar Ahmed .
2004 AIR KAR HCR 2577.
(decided on 2/6/2004) another Learned Single Judge of this Court
expressed a slightly different view. In this case the Court was
dealing with an appeal filed by the tenant questioning the legality
and correctness of the judgment and decree passed by the Civil Court
in a suit filed for possession and mesne profits after determination
of tenancy as provided under Section 111 of TP Act. By placing
reliance on the decision in Ramesh P seth's Case the contention of
the Appellant/tenant therein was that after the determination of the
tenancy, the occupation of the premises by the tenant is not that of
a trespasser but that of a statutory tenant within the definition of
‘tenant’ under KRC Act, therefore question of grant of damages or
mesne profits would not arise as such the landlord would be entitled
to recover only the agreed monthly rent even after termination of
tenancy and nothing more and the artificial prayer for mesne profits
in addition to the prayer of ejectment would not exclude the
jurisdiction of the Court of small causes, as such the decree passed
by the Civil Court is without jurisdiction. This Court framed the
following two questions for consideration:
(1)
Whether in law after the termination of tenancy under the Transfer
of Property Act, would the tenant continues to be a statutory
tenant?
(2)
Whether the suit for possession and mesne profits is excluded from
the cognizance of Small Causes Courts?.
15.
After noticing the law laid down by the division bench in B.S
Giridhar's case that even after determination of tenancy as per the
provisions of the TP Act, the tenant would continue to be a statutory
tenant within the definition of KRC Act the landlord can recover only
the agreed rent till the delivery of possession of the premises and
not the mesne profits for use and occupation, and referring to the
change in the legal definition of a statutory tenant in KR Act and
also non-application of the entire KR Act to non-residential premises
except to the premises the plinth area of which does not exceed 14
square meters and also referring to the decision in Ramesh P Seth's
case and in Bangalore printing and publishing company Ltd's case as
also the provisions
of section 8, Article 4 and 10 of schedule to KSCC Act,
finally answered the questions stating that the Small Causes Court
cannot entertain a suit for possession with damages or mesne profits
but can entertain a suit only for ejectment as envisaged under
Article 4. The Court went on to observe that though the general
principle is that the jurisdiction of the Court shall be determined
by the averments in the plaint, Article 4 of scheduled to KSCC
Act
makes a departure from this general principle and the jurisdiction of
the Small Causes Court is made dependent upon the contentions raised
in the written statement and at the will of the defendant and if on
the basis of the contentions raised in the written statement any
issue other than the one mentioned in Clause
(c) of Article 4 of schedule
arises for consideration, then the Court of Small Causes has to
return the plaint as per Section 16 of KSCC
Act
for re-presentation before the Civil Court for adjudication,
therefore until the written statement is filed, the jurisdiction of
the Court of small causes remains uncertain. The court further
observed that the special classification of a category of landlords
envisaged in Article 4 does not appear to be intelligible and
currently not warranted by factual exigency. Therefore the court was
of the opinion that the abolition of the Small Causes Courts may not
pose serious practical difficulties and the City
Civil Courts Act
could be suitably amended by redefining the jurisdiction of the City
Civil Court with reference to subject matter and its valuation
vis-a-vis the jurisdiction of the Civil Judges (Sr. Dn.) presently
managing the Small Causes Courts.
16.
In Sarojamma
v. K.M Venkatesh
.
ILR
2004 KAR 4931., yet another Learned Single Judge of this Court
affirmed the judgment and decree passed by Court of Small Causes
decreeing the suit filed for ejectment by the landlord against the
tenant after determination of tenancy, by holding that the Court of
small causes is competent to try such suit. Brief facts of the case
was, the landlord of a non-residential premises, the monthly rental
of which exceeded Rs. 500/-, after terminating the tenancy as per
section 111 of TP Act filed O.S No. 9623/99 before the City Civil
Judge, Bangalore against the tenant for ejectment, arrears of rent
and damages at the rate of Rs. 4000/- per month. By order dated
9/1/2003, the City Civil Judge relying on the decision of this Court
in Ramesh P Seth's case (supra) ordered return of plaint for
presentation to proper Court namely the Court of Small Causes,
Bangalore holding that the said suit is exclusively triable by Court
of Small Causes. Accordingly the plaint was re-presented before the
Court of Small Causes, Bangalore and was registered as S.C No.
161/2003. After trial, by judgment and decree dated 30/10/2000 the
Court of Small Causes decreed the suit and directed the
defendant/tenant to vacate and deliver vacant possession of the
premises to the plaintiff/landlord. Aggrieved by the said judgment
and decree the defendant/tenant filed Revision petition before this
Court. Before the Learned Single Judge the tenant contended that the
Court of Small Causes had no jurisdiction to try said suit. In this
regard reliance was placed on the decisions in Bangalore Printing and
Publishing Co. Ltd. and Khandelwal Brothers Co. Ltd. However the
Learned Single Judge by following the decision in Ramesh P Seth's
case dismissed the petition on 16/9/2004 and affirmed the judgment
and decree passed by the Court of Small Causes holding that the Court
of Small Causes had jurisdiction to try the said suit. The said order
dismissing the revision petition was questioned by the tenant before
the Hon'ble Supreme Court in Civil Appeal No. 3376/2006. The Apex
Court without adverting to the merits of the case, set aside the
order of the Learned Single Judge and remanded the matter to this
Court for fresh disposal. While doing so the apex court had indicated
that it was open for the Learned Single Judge to refer the matter to
a Division Bench. On such remand the Revision petition was again
listed before the Learned Single Judge who in view of the order
passed by the Hon'ble Supreme Court, referred the matter to the
Division Bench. The Division Bench after hearing the counsels
appearing for the parties as also the Learned Counsels appearing for
parties in similar petitions, by its judgment dated 13/07/2007 in
Smt.
Sarojamma v. K.M Venkatesh
(SUPRA) held that the Small Causes Court can take cognizance only of
such suits which are filed seeking ejectment of tenants of the
premises to which KR Act applies and not in respect of the
tenants/persons who occupy other premises to which the Act does not
apply and whose tenancy has been determined or has come to an end by
efflux of time or by withdrawal of the same. The Division Bench
further held that in respect of ejectment of the tenants of the
premises to which the KR Act does not apply, relief would have to be
sought for by filing an appropriate suit before the City Civil Court
which alone can entertain such suits even if bare ejectment or
ejectment and arrears of rent is sought. Referring to the decision in
the case of Ramesh P Seth, the Division Bench observed that the said
case was with regard to the tenant defined under Section
3(r) of KRC Act,
therefore no Court would have jurisdiction to grant the prayer for
damages or mesne profits and such a prayer would be redundant and the
Court would proceed only for ejectment and rent as such the Learned
Single Judge keeping in view of the provisions of the KRC Act has
rightly held that the question of damages does not arise and the suit
for ejectment and rent is maintainable before Small Causes Court.
With regard to the decision in the case of Bangalore printing and
publishing Co. Ltd., the Division Bench observed that though the
reasoning adopted by the Learned Single Judge is not similar to their
reasoning, the conclusion arrived at by the Learned Single Judge that
in respect of the premises not governed by KR Act, the jurisdiction
to file suit is before Civil Court is the correct view. With regard
to the decision in the case of Khandelwal, the Division Bench
observed that the Learned Single Judge though has rightly held that
the suit for mesne profits and damages would not be maintainable
before court of small causes, the view of the Learned Single Judge
that a suit for ejectment only would be maintainable before the Court
of Small Causes is not the correct view as the said view has been
taken by the Learned Single Judge only by referring to sub-article
(c) of Article-4 without considering the conjoint scope of
sub-articles (a), (b) and (c). As the Division Bench recorded its
opinion on the propositions formulated by it without going in to the
pleadings and facts in each of the petitions referred, all those
petitions were directed to be placed before the Learned Single Judge
for decision in the light of the opinion expressed on the question of
law relating to the jurisdiction of Court of Small Causes to
entertain suit for ejectment.
17.
Accordingly when some of the petitions were placed before one of us
(DVSKJ) Learned Counsels appearing for the land-lords contended that
there is a fallacy in accepting the arguments canvassed before the
Division Bench that Clause (b) of Article 4 is one which should be
understood as a provision conferring jurisdiction on the Court of
small causes to entertain a suit for ejectment only in a situation
where rent is payable and not in any other situation and that if such
an interpretation is placed it virtually reduces the scope of the
provision for maintaining an ejectment suit before such court to
almost nil, therefore the interpretation placed by the Division Bench
requires reconsideration.
18.
On the other hand it was contended on behalf of the tenants that
interpretation placed by the division bench on Clause (b) of Article
4 is the correct view and the interpretation placed by the Division
Bench is binding on Single Bench as such reconsideration of the law
laid down by Division Bench is not warranted.
19.
In the light of the rival submissions made at the bar, the Single
Bench in Abdul
Wajid v. Onkarappa . ILR
2008 KAR 120. after referring to the provisions
of Sections 3, 7 and 9 of CPC
and by noticing that the Court of Small Causes is necessarily a
‘civil court’ as such it is not excluded from the purview of the
phrase ‘civil court’ as used in Sec. 41 of KCFSV Act and that a
suit for ejectment has to be understood as a suit for recovery of
possession where ownership of the plaintiff is not in dispute, the
view taken by the Division Bench and the interpretation of Clause (b)
of Article 4 that Court of Small Causes cannot take cognizance of
suit for ejectment of the tenant in respect of the premises to which
the KR Act does not apply and such a relief would have to be sought
for by filing an appropriate suit only before the City Civil Court
which alone can entertain such suits even where ejectment or
ejectment and arrears of rent is sought, requires a relook and
reconsideration. However having regard to the binding nature of the
interpretation placed by the Division Bench on the Single Bench and
by placing reliance on the decisions of the Apex Court in Lala
Shri Bhagwan v. Ram Chand . AIR
1965 SC 1767., Sundarjas
Kanyalal Bhathija v. The Collector,
Thane, Maharashtra .
AIR
1990 SC 261. and Pradip
Chandra Parija v. Pramod Chandra Patnaik .
2002
1 SCC 1., the Single Bench directed the Registry to place the
matters before the Hon'ble Chief Justice for appropriate orders to
constitute a bench of necessary composition which can examine these
questions and settle the law and thereby clear the doubts expressed
therein in the light of the rival submissions made by the Learned
Counsel for the parties.
20.
Thereafter as per the orders of the Hon'ble Chief Justice the matters
were placed before the Division Bench comprising of MCJ and KNKJ. In
view of the fact that the interpretation of law regarding the
jurisdiction of the Court of small causes to take cognisance of a
suit for ejectment, which is sought to be reconsidered was by another
Division Bench, this Division Bench was of the view that the matter
requires to be considered by a full bench. Therefore the matters were
referred to the Full Bench for its opinion on the question of law.
This is how the matters are placed before this Full Bench.
ARGUMENTS
21.
Sri. S. Shekar Shetty, Learned Advocate, supporting the
interpretation placed by the Division Bench in Sarojamma's Case
submitted as under:
The
interpretation placed by the Division Bench in Sarojamma's Case is a
binding precedent therefore, the Single Bench could not have referred
the matter to a larger bench as such, reference to the Full Bench is
improper and is not valid. In this regard reliance was placed on the
decision of Apex Court reported in (2005)
2 SCC 673.
Though
a suit for ejectment is cognizable by Court of Small Causes as
provided under Article 4 of schedule, unless all the conditions
enumerated in Clauses
(a), (b) and (c) of Article 4
are collectively and conjointly satisfied, Court of Small Causes
cannot take cognizance of such suit for ejectment.
Moment
the lease of a premises to which KR Act is not applicable, comes to
an end by the efflux of time or is determined by issuing notice as
per the Section 111 of the TP Act, the relationship of landlord and
tenant ceases to exist and the occupation of the premises by the
erstwhile tenant becomes unauthorized and illegal as such he would be
liable to pay only damages for use and occupation and not the rent.
In that event the Court of Small Causes will have no competence to
take cognizance of a suit for rent. Therefore, condition enumerated
under clause
(b) of Article 4 of schedule
would not be satisfied. In that view of the matter, the law laid down
by Division Bench that a suit for ejectment of the tenant from the
premises to which KR Act is not applicable, is not cognizable by
Court of Small Causes and such a relief of ejectment would have to be
obtained by filing a suit before the Civil Court only is the correct
view.
