Karnataka High Court
Shri. Baburao Yallappa Patil, vs Shri. Prakash Anant Chaugule, on 3 April, 2018
Equivalent citations: 2018 (4) AKR 588, (2018) 1 RENTLR 553
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
R.S.A. No.5054/2011
BETWEEN:
1. Shri. Baburao Yallappa Patil
Age: 83 years
Occ: Business
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
2. Shri. Sudhir Yallappa Patil
Age: 58 years
Occ: Business
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
... Appellants
(By Sri M.G. Naganuri, Advocate)
AND
1. Shri. Prakash Anant Chaugule
Age: 48 years
Occ: Business
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
2
2. Shri. Sanjay Anant Chaugule
Age: 45 years
Occ: Business
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
3. Smt. Sushila
D/o Anant Chaugule
Age: 58 years
Occ: Household
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
4. Miss Shobha
D/o Anant Chaugule
Age: 50 years
Occ: Household
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
5. Miss Pushpa
D/o Anant Chaugule
Age: 42 years
Occ: Household
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
6. Shri Veenu Anant Chaugule
Age: 40 years
Occ: Business
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
7. Smt. Ratnabai
W/o Anant Chaugule
Age: 70 years
3
Occ: Household
R/o: Basavan Galli, Hosur,
Belgaum-590 003.
... Respondents
(By Sri I.Y. Patil, Advocate C/R.4 is (Absent);
Sri Ahmed Ali Rahiman Shah, Advocate for
R1 to R7 is (Absent); (R4 is GPA holder of R1 to R3
and R5 to R7))
This RSA is filed under order XLII Rule 1 r/w
Section 100 CPC against the judgment and decree
dated 10.12.2010 passed in Regular Appeal
No.664/2009 on the file of the Presiding Officer Fast
Track Court-III & Additional MACT, Belgaum at
Belgaum, allowing the appeal, filed against the
judgment dated 21.11.2005 and the decree passed in
Original Suit No.101/2005 on the file of the I Addl.
Civil Judge, Jr.Dn. Belgaum, dismissing the suit filed
for possession.
This RSA having been heard, reserved for
judgment on 23.02.2018 and coming on for
pronouncement of judgment this day, the Court
delivered the following:
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JUDGMENT
The present regular second appeal has been preferred by the defendants, being aggrieved by the judgment and decree dated 10.12.2010, passed by the Presiding Officer, FTC-III and Additional MACT, Belgaum, in RA.No.664/2009, by which appeal was allowed and the judgment and order dated 21.11.2005, passed by the I Additional Civil Judge, Junior Division, Belgaum, in O.S.No.101/2005 was set aside by decreeing the suit with costs.
2. It is the case of the plaintiffs in their suit O.S.No.101/2005 filed for possession that they are the landlords and defendants are the tenants of the suit property. Originally, father of the defendants by name Yellappa Patil was the tenant of the suit property, after his demise, defendants continued as tenants and are running Utensils Shop in the suit property by paying a monthly rent of Rs.350/-. When 5 the facts stood thus, Defendant Nos.1 and 2 had filed a petition in HRC.No.209/1991 seeking permission to carry out the repairs of the suit property. Subsequently the said matter was referred to Rent Controller, Belgaum and an enquiry was initiated. Thereafter the petition came to be dismissed. It is further case of the plaintiffs that they are in need of the suit property for their personal use and bona fide requirement. Defendants are paying monthly rent and plaintiffs are not interested to continue the tenancy and they requested the defendants to hand over the vacant possession of the suit property by terminating the tenancy. Even in spite of their request, defendants did not vacate the suit property and as such plaintiffs got issued a legal notice dated 1.12.2004 by terminating the tenancy. But defendants gave evasive reply by contending that the suit property is a commercial property having plinth 6 area of more than 14 sq.ft. and therefore the provisions of the Karnataka Rent Act,1999 are not applicable. In that light, plaintiffs are constrained to file the suit for possession and prayed for decreeing the suit.
