Karnataka High Court
Smt Shrimati vs Shriman Niranjan on 20 June, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO. 854/2016 (POS)
C/W
R.S.A.NO.855/2016 (POS)
R.S.A.NO.854/2016
BETWEEN:
1. SMT SHRIMATI
W/O GOVINDA NAYAK,
AGED ABOUT 87 YEARS,
OCCU: HOUSEHOLD WORK,
R/O SRIPADMA, RAYARPET,
SIRSI, 581401,
UTTAR KANNADA DISTRICT
2. U. F. M. MUKUND
S/O GOVIND NAYAK,
AGED ABOUT 57 YEARS,
OCCU: BUSINESS,
QUALITY HOUSE,
R/O. C. P. BAZAAR, SIRSI,
UTTAR KANNADA DISTRICT 581401
3. GAJANAN
S/O GOVIND NAYAK,
AGED ABOUT 45 YEARS,
OCCU:BUSINESS,
QUALITY HOUSE,
R/O C. P. BAZAAR, SIRSI,
UTTARA KANNADA DISTRICT 581401
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4. USHA W/O SHANTHARAM MANIKERE,
AGED ABOUT 63 YEARS,
OCCU: HOUSEWIFE,
R/O H.NO.26, 16TH CROSS,
H. N. LAYOUT, UYALIKAVAL EXTN.,
BANGALORE-28
5. SMT MANGALA
W/O DATTATREYA HEGDE,
AGED ABOUT 54 YEARS,
OCCU: HOUSEWIFE,
R/O NO.167/34 OUTBLOCK,
1ST FLOOR, 7TH CROSS,
3RD BLOCK, TYAGARAJA NAGAR,
BANGALORE-560028
6. SMT KAVITA
W/O NAGENDRA KAMAT ,
AGED ABOUT 51 YEARS,
OCCU: HOUSEWIFE ,
VIKAS NAGAR, DILSUK NAGAR,
FLAT NO.501, 4-9, GAYATRI NILAYAM,
BEHIND C SEVA CENTRE
HYDERABAD 560001.
7. SMT SUJATA
W/O RAMAKRISHNA PAI,
AGED ABOUT 48 YEARS,
OCCU: HOSUEWIFE
CLOTH MERCHANT, HOSA ANGADI,
KUNDAPUR TALUK,
UDUPI DISTRICT 576201
8. ARUN
S/O MOHAN NAYAK,
AGED ABOUT 52 YEARS,
OCCU: ENGINEER,
R/O PADMASHRI TALKIES,
SIRSI, 581401
UTTARA KANNADA DISTRICT
9. PRAVIN
S/O MOHAN NAYAK,
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AGED ABOUT 48 YEARS,
OCCU: ARCHITECT,
R/O PADMASHRI TALKIES,
SIRSI, 581401
UTTARA KANNADA DISTRICT
... APPELLANTS
(BY SRI. HARISH KUMAR M S, ADVOCATE)
AND
SHRIMAN NIRANJAN
SHIVALINGA MAHASWAMIGALU,
GURU SHRI GURUSIDDA RAJAYOGENDRA,
MAHASWAMIGALU, BANNADAMATH
CHOKIMATH,
AGED ABOUT 69 YEARS,
REPRESENTED BY P. A. HOLDER
SATALINGAYYA BASALINGAYYA HIREMATH,
AGED ABOUT 54 YEARS,
MANAGER, BANNADAMATH,
SIRSI,
UTTARA KANNADA DISTRICT
... RESPONDENT
(BY SRI. ANANT HEGDE, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
11.02.2016 PASSED IN R.A NO.61/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE, SIRSI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 06.07.2013 PASSED IN O.S NO.51/2007 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE, SIRSI.
R.S.A.NO.855/2016
BETWEEN:
1. ARUN MOHAN NAYAK
S/O. MOHAN JANARDHAN NAYAK,
AGED ABOUT 51 YEARS,
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OCCU: BUSINESS,
RAYARPET, SIRSI,
UTTARA KANNADA DISTRICT -581401.
2. PRAVEEN MOHAN NAYAK
S/O. MOHAN JANARDHAN NAYAK,
AGED ABOUT 41 YEARS,
OCC: BUSINESS,
RAYARPET, SIRSI,
UTTARA KANNADA DISTRICT -581401.