Section
41 of KCFSV Act is applicable only to suits between landlord and
tenant before Civil Courts. Court of Small Causes cannot be construed
as a ‘Civil Court’ as defined under Sec.
2(b) of Karnataka Civil Courts Act 1964 (Karnataka Act 21 of 1964).
Purport of Section 41 of KCFSV Act
is only for computing the value of the subject matter of the suit
between landlord and tenant for the purpose of jurisdiction and for
payment of court fee, whereas clause
(b) of Article 4 of KSCC Act
is with reference to competence of Court of Small Causes to take
cognizance of lis, as such Section 41 has no bearing to the condition
enumerated under Clause (b) of Article 4. Therefore, suit referred to
in Section 41 of KCFSV Act has no reference to suit for ejectment
before the Court of Small Causes.
KSCC
Act,
was enacted in 1964 by keeping in view the definition of tenant found
in Sec.
3(r) of KRC Act and repeal of KRC Act has rendered Clauses (a) to (c)
of Article 4 of schedule to KSCC Act
redundant. Therefore, after the advent of KR Act, Court of Small
Causes has no jurisdiction to take cognizance of a suit for ejectment
of tenant from the premises to which KR Act is not applicable.
Therefore the Learned Counsel sought for upholding the law laid down
by the Division Bench in Sarojamma's Case.
22.
Sri. H.J Sanghvi, Learned Advocate, adopting the arguments of Sri. S.
Shekar Shetty, contended that unsettling the settled position in law
would cause great hardship to the litigants on account of uncertainty
and therefore reconsideration of the interpretation placed by the
Division Bench in Sarojamma's case is not warranted.
23.
Sri. P.D Surana, Learned Advocate, who sought reconsideration of the
interpretation by the division bench in Sarojamma's case, submitted
as under:
The
Single Bench in Abdul Wajid's case did not refer the issue to the
Full Bench for its opinion. As the Single Bench was of the view that
the interpretation placed by Division Bench in Sarojamma's case needs
reconsideration and in the light of the law laid down by the Apex
Court referred to therein, the Single Bench is justified in directing
the registry to place the papers before the Hon'ble Chief Justice for
constituting appropriate bench for settling the law. As the reference
to the Full Bench for its opinion was made by the Division Bench, the
reference is valid in law.
Even
after repeal of KRC Act there is no change in the legal position as
to the competence of Court of Small Causes to take cognizance of
suits for ejectment by land lord against tenant in terms of Article
4 of schedule to KSCC Act
and the repeal of KRC Act has not in any way rendered Clauses
(a) to (c) of Article 4
redundant.
In
respect of premises to which KR Act is applicable, possession of such
premises can be recovered by the land lord from the tenant only in
accordance with the provisions of said Act and the Court constituted
therein alone would have exclusive jurisdiction to deal with such
proceedings. In that respect the jurisdiction of Civil Court is
expressly ousted. Merely because in Bangalore city the Court of Small
Causes has been designated as the Court under KR Act, the said Court
do not exercise power as per the provisions of KSCC
Act
as such the opinion of the Division Bench in Sarojamma's case that
the Court of Small Causes would have jurisdiction to take cognizance
of suit for ejectment only if KR Act is applicable to such premises
is contrary to law.
The
competence of Court of Small Causes to take cognizance of suit for
ejectment by the landlord against the tenant, which is a category of
suit carved out as an exception in Article
4 of schedule to KSCC Act,
has to be decided only by looking into the language of said provision
alone that too when the language of said provision is plain and
unambiguous and the said provision cannot be interpreted with the aid
of any other enactment. None of the conditions enumerated in Clauses
(a) to (c) of Article 4
depend upon the application or non application of KR Act to the
subject premises. Therefore the interpretation placed by the Division
Bench on Clause (b) of schedule that the said condition would be
satisfied only if KR Act is applicable is erroneous and opposed to
the well settled principles of interpretation of statute.
The
expression ‘rent’ occurring in Clause (b) of Article 4 does not
relate to liability to pay rent by the tenant nor it relates to the
status of the tenant after the determination of tenancy, as such
Clause (b) cannot be attached to the liability of the tenant to pay
rent. Clause (b) of Article 4 is referable only to the quantum of
rent in the context of Sec. 41(2) of KCFSV Act for the purpose of
pecuniary jurisdiction of the Court and nothing else.
When
the legislatures have consciously conferred jurisdiction on the Court
of Small Causes to take cognizance of suit for ejectment subject to
the conditions enumerated in Clauses
(a) to (c) of Article 4,
no interpretation which takes away such jurisdiction and renders the
provision redundant can be placed. The interpretation now placed by
the Division Bench on Article 4 with specific reference to Clause (b)
has resulted in completely taking away the jurisdiction of the Court
of Small causes from taking cognizance of ejectment suits and thereby
rendering the exception carved out in Article 4 redundant and such an
interpretation is opposed to law.
In
the light of the definition of ‘Court’ occurring in Section 3(ii)
of KCFSV Act, it cannot be interpreted that Sec. 41 of said Act is
applicable only to suits before ‘Civil Court’ and not a suit
before Court of Small Causes. Even otherwise reading of Section
8(2) of KSCC Act
makes it clear that Court of Small Causes is also a ‘Civil Court’
for all purposes as it is competent to take cognizance of all the
suits of civil nature except the nature of suit enumerated in the
schedule to the Act and as per Section
10 of KSCC Act procedure
followed by Court of Small Causes is as prescribed in CPC to the
extent applicable. Therefore Sec. 41(2) of KCFSV Act is applicable to
the suits for ejectment before Court of Small Causes.
The
interpretation placed by the Division Bench that a suit for ejectment
is nothing but a suit for recovery of possession of immovable
property therefore such a suit is not cognizable by Court of Small
Causes is contrary to the exception carved out in Article 4 of
schedule. In this regard the Division Bench has failed to notice that
a suit for ejectment by landlord against the tenant is to enforce the
liability of the lessee to put the lessor back into possession of the
leased premises in terms of Section
108(m) and (q) of TP Act
which is in the nature of mere re-delivery of leased premises and in
such suit the possessory right of the landlord is not adjudicated
upon.
The
nature of possession of leased premises by the tenant after the
period of lease coming to an end by efflux of time or on
determination of tenancy would not be unauthorized nor illegal but on
the other hand the status of such erstwhile tenant has to be
construed as a tenant at ‘sufferance’ akin to ‘trespasser’
having no independent right to continue in possession as held by the
Apex Court in Raptakos
Bret & Co. v. Ganesh Property
.
1998 7 SCC 184..
24.
Sri. Nanda Gopal, Learned Advocate for some of the petitioners, apart
from adopting the arguments of Sri P.D Surana, contended that even a
suit for mesne profits is cognizable by Court of Small Causes, as,
such suit is carved out as an exception in Article
28 of the schedule to KSCC Act.
Therefore the contrary opinion expressed by the Division Bench is
opposed to the very statute and the Division Bench has completely
overlooked to consider the effect of Article 28 of the schedule.
25.
Sri Sampat Anand Setti, Learned Advocate who was permitted to argue
as an intervenor, in addition to filing the written submissions
submitted as under:
Schedule
to KSCC
Act
enumerates the nature of suits which are not cognizable by Court of
Small Causes. As a corollary, all other suits are cognizable by Court
of Small Causes. Schedule to the KSCC
Act
has not excluded the suit for mesne profits from the cognizance of
Court of Small Causes and on the other hand reading of Article 28 of
schedule clearly indicates that a suit for mesne profits is
cognizable by Court of Small Causes.
Expression
‘recovery of an interest in such property’ occurring in Article
4 of schedule of KSCC Act
does not include recovery of mesne profits and this is clear by
reading article 28 harmoniously with the fact that there is no
express exclusion of suit for mesne profits in the schedule.
There
is nothing in Article 4 of schedule to indicate or to infer that
‘mesne profit’ is included in the expression ‘interest in such
property’. This is further fortified from the fact that though
Article
31 of Provincial Small Causes Courts Act,
on the lines of which the KSCC
Act
was enacted, expressly excepted suit for recovery of mesne profit
from the jurisdiction of Court of Small Causes, under Article 28 of
KSCC
Act
suit for recovery of mesne profit has been carved out as an
exception. Therefore, the Court of Small Causes is competent to take
cognizance of suit for recovery of mesne profit.
ANALYSIS
Re-Validity
of Reference;
26.
In Tribhovandas
Purshottamdas Thakkar v. Ratilal Motilal Patel .
1968
1 SCR 455., the Apex Court has observed thus;
“Precedents
which enunciate rules of law form the foundation of administration of
justice under our system. It has been held time and again that a
Single Judge of a High Court is ordinarily bound to accept as correct
judgments of Courts of Co-ordinate jurisdiction and of Division
Benches and of the Full Benches of his Court and of this Court. The
reason of the rule which makes a precedent binding lies in the desire
to secure uniformity and certainty in the law.”
27.
Again, in P.
Ramachandra Rao v. State of Karnataka . 2002
4 SCC 578., the Apex Court has observed thus;
“The
well-settled principle of precedents which has crystallised into a
rule of law is that a Bench of lesser strength is bound by the view
expressed by a Bench of larger strength and cannot take a view in
departure or in conflict therefrom.”
28.
In the light of these observations it was contended that the Single
Bench while considering Abdul Wajid's case was bound by the view
expressed by the Division Bench in Sarojamma's Case as such it could
not take a different view, therefore the reference to the Full Bench
is improper and is not valid.
29.
As noticed earlier, the Single Bench in Abdul Wajid's case, after
referring to the submissions on both sides expressed the view that
the interpretation placed by the Division Bench in Sarojamma's Case
deserves a re-look and reconsideration. Conscious of the binding
nature of the view expressed by the Division Bench, the Single Bench
directed the Registry to place the papers before the Hon'ble Chief
Justice for constituting an appropriate bench for settling the law.
Thus the Single Bench did not refer the matters to the Full Bench.
When the papers were placed before the Hon'ble Chief Justice, the
matters were directed to be posted before another Division Bench
which after hearing, was of the view that the matter requires to be
heard by a Full Bench and accordingly that Division Bench referred
the matters to the Full Bench. Thus the reference to the Full Bench
was by the Division Bench and not by the Single Bench. The Apex Court
in catena of decisions has laid down the procedure to be followed by
a bench of lesser strength when it is of the view that the view
expressed by another Co-ordinate Bench or a Bench of larger strength
requires a re-look or reconsideration.
30.
In Lala Shri Bhagwan v. Shri Ram Chand (SUPRA) it is observed thus
“It
is hardly necessary to emphasise that considerations of judicial
propriety and decorum require that if a Learned Single Judge hearing
a matter is inclined to take the view that the earlier decisions of
the High Court, whether of a Division Bench or of a Single Judge,
need to be reconsidered, he should not embark upon that enquiry
sitting as a Single Judge, but should refer the matter to a Division
Bench or, in a proper case, place the relevant papers before the
Chief Justice to enable him to constitute a larger Bench to examine
the question. That is the proper and traditional way to deal with
such matters and it is founded on healthy principles of judicial
decorum and propriety.”
31.
In Tribhovandas Purshottamdas Thakkar's case (SUPRA), it has been
observed thus;
“When
pressed with the observations made in the two cases cited at the Bar,
Raju, J., found an easy way out. He observed that the judgment of the
Full Bench of the Gujarat High Court had “no existence in law”,
for in the absence of a provision in the Constitution and the Charter
Act of 1861, a Judge of a High Court had no power to refer a case to
a Full Bench for determination of a question of law arising before
him, and a decision given on a reference “had no existence in law”.
The Learned Judge also thought that if a Judge or a Division Bench of
a Court makes a reference on a question of law to a Full Bench for
decision, it would in effect be assuming the jurisdiction which is
vested by the Charter of the Court in the Chief Justice of the High
Court. In so observing the Learned Judge completely misconceived the
nature of a reference made by a Judge or a Bench of Judges to a
Larger Bench. When it appears to a Single Judge or a Division Bench
that there are conflicting decisions of the same Court, or there are
decisions of other High Courts in India which are strongly persuasive
and take a view different from the view which prevails in his or
their High Court, or that a question of law of importance arises in
the trial of a case, the Judge or the Bench passes an order that the
papers be placed before the Chief Justice of the High Court with a
request to form a Special or Full Bench to hear and dispose of the
case or the questions raised in the case. For making such a request
to the Chief Justice, no authority of the Constitution or of the
Charter of the High Court is needed, and by making such a request a
Judge does not assume to himself the powers of the Chief Justice. A
Single Judge does not by himself refer the matter to the Full Bench:
he only requests the Chief Justice to constitute a Full Bench for
hearing the matter. Such a Bench is constituted by the Chief Justice.