3. Defendants appeared and filed their written statement denying the averments made in the plaint contending that description of the suit property is not correct and the suit property has been taken up by father of the defendants on lease basis and after his death the leasehold rights in respect of the suit property are inherited to his widow, five sons and three daughters. Therefore defendant Nos.1 and 2 are alone not the owners of the suit property. It is further contended that the suit is defective and plaintiffs are not entitled to seek possession. It is further contended that after the death of the original tenant, the legal heirs continued and are carrying on 7 the business by paying Rs.350/- per month. The legal notice dated 1.12.2004 is illegal and defective. The other legal heirs are not issued with legal notice and they are also not made parties to the suit and as such the suit is not maintainable. It is further contended that all the legal heirs including the widow have become the tenants and M/s.Y.B Patil & Sons is the tenant in respect of the lease premises and defendant No.1 alone is not the partner and along with him, Sudhir and others are also partners. On these grounds, they prayed for dismissal of the suit.
4. On the basis of the above pleadings, the trial Court framed the following issues:-
"1. Whether the plaintiffs have legally terminated the tenancy of defendants?8
2. Whether the plaintiffs are entitled for the possession of the suit property?
3. Whether the defendants prove that, suit is not maintainable as pleaded in para no:6 of the written statement?
4. What order or decree?"
5. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as PW.1 and got marked the documents at Ex.P1 to P10. On behalf of the defendants, defendant No.2 got examined as DW.1 and they got marked the document at Ex.D1. The trial Court after hearing the parties to the lis dismissed the suit. Being aggrieved by the same, the plaintiffs preferred an appeal in RA.No.664/2009 before the first appellate Court. The first appellate Court allowed the appeal and set aside the judgment and order by decreeing the suit.
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6. Though the plaintiffs-respondents herein have been served with notice and represented by their counsel, they remained absent.
7. Sri M.G.Naganuri, learned counsel for the appellants-defendants has contended that the first lower appellate Court failed to note that the rent of the premises is Rs.350/- per month and in that light, the annual rent comes to Rs.4,200/-. As per Section 9 of the Karnataka Small Causes Court Act, 1964, ('Act' for short) the Small Causes Court alone has got right to entertain and try the suit for ejectment, where the annual rent does not exceed Rs.25,000/-. Jurisdiction of regular civil Court to entertain and try such suit is also ousted under Section 8 of the Act, In view of the rent being Rs.4,200/- per annum, the trial Court entertained the suit and consequently first appellate Court set aside 10 and decreed the suit. The said judgment and decree passed by the first appellate Court is a nullity being passed by the Court without having jurisdiction. He further contended that the respondents did not issue notice to all the legal heirs of the deceased Yellappa Patil for terminating the tenancy and as such the notice of termination of tenancy itself is illegal and consequently, the suit for possession without proper legal notice is also not maintainable. The first appellate Court and the trial Court have failed to note that non-joinder of necessary parties is fatal to the suit. The Courts below have not raised proper issues and the first appellate Court has also not raised proper points for its consideration while passing the impugned judgment and decree. On these grounds, he prayed for allowing the appeal by setting aside the judgment and decree passed by the first appellate Court by dismissing the suit.
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8. Having heard the learned counsel for the appellants-defendants and on perusal of the material on record, the substantial question of law which arises for consideration in this second appeal is:
"Whether the judgment and decree passed by the first appellate Court in RA.No.664/2009 reversing the order dated 21.11.2005 passed in O.S.No.101/2005 by the I Additional Civil Judge, Junior Judge, Belgaum in contravention of Section 9 of the Act, is a nullity?"