3. SMT. MANGALA M. SHENOY
D/O. MOHAN JANARDHAN NAYAK,
W/O. MOHANDAS SHENOY,
AGED ABOUT 53 YEARS,
R/O. 6O FT. ROAD,
NEAR VANITHA VIDYALAYA,
VINAYAKANAGAR,
SHIMOGA-577 201.
... APPELLANTS
(BY SRI. GIRISH YADAWAD, ADVOCATE FOR A1-A2)
AND
SHRIMAN NIRANJAN SHIVALINGA MAHASWAMIGALU
GURU SHRI GURUSIDDA RAJAYOGENDRA,
MAHASWAMIGALU, BANNADAMATH, CHOKIMATH,
AGED ABOUT 69 YEARS,
REPRESENTED BY P.A. HOLDER,
SATALINGAYYA BASALINGAYYA HIREMATH,
AGED ABOUT 54 YEARS, MANAGER,
BANNADAMATH, SIRSI,
UTTARA KANNADA DISTRICT - 581401.
... RESPONDENT
(BY SRI. ANANT HEGDE, ADVOCATE)
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THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED
11.02.2016 PASSED IN R.A NO.110/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE, SIRSI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.10.2013 PASSED IN O.S. NO.48/2007 ON THE
FILE OF THE ADDL. CIVIL JUDGE, SIRSI.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 01.06.2017, AND COMING
ON FOR PRONOUNCEMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING : -
JUDGMENT
These two appeals are disposed of by common judgment as the three substantial questions of law involved are same. In R.S.A. No. 855/2016, there is one more substantial question of law that can be answered separately.
2. The defendants in O.S. No. 51/2007 on the file of the Principal Civil Judge, Sirsi have preferred R.S.A. No.854/2016 and that defendants in O.S. No. 48/2007 on the file of the same Court have come up with R.S.A. No. 855/2016. Before taking up the questions of law for discussion, pleadings can be summarized as below by referring to the parties with reference to their positions in the original suit.
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3. In O.S. No. 51/2007, it has been pleaded that one Govind Srinivas Naik, the husband of 1st defendant and father of defendants 2 to 7, took the suit property on lease bearing No. C.T.S. No.25/27 measuring 2076 8/9 square yards, bounded on East by Municipal road, West by C.T.S. No.25/26, North by property bearing No. 47B/1A1 and South by C.P. Bazar road Sirsi, from the plaintiff through a registered lease deed dated:04.04.1966. The period of lease was 59 years. The yearly rent was Rs. 1,251/-, which amount was to be paid in advance every year. One of the conditions of the lease was that in case of continuous default in paying the rent for two years, the lease would come to an end. The defendants, for about 30 years, instead of paying the rent in advance, paid rent of Rs. 100/- every month to the plaintiff. For the period 04.04.2003 to 03.04.2006 they did not pay the rent and they fell in arrears of Rs.3,753/-. The other conditions of the lease were that the lessee should construct a cinema hall in the leased premises and run cinema shows and that the lessee should not mortgage or transfer or sublet the suit property to anybody without the written permission of the lessor. The defendants 1 to 7 who succeeded to the suit property, violated the terms and :7: conditions of the lease and unauthorisedly sublet a portion of the suit property to defendants 8 and 9 and closed the cinema theatre. Therefore, on 25.07.2006, the plaintiff issued a notice to the defendants 1 to 7 through registered post acknowledgment due. The said notice was served on all the defendants except defendant No.5 and on 22.08.2006 the plaintiff re-issued the notice to defendant No.5 to his correct address. Thus the lease was terminated by issuance of notice. The defendants did not hand over the suit property to the plaintiff even after expiry of six months notice period and hence, he instituted a suit seeking decree of possession and an enquiry into the past and future mesne profits, compensation and arrears of rent payable to him.