The Chief Justice of a Court may as a rule, out of deference to the
views expressed by his colleague, refer the case: that does not mean,
however, that the source of the authority is in the order of
reference. Again it would be impossible to hold that a judgment
delivered by a Full Bench of a High Court after due consideration of
the points before it is liable to be regarded as irrelevant by Judges
of that Court on the ground of some alleged irregularity in the
constitution of the Full Bench.”
32.
In Sundarjas
Kanyalal Bhathija v. Collector, Thane .
1989
3 SCC 396., it is observed thus;
“18.
It would be difficult for us to appreciate the judgment of the High
Court. One must remember that pursuit of the law, however glamorous
it is, has its own limitation on the bench. In a multi-judge court,
the judges are bound by precedents and procedure. They could use
their discretion only when there is no declared principle to be
found, no rule and no authority. The judicial decorum and legal
propriety demand that where a Learned Single Judge or a Division
Bench does not agree with the decision of a bench of co-ordinate
jurisdiction, the matter shall be referred to a larger bench. It is a
subversion of judicial process not to follow this procedure”
33.
In State of Tripura v. Tripura Bar Assn.,15 it is observed thus:
“3.
In the impugned judgment, the High Court has, however, gone into the
question of inter se seniority of the Judicial Officers who were
impleaded as respondents in the writ petition. The said matter of
inter se seniority had earlier been considered by a Division Bench of
the same High Court in the case of Durgadas
Purkayastha v. Hon'ble Gauhati
High Court in respect of the same officers which judgment has become
final. In the impugned judgment the Division Bench of the High Court
has taken a view different from that taken in the earlier judgment in
the case of Durgadas Purkayastha.
4.
We are of the view that the Division Bench of the High Court which
has delivered the impugned judgment being a coordinate Bench could
not have taken a view different from that taken by the earlier
Division Bench of the High Court in the case of Durgadas Purkayastha.
If the latter Bench wanted to take a view different than that taken
by the earlier Bench, the proper course for them would have been to
refer the matter to a larger Bench”
34.
In the light of the law laid down by the Apex Court in the above
noted decisions, and the procedure adopted by the Single Bench as
well as by the Division Bench, there was no impropriety in the
reference to the Full Bench nor the reference was invalid. Therefore
the contention urged in this regard is rejected and it is held that
the reference to the Full Bench is proper and valid.1
Re.
Correctness of the interpretation by Division Bench in Sarojamma's
case;
35.
As noticed earlier, before the advent of KSCC
Act,
there were three separate statutes governing the jurisdiction and
powers of Court of Small Causes in different parts of the State. As
could be seen from the ‘Statements of Objects and Reasons’
attached to the Act, as there were three separate statutes, necessity
was felt by the State legislature to have a uniform law relating to
Small Cause Courts in the whole State. This Act was modelled on the
Provincial
Small Causes Courts Act, 1887
and taking into consideration the recommendation made by the Law
Commission. Chapter I of the Act deals with preliminaries including
definitions. Chapter II comprised of Sections 3 to 7 deals with
Constitution of Courts of Small Causes. Chapter III comprised of
Sections 8 & 9 which are already extracted, deals with
jurisdiction of Court of Small Causes. Chapter IV comprised of
Sections 10 to 19 deals with practice and procedure and finally
Chapter V comprised of Sections 20 to 29 deals with supplementary
Provisions.
36.
Though sub-Sec. (2) of Sec. 8 of KSCC
Act
empowers a Court of Small Causes to take cognizance of all suits of
civil nature the value of which does not exceed one lakh rupees in
Bangalore city and twenty five thousand rupees out side Bangalore
city, Sub-sec. (1) of Sec. 8 directs that a Court of Small Causes
shall not take cognizance of the suits specified in the Schedule as,
the category of suits mentioned in the Schedule are excepted from
cognizance of a Court of Small Causes. As per Sec. 9, Courts of Small
Causes have exclusive jurisdiction to try the cases which is
cognizable by it and jurisdiction of all other Courts to try such
suits cognizable by Courts of Small Causes, is specifically barred.
As per Sec. 10, in all the suits cognizable by Court of small Causes
and in all proceedings arising out of such suits the procedure to be
followed is the procedure prescribed by Code of Civil procedure
subject to the savings prescribed therein (Order 50
Rule 1 of CPC)
and in KSCC
Act.
As per Sec. 17, only the orders passed by the Courts of Small Causes
under Sec. 35A and Sec. 95 of CPC are appealable to the extent
provided by Sec. 104 of CPC to the High Court if the order relates to
Court of Small Causes in Bangalore City and to the District Court in
other places. Under Sec. 18, High Court is vested with the power of
Revision and for the purpose of satisfying itself that a decree or
order passed by a Court of Small Causes was according to law, the
High Court may call for the case and pass such orders as it thinks
fit. As per Sec. 20, the Courts of Small Causes are subject to the
administrative control of the District Court and to the
Superintendence of the High Court. Schedule attached to the Act
enumerates the nature of suits which are excepted from the
jurisdiction of Court of Small causes. There are as many as 40
Articles in the Schedule which takes away almost all category of
suits of civil nature from the purview of the jurisdiction of Court
of Small Causes, leaving very few category of suits.
37.
Thus reading of the provisions of the Act make it clear that the
Courts constituted under the Act are preferential Courts having
limited jurisdiction and such Courts are established to provide
expeditious trial and disposal of certain types of cases in the
shortest possible time.
38.
As per Article 4 of Schedule, a suit for possession of immovable
property or for the recovery of interest in such property is not
cognizable by a Court of Small Causes. However an exception is carved
out in this Article. As per this exception a suit for ejectment
subject to the conditions enumerated in Clauses (a) to (c), is
cognizable by Courts of small causes. The conditions enumerated in
Clauses (a) to (c) are;
(i)
the property should have been let under a lease or permitted to have
been occupied by a written instrument or orally.
(ii)
The Court of small causes should be competent to take cognizance of a
suit for the rent of the property.
(iii)
The only substantial issue arising for the decision in such suits is
whether the lease has been determined by efflux of time limited
thereby or has been determined by a notice in accordance with the law
for the time being in force in respect of such lease, or the
permission to occupy has been withdrawn.
39.
As noticed earlier till the repeal of KRC Act and advent of KR Act on
31/12/2001, there was consistant opinion that in respect of the
premises to which part V of KRC Act was not applicable by virtue of
Section 31, and the lease of which had come to an end by efflux of
time limited therein or the tenancy had been determined by issuing
notice as provided by Section 111 of TP Act, a suit for ejectment was
cognizable by Court of small causes subject to its pecuniary
jurisdiction mentioned in Sec. 8(2) of KSCC
Act,
which was being determined as per Sec. 41(2) read with Sec. 50 of
KCFSV Act, though there was some controversy as to whether a suit
filed for ejectment and also for mesne profits for the use and
occupation of the premises after the determination of the tenancy was
cognizable by a Court of small causes.
40.
In B.S
Giridhar v. P.V Shetti (SUPRA),
a Division Bench of this Court, in view of the fact that Sec. 31 of
KRC Act exempted the application of Part V dealing with “control of
eviction of tenants and obligation of landlords” only to a
non-residential premises whose monthly rent exceeded Rs. 500/- and
since all other provisions of said Act including the definition of
term ‘tenant’ which included a tenant holding over after
determination of tenancy, were applicable even to the category of
premises as mentioned in Sec. 31, held that notwithstanding the
termination of tenancy, the person in possession of such premises
would be a tenant, as such, he would be liable to pay only agreed
rent and not damages for use and occupation. In the light of this
there was consistant opinion that in respect of non residential
premises whose monthly rent exceeded Rs. 500/- and upon determination
of tenancy in accordance with law, a suit for ejectment and also for
rent, subject to pecuniary jurisdiction, was cognizable by a Court of
small Causes.
41.
The whole controversy with regard to the competence of Court of Small
Causes to take cognizance of a suit for ejectment arose only after
the repeal of KRC Act and the advent of KR Act especially in the
light of the definition of the term ‘tenant’ occurring in Sec.
3(n) of KR Act as also non application of the entire Act to the host
of category of premises specified in Clauses (a) to (h) of Sub. Sec.
(3) of Sec. 2 of the Act.
42.
In Sarojamma's Case the division bench formulated the following three
propositions for its consideration;
(1)
Can Small Causes Court take cognizance of only such suits which are
filed seeking ejectment of tenants of the premises to which the
Karnataka Rent Act applies and not in respect of tenants who occupy
the premises whose tenancy has been determined or come to an end
since in such case the remedy is only the Civil Court?
(2)
Can Small Causes Court take cognizance of suits filed seeking
ejectment and rent even in respect of the premises to which Karnataka
Rent Act is not applicable, subject to there being no prayer for
mesne profits, damages and/or compensation provided the valuation of
the same being within the pecuniary jurisdiction?
(3)
Can Small Causes Court take cognizance of suits filed seeking
ejectment, rent, damages mesne-profits etc., even in respect of the
premises to which Karnataka Rent Act, is not applicable, provided the
valuation of the same being within the pecuniary jurisdiction?
The
Division Bench answered the above propositions as under;
(1)
The Small Causes Court can take cognizance only of such suits which
are filed seeking ejectment of tenants of the premises to which KR
Act applies and not in respect of the tenants/persons who occupy
other premises to which the Act does not apply and whose tenancy has
been determined or has come to an end either by efflux of time or by
withdrawal of the same.
(2)
& (3) In respect of the ejectment of the tenants from the
premises to which the KR Act does not apply, relief would have to be
sought for by filing an appropriate suit before City Civil Court
which alone can entertain such suits even if bare ejectment or
ejectment and arrears of rent is sought.
Re:
the correctness of answer to proposition No. 1
43.
The answer to the first part of the proposition No. 1 is on the
premise that the tenant of a premises to which KR Act is applicable,
would continue to be a tenant even after efflux of time or after
termination of the tenancy by notice or the permission to occupy has
been withdrawn and even during the period of the such eventuality and
until ejectment or eviction is made such person would remain to be a
tenant and the consideration payable for the occupation of the
premises either during the subsistence of the lease or subsequent to
determination or efflux, would be ‘rent’ and the same cannot be
called in any other nomenclature and therefore the same would satisfy
sub article (b), as such insofar as such a tenant is concerned the
Court of Small Causes would have jurisdiction to pass an order for
ejectment even though a suit for possession of immovable property or
interest in such property is excepted.
44.
A cursory reading of proposition No. 1 and the answer above indicates
the fallacy in it. While formulating the first part of the
proposition No. 1 and finding answer to the same, the Division Bench
has completely overlooked the fact that in respect of premises to
which K.R Act is applicable only the ‘Court’ constituted under
the said Act alone has jurisdiction to pass an order for recovery of
possession of the premises that too upon the landlord proving one or
more grounds enumerated therein. Section 27 of the K.R Act to the
extent relevant for our purposes reads as under:
45.
Section 27. Protection of tenants against eviction:
(1)
Notwithstanding anything to the contrary contained in any other law
or contract, no order or decree for recovery of possession of any
premises shall be made by the Court, District Judge or High Court in
favour of landlord against the tenant save as provided in sub-Sec.
(2).
(2)
The Court may, on an application made to it in the prescribed manner,
make an order for recovery of possession of the premises on one or
more of the following grounds only.
(a)
to (r) XXXXXXXX
Sec.
3. (c). ‘Court’ means,
(i)
in respect of the area comprised within the limits of City of
Bangalore, the Court of small Causes;
(ii)
in such other area as the State Government, may, in consultation with
the High Court, by Notification specify, the Court of Civil Judge
(Senior Division) having jurisdiction over such area; and
(iii)
in respect of areas other than those referred to in sub-Clauses (i)
and (ii), the Court of Civil Judge (Junior Division) having
jurisdiction over such area.
46.