9. It is evident from the records that there is no dispute that the Court of I Additional Civil Judge, Junior Division, Belgaum disposed of the suit by the judgment and order dated 21.11.2005 and the appeal filed as against the said order by the plaintiffs came to be allowed by setting aside the judgment and order dated 21.11.2005 passed in O.S.No.101/2005 by the 12 judgment and order dated 10.12.2010. It is also evident from the records that the defendants never challenged the jurisdiction of the Court of Civil Judge Junior Division, Belgaum, on the ground that the said Court ceased to exercise the jurisdiction in respect of the suit and it was not invested with the power of the Court of Small Causes. It is further evident from the records that the question of jurisdiction was also not raised even in the appeal filed by the plaintiffs. It is also not in dispute that the plaintiffs have filed a suit for possession of the suit property which has been leased out in favour of father of the defendants. It is well settled principle of law that the question of jurisdiction though not raised either at the initial stage or at the first appellate stage, the same can be raised at any time since it goes to the root of the case and it is purely a question of law.
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10. It is relevant to note Sections 8 and 9 of the Act, which read as follows:-
"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 exception specified in the schedule and to the provisions of any law for the time being in force, all suits of 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 twenty-five thousand rupees shall be cognizable by a 14 Court of Small Causes mentioned in the notification.
Section 9. Exclusive jurisdiction of Courts 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, within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable."
11. Section 8 of the Act specifies the jurisdiction of Court of Small Causes. It says that a Court of Small Causes shall not take the cognizance of the suits specified in the Schedule as suits excepted from the cognizance of a Court of Small Causes. Item (4) of Schedule to the Act says, a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for 15 ejectment where the property has been let under a lease or permitted to be occupied by a written instrument or orally. The Court of Small Causes Court would be competent to take a cognizance of a suit for the rent of the property. In that light, on perusal it is noticed that the present suit though it is mentioned as suit for possession, it is nothing, but suit for ejectment. Even all the pleadings are read together, it indicates that the plaintiffs are the landlords and defendants are the tenants of the suit property and there existed a lease agreement between the plaintiffs and father of the defendants and defendants continued to the said tenancy. It is admitted fact that the suit came to be filed on 5.2.2005 and the Karnataka Small Cause Courts Act came into force from March, 1964.
12. Keeping in view the aforesaid aspects of the matter, let me consider Section 9 of the Act, which is 16 extracted above. On close reading of the said Section, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction, within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. It further clarifies that the jurisdiction of the Courts is sought to be restricted in a variety of ways. The restrictions may be with reference to the place of suing, with reference to pecuniary valuation of the suits and with reference to the subject matter. These categories are called as territorial jurisdiction, pecuniary jurisdiction and jurisdiction according to the subject matter of the suit. The Small Cause Courts Act is a special enactment enacted to provide for a uniform law relating to Courts of Small Causes in the State of Karnataka. It has been enacted to provide speedy and inexpensive means of settling the small causes and the suits are tried in a summary procedure and thereby they take 17 away of the jurisdiction of the ordinary Courts which otherwise have jurisdiction to try such suits.
13. Section 26 of the Act provides the application of Act, which reads as under:-
"Section 26. Application of Act and Code to Courts so invested as to two Courts- A Court invested with the jurisdiction of a Court to 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 this Act, and the Code, be deemed to be different Courts.".
14. From the aforesaid provision of the law it is clear that a Court invested with the jurisdiction of a Court of Small Causes would be a Small Causes Court with respect to exercise of that jurisdiction and the 18 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 for the purpose of the Act. On careful reading of Section 9 of the Act would indicate that if a suit is cognizable by the Court of Small Causes and if there exists such a Court of Small Causes having a jurisdiction to try it, then the suits shall not be tried by any other Court. The Section expressly takes away the jurisdiction of ordinary Civil Court to try a suit of a small cause nature as a regular suit or long cause, provided a Court of Small Causes having jurisdiction to try it, exists for that place.
15. It is a fundamental principle of law that a decree passed by a Court without jurisdiction is a nullity. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Kiran Singh and others Vs. Chaman Paswan, reported in AIR 19 1954 SC 340, wherein at paragraph-6, it is observed as under:-
"6. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well- established that a decree passed by a Court without jurisdiction is a nullity, & that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject- matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to 20 be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was 'coram non judice', and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position."
