Karnataka High Court
Mohamed Ameer And Others vs Hafeez Khan, And Others on 15 March, 1989
Equivalent citations: AIR1990KANT32, ILR1989KAR1423, 1989(1)KARLJ348, AIR 1990 KARNATAKA 32, 1989 (2) RENCJ 134, 1989 (1) KANTLJ 348, 1989 (1) RENTLR 764, ILR 1989 KANT 1423
JUDGMENT
1. The original appellant herein was defendant No. 1 in the original suit filed by the plaintiffs-respondents Nos. 1 to 8 for declaration that the order of eviction passed in HRC 406/1985 is null and void and not binding on them and for permanent injunction restraining the 1st defendant from interfering with the peaceful possession and enjoyment of the suit property.
1(a). The facts of the case are found in the impugned order of the court below. The 1st defendant admittedly had obtained a decree for eviction against defendant No. 4 - Smt. Sakhina Bi in HRC 406/1965. The plaintiffs pleaded that the schedule property is part and parcel of the land known as Golla Malik Shah Fakir Inam land and the darga and the lands were under the supervision of Muzarai Department. Syed Budden Shah was managing the Darga and the lands till his death and thereafter, his granddaughter Smt. Sakhina Bi defendant No. 4 came in possession and management of the Darga and was conducting the annual sandal and urus etc. -- The properly then went under the control of the Wakf Board by virtue of Gazette Notification issued in 1965. A copy of the order dated 12-5-1976 appointing defendant No. 4 as Muzaver is produced by the plaintiffs. The plaintiffs pleaded that the decree obtained by defendant No. 1 is not binding on them. Defendant No. I pleaded that defendants Nos. 2 to 4 had no interest in the suit property; that 4lh defendant was a tenant and he had filed HRC petition and obtained an order of eviction and the plaintiffs are sub-tenants and they are bound by the decree of eviction, so also in view of the provisions of S. 30 of the Karnataka Rent Control Act.
2. After filing the suit I.A.I came to be filed by the plaintiffs for temporary injunction to restrain the defendant No. 1 from executing the decree in HRC 406/1965. It appears an ex parte order of temporary injunction was given in favour of the plaintiffs and I.A. No. IV came to be filed by defendant No. 1 to vacate the same. The Court below, having considered the pleadings and other material placed before it, dismissed I. A. No. IV. That virtually means that the order passed on I. A. No. I came to be made absolute.
3. In this appeal, defendant No. 1 has urged that the Court below went wrong in passing the impugned order when the decree was executable and the plaintiffs could not have challenged the same claiming that they are sub-tenants under defendant No 4. The proceedings for eviction were spread over for a period of more than 20 years and, therefore, he is unable to obtain possession of the suit premises. The decree passed against defendant No. 4 is legal and valid and is executable one. The Court had no jurisdiction to restrain defendant No. I from executing it under S. 41 of the Specific Relief Act ('the Act' for short). The respondents have not made any arrangement for their representation in this appeal and hence the arguments were heard on behalf of the appellants.
4. At the out-set, the appellant's counsel urged that the decree of eviction in HRC 406/1965 was passed by the Munsiff Court, Bangalore under special jurisdiction conferred under the Karnataka Rent Control Act and, therefore, it was not the Court subordinate to the City Civil Court which entertained the present suit O.S. No. 3925/1987 and hence, the City Civil Court has no jurisdiction to restrain the appellant from executing the decree. In this bahalf, he referred to a decision of this Court in the case of Mohammed Hashim v. Sarabi, (1977) 2 Kant LJ 53 in which the learned Chief Justice who decided that case clearly held that the Court constituted under the Karnataka Rent Control Act is a court of exclusive jurisdiction. It is not a Court subordiante to the Civil Court and hence a Civil Court dealing with a partition suit has no jurisdiction to stay proceedings in the Rent Control case.