The KR Act being Special Act and in the light the non-obstante clause
found in sub-Section (1), the jurisdiction of all other Courts other
than the ‘Court’ constituted under the said Act, to make an order
for recovery of possession of such premises to which said Act is
applicable, stand excluded. Therefore no Court other than the Court
specified in Clause (c) of Section-3 has jurisdiction to pass an
order for recovery of possession of the premises to which this Act
applies. Of course as per sub-Clause (i) & (iii) of Clause (c) of
Section 3 in respect of the area comprised within the limits of City
of Bangalore the Court of Small Causes and in respect of other areas
Court of Civil Judge (junior division) having territorial
jurisdiction over such area are designated as ‘Court’ under the
Act. However these courts being persona-designeta, whenever they
exercise powers under the said Act they discharge function as special
courts. The Small Causes Court in Bangalore and the Court of Civil
Judge (junior division) in other places while acting as ‘Court’
under K.R Act does not function as Court of Small Causes exercising
the power under KSCC
Act
or as Civil Courts as the case may be. This is further made clear in
Sections 24 and 26 of KSCC
Act.
Sec. 24 of KSCC
Act
provides for appointment of a Judge or Additional Judge of a Court of
Small Causes to be also a Judge in any other Civil Court or to be a
Magistrate of any class. As per Sec. 26 a Court invested with the
jurisdiction of a court of small Causes with respect to the exercise
of that jurisdiction and the same Court with respect to the exercise
of its jurisdiction in suits of a civil nature which are not
cognizable by a Court of small Causes, shall for the purposes of KSCC
Act and the Code of Civil Procedure,
be deemed to be different. Thus, though Courts of Small Causes in
Bangalore functions as ‘Court’ under KR Act, while discharging
such functions under KR Act they function as Special Courts and not
as Courts of Small Causes under KSCC
Act.
In fact the question before the Division Bench was not whether the
Court of Small Causes are competent to take cognizance of a
proceeding initiated for recovery of possession of premises to which
KR Act is applicable. The question before the Division Bench was
whether Courts of Small Causes can take cognizance of suits for
ejectment in respect of premises to which KR Act is not applicable.
47.
Rule 5 of Karnataka Civil Rules of Practice made by the State in
exercise of powers conferred by Sec. 122 of CPC which is applicable
to all Civil Courts in the State, sets out the description of the
proceedings. As per sub-Rule (1) a suit instituted in any Court
subordinate to the High Court, other than a suit cognizable by a
Court of small Causes, shall be designated as “Original Suit” and
indicated by the abbreviation “O.S”. As per sub
rule (2)
a suit cognizable by a Court of Small Causes shall be designated a
“Small Cause Suit” and indicated by the abbreviation “S.C”.
As per sub
Rule (4) Original
proceedings other than suits and Execution Cases shall be classified
according to the nature of the subject matter and be designated as
mentioned therein and indicated by the abbreviation noted therein. As
per Clause
(g) of sub Rule (4) House Rent Control
Cases should be indicated as H.R.C Thus the original proceedings
initiated for recovery of possession of premises to which KR Act is
applicable before the competent Court under the said Act are not
‘Suits’. Therefore, the opinion of the Division Bench that Court
of Small Causes can take cognizance only of such suits which are
filed seeking ejectment of tenants of the premises to which KR Act
applies runs contrary to the provisions of said Act as such it does
not lay down correct law. In respect of the premises to which KR Act
is applicable, only the ‘Court’ specified under Clause (c) of
Section 3 alone is competent to make order for recovery of such
premises on the landlord proving any one or more grounds enumerated
therein.
48.
While formulating the second part of proposition No. 1, the Division
Bench appears to be of the view that all suits for ejectment in
respect of premises to which KR Act is not applicable, irrespective
of the value of the subject matter of such suits for the purpose of
pecuniary jurisdiction, are cognizable by ‘Civil Court’ only.
Proposition Nos. 2 & 3 relate to the jurisdiction of Court of
Small Causes to take cognizance of suits for ejectment with prayer
for recovery of arrears of rent and/or mesne profits in respect of
premises to which KR Act does not apply.
49.
After extracting the provisions
of Sec. 8, 9 and Article 4 of schedule to KSCC Act,
the Division Bench, for the purpose of finding answers to these
propositions has considered the questions as to what does words
‘Possession’ and ‘Ejectment’ indicates; as to whether
recovery of mesne profits or damages for use and occupation of the
premises after termination of tenancy or determination of lease by
efflux of time would amount to recovery of an interest in the
immovable property; as to what is the nature of possession of the
leased premises by the erstwhile tenant after
termination/determination and as to whether the consideration paid by
the erstwhile tenant after termination/determination for the
continued occupation of the premises/property would be ‘rent’.
50.
The Division Bench after noticing that the words ‘possession’ and
‘ejectment’ are not defined under any of the statutes which are
under consideration and though all the external aids urged, more
particularly order XX
Rule 12 of CPC, Article 67 of the Limitation Act and the provisions
of KCFSV Act,
use the word ‘possession’, and the kind of decrees that are
permissible, has observed that no distinction as to whether the terms
‘possession’ and ‘ejectment’ would mean different or as to
whether they are interchangeable words is not clearly indicated.
Thereafter, the division bench referring to the intention of the
legislatures in enacting the Small Causes Courts Act, in keeping out
almost all category of suits relating to immovable property and
certain other suits which call for full dress trial out of the
purview of Court of Small Causes, but only permitting suits for
ejectment which do not admit of controversies as categorized in
Clauses
(a) to (c) of Article 4
to be entertained by the Court of Small Causes, and since the suit
for ejectment in effect is for recovery of possession of immovable
property, ultimately opined that the word’ ‘possession’
includes all types of possession and therefore the said term is all
encompassing and includes the ejectment, as such, the word
‘possession’ is generic in nature and the word ‘ejectment’ is
its species but they are however not interchangeable inasmuch as the
word ‘ejectment’ could be used only in respect of persons whose
initial entry was lawful and continues to be lawful or has become
unlawful by legal fiction whereas the word possession could be used
in respect of both who have entered lawfully or otherwise.
51.
By referring to the decision of a Single Bench of this Court in
Guruviah
v. Krishnavenamma
.
1983 1 KLJ 66.,
and the meaning of the expression ‘interest in the use and
enjoyment of land’ occurring in Black's Law dictionary, the
Division Bench opined that when the enjoyment of the land and
advantage that a person may derive is an ‘interest’ in the
property, the rent, damages, mesne profits, compensation etc., in
respect of such land which the owner is entitled to receive more
particularly when such property is occupied by someone else has to be
construed as ‘interest in the immovable property’.
52.
Placing reliance on the decision of the Hon'ble Supreme Court in the
case of M.C
Chockalingam v. Manickavasagam .
AIR 1974 SC 104.,
and the decision in Raptakos
Brett & Co. v. Ganesh Property
.
AIR 1998 SC 3085.,
wherein it has been held that wrongful possession is not distinct
from unlawful occupation and an erstwhile tenant continues in
possession because he cannot be physically thrown out without due
process of law and the status of an erstwhile tenant has to be
treated as a tenant at sufferance akin to a trespasser having no
independent right to continue in possession, the Division Bench has
observed that “the settled position of law is that in the case of
non-statutory tenant whose tenancy has been determined continues to
be in possession as erstwhile tenant and would not fall within the
definition of tenant but would only be protected from unlawful
eviction but his possession after determination would be wrongful
possession without independent right to continue whereas a tenant
under the Rent Act has a right to continue as protected under the
Act”.
53.
Placing reliance on the decision in Giridhar's case (supra) wherein
another Division Bench of this Court had held that the tenants under
the Rent Act would continue to be the tenants and inrespect of such
person even after determination the amount payable would be rent and
not mesne profits, the Division Bench as a converse has held that “in
the case of an erstwhile tenant who is not a statutory tenant in view
of the premises not being governed by the Rent Act, the consideration
payable for such unlawful, wrongful and juridical possession as
tenant at sufferance is mesne profits, damages or compensation and
not rent”.
54.
In the light of the above findings, the Division Bench held thus in
para 32;
“xxx
for a suit for ejectment to be maintainable as per Article 4, before
the Small Causes Court, sub-Article (a) prescribes the pre-requisite
and sub-Article (c) prescribes the scope of enquiry which indicates
the summary nature and it is sub-Article (b) which holds the key to
deciding the jurisdiction when all the three are read conjunctively
since the words “would be competent to take cognizance of a suit
for rent of the property” as contained in sub-Article (b) would
assume all importance, more particularly the words ‘would be’
which denotes that as on the date of presenting the suit to the Small
Causes Court, the Court should be competent to take cognizance of a
suit for rent. The term ‘rent’ can be used only in respect of a
tenant and not otherwise. Therefore on that particular day, the Small
Causes Court would not have jurisdiction to entertain the suit in
view of sub-Article (b), unless he is a tenant of the premises to
which the Rent Act is applicable which continues his status as
tenant. xxx”
Ultimately
the Division Bench concluded thus in para 33:
“Hence,
the resultant effect is that the legislature while excepting a suit
for possession has carved out ejectment and qualified the same by
carving out rent from the excepted category of interest in the
property and combining it with ejectment and then making it possible
for the Small Causes Court only to eject the tenant who continues to
pay (the consideration of rent) and sub-Article (a) and (c) ensures
the summary nature of the proceedings which is further complimented
by Sections
43 and 45 of Rent act,
Therefore the irresistible conclusion can only be that in respect of
a tenant/lessee who is not protected under the Rent Act ejectment
suit would not be maintainable before the Court of Small Causes since
the Court would not have the jurisdiction to take cognizance of such
a suit and could be instituted only before the Civil Court even if
bare ejectment is sought”
Re.
Opinion of the Division Bench as to the meaning of the terms
‘Possession’ and ‘Ejectment’.
55.
Though as per Article 4 of the Schedule to KSCC
Act,
a suit for recovery of possession of immovable property or any
interest therein is not cognizable by a Court of Small Causes, a suit
for ejectment carved out as an exception from such categories of
suits for recovery of possession or interest in the immovable
property, has been made cognizable by a Court of Small Causes,
subject to conditions enumerated in Clauses (a) to (c) and the
pecuniary limits as specified in Sec. 8(2) of KSCC
Act.
In the light of this, as the Division Bench was required only to
consider the question whether Courts of Small Causes can take
cognizance of a suit for ejectment against non-statutory tenant in
respect of premises to which KR Act is not applicable, in our
opinion, it was not necessary for the Division Bench to examine as to
whether the terms ‘possession’ and ‘ejectment’ would mean
different and whether they are interchangeable words, more
particularly in the light of the plain language of Article 4 of the
schedule.
56.
As observed by the Division Bench no doubt the terms ‘possession’
and ‘ejectment’ are not defined under any of the statutes.
Nevertheless in the context of the jurisdiction of Court of Small
Causes to take cognizance of suits for ejectment in terms of Article
4, in our opinion, the term ‘ejectment’ would mean different from
the term ‘possession’ and they are interchangeable words. We say
so for the following reasons:
57.
Reading of Article 4 make it clear that the Legislatures themselves,
for the purpose of investing jurisdiction in the Court of Small
Causes, have indicated that a suit for possession does not include a
suit for ejectment, as such, in the context of jurisdiction of Court
of Small Causes, the term ‘ejectment’ is different from the term
‘possession’. This intention on the part of the Legislatures may
also be gathered from the previous statutes which were repealed under
this Act. As is clear from the Statements of Objects and Reasons
attached to KSCC
Act,
this Act was modeled on the lines of The Provincial
Small Causes Courts Act 1887. Article 4 of Schedule to 1887 Act
excepted from the cognizance of Court of Small Causes, a suit for
possession of immovable property or for the recovery of an interest
in such property. The said Article had not carved out an exception
similar to the one made in Article 4 of KSCC
Act.
Thus a suit for ejectment also was not cognizable by Court of Small
Causes under 1887 Act. Nevertheless, under KSCC
Act
a suit for ejectment is made specifically cognizable by a Court of
Small Causes, of course subject the conditions enumerated in Clauses
(a) to (c) and the pecuniary limits as mentioned in Section 8(2).
This exception appears to have been modeled on the lines of Mysore
Act VIII of 1911 which was in operation in Mysore area. As noticed
herein above, as per Section
4 of Mysore Act,
only suits specified in Schedule I therein were cognizable by Courts
of Small Causes and no suit in which relief was claimed in respect of
immovable property was cognizable by a Court of Small Causes. However
as per Exception introduced through the amendment Act VI of 1928 to
this Section, a suit in ejectment based on leases of immovable
property in writing, other than agricultural leases, was not a suit
in respect of immovable property within the meariing of this Section.