16. Subsequently, the said proposition of law has been reiterated and it has been observed by the Hon'ble Apex Court that a decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a corum non judice. A decree passed by such a court is a nullity and is non est in the case of Sarwan Kumar & another Vs. Madan Lal Aggarwal, reported in (2003)4 SCC 147, at paragraph-17, which reads as under:-
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"17. The facts of the said case were almost identical to the facts of the present case. The facts which led to the decision is that case were : the landlord filed a suit in the Court of Senior Sub-Judge for ejectment and recovery of arrears of rent and damages for use and occupation of a shop at Gurgaon, let out to the tenant. An ex parte decree was passed. Issue regarding jurisdiction of the Civil Court was framed and the same was decided against the tenant. Application under Order 9 Rule 13 to set aside the ex parte decree was dismissed. It was confirmed on appeal. Revision was dismissed by the High Court. When the landlord filed the application for execution of the decree to obtain possession, the tenant objected under Section 47 of CPC contending that the decree of the Civil Court was a nullity as the premises in question were governed by the Rent Act. The Controller under the Act was the only competent forum for claims of ejectment on fulfilment of the conditions 22 enumerated in the Rent Act. That the Civil Court was divested of jurisdiction to take cognizance and pass a decree for ejectment of the tenant. The objection was overruled by the executing Court and further the revision filed by the tenant was dismissed by the High Court. Simultaneously, he also filed a writ petition under Article 227 which was also dismissed. Against the dismissal of the writ petition under Article 227 the appeal was filed in this Court. It may be mentioned that a issue regarding the jurisdiction of the Civil Court to try a suit for ejectment was framed and decided in favour of the landlord in the civil suit. The tenant had also been divested of the possession in execution of the decree passed by the Civil Court. This Court after exhaustively referring to the number of previous judgments of this Court held that to a building let out and governed under the Rent Act the only competent authority to pass the decree for ejectment was the Rent Controller constituted under the Rent 23 Act and the Civil Court lacked the inherent jurisdiction to take cognizance of the cause and pass a decree of ejectment therein. It was further held that objection to the execution of the decree being a nullity having been passed by a Court lacking inherent jurisdiction could be raised in execution proceedings and the finding recorded in decree that the Civil Court had the jurisdiction would not operate as res judicata. It was held: (SCC p.205, para 26) "26 Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a Court without jurisdiction over 24 the subject-matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party."
In para 27, it was further observed : (SCC p.206) "27. In the light of this position in law the question for determination is whether the impugned decree of the Civil Court can be assailed by the appellant in execution. It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the 25 landlord. Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. Therefore, though the decree was passed and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the ex parte trial, the decree thereunder is a nullity, and does not bind the appellant. Therefore, it does not operate as a res judicata. The Courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appellant cannot raise the same point once again at the execution."
17. It is also observed by the Hon'ble Apex Court in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd., reported in (2005) 7 SCC 791 that a Court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court 26 jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. It is further observed that a statute limiting the jurisdiction of a court alone can extend the jurisdiction by consent. The relevant paragraph-31 in the said decision reads thus:-
"31.In Halsbury's Laws of England (4th Edn.), Reissue, Vol.10, para 317, it is stated:
317. Consent and waiver - Where, by reason of any limitation imposed by a statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject-
matter of the claim or the particular parties 27 and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent."
18. This Court in the case of Shivamurthi Mallayya Swami Vs. Mahadev Umarane, reported in 1989(1) Kar.L.J. 83, has elaborately discussed and has decided regarding the jurisdiction of the Civil 28 Court as well as the Small Causes Court and the competency of a Court to try a case.
19. On close reading of the aforesaid decision, it clearly indicates that a defect of jurisdiction whether it is a pecuniary, or territorial, or whether it is in respect of the subject matter of action, it strikes at the very authority of the Court to pass any decree and the said defect cannot be cured even by the consent of the parties.
