Karnataka High Court
Bangalore Printing And Publishing Co. ... vs Soukar T. Premnath on 22 October, 2003
Equivalent citations: ILR2004KAR98, AIR 2004 (NOC) 156 (KAR), 2004 AIR - KANT. H. C. R. 446, (2004) 1 RENCJ 530, (2004) 1 RENTLR 474, (2004) 2 ICC 202, (2004) 1 KCCR 315
Author: H. Rangavittalachar
Bench: H. Rangavittalachar
ORDER Rangavittalachar, J.
1. This is a tenants Writ Petition questioning the jurisdiction of civil Court to entertain a suit for possession filed by the landlord.
2. Facts in brief are:
Petitioner is a tenant in respect of shop premises bearing No. 355/ 2 situate at Old Statute Square in Mysore on a monthly rent of Rs. 120., measuring more than 14 sq. mtrs. of built up area and the respondent is its owner. Respondent filed a suit for possession against him before the Principal Civil Judge (Jr. Dvn.), Mysore. When the suit was in progress, petitioner filed an application under Order 6 Rule 17 of Code of Civil Procedure seeking to amend the written statement by taking up a plea viz., "that having regard to the annual rental value of the leased premises and also the mesne profits claimed by the plaintiff being below Rs. 25,000/-, Civil Court had no jurisdiction to try the suit; the plaintiff should have instituted the suit before the Court of Small Causes". Trial Judge rejected the application mainly on the ground that petitioner having submitted to the jurisdiction of the Court and having participated in the trial, cannot turn around and question the jurisdiction, and; that having regard to the provisions of Section 2(g) of the Karnataka Rent Act, 1999, the suit instituted before him was perfectly competent. This order is questioned.
3. Sri S.N. Bhat, learned Counsel for the petitioner contended that the suit filed by the plaintiff is essentially a suit for "ejectment" and having regard to the pecuniary jurisdiction of the Small Causes Courts which is decided by the annual rental value of the premises, in this case the monthly rent of the premises is Rs. 100/- the annual rental value would be Rs. 24,000/- thus the value of the subject matter of the suit will be less than 25,000/- therefore, the Civil Judge had no jurisdiction to decide the case in view of the decision of this Court in RAMESH P SETH v. M.S. KRISHNAMURTHY AND ANR., ILR 2002 KAR 565
4. Per contra, Sri M.C. Ranganna, Counsel for the respondent defended the order.
5. The question therefore, that arises for consideration in this petition is "whether the Trial Judge was justified in holding that he had the jurisdiction to try the suit and on that ground to reject the application for amendment". Before answering the said question, it is necessary to State that the Karnataka Rent Control Act, 1961 was repealed by Karnataka Act 34/2001 (i.e., the Karnataka Rent Act of 1999). The suit being instituted in the year 2002, it is the Karnataka Rent Act, 1999 which applies to the case, Section 2(3) of the 1999 Act excludes from its operation the entire provisions of the Act with regard to premises of certain descriptions, one of them being a commercial premises having a plinth area of more than 14 sq. mtrs. The relevant clauses of Section 2(3) is referred to herein omitting what is not necessary.
Section 2(3): Nothing contained in this Act shall apply:
(a) to any premises belonging to
(i) the State Government or the Central Government or a local authority;
(b)to any buil
(ii) a Muzarai or religious or charitable institution;
(iii) a wakf. ding belonging to a co-operative Society registered or deemed to be registered under the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959) or the Multistate Co-operative Societies Act, 1984 (Central Act 51 of 1984);
(c)to any building belonging to a Market Committee established under the Karnataka Agricultural Produce Marketing Regulation Act, 1966 (Karnataka Act 29 of 1966);
(d)to any tenancy or other like relationship created by a grant from the State Government or the Central Government in respect of any premises taken on lease or requisitioned by the State Government or/the Central Government;
(e) to any premises, deemed rent on the date of commencement of this Act or the standard rent of which exceeds,-
(i) Three thousand five hundred rupees per month in any area referred to in part A of the First Schedule; and
(ii) Two thousand rupees per months in any other area.
(f) to any premises constructed or substantially renovated, either before or after the commencement of this Act for a period of fifteen years from the date of completion of such construction or substantial renovation.
(g) to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square meters used for commercial purpose.
6. Admittedly, the premises in question is a commercial one having a plinth area of more than 14 sq. mtrs. Therefore, by virtue of Section 2(3)(g), the entire operation of the Rent Act 1999 including the definition clause of 'tenant' is excluded. If the said Act is excluded in entirety, then the relationship of the petitioner and the respondent in respect of the premises in question is governed by the provisions of the Transfer of Property Act and not the Rent Act. Section 111 of the Transfer of Property Act provides for determination of lease i.e., If the lease is for a fixed duration, the lease is determined by efflux of time, or if the lease is for month to month, it is determined by quit notice issued as per Section 111 of the Act. If a tenant does not vacate the premises even after determination of the lease under Section 111, his status will not continue to be that of 'tenant' which is otherwise the case of tenants governed by the provisions of Rent Acts. In such a circumstance, the right of lessor is only to file a suit for possession to recover the premises by approaching the ordinary Civil Courts and not Rent Courts.