Consequent amendment made to schedule I to that Act as per Clause 22,
permitted a Court of Small Cause to take cognizance of suits in
ejectment based on leases of immovable property other than
agricultural leases, which are in writing. It is on these lines under
Article
4 of schedule to KSCC Act,
suits for ejectment appears to have been carved out as an exception
to the suits for recovery of possession of immovable property or an
interest therein. From this it is clear that in the context of
jurisdiction of Court of Small Causes, a suit for ejectment is not
necessarily on par with a suit for recovery of possession of
immovable property under general law.
58.
Under general law, recovery of possession of immovable property is
referable to recovery of specific immovable property as provided
under Sections
5 and 6 of Specific Relief Act 1963.
Under law, three distinct actions can be brought for the recovery of
specific immovable property namely (1) a suit based on title, (2) a
suit based on possessory title, and (3) a suit on the strength merely
of previous possession in the case of a wrongful ouster of plaintiff
otherwise than by due course law. In the first two categories of the
suits the title of the plaintiffs to the property would be
adjudicated upon while in the third category of suits, proof of
previous possession and wrongful ouster are to be proved. In common
parlance a suit for ejectment is by the landlord against the
non-statutory tenant filed after the term of lease coming to an end
by efflux of time or by termination of tenancy through notice, and in
such suits the title of the landlord vis-a-vis the property is not
adjudicated upon. Such suits for ejectment of an erstwhile tenant, as
held by the Apex Court in Raptakos (supra), is essentially one to
enforce the statutory obligation imposed on the lessee under Sec.
108(q) of T.P Act
to put the lessor into possession of leased property/premises upon
the determination of the lease.
59.
In the context of jurisdiction of the Court of Small Causes, this
factor is more evident from Clauses (a) and (c) of Article 4. For a
suit for ejectment to be cognizable by Court of Small Causes, as per
Clause (a) of Article 4, the property/premises must have been let
under a lease or permitted to be occupied by a written instrument or
orally. As per Clause (c), the lease must have been determined by
efflux of time limited thereby or must have been determined by notice
in accordance with law or the permission to occupy must have been
withdrawn. No doubt even in the suit for ejectment the purpose is
recovery of immovable property. Nevertheless a suit for ejectment
cannot be equated to a suit for possession of immovable property in
common parlance.
60.
The provisions of Limitation Act and KCFSV Act also indicate that a
suit for ejectment is distinct and different from the suit for
recovery of possession of immovable property based on title or
possessory title. Provisions of Limitation Act prescribes different
period of limitation for different kinds of suits and proceedings.
Article
64 of Limitation Act 1963,
prescribes period of limitation inrespect of suits for possession of
immovable property based on previous possession and not on title,
while Article 65 prescribes period of limitation inrespect of suits
for possession of immovable property or any interest therein based on
title. Article 66 prescribes period of limitation inrespect of suits
for possession of immovable property when plaintiff has become
entitled to possession by reason of any forfeiture or breach of
condition. Article 67 prescribes period of limitation in respect of
suits by a landlord to recover possession from a tenant.
61.
KCFSV Act prescribes different method for different kind of suits and
proceedings for determination of the value of the subject matter of
such suits for the purpose of jurisdiction and payment of Court fee.
Section 29 deals with a suit for possession of immovable property,
while Section 41(2) deals with a suit for recovery of immovable
property from a tenant including a tenant holding over after
termination of tenancy. Thus Limitation Act and KCFSV Act have also
indicated that suits for possession of immovable property are
different from suits by landlord for recovery of possession from
tenant.
62.
From the discussions made above it is clear that though the element
of recovery of possession of immovable property is common in suits
for possession and also suits for ejectment, they are not same
category of suits. Therefore, the words ‘possession’ and
‘ejectment’, in our opinion, are amenable to different meaning in
different context. In any case, in the context of jurisdiction of
Small Causes Court, a suit for recovery of possession of immovable
property does not include a suit for ejectment as such, a suit for
ejectment is distinct and different from suit for recovery of
possession of immovable property or for recovery of any interest in
such immovable property. Therefore, we are not in agreement with the
opinion of the Division Bench in this regard.
Re;
Opinion of the Division Bench on the question whether recovery of
mesne profits or damages after termination or determination of lease
would amount to recovery of an interest in the immovable property.
63.
In the context of jurisdiction of Court of Small Causes to take
cognizance of a suit for recovery of mesne profits from the erstwhile
non-statutory tenant after termination/determination of lease in
respect of the premises to which KR Act is not applicable, in our
opinion, even this question was not germane in the light of the
Article 28 of the Schedule.
64.
It is clear from Sec. 8(1) and (2) of KSCC
Act
that only the nature of suits enumerated in the Schedule are not
cognizable by Court of Small Causes and all other suits are
cognizable by Court of Small Causes. Reading of the various Articles
of Schedule indicates that certain categories of suits are carved out
as exceptions thereby making such suits cognizable by the Courts of
Small Causes. As noticed supra though under Article 4, a suit for
possession of immovable property or for recovery of an interest in
such property is excepted from the cognizance of Courts of Small
Causes, a suit for ejectment has been carved out as an exception and
is made cognizable by a Court of Small Causes of course subject to
the conditions stated under clauses (a) to (c) therein and subject to
pecuniary jurisdiction. Similarly under Article 28 of Schedule though
suit for account including a suit by a mortgagor after the mortgage
has been satisfied, to recover surplus collections received by the
mortgagee, is excepted from the cognizance of Court of Small Causes,
a suit for mesne profits is carved out as an exception and such suit
is made cognizable by Court of Small Causes.
65.
Before the Division Bench, by pressing into service the exception
carved out in Article 28 it was argued that in the context of
jurisdiction of the Court of Small Causes, recovery of mesne profits
cannot be construed as recovery of an interest or determination or
enforcement of any other right to or interest in immovable property
and therefore a suit for mesne profits is also maintainable before
the Courts of Small Causes. However, the Division Bench, without
considering said arguments, by observing that as, its task was only
to interpret Article 4 and not all other rights arising under KSCC
Act,
and the reference made to Article 28 by the Learned Counsels was only
as an aid to interpret Article 4, and since its consideration is
limited only to possession/ejectment and interest in such property
regarding which ejectment is sought, by referring to the decision in
Guruvaiah's case (SUPRA), and in the light of dictionary meaning of
phrase ‘interest in the use and enjoyment of land’ proceeded to
hold thus in paragraph 18:
“Therefore,
when enjoyment of the land and advantage that a person may derive is
an ‘interest’ in the property, in our considered view, the rent,
damages, mesne profits, compensation etc., in respect of such land
which the owner is entitled to receive more particularly when such
property is occupied by someone else has to be construed as
‘interest’ in the immovable property”.
66.
In Guruvaiah's case (SUPRA) a suit for recovery of arrears of rent
was filed before Court of Small Causes. The defendant contended that
the property is mortgaged to the plaintiff therein and to secure
prompt payment of interest on the mortgage debt a lease deed came to
be executed as such both mortgage and the lease formed part of one
transaction, as such, there is no relationship of landlord and tenant
and therefore the suit filed for recovery of rent is not
maintainable. After enquiry, the Court of Small Causes though
accepted the contention of the defendant that the mortgage and lease
formed part of one transaction and the lease was only a design for
securing prompt payment of interest, nevertheless decreed the suit on
the basis that the suit was for recovery of interest. The said
judgment was questioned both by the plaintiff and defendant. This
Court noticing that under Article 4 of Schedule, a suit for recovery
of an interest in immovable property and under Article 10 a suit for
the determination or enforcement of any other right to or interest in
immovable property, are excepted from the cognizance of Court of
Small Causes, held that when once a finding is recorded by the Small
Causes Court that it is not a lease but it is a part of the mortgage
transaction and is intended to ensure prompt payment of interest on
mortgage debt, the suit ceases to be a suit for recovery of arrears
of rent and in such a situation, the suit in effect will be a suit
for recovery of interest in the immovable property or at any rate
will be a suit for enforcement of a right or interest in the
immovable property, in either case such a suit will be beyond the
purview of the Court of Small Causes. In this decision the court has
not made any reference to Article 28 of the Schedule nor the said
suit was for recovery of mesne profits. On the facts of that case it
had been held that it was a mortgage transaction and lease was
integral part of mortgage transaction. Therefore it has been rightly
held that it amounted to recovery of interest on mortgage debt and
since the mortgage creates transfer of interest in immovable
property, it was a suit for recovery of interest in immovable
property. The said decision is not an authority for the proposition
that recovery of mesne profits under all circumstances amounts to
recovery of an interest in immovable property.
67.
The opinion expressed by the Division Bench in para 18 extracted
supra has weighed very much while considering the argument that the
jurisdiction of a Court would depend on the relief claimed in the
suit and the question whether the Court of Small Causes has
jurisdiction to entertain a suit for ejectment with or without prayer
for recovery of mesne profits/damages and this is evident from the
observation made in para 23 which reads as under:
“It
is needless to mention that when an interpretation of the
jurisdiction of a Court is to be made, the interpretation should
always lean infavour of avoiding multiplicity of proceedings.
Therefore, if this argument is accepted, the same would only lead to
such consequences. That apart, there is one more reason for not
accepting such an argument i.e, Section 9 of the Act also would have
to be kept in view. If for a moment it is assumed that a suit only
for ejectment and rent is permitted before a Court, it would mean
that the jurisdiction of the Court of Small Causes in this regard is
upheld. Once that is done, the difficulty would arise in as much as
under Section 9 the exclusive jurisdiction of the Court of Small
Causes is contained, which indicates that a suit cognizable by a
Court of Small Causes shall not be tried by any other Court having
jurisdiction. This means if in one case, a suit for ejectment with
rent is permitted before a Small Causes Court and if in another case
the landlord chooses to file a suit for ejectment and mesne profits
or damages and if the valuation is within the pecuniary jurisdiction,
the first part of the ejectment becomes exclusive jurisdiction of the
Court of Small Causes and second part before Civil Court. Therefore
it would not be maintainable before a Civil Court for the first
relief whereas the second part for mesne profits and damages would be
maintainable before the Civil Court and as such, in our view, an
interpretation of this nature would only lead to absurdity and the
same requires to be avoided”.
68.
In the light of the scheme of KSCC
Act
wherein the legislatures have specified the categories of suits which
are not cognizable by Courts of Small Causes, and have carved out
certain categories of suits as exceptions thereby specifically making
such suits cognizable by the Courts of Small Causes, the Division
Bench, while considering the question whether suit for ejectment with
prayer for recovery of mesne profits is cognizable by Court of Small
Causes, and before expressing a general opinion as found in para 18
extracted supra, it ought to have considered the effect of exception
carved out in Article 28 of the Schedule.
69.
The term “Mesne profits” in relation to property is defined under
Sec. 2(12) of C.P.C to mean those profits which the person in
wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together with interest on
such profits, but shall not include profits due to improvements made
by the person in wrongful possession. Thus basically a suit for
recovery of mesne profits is in effect a suit for accounts in the
sense the person in wrongful possession of property without any
authority is required to render accounts of profit he has derived
from such property during the period while he was in wrongful or
unauthorized possession of the property. A Division Bench of this
Court in Nemichand
Tavanappa Kudachi v. Jinnappa Mahadev Kudachi .
ILR 1973 KAR 661.,
has reiterated this proposition. This is further evident from the
fact that a suit for mesne profits has been carved out as an
exception in the Article which excepted from the cognizance of Court
of Small Causes any other suit for accounts. It is pertinent to note
that a suit for mesne profits has not been carved out as an exception
in Article 4 dealing with the suit for recovery of possession of
immovable property or for recovery of an interest in such property
nor such exception is carved out in Article 10 dealing with suit for
determination or enforcement of any other right to or interest in
immovable property.
70.
Reading of all the Articles of the Schedule indicates that a suit for
mesne profits has not been specifically excepted from the
jurisdiction of Court of Small Causes. On the other hand under
Article 28 while excepting any other suit for accounts, a suit for
mesne profits has been carved out as an exception thereby making such
suit specifically cognizable by Court of small Causes. When the
legislatures under Article 28 by carving out an exception have
specifically made suit for mesne profits cognizable by Court of Small
Causes, and in the light of scheme of the Act in excepting only the
categories of suits specified in the Schedule from the cognizance of
Courts of Small Causes, and in view of the fact that suit for mesne
profits is not the one specifically kept out of the purview of Small
Causes Courts in the Schedule, it is impermissible for this Court to
render the said clause redundant by reading the said clause into
another Article in the Schedule for holding that mesne profits would
amount to recovery of an interest in immovable property, therefore
the suit for mesne profits is excepted from the cognizance of Court
of Small Causes.