20. Though the said Act came into force during March 1964, it would come into force on notification of appointment of such Court. It is well settled principle of law that burden to prove such exclusion lies on the party who raises such contention. This proposition of law has been laid down by the Hon'ble Apex Court in the case Unichem Laboratories Limited Vs. Rani Devi & another, reported in (2017) 13 SCC 509, 29 wherein at paragraphs-23 and 24 it is observed as under:
"23. It is a settled principle of law that exclusion of jurisdiction of the civil court is not to be readily inferred and such exclusion is either to be "explicitly expressed or clearly implied". It is a principle by no means to be whittled down and has been referred to as a "fundamental rule". As a necessary corollary of this rule, provisions excluding jurisdiction of civil courts are required to be construed strictly.
In other words, it is trite rule of interpretation that existence of jurisdiction in civil courts to decide questions of civil nature is a general rule whereas the exclusion is an exception. The burden is, therefore, on the party who raises such a contention to prove such exclusion. (See Interpretation of Statutes by G.P. Singh, 12th Edn., pp.747-48). It is not so in this case.30
24. It is for these reasons, we are of the view that both the courts below were right in holding that the suit is not hit by rigours of Section 13 of the Act."
21. Keeping in view the above proposition of law though it is the contention of the appellant that Civil Court has no jurisdiction, in order to substantiate the said fact, he neither produced any notification nor any other records to show that in pursuance of the Act, a Court has been notified or designated as a Small Causes Court in Belgaum District. Even on enquiry with the registry it is informed that no such Small Causes Court has been constituted in Belgaum. Keeping in view the above said facts, when there is no such Court situated, then under such circumstances, it is the Civil Court which is having jurisdiction to try the suit. In that light, the contention raised by the learned 31 counsel for the appellant has no force and same is rejected.
22. With the aforesaid background, if I consider the case on hand, the plaintiffs have filed a suit for possession when the defendants are the tenants and are paying a monthly rent of Rs.350/-. In Belgaum no designated Court is situated as a Small Causes Court which is having a local jurisdiction and competent to try such suits. If such Court is not existed, it goes without saying that the said Civil Court is having jurisdiction to try such suits. Therefore, I hold that the Court of Civil Judge, Junior Division has jurisdiction to try the suit and subsequently, the judgment and order which has been reversed in the appeal by the first appellate Court is not a nullity. The first appellate Court though without examining this aspect, has reversed the order passed in the suit by setting aside the same, it does not suffer from a 32 fundamental defect and the said decree does not make a nullity.
23. On careful perusal of the impugned judgment and award and other records which were made available, it would clearly indicate that the lease period is more than one year, but the said lease deed or some other deed has not been registered as contemplated under Section 107 of the Transfer of Property Act. When a deed has not been registered as contemplated under the said Act, it can be presumed that it is a monthly lease which is terminable by giving fifteen days' notice. It is not in dispute that the plaintiff has issued legal notice for termination of the tenancy on 1.12.2004 as per Ex.P7 and it is also not in dispute that the said notice has been served on defendants and have also issued reply as per Ex.P8 and subsequently the suit was filed on 5.2.2005. It clearly indicates that the suit has been filed after 33 fifteen days from the date of receipt of the notice and in that light there is no irregularity or illegality. Even the records indicate that the plaintiff is the landlord and the defendants are the tenants of the suit property and there is no dispute with regard to the description of the property is concerned. When the plaintiff has proved that he is the owner and he requested the defendants to hand over the possession of the suit property by terminating the tenancy and in that light the trial Court committed a mistake and the first appellate Court allowed the appeal by setting aside the judgment and decree passed in O.S. No.101/2005.
24. Even on merits also there are no good grounds made out by the appellant so as to interfere with the judgment and decree passed by the first appellate Court and the same is neither perverse nor capricious so as to set aside the same. 34
In view of the aforesaid observations, the substantial question of law is answered in negative.
Accordingly, appeal is dismissed being devoid of merits. No order as to costs.
Sd/-
JUDGE *ck