Small Causes Court is competent to go into the question of title of the Landlord if such a question arises only incidentally.

Allahabad High Court

Ram Krishna Jaiswal and Others vs Judge, Small Causes Court,

… on 23 October, 1998

Equivalent citations: 1998 (4) AWC 309

Author: J Gupta

Bench: J Gupta

JUDGMENT : J.C. Gupta, J.

1. Heard petitioners' counsel.

2. This is tenant's writ petition filed against the order dated 26.9.98 passed by Judge, Small Cause Court postponing the disposal of petitioners' application for returning the suit for presentation before the appropriate court under the provisions of Section 23 of the Provincial Small Cause Courts Act. The trial court has opined that it would be just and proper to decide the said application at the time of final hearing.

3. It is well-established law that exercise of power under Section 23 of the Provincial Small Cause Courts Act is discretionary. This section does not oust the jurisdiction of the Court of Small Causes from trying suits involving question of title to immovable property, if that question is involved incidently. After the amendment in Article (4) of the Act in the Second Schedule. Courts of Small Causes are the only competent Courts to try suits relating to eviction of tenants after determination of lease. The only issue in such suits is as to whether there exists any relationship of landlord and tenant between the parties and while deciding the said issue, the said Court can also go into incidental question of title. It is not obligatory for the Court to order for return of the plaint for presentation to an appropriate Court whenever a plea relating to title is raised by the defendant in such suits, it is only where the Court, at any stage of the proceedings, finds that the right of the plaintiff and the relief claimed by him depend upon proof or disproof of title and the question cannot be answered appropriately without having recourse to a full trial before a regular court having competent jurisdiction to decide the intricate question of title may exercise the power under Section 23 of the Act. In the case of Gopal Chandra Singh Roy v. District Judge, Varanasi, 1996 (2) ARC 68, a learned single Judge of this Court, Hon'ble D. K. Seth, J. observed in para 8 of the report as follows :

"It is an established principle of law that as soon the question of proof or disproof of title to Immovable property is involved, Small Cause Court loses its jurisdiction and is bound to return the plaint under Section 23. But it does not preclude the Small Cause Court to look into the dispute as to whether it is necessary to return the plaint after satisfying that the right of the plaintiff and the relief claimed by him is dependent on such proof or disproof of title to immovable property. The said section empowers the Small Cause Court to return the plaint at any stage of the proceedings."

4. It is thus clear that the Court of Small Causes is also competent to go into the question of title if such a question arises only incidentally. Where, however, the Court finds that the question of title is intricated one and the right of the plaintiff and the relief claimed in the suit are dependent upon proof or disproof of title to immovable property, it is just and proper for such a Court to return the plaint for being tried on regular side by a Court competent to decide the question of title. A great care and caution should be taken before exercising jurisdiction under Section 23 of the Act.

5. In the present case, it appears that the Court below in the absence of evidence was unable to decide whether the relief claimed in the suit is dependent upon proof or disproof of title to the immovable property involved, and this view of the Court below cannot be said to be manifestly erroneous or arbitrary especially in view of the facts pleaded by the parties in their pleadings. The trial court has not yet rejected the prayer of the petitioner to return the plaint under Section 23 of the Act and 11 may be that after having whole or part of the evidence of the parties, the Court may find it convenient to exercise powers under Section 23 of the Act or it may proceed to decide the suit on merit. Therefore, at present, this Court is not inclined to make interference in the impugned order at this stage of the proceedings.

6. Writ petition is accordingly disposed of.

Jurisdiction of Courts of Small Causes constituted under Karnataka Small Cause Courts Act 1964

 

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.

Citation:

ILR 2011 KAR 229, 2011 (4) KarLJ 414