71.
There is absolutely no substance in the argument that suit for mesne
profits carved out as an exception under Article 28 is only in
relation to mortgage and not for the recovery of mesne profits in the
context of suit for possession or ejectment. The said exception
carved out in Article 28 is general in nature. This can also be
gathered from the legislative history. Under Article
31 of The Provincial Small Cause Courts Act
which is similar to Article 28 of the present Act, no exception is
carved out as in Article 28. However, the exception carved out in
Article 28 appears to have been drawn from The Mysore Act, as, under
Clause 16 of Schedule I of The Mysore Act a suit for damages for use
and occupation of immovable property in cases where rent is not
claimable as such, was cognizable by Court of Small Causes.
72.
No doubt under Article 4 a suit for recovery of an interest in
immovable property and under Article 10 a suit for determination of
any other right to or interest in immovable property are excepted
from the jurisdiction of a Court of Small Causes. However, under
Article 28 since a suit for mesne profits has been carved out as an
exception and thereby making such suit for recovery of mesne profits
cognizable by Courts of Small Causes, even if it is accepted that
recovery of mesne profits amounts to recovery of an interest in
immovable property, in the context of jurisdiction of Courts of Small
Causes it does not amount to recovery of an interest in the immovable
property.
73.
As observed supra, in the context of jurisdiction of Courts of Small
Causes, a suit for ejectment is by the landlord against the
non-statutory tenant for delivery of possession of leased
premises/property upon termination/determination of lease. No doubt
as rightly observed by the Division Bench, the considerations paid or
payable by such non-statutory tenant for the continued occupation of
leased premises after termination of tenancy or determination of
lease by efflux of time, cannot be termed as rent as the relationship
of landlord and tenant ceased to exist, therefore the consideration
so paid or payable is only mesne profits or damages for use and
occupation. However, in the light of the above discussion, we are of
the considered opinion that in the context of jurisdiction of Court
of Small Causes, to take cognizance of a suit for ejectment, recovery
of mesne profits would not amount to either recovery of an interest
in the immovable property or determination or enforcement of any
other right or interest in the immovable property, and the Court of
Small Causes is competent to consider prayer for mesne profits
against non-statutory tenant after termination/determination of
lease. The contrary view expressed by the Division Bench in this
regard does not lay down correct law.
Re:
Interpretation
of Clauses (a) to (c) of Article 4
by the Division Bench;
74.
The opinion of the Division Bench that a Court of Small Causes cannot
take cognizance of a suit for ejectment with or without prayer for
mesne profits or damages for use and occupation of premises in
possession of a non-statutory tenant after determination of lease by
efflux of time or termination of tenancy through notice, and the
remedy is only to file suit before Civil Court is based on two
premise namely (1) The nature of possession of premises by a
non-statutory tenant after determination or termination of lease, as
held by the Apex Court in Raptakos (supra), being a tenant at
sufferance akin to a trespasser having no independent right to
continue in possession and the consideration paid or payable by such
erstwhile tenant for the continued possession of the
premises/property not being rent but being mesne profits or damages,
the Court of Small Causes would not be competent to take cognizance
of a suit for the rent of the property and thus condition contained
in Clause (b) of Article 4 would not get satisfied. (2) Assuming that
a suit for ejectment without prayer for mesne profits or damages is
cognizable by a Court of Small Causes and if a landlord chooses to
file a suit before the Civil Court for ejectment and for mesne
profits or damages, by virtue of exclusive jurisdiction of the Courts
of Small Causes provided under Sec. 9 of KSCC
Act.,
the Civil Court cannot deal with the first prayer for ejectment,
while the Court of Small causes cannot deal with the prayer for mesne
profits or damages as it would amount to recovery of an interest in
immovable property, in such event it would lead to multiplicity of
proceedings and also to absurdity which have to be avoided.
75.
The second premise noted supra on which the Division Bench rested its
opinion is fallacious. We say so for the following reasons.
As
opined supra, in the context of jurisdiction of Court of small
Causes, recovery of mesne profits does not amount to recovery of an
interest in immovable property, nor amounts to determination or
enforcement of any right to or interest in immovable property, and a
suit for recovery of mesne profits from a non-statutory tenant in
respect of the premises the lease of which has either been terminated
or determined, is not excepted from the jurisdiction of Court of
Small Causes but on the other hand such a suit is carved out as an
exception under Article 28 of the Schedule as such it is cognizable
by Court of Small Causes.
76.
Assuming that prayer for recovery of mesne profits is not cognizable
by Court of Small Causes, and if a landlord chooses to file a suit
before the Civil Court for ejectment with a prayer for recovery of
mesne profits, it cannot be said that in such a suit, in the light of
Sec. 9 of KSCC
Act.,
the Civil Court cannot deal with relief of ejectment though it can
deal with the prayer for mesne profits. Courts of Small Causes are
preferential Courts. No doubt, in view of Sec. 9, the suit cognizable
by Courts of Small Causes cannot be tried by any other Courts.
However, if in a given case two reliefs are sought in a suit filed
before Civil Court out of which one is cognizable by Court of Small
Causes while the other is excepted from the purview of Small Causes
Court, the jurisdiction of the Civil Court is not excluded to grant
the relief which is cognizable by Small Causes Court. It is a well
accepted theory that Civil Courts are courts of general jurisdiction.
Therefore the jurisdiction of Civil Court to take cognizance of a
suit for ejectment falling within its pecuniary jurisdiction is not
barred. Even a suit only for ejectment without prayer for mesne
profits, the value of the subject matter of which exceeds the
pecuniary jurisdiction of Court of Small Causes, would lie only
before the Civil Court. Jurisdiction of a Court to take cognizance of
any suit or proceedings dependant on several factors such as
Territorial Jurisdiction, Pecuniary Jurisdiction and also the nature
of the reliefs sought.
77.
Sec. 6 of KCFSV Act which deals with valuation of multifarious suit,
directs that in any suit in which separate and distinct reliefs based
on the same cause of action are sought, the plaint shall be
chargeable with a fee on the aggregate value of the reliefs. As per
Rule
3 of Order II of C.P.C
a plaintiff has an option to unite in the same suit several causes of
action against the same defendant, or the same defendants jointly.
This option is also available to several plaintiffs having causes of
action in which they are jointly interested against the same
defendant/s. As per sub-Rule
(2) of Rule 3,
where several causes of action are united, the jurisdiction of the
Court as regards the suit shall depend on the amount or value of the
aggregate subject-matters at the date of instituting the suit. As per
the Explanation to Sec. 6 of KCFSV Act, for the purpose of the said
Section, a suit for possession of immovable property and for mesne
profits shall be deemed to be based on the same cause of action.
78.
Order II Rule 2(3) of C.P.C requires that a person entitled to more
than one relief in respect of the same cause of action has to sue for
all reliefs, but if he omits, except with the leave of the Court, to
sue for all reliefs, he shall not afterwards sue for any relief so
omitted. The object of this rule is to prevent multiplicity of suits
Therefore, viewed from any angle, there is no substance in the second
premise on which the Division Bench proceeded to hold that Court of
Small Causes cannot take cognizance of a suit for ejectment with or
without prayer for mesne profits/damages.
79.
In the light of the above opinion of ours, what is left to be
considered is whether the interpretation placed by the Division Bench
on Clause (b) of Article 4 is justified.
80.
As contended by Sri. Shekar Shetty, all the three conditions
enumerated in Clauses
(a) to (c) of Article 4
have to be collectively and conjointly satisfied for the purpose of
Small Causes Court taking cognizance of suit for ejectment as
provided under Article 4.
81.
Clause (a) prescribes the prerequisite that the property must have
been let under a lease or permitted to be occupied either by a
written instrument or orally, thereby it insists that there should
have been jural relationship of landlord and tenant between the
parties to the suit any time prior to the institution of the suit.
Clause (b) directs that the Court of Small Causes is competent to
take cognizance of a suit for rent of the property. Clause (c) lays
down the scope of enquiry being summary and the only substantial
issue that arises for consideration being whether the lease has been
determined by efflux of time or has been determined by a notice, or
the permission to occupy has been withdrawn.
82.
The Division Bench at para 31 by posing a question to itself as to
whether the lessee/tenant whose term of tenancy has been determined
and who continues to be in possession of the premises even though not
entitled to in law, can be sought to be evicted by approaching Small
Causes Court keeping in view Sections
8, 9 and also Article 4
of the Act., after referring to the principles laid down in B.S
Giridhar's case (supra), and as a converse proposition holding that
in the case of an erstwhile tenant who is not a statutory tenant in
view of the premises not being governed by the Rent Act, the
consideration payable for such unlawful and juridical possession as
tenant at sufferance is mesne profits, damages or compensation and
not ‘rent’, went on to hold that as the consideration paid or
payable by a non-statutory tenant for his continued occupation of the
premises/property after termination/determination is not ‘rent’
and since the term ‘rent’ can be used only in respect of a tenant
and not otherwise, on the date of filing the suit, the Small Causes
Court would not have jurisdiction to entertain the suit in view of
sub-Article (b), unless he is a tenant of the premises to which the
Rent Act is applicable which continues his status as tenant and as on
that date since no rent would be payable in respect of the property,
the Court of Small Causes would not be competent to take cognizance
of a suit for ‘rent’, of the property, therefore Clause (b) of
Article 4 would not be satisfied. In this view of the matter the
division Bench concluded that Court of Small Causes has no
jurisdiction to take cognizance of even a bare suit for ejectment
also.
83.
As noticed supra almost all kinds of suits of civil nature involving
immovable property are taken out of the purview of Small Causes Court
leaving only very few categories of suits of civil nature involving
immovable property are made cognizable by Small Causes Courts. A suit
for ejectment by landlord against erstwhile tenant after
determination of lease is one of the category of suit cognizable by
Court of Small Causes. However, the interpretation placed by the
Division Bench on Clause (b) of Article 4, has rendered even a bare
suit for ejectment not cognizable by Court of Small Causes.
84.
Some of the cardinal rules of construction of statute or a provision
of a statute are:
The
first and primary rule of construction is that the intention of the
legislature must be found in the words used by the legislature
itself. (See AIR
1957 SC 907).
The intention of legislature must be found by reading the statute as
a whole. (See. (1985)
3 SCC 103; AIR
1992 SC 1). The Courts strongly lean against a construction which
reduces the statute a futility. (See. AIR
1961 SC 1107;
AIR
1990 SC 123;). While considering the meaning of a provision in
the statute, the whole statute, the previous state of the law, other
statutes in pari materia etc., are to be considered. Courts to avoid
interpretation which renders statute devoid of any meaning or
application. (See. AIR
1952 SC 369).
85.
Keeping the above principle in mind let us consider the question
whether the interpretation placed by the Division Bench on Clause (b)
of Article 4 is in accordance with law.
86.
By carving out an exception in Article 4 of the Schedule, the
legislatures have vested jurisdiction in the Courts of Small Causes
to take cognizance of suits for ejectment by landlord against
erstwhile non-statutory tenant after determination/termination of
lease. Any interpretation which takes away the jurisdiction of such
preferential Courts to take cognizance of a suit falling within its
jurisdiction should be avoided. The object of enacting KSCC
Act
is to provide speedy remedy by adopting summary procedure. More
particularly in relation to a suit for ejectment, in terms of Clause
(c) of Article 4, only substantial issue for consideration will be
whether the lease has been determined by efflux of time or by a
notice. Such a benign intention should not be rendered meaningless by
narrowly interpreting the term ‘rent’ occurring in Clause (b) of
Article 4 as referable to ‘rent’ paid by an erstwhile tenant in
occupation of premises to which KR Act is applicable. In a case of
this nature Court is required to apply purposive interpretation to
preserve the jurisdiction of the Court.
87.
Courts of Small Causes are also essentially ‘Civil Courts’. This
is made very much clear in sub-Sec. (2) of 8 of KSCC
Act.
