Karnataka High Court
N. Mohammad vs The Mandal Panchayat, Kalghatgi on 1 June, 1998
Equivalent citations: ILR1998KAR2607, 1998(5)KARLJ221
ORDER
1. This Civil Revision under Section 115 of CPC has been filed from the judgment and order dated 23-10-1993 passed by the I Additional Civil Judge, Dharwad, dismissing the applicant's appeal and affirming the order dated 28-9-1993 passed by the Munsiff and JMFC, Kalghatgi, rejecting the revisionalist's application for temporary injunction under Order 39, Rule 1 of CPC. The Trial Court had opined that the suit itself was not maintainable and that the suit premises being public premises and the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, is applicable, so Civil Court has no jurisdiction to entertain it and rejected the application. The Appellate Court also considered Section 16 of the Act and opined that revision petitioner-applicant has failed to make out a prima facie case for grant of injunction and so injunction cannot be granted. Feeling aggrieved from the order of the Trial Court and the First Appellate Court, the revisionist-plaintiff has come up before this Court under Section 115 of the CPC.
2. I have heard Sri Suresh P. Hudedagaddi, an Advocate of this Court for the applicant and Sri S.P. Kulkarni, learned Counsel for the respondent.
3. Learned Counsel for the petitioner submitted that there was a triable case by the Court below in which question of lease and other matters have to be decided in course of trial by this Court. That as there has been a case requiring determination of the issues involved and when it was triable and involved determination of issues, then as in the absence of grant of injunction, injustice and loss could have been caused to the applicant, the Trial Court should have granted the injunction. As a bare proposition of law, there can be no dispute about it. Prima facie case no doubt means if a case is required to be determined on the basis of evidence and if such suit cannot be thrown out on the ground of maintainability and there is likelihood of injury being caused to the applicant, then temporary injunction has to be granted. Section 16 of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 bars jurisdiction of Civil Court. It reads as under:
"Section 16. Bar of Jurisdiction.--No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises or the recovery of the arrears of rent payable under subsection (1) of Section 7 or the damages payable under sub-section (2) of that section or the costs awarded to the State Government or the local authority or the corporate authority under sub-section (5) of Section 10 or any portion of such rent, damages or costs".
That Section 16 bars the jurisdiction of the Civil Court even to entertain a suit or a proceeding. The material expression is "suit or proceeding in respect of the eviction". It is not a suit or proceeding for eviction, by 'in respect of eviction'. This term is a term of very wide connotation touching the right of eviction of the authority to evict the person residing unauthorisedly. It means that even if it is for prohibiting the eviction of unauthorised occupant, a person files any suit in Civil Court, the mandate of law is that it shall not be entertained nor any proceeding of such nature shall be entertained by Civil Court. When I so opine, I find support for my view from the decision of tbis Court in the case of Divisional Controller, K.S.R.T.C., Hubli and Another v Gangadhar. In paragraph 12 after quoting Section 16, this Court has observed as under.-
"Therefore, in view of the specific provisions of Section 16, it is seen that any dispute arising out of the action taken by the competent authority seeking to evict a licensee from the public premises, or to recover arrears of rent payable under sub-section (1) of Section 7 or damages payable under sub-section (2) of that section or the costs awarded to the State Government or the local authority or the corporate authority under sub-section (5) of Section 10 or any portion of such rent, damages or costs, cannot be entertained by any Civil Court".
The expression "unauthorised occupation" has also been denned in the Act that it includes even continuation of occupation of a person in public premises after the authority under which he was allowed to occupy the premises has expired. Therefore, whatever remedy or defences may be available when the proceedings are taken under Section 4 of the Kar-nataka Act of 1974 he may raise therein but in view of bar under Section 16 of the Act and even if he is in possession, his possession cannot be termed as lawful or authorised possession for being entitled for granting of injunction. That it is well-settled by the Hon'ble Supreme Court in M.C. Chockalingam v V. Manickavasagam2, at page 110 observe.--
"Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it".
4. In this view of the matter, in my opinion, the learned Courts below did hot commit any error of jurisdiction in rejecting the applicant's application for temporary injunction as well as in dismissing the appeal taking the view that suit per se is not maintainable, and there is no prima facie case for grant of temporary injunction in favour of the applicant.
5. Thus considered in my opinion, the order impugned does not suffer from any error of jurisdiction. Revision being without merits is hereby dismissed. Costs made easy i.e., parties to bear their own costs. Further, there is nothing to indicate that the authorities are going to act otherwise than according to law as pointed out by the learned Counsel for the opposite party and it is expected authorities will act according to law. As such, the revision is misconceived.