4. Defendant No.2 filed written statement, which was adopted by defendant 1, 3 to 9. The fact of Govind Srinivas Naik taking the suit property on lease on 04.04.1966 for a period of 59 years from the defendant is admitted. The yearly rent of Rs. 1,251/- payable according to the lease is also admitted. What is disputed is that the defendants fell in arrears of Rs. 3753/- towards rent. It is contended that an amount of Rs.5,004/- was paid by the defendants to the :8: plaintiff through cheque. The defendants did not violate any terms of the lease. Cinema Theater was closed for periodical repairs and no part of the suit property was sublet to defendant No.8 and 9. In this regard it is stated that the defendants 8 and 9 are the members of other defendants' family and that they are assisting the other defendants in proper maintenance of the theatre and infrastructure. The defendants also contended in the written statement that unless the plaintiff sought a declaration that the lease deed dated: 04.04.1966 was not binding upon him and that plaintiff could not be precluded from rescinding the lease deed unilaterally, the suit was not maintainable. Very specifically defendants contended that when the lessee's have to hand over possession of the suit property to the plaintiff, the latter is bound to pay the value of the building that has to be valued by panchas. Therefore, without fixing the value of the building and paying the same to the defendants, the possession of the suit property cannot be sought by the plaintiff. Another defence taken is that the plaintiff undervalued the suit relief, in that, the value of the building was worth more than Rs.1,00,00,000/- and :9: therefore the court lacked the pecuniary jurisdiction to entertain the suit.
5. In O.S.No.48/2007, the plaintiff sought eviction of the defendant, who is his tenant in respect of property bearing CTS 47B/1A1, Sirsi measuring 419 5/9 square yards. The lease deed in this regard came into existence on 17.12.1973 and the period of lease is 51 years, the rent being Rs.101/- per year. The lease deed provided a condition among others that in case of default in payment of rent for two years, the lease would come to an end. Since the defendant did not pay the rent for the period 04.04.2002 to 03.11.2006, the plaintiff issued a notice to the defendant on 21.08.2006 and terminated the lease. The defendant did not vacate the suit property even after expiry of six months and therefore the plaintiff instituted the suit against the defendant.
6. The defendant, in his written statement, admitting that he became a tenant of the plaintiff further contended that he had paid the rent till April 2006. The rent for the subsequent period did not fall due. He further pleaded very specifically that, the plaintiff had earlier filed a suit O.S. No.128/2005 against him for possession. The plaintiff : 10 : withdrew the suit on 18.08.2006 without seeking liberty to file another suit and therefore, the subsequent suit i.e. O.S. No. 48/2007 was not maintainable. Another plea raised by the defendant is that the suit is not maintainable also for the reason that the plaintiff has not sought a declaration that the lease deed dated:17.12.1973, executed for a period of 51 years is not binding upon him.
7. The trial Court decreed the suit O.S. No. 51/2007 on 06.07.2013 and O.S. No. 48/2007 on 23.10.2013. The trial Court directed the defendants to vacate and hand over the vacant possession of the suit property to the plaintiff. Aggrieved by these judgments, the defendants in both the suits preferred Regular Appeals 61/2013 and 110/2013 to the Court of Senior Civil Judge, Sirsi. This Court, by its judgment dated 11.02.2016, dismissed both the appeals. Aggrieved by these judgments in the said two appeals, the defendants are before this Court in the second appeal. In R.S.A. No.854/2016 the following are the substantial questions of law framed by this Court at the time of admission :
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1. Were the Courts below justified in decreeing the suit for ejectment when the very suit itself is not maintainable before the Civil Court in view of the provisions of Section 9 of the Karnataka Small Cause Courts Act, 1964?
2. Were the Courts below justified in decreeing the suit for ejectment mainly on the ground that the appellants have not paid the arrears of rent for a period two years?
3. Were the Courts below justified in decreeing the suit for ejectment when the registered lease deed Ex.P3 dated:4.4.1966 is executed for a period of 59 years?
4. Were the Courts below justified in decreeing the suit for the plaintiff in the facts and circumstances of the present case?
8. In R.S.A. No.855/2016 the substantial questions of law raised at the time of admission are as below:-
1. Were the Courts below justified in decreeing the suit for ejectment when the very suit is not maintainable before the Civil Court in view of in view of the provisions of Section 9 of the Karnataka Small Cause Courts Act, 1964?
2. Were the Courts below justified in decreeing the suit for ejectment mainly on the ground : 12 : that the appellants have not paid the arrears of rent for a period two years?
3. Were the Courts below justified in decreeing the suit for ejectment when the registered lease deed Ex.P3 dated:4.4.1966 is executed for a period of 59 years?
4. Were the Courts below justified in decreeing the suit for the plaintiff when the present suit is hit by the principles of res-judicata in terms of the provisions of Section 11 of the Code of Civil Procedure?