According to sub-Sec. (2) subject to the exception specified in the
Schedule and to the provision of any other law, all suits of a Civil
nature value of which does not exceed one lakh rupees in the area
falling within Bangalore City Corporation and rupees twenty five
thousands in other areas, shall be cognizable by a Court of Small
Causes. Sec. 10 makes Code of Civil Procedure applicable to the
proceedings before Court of Small Causes to the extent provided under
the Code. The Rules of Practice applicable to the Civil Courts as per
Karnataka Civil Rules of Practice framed by the State in exercise of
powers conferred by Sec. 122 of CPC, are also applicable to Courts of
Small Causes. Thus though the phrases ‘Court of Small Causes’,
‘Civil Court’, and ‘City Civil Court’ have been defined in
the respective enactments, it is only for the purpose of
institutional distribution of suits involving disputes of civil
nature amongst these designated Courts subject to place or area
within which the causes of action for the institution of suit arises.
Thus, the Court of Small Causes is essentially a Civil Court, remains
a Civil Court and it is not as though it is one to be excluded from
the purview of the phrase ‘Civil Court’.
88.
The jurisdiction of the Court of Small Causes to take cognizance of a
suit for ejectment has to be decided only with reference to the
provisions
of Sections 8, 9 and Article 4 of the Schedule to KSCC Act. In
Article 4, expressions
such as ‘landlord’ and ‘tenant’ have not been used.
Therefore, while finding out the context in which the term ‘rent’
occurring in Clause (b) of Article 4, has been used therein, calling
in aid the definition of terms ‘landlord’ or ‘tenant’
occurring in KR Act is not warrented. As rightly contended by Sri.
P.D Surana, Learned Counsel, none of the conditions enumerated in
Clauses
(a) to (c) of Article 4
depend upon the application or non application of the provisions of
KR Act to the subject premises. As already held supra, if the KR Act
is applicable to a premises, possession of such premises can be
recovered only as provided in the said Act. It is only in respect of
the premises to which KR Act is not applicable, question of resorting
to a suit for ejectment either before Court of Small Causes or before
Civil Courts depending upon the value of the subject matter of suit,
would arise.
89.
There is great force in the contention of Sri P.D Surana, that the
expression ‘rent’ occurring in Clause (b) does not relate to
liability to pay rent by the tenant nor it relates to the status of
the tenant after the determination of lease/tenancy as such Clause
(b) cannot be attached to the liability of the tenant to pay rent and
the said clause is referable only to the quantum of rent in the
context of Sec. 41(2) of KCFSV Act for the purpose of pecuniary
jurisdiction of the Court and nothing else.
90.
As Clause (a) of Article 4 sets out the prerequisites for a suit for
ejectment, and Clause (c) prescribes the substantial issue that
arises for consideration in such suits, the other limiting factor
under Clause (b) is only with regard to pecuniary jurisdiction of
Court of Small Causes nothing else.
91.
Section 41 sets out the method of calculating the Court fee payable
in suits between landlord and tenant. As per sub-Sec. (2) in a suit
for recovery of immovable property from a tenant including a tenant
holding over after termination of tenancy, fee shall be computed on
the premium if any and on the rent payable for the year next before
the date of presenting the plaint. As per the Explanation to sub-Sec.
(2) rent includes also damages for use and occupation payable by a
tenant holding over.
92.
There is no substance in the argument of Sri Shekar Shetty, that Sec.
41(2) of KCFSV Act is not applicable to any proceedings before the
Court of Small Causes since the said section is applicable only to
the suits filed before Civil Court. At the first place, as noticed
above Court of Small causes are also Civil Courts. Secondly as per
the definition of term ‘Court’ occurring in Clause (ii) of Sec.
3, the said Act is applicable to all kinds of courts including
Tribunal or the Authority having jurisdiction under any special or
local law to decide questions affecting the rights of parties.
Thirdly, the term ‘Civil Courts’ is used only in sub-Sec. (1) and
not in sub-Sec. (2) as such sub-Sec. (2) is not restricted to Civil
Courts only in its application. Therefore sub-Sec. (2) of Sec. 41 is
applicable to suit of such nature as is referred therein filed before
the Court of Small Causes also. As per Sec. 50(1) of this Act, if
specific provision with regard to the value of a suit for the purpose
of determining the jurisdiction of Courts, is not otherwise made, the
value of the suit for the purpose of fee shall be the value for the
purpose of jurisdiction also. In relation to a suit for ejectment by
landlord against the erstwhile non-statutory tenant, the pecuniary
jurisdiction of the Court has to be decided on the basis of Sec.
41(2) read with Sec. 50 of KCFSV Act.
93.
Having examined the scheme as well as the purpose and object of KSCC
Act,
and the above provisions, we are of the view that the limitation
placed in terms of Clause (b) that the Court of Small Causes would be
competent to take cognizance of a suit for the rent of the property,
should be understood as in relation to the pecuniary jurisdiction of
the Court of small Causes in the context of Sec. 41(2) of KCFSV Act.
What is relevant for the purpose of deciding the pecuniary
jurisdiction of the Court in terms of Sec. 41(2) of KCFSV Act is the
‘rent’ payable for the year next before the date of presentation
of plaint. Law does not insist the landlord to file the suit soon
after the expiry of the period of lease or expiry of fifteen days
from the date of service of notice of termination of lessee, as,
Article
67 of Limitation Act
prescribes a period of twelve years from the date of determination of
tenancy for a landlord to file a suit to recover possession from the
tenant. Even if a suit for ejectment is filed after lapse of one year
of determination/termination of lease/tenancy, for the purpose of
finding out the pecuniary jurisdiction of the Court what is relevant
is the rent payable for one year prior to the presentation of the
plaint. As the consideration paid or payable by an erstwhile
non-statutory tenant after determination/termination of lease is only
mesne profits or damages, and no rent is payable thereafter, by way
of Explanation to Sec. 41(2), the term ‘rent’ used in the said
section is made inclusive of damages for use and occupation payable
by a tenant holding over. Therefore, the term ‘rent’ occuring in
Clause (b) of Article 4 of the Schedule, is referable only to the
‘Rent’ payable for the year next before the presentation of the
plaint in terms of Sec. 41(2) of KCFSV Act, for the purpose of
finding out the pecuniary jurisdiction of the Court of Small Causes
and nothing else.
94.
In Jugalkishore
Saraf v. Raw Cotton Co., Ltd. .
AIR
1955 SC 376., the Apex Court has ruled thus;
“The
cardinal rule of construction of statutes is to read the statute
literally, that is by giving to the words used by the legislature
their ordinary, natural and grammatical meaning. If, however, such a
reading leads to absurdity and the words are susceptible of another
meaning the Court may adopt the same. But if no such alternative
construction is possible, the Court must adopt the ordinary rule of
literal interpretation.”
95.
The above principle squarely applies to the case on hand. If the
literal or grammatical meaning of the term ‘rent’ occurring in
Clause (b) is adopted as is done by the Division Bench, it would take
away the jurisdiction of the Courts of Small Causes to take
cognizance of suit for ejectment which the legislature vested in it
by carving out such suit as an exception under Article 4. Such
interpretation defeats the legislative intent and it leads to
absurdity. The said word, as noticed above, is susceptible of another
meaning which, if adopted, would preserve the limited jurisdiction of
Court of Small Causes to take cognizance of a suit for ejectment.
Therefore we deem it proper to adopt the alternative meaning to
subserve the legislative intent in carving out the suit for ejectment
as an exception under Article 4 and to preserve the jurisdiction of
the Courts of Small Causes to take cognizance of such suits.
96.
Yet another factor to be taken note for saving the limited
jurisdiction of Courts of Small Causes is that these Courts both in
Bangalore as also elsewhere are presided over by experienced judicial
officers of the rank of Civil Judges (Sr. Dn.). If the suit for
ejectment is not cognizable by Court of Small Causes, such suits in
Bangalore City, would lie before City Civil Court while in other
places depending upon the value of the subject matter of the suit,
would lie before the Court of Civil Judges (Jr. Dn.) or the Court of
Civil Judge (Sr. Dn.) as the case may be. There is already docket
explosion in City Civil Courts at Bangalore as a result there is long
pendency of cases. If the suits for ejectment falling within the
pecuniary jurisdiction of Courts of Small Causes are also taken out
of the jurisdiction of such Courts by adopting literal or grammatical
meaning of the word ‘rent’, even a suit which could be disposed
of by a summary procedure that too the substantial issue for
consideration being the one stated in Clause (c) of Article 4, will
have to wait for its turn in the Civil Courts and the decrees being
amenable for challenge in appeal and this procedure if adopted, would
defeat the very purpose of KSCC
Act
which is to provide a system for speedy remedy.
97.
In view of the various factors discussed above, we are of the
considered opinion that interpretation which saves the limited
jurisdiction of the Court of Small Causes to take cognizance of a
suit for ejectment carved out as an exception in Article 4 has to be
accepted.
98.
Therefore, we hold that Courts of Small Causes have jurisdiction to
take cognizance of not only a bare suit for Ejectment but also a suit
for Ejectment with a prayer for recovery of mesne profits or damages,
in respect of the premises to which KR Act is not applicable. In view
of this, we hold that the interpretation placed by the Division Bench
in Sarojamma's case, on clause
(b) of Article 4 of schedule to KSCC Act
does not lay down the correct law.
99.
There is one other aspect which requires to be clarified. In couple
of decisions it has been observed that though the general principle
is that the jurisdiction of the Court shall be determined by the
averment in the plaint, Article 4 of KSCC
Act
makes a departure from this general principle and the jurisdiction of
the Court of Small Causes to try the suit for ejectment is made
dependent on the contentions raised in the written statement and at
the will of the defendant and in the written statement if the
defendant were to deny the relationship of landlord and tenant,
denies the title or take any other plea which gives rise to issue
other than the one mentioned in Clause (c) of Article 4, the Small
Causes Court has to return the plaint for presentation before the
Civil Court for adjudication. No doubt, as per Clause (c) of Article
4 the only substantial issue to be considered is whether the lease
has been determined by efflux of time or has been determined by a
notice, or the permission to occupy has been withdrawn. If the right
of a plaintiff and the relief claimed by him in a Court of Small
Causes depend upon the proof or disproof of title to immovable
property or other title in the light of the contentions raised by the
defendant in his written statement, certainly the Court acting under
Sec. 16 of KSCC
Act
has to order return of plaint for presentation to proper Court.
However, mere denial of jural relationship of landlord and tenant by
the defendant in his written statement though the lease is evidenced
by document, by itself cannot be a ground to hold that the Court of
Small Causes has no jurisdiction. In such event, as an incidental
question the Court has to find out whether the property had been let
under lease or permitted to be occupied by a written instrument or
orally as stated in Clause (a) and for that purpose the plaintiff has
to be afforded opportunity to place evidence.
100.
The next aspect to be considered is the effect of this interpretation
on the decrees already passed by the Civil Courts pursuant to the
interpretation made by the Division Bench in Sarojamma's Case, and
which have already become final, and also on the pending proceedings
for ejectment before the Courts other than Courts of Small Causes.
101.
As noticed supra, it is only after the decision in Bangalore
Printing & Publishing Co. Ltd. v. Soukar T. Premnath*), the
controversy regarding jurisdiction of Court of Small Causes to take
cognizance a suit for ejectment, started. Thereafter, conflicting
views were expressed in few other decisions and ultimately matter was
referred to the Division Bench in Sarojamma's Case. By virtue of the
decision of Division Bench, the plaint in all the suits for ejectment
which were pending before Courts of Small Causes were returned and
re-presented before the Civil Courts. Several Revision Petitions
filed before this Court under Sec. 18 questioning the decree for
ejectment passed by the Courts of Small Causes were allowed and the
matters were remanded to the Courts of Small Causes for ordering
return of plaint for presentation before proper Court. After the
decision in Sarojamma's Case suits for ejectment irrespective of
value of the subject matter of the suit, have been filed before Civil
Court. Many of such suits might have been disposed of by the Civil
Courts. Many such decrees might have become final or might be pending
in appeal. As we have held that the interpretation by the Division
Bench does not lay down correct law, and since we have held that the
Courts of Small Causes have jurisdiction to take cognizance of suit
for ejectment with or without prayer for mesne profits or damages in
respect of the premises to which KR Act is not applicable subject to
the pecuniary limits, it is necessary for us to indicate the effect
of this interpretation on the above proceedings, in the light of the
principle that the act of Court should prejudice no man (‘Actus
curiae neminem gravabit’)
102.