7. In this case, according to the respondent plaintiff, he determined the lease by the issue of a quit notice. Since the tenant - petitioner failed to hand over possession, he was filed the suit for possession. Hence, the suit by the first principles of law, before the Civil Judge was fully competent. Since, the argument of Sri S.N. Bhat was based mainly relying on Section 8 of the Small Causes Court Act, 1964 and the decision on this Court in Ramesh P Seth's case to contend that it is the Small Causes Court which has jurisdiction and not the Civil Courts, let me examine the relevant provision of the Small Causes Courts Act and the decision referred to, to appreciate how far the same is tenable. Section 8 of the Karnataka Small Causes Court Act, 1964 defines the jurisdiction of the Court of Small Causes.
Section 8(1) and (2) relevant for the present purpose is extracted herein.
Section 8(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 twenty five thousand rupees shall be cognizable by a Court of Small Causes.
Provided that the State Government, in consultant with the High Court, may by notification, direct 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.
The schedule reads as under:
Schedule:
Suits excepted from the cognizance of Court of Small Causes:
1...........
2...........
3...........
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 a written instrument or orally and, Section 9 of the Act excludes the jurisdiction of the Civil Court where the suits are to be exclusively tried by the Court of Small Causes.
8. Thus by a combined reading of Section 8(1) (2) and Section 9 and Schedule of the Small Causes Courts Act, the jurisdiction of Small Causes Court is excluded generally in all cases of a "suit for possession of immovable property" no matter what its value or its rent is. But an exception is carved out by way of clause (4) of the Schedule viz, that in case of 'suit for ejectment'; or where the property has been let under a lease or permitted to be occupied by a written instrument or orally, then only the Court of small causes would be competent to take cognizance of 'suit for ejectment'. Thus the Small Causes Courts Act (in the schedule) itself makes a distinction between a 'suit for possession' and 'suit for ejectment'. In the former case, Small Causes Courts jurisdiction is excluded and in the latter, it is included. Suit for ejectment in the context would only mean cases where suits for possession are not covered. A suit for possession could only mean that in all cases where a transaction is governed by the provisions of Transfer of Property Act, the remedy of a lessor against a lessee on the determination of lease, is to file only a 'suit for possession' before an ordinary Civil Court. Such cases cannot be construed as a 'suit for ejectment. Thus, Section 8 of the Small Causes Courts Act relied by the Petitioner in no way advances his case. Per contra, justifies the finding of the learned Civil Judge.
9. In Ramesh P. Seth's case on which much reliance was placed, the facts being that an eviction suit was filed by the lessor in respect of a non-residential premises of a value of Rs. 870/- per month when the Karnataka Rent Control Act, 1961 was in operation. The defendant to the suit questioned the jurisdiction of Civil Court to entertain the suit by contending that having regard to the annual rental value of the leased premises, the ejectment should have been filed before the Court of Small Causes. This Court relying on the decision of Supreme Court in B.S. Giridhar v. P.V. Shetty where the Supreme Court had held 'merely because an exception was provided under Section 31 of the Act in respect of petitions to be filed before the Rent Courts, the relationship of landlord and tenant did not snap notwithstanding the termination notice issued under the Transfer of Property Act' and also on Section 31 of the Rent Act, 1961 held as the defendant continued to be a tenant under the plaintiff and hence, he should file an 'ejectment petition in view of Section 31 of the Karnataka Rent Control Act', evidently because of Karnataka Rent Control Act, 1961 exempting its operation of Chapter 5 pertaining to 'protection of tenants' against eviction only. But, in all other respects, the Act applied with equal force even in respect of non-residential premises of a rental of more than Rs. 500/-
10. It is also necessary to mention that, under the Karnataka Rent Control Act, 1961, a 'tenant' has been defined under Section 2(n)(ii) to include even a person in possession of premises after the termination of tenancy and his relationship with his landlord continues to be that of a landlord and tenant or lessor and lessee. But under the general law it is not so, i.e., after the determination of tenancy, the tenant becomes a person in 'unauthorised occupation of premises' and the landlord cannot resort to Rent Acts for recover of possession, but has to file only a 'suit for possession' like any other ordinary suits. This is the distinguishing feature between a suit for ejectment and a suit for possession contemplated. In the schedule of Small Causes Courts Act. Ramesh P. Seth's case was dealing with a case covered by Rent Control Act, 1961. But the present case is not so in view of the exemption clause of Rent Act, 1999. Thus, Ramesh P. Seth's case is distinguishable.
11. In the light of the discussions made above, the Civil Judge had jurisdiction to try the suit and the finding in this regard cannot be faulted.
12. Apart from that, one another factor that also has a bearing to the facts of the case being that the plaintiff had also claimed mesne profits and for an enquiry under Order 21 Rule 12, CPC and if the claim for mesne profits is also taken as the subject matter of the suit it would exceed the pecuniary jurisdiction of the Small Causes Court also. Looked from this angle also, the Civil Judge had the jurisdiction.
For the reasons stated and the discussions made above, I do not find any merit in the petition.
Petition is rejected with costs of Rs. 1,000/-