5. Section 41(b) of the Act deals with the situation when injunction could be refused. It states that injunction cannot be granted to restrain any person from instituting or prosecuting any proceedings in a Court not subordinate to that from which the injunction is sought. Therefore, according to the appellants' counsel the trial Court could not have proceeded to grant this relief of temporary injunction against this appellant on I. A. No: 11 do find sufficient force in this argument in as much as S. 41(b) of the Act is a clear bar against making any such order. When the Court constituted under the Rent Control Act is conferred upon special jurisdiction to deal with the matters arising out of the Rent Control Act it cannot be considered as a court subordinate to the ordinary Civil Court and hence the Court below ought not to have passed the impugned order on I. A. No. 1 which becomes the order without jurisdiction.
6. Even on the other points, the appellants must succeed. From the order of the Court below, it is apparent that defendant No. 3 had filed O. S. No. 1585 of 1980 and it was dismissed on 28-5-1985. When it was the case of the very first defendant that such suit had been filed, it was not open for the Court to seek for further proof. It is observed in the same order that the 1st defendant had not produced any document to show that defendant No. 3 had filed such a suit and it was dismissed. That apart, it is patently clear that the respondents 1 to 8 were almost claiming as sub-tenants of defendant No. 4 from the following observations of the court below. It says, "from the other plaint allegations and also the objection of plaintiffs filed to I. A. No. 4, it is clear that the plaintiffs are not claiming as tenants under the 4th defendant but they are claiming as the tenants under the 3rd defendant and that they were paying the rent to the 3rd defendant through the 4lh defendant In fact, the copies of the rent receipts produced by the plaintiffs along with plaint go to show that they have paid the rent to the 3rd deft. The 4th defendant as Muzaver might have collected the rent from the plain-tiffs and she might have credited the rent to the 3rd defendant."
7. Ultimately it found that it is possible to hold that these plaintiffs were claimed as tenants under 3rd defendant. It also found fault with defendant No. 1 appellant that he had not produced the document to show that he is the owner of the suit property. What is required to be proved to bring the action under S. 21 of the Karnataka Rent Control Act is that there should exist relationship of landlord and tenant and nothing more.
The term 'landlord' is defined under S. 3(h) of the Act. "Landlord" means any person who is for the time being receiving or entitled to receive rent in respect of any premises whe ther on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were left to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises.
8. Therefore, the person who has actually demised the premises becomes a landlord whether he is the owner or not. Even a rent Collector becomes a landlord. It is brought to the notice of this Court that 4lh defendant seriously contested the eviction order at all stages and even execution proceedings were fought out up to the High Court. Therefore, according to the appellants'counsel ultimately these plaintiffs have been set up to defeat the rights that accrued to the appellants under the decree. If contentions urged in the circumstances leading to the filing of the suit are considered, it is apparently clear that the plaintiffs have a motive to delay the proceedings of eviction in execution. It is patently clear that at no stage, 4th defendant denied that she was the tenant in the said premises. The decree clearly establishes that relation-ship between the present appellants and de-fendant No. 4 was that of the landlord and tenant and if anyone is found to be in possession of the premises under S. 30 of the Rent Control Act, he cannot claim any protection. The approach of the Court below is wholly wrong in as much as it did not appreciate the points that are required to be considered in the instant case. It appears it has misdirected itself to the fact of that 3rd defendant, Wakf Board, has got superior rights over that of defendant Mo. 4. If that is so, it is for the Wakf Board to take appropriate steps for action with regard to the property involved. As far as the decree for eviction passed against defendant No. 4 is concerned, the Wakf Board does not come in the picture at all. In this view of the matter, the Court below was not justified in dismissing I.A. No. IV and impliedly making absolute the order passed on I.A. No. I. The impugned order is therefore liable to be set aside and the same is set aside allowing I.A. No. IV and dismissing I.A. No. 1.
Interim injunction granted on I.A. No. 1 stands vacated. Accordingly, this appeal is allowed.
9. Appeal allowed.