However conscious we are, exercising jurisdiction under Section
7 of the Karnataka High Court Act, 1961, on a reference made by
the division Bench and for opining on the correctness or otherwise of
the view expressed by the Division Bench of this Court in Sarojamma's
Case [SUPRA], we nevertheless deem it proper, justified, in fact,
warranted to take note of the developments subsequent to the view
expressed by the division Bench in Sarojamma's Case [SUPRA], in the
matter of migration of pending matters from courts of small causes
which were otherwise tenable before those courts in terms of the
opinion that we have indicated above, but have nevertheless been
moved to the Civil Courts and as we have indicated that, in fact,
there was no need as under the KSCC
Act,
Courts of Small Causes do have jurisdiction in such situations where
the suits otherwise are maintainable before the Courts of Small
Causes, independently under the provisions
of the Karnataka Small Causes Courts Act,
by exercise of jurisdiction of the High Court under Section
115 of the Code of Civil Procedure read with Article 227 of the
Constitution of India,
we are constrained to issue consequential directions that in all such
pending suits before Civil Courts which were either transferred to
that Court or in which plaints were re-presented to the Civil Court
as a sequel to the Judgment of the division Bench of this court in
Sarojamma's Case [SUPRA] and also such of those suits which have been
instituted before the Civil Courts after the Judgment of the division
Bench in Sarojamma's case [SUPRA], but which suits otherwise should
have been instituted before the Courts of Small Causes, should all
necessarily be either re-transferred or transferred as the case may
be, to the Court of Small Causes and such suits should be continued
before the Court of Small Causes, from the stage at which they were
pending before the Civil Courts.
103.
We are constrained to issue this direction as we are quite conscious
that it is not as though the Civil Court is denuded of its
jurisdiction for entertaining the suits for recovery of possession
conforming to the description of a suit for ejectment, just because
this limited category of suits for recovery of possession, namely
suits for ejectments are suits which are to be tried by the Small
Causes Courts subject to pecuniary jurisdiction, as trial of Small
Causes suits being a suit involving summary procedure and being a
facility extended to the litigants under the Karnataka Small Causes
Courts Act and such a facility should not be denied or deprived to
them as Courts should always endeavour to see that there should not
be multiplicity of proceedings and litigation should come to an end
as expeditiously as possible.
104.
It is also necessary for us to clarify one another aspect while we
are on this question, namely, that having regard to the object and
purpose of enacting the KSCC
Act
and creating a special class of Civil Courts known as ‘Courts of
Small Causes’ which are nevertheless Civil Courts but with a
limited jurisdiction and also relieved from the rigors of procedure
as contemplated under the Code of Civil Procedure, particularly, in
providing for trial of suits in a summary manner, a suit which is
triable before a Small Causes Court and could result in a decree
either for eviction in an ejectment suit or for any other purpose
including recovery of money, if should have been tried by a regular
Civil Court and which Court otherwise also has the jurisdiction to
try all disputes of civil nature, notwithstanding the provisions of
Sections 8 and 9 of the KSCC
Act,
we are of the definite view that a suit which could have been
otherwise required to be tried before a Small Causes Court but had
been tried before a regular Civil Court and had culminated in a
Judgment and decree, such a decree following a full course trial by
the regular Civil Court cannot be and should not be characterized as
a decree without jurisdiction for the purpose of examining the
correctness or otherwise of the decree but based solely on the
question of jurisdiction.
105.
We are constrained to opine so, being conscious of the vagaries to
which litigants have been subjected to, particularly, in the matter
of selection of forum for instituting suits for ejectment, as to
whether it should be before a Small Causes Court or a regular Civil
Court and such question having been not answered in an uniform or
conclusive manner by the Courts in recent times and the frequency
with which Judicial opinions have changed, should not act to the
detriment of the bona fide relief seeking litigant.
106.
We hope this clarification of the legal position will take care of
the otherwise harassed and exasperated litigant and with the hope
that the settlement of this issue now, will result in the expeditious
disposal of all such pending matters.
Per
D.V SHYLENDRA KUMAR, J..
107.
I had the benefit of going through the draft of the opinion prepared
by my Learned Brother Sri Justice K.N Keshavanarayana, which was
prepared on the lines of the discussions in which all three of us had
participated, on conclusion of hearing Learned Counsel, presenting
the different view points to assist us for answering the questions
before the full Bench.
108.
While I am in full agreement with the conclusions indicated by my
Learned Brother Sri Justice K.N Keshavanarayana and in fact, I have
also contributed to the opinion when it was finalized, nevertheless,
I am constrained to add a few more sentences of my own for the
purpose of a little clarity with regard to the statutory provisions
and to make clear the view that I hold about the manner of
understanding the statutory provisions and also for the purpose of
brevity and to the benefit of such of those readers who may not have
the time or the patience to go through in full the elaborate and
erudite opinion prepared by my Learned and esteemed colleague Justice
K.N Keshavanarayana.
109.
I am of the clear view that for interpreting and understanding the
provisions
of the Karnataka Small Causes Courts Act, 1964
and to find out the jurisdiction of a Court of Small Causes, it is
only the provisions of the KSCC
Act
which has to be looked into and therefore to link the question of the
jurisdiction of the Small Causes
Courts Act to the provisions of the Karnataka Rent Act, 1999
is a basic fallacy which has resulted in the view expressed by the
division Bench of this Court in Sarojamma's case [supra].
110.
It incidentally happens that under the provisions
of the Karnataka Rent Act, 1999, in chapter-VI of the Act
providing for regulation of eviction of a tenant by a landlord, the
Court to which a landlord may petition for recovery of possession of
a premises in the occupation of a tenant on any one of the enumerated
grounds as provided in Section
27[2] of the Karnataka Rent Act, 1999
and as defined in Section
3[c] of the Karnataka Rent Act, 1999,
being a Court of Small Causes in respect of area comprised within the
limits of city of Bangalore, is one regulating the presentation of an
eviction petition under this Act and for identifying the forum for
presentation of the petition. It is incidental that the Court of
Small Causes is the Tribunal so identified for the purposes of the
Karnataka Rent
Act, 1999
within limits of city of Bangalore.
111.
Therefore, while functioning as a Court under the provisions
of the Karnataka Rent Act, 1999, the Court of Small Causes is a
designated Tribunal and exercises its jurisdiction in terms of the
provisions
of the Karnataka Rent Act, 1999 and this jurisdiction of Court of
Small Causes as a special Tribunal under the Karnataka Rent
Act, 1999
should not be confused with the jurisdiction which the Court of Small
Causes has independently under the provisions of the KSCC
Act.
112.
The Court of Small Causes is also a court, conferred with
jurisdiction to try disputes of civil nature but with a limited
jurisdiction, in the sense, within the limits of pecuniary
jurisdiction and within the limits of a specified nature of suits
apart from those excluded from its purview in terms of Section 8 of
the KSCC
Act,
is a court created for the purpose of convenience and expediency as
it becomes obvious on a perusal of the provisions of the Act relating
to its jurisdiction, that the Court of Small Causes is enabled to try
only suits of simple nature, where complications are minimal and
where disputes regarding title are not involved and such suits are
also tried in an expedient manner and attains finality quickly by
avoidance of an appeal provision.
113.
While the exclusion of the types of suits from the purview of the
court of Small Causes is to be found in the schedule to the KSCC
Act
in terms of Section 8 of the KSCC
Act,
here again, there are exceptions to such exclusions, in the sense
that, even amongst such suits which are excepted from the cognisance
of Court of Small Causes, a few varieties of such suits are
nevertheless brought back within the jurisdiction of the Court of
small causes subject to certain conditions being fulfilled.
114.
One such illustration is to be found in terms of clause-4 in the
schedule to the KSCC
Act
which while generally excludes a suit for possession of immovable
property or for recovery of interest in such property from the
purview of the Court of Small Causes, nevertheless, a suit in the
nature of an ejectment suit, it is within the pecuniary jurisdiction
of Court of Small Causes, when it involves only the issue of
determination of rights of a lessee and such an ejectment suit is
nevertheless kept within the purview of the Court of small causes,
even when suits for recovery of possession in general are sought to
be kept out of the purview of the Court of small causes, as such
suits may inevitably involve questions of title. In such suits, where
title is not an issue, the relationship as lessor and lessee is not
an dispute, but the only issue is as to whether a lessee has ceased
to have any rights under the lease due to happening of one or the
other events enumerated in sub-Clause [c] of Clause-4 of the schedule
to KSCC
Act,
which type of suit is a specie of the genes of suit for recovery of
possession of immovable property and known as a suit for ejectment,
such a suit is within the purview of Court of small causes.
115.
This question being not linked to the provisions
of the Karnataka Rent Act, 1999 as the possibility of Court of
small causes trying a suit for ejection will arise only when the
provisions
of the Karnataka Rent Act, 1999 are not attracted, there is no
possibility of relinking a suit for ejection to the provisions
of the Karnataka Rent Act, 1999 and the division Bench by trying
to interpret Clause-4 of schedule to KSCC
Act
with reference to the provisions
of the Karnataka Rent Act, 1999 has fallen into an error in
arriving at the conclusion that a suit for ejectment before the Small
Causes Courts is not tenable, when the relationship between the
tenant and the landlord is not regulated by the provisions
of the Karnataka Rent Act, 1999.
116.
For the same reason, I am of the view that the provisions of the
Karnataka Court fee & Suits
Valuation Act, 1958
are also not one that can guide or control interpretation or the
understanding of the provisions of Clause-[4] of the schedule to the
KSCC
Act.
Even here, the meaning to be given to sub-Clause [b] of Clause-4 of
the schedule to the KSCC
Act
and to the word ‘rent’ and use of the word ‘rent’ in this
sub-clause is only in the context of determining the pecuniary
jurisdiction of the Court of small causes and is not so much
concerned with the question of the nature of payment made or that has
to be made by a tenant holding over, to his landlord, for use and
occupation beyond the period of lease/authorization and such payment
while is not to be characterized as rent, is to be characterized as
‘compensation/damages’. The use of the word ‘rent’ in this
sub-Clause is only for the purpose of arriving at the valuation of
the suit for ejectment before the Court of small causes and no more
significance or importance needs to be attached to the word ‘rent’
in this sub-Clause. But for this elucidation, I am in full agreement
with the conclusion as opined by my Learned colleague Justice K.N
Keshavanarayana.
CONCLUSIONS:—
1)
The opinion of the Division Bench that Court of Small Causes can take
cognizance only of such suits which are filed seeking ejectment of
tenants of the premises to which KR Act applies runs contrary to the
provisions of said Act as such it does not lay down correct law. In
respect of the premises to which KR Act is applicable, only the
‘Court’ specified under Clause
(c) of Section 3 of KR Act
alone is competent to make order for recovery of such premises on the
landlord proving any one or more grounds enumerated therein.
2)
In the context of jurisdiction of Small Causes Court, a suit for
recovery of possession of immovable property does not include a suit
for ejectment as such, a suit for ejectment is distinct and different
from suit for recovery of possession of immovable property or for
recovery of any interest in such immovable property.
3)
In the context of jurisdiction of Court of Small Causes to take
cognizance of a suit for ejectment, recovery of mesne profits would
not amount to either recovery of an interest in the immovable
property or determination or enforcement of any other right or
interest in the immovable property, and the Court of Small Causes is
competent to consider prayer for mesne profits against non-statutory
tenant after termination/determination of lease subject to its
pecuniary jurisdiction. The contrary view expressed by the Division
Bench in this regard does not lay down correct law.
4)
Courts of small Causes have jurisdiction to take cognizance of not
only a bare suit for Ejectment but also a suit for Ejectment with a
prayer for recovery of mesne profits or damages, subject to its
pecuniary limits, in respect of the premises to which KR Act is not
applicable. The interpretation placed by the Division Bench in
Sarojamma's case, on clause
(b) of Article 4 of schedule to KSCC Act
does not lay down the correct law.
5)
The suits for ejectment with or without prayer for rent, mesne
profits or damages, pending before the Civil Courts, either upon
re-presentation of plaints pursuant to decision in Sarojamma's case
or presented afresh after Sarojamma's case, the value of the subject
matter of which is within the pecuniary limits of the Courts of Small
Causes, shall be transferred to the Court of small Causes, which on
receipt of such records shall proceed from the stage at which they
were pending before Civil Court and dispose them of in accordance
with law.
In
the light of the above and since we have not considered the petitions
referred to the Full Bench on merits, and as we have only interpreted
the law, the Registry is directed to place all the Civil Revision
petitions before the Bench having roaster for disposal on merits in
the light of the law declared hereinabove.
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Citation:
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ILR 2011 KAR 229, 2011 (4) KarLJ 414
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