9. The learned counsel representing the appellants in both the appeals confined his arguments to first two questions of law and also question No.4 in R.S.A. No.855/2016. Therefore, question No.3 need not be answered and the findings on other questions will finally decide these appeals. Actually, in my opinion, question No.4 in R.S.A. No.855/2016 needs to be re-framed as below :
" Whether the Courts below are justified in decreeing the suit of plaintiff when the plaintiff withdrew his first suit O.S. No.128/2005 without seeking liberty to file another suit on the same subject matter as required under Order XXIII Rule 1, sub-rule 3 & 4 of C.P.C.?": 13 :
10. The first question in both the appeals are taken up for discussion. It is the argument of the learned counsel for the appellant that the trial Court lacked inherent jurisdiction to entertain the suit filed by the plaintiff for possession of the suit properties. He has argued that though the suit is one for possession, but it is basically a suit to evict or eject the tenants from the leased properties. In one suit i.e., O.S. No.51/2007, the annual rent fixed was Rs.1,251/-, the lease having commenced from 04.04.1966 for a period of 59 years. In the other suit O.S. No.48/2007 the yearly rent fixed was Rs.101/- and the period of lease was 51 years from 17.12.1973. Therefore, having regard to the yearly rent, the Court where the suits should have been filed was Court of Small Causes, which alone can try these types of suits for eviction according to Section 8 of the Small Cause Courts Act, 1964 (for brevity, 'the Act'). He referred to Section 9 of the Act to argue that the suits, which can be exclusively tried by a Court of Small Causes cannot be tried in other Courts. Here, the suits were filed in the Court of Civil Judge (Jr. Dn.), Sirsi, on its original side jurisdiction. Therefore, the decree passed by the said Court is bad. He argued that although this issue was not raised before the : 14 : trial Court and the First Appellate Court, this point can be urged before the High Court in the second appeal as it is a pure question of law concerning the inherent jurisdiction of the Court. In support of his argument, he referred to a decision of the Full Bench of this Court in the case of Abdul Wazid v. Omkarappa (ILR 2011 Kar 229) and of Bombay High Court Asaram Bapu Waghmode and Another v. Bhanudas Dhondiba Patil and others (AIR 1956 Bombay
687). He argued that on this score only these two appeals are to be allowed.
11. The learned counsel for the respondents argued that the question of jurisdiction raised by the appellants cannot be brought within the scope of inherent lack of jurisdiction to say that the decree passed is bad. According to him, this jurisdiction touches pecuniary jurisdiction of the Court. The appellant having failed to contend initially in the written statement about lack of jurisdiction on the pecuniary limits of the Court, cannot raise this issue in the second appeal. He referred to Section 21 of C.P.C. to argue that the appellants having submitted themselves to the jurisdiction of the trial Court cannot now question its jurisdiction. It was : 15 : his argument that even if it can be held that the trial Court had no jurisdiction, but the decree cannot be said to be bad unless the appellants demonstrate as to how their interest has been prejudiced. He further argued on this point that the appellants had full opportunity of putting forth all other contentions before the Court and in fact a lengthy trial was held. The procedure contemplated in the Small Causes Court is summary in nature and that the appellants could not have urged all the points in a suit tried summarily. In these two suits, the appellants participated, and took all possible defences that are not permitted in a Small Causes Court. Therefore, the interest of the appellants is not prejudiced in a way. They are estopped from taking up this contentions in these appeals.
12. The learned counsel for the respondent raised another point that the suit is not merely for ejectment or possession, but it involves certain other points pertaining to fixation of the value of the building to be handed over to the plaintiffs. The lease deed provides for appointment of panchas for determining the value of the building. So, these are the complicated questions involved and only the civil : 16 : Court on its original side can decide all these complicated issues. The Small Causes Court cannot decide these contentious issues. The appellants knew very much that these issues would crop up for consideration, and therefore, they did not take objection with regard to jurisdiction in the beginning.
13. The learned counsel for the appellants replied that Section 21 of C.P.C. is not applicable because it only deals with suits instituted in the Courts having no territorial or pecuniary jurisdiction. The aspect relating to determination of the valuation of building has not been pleaded by the respondents in their plaint. In fact, the appellants have contended with regard to fixation of the building value. It is well settled principle that the jurisdiction of the Court must be determined based on the plaint averments and not on the basis of the contents of the written statement. Therefore, he argued that, not withstanding the fact that the appellants have contended with regard to determination of building value, the Court lacked its inherent jurisdiction.
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14. Having considered the arguments of the learned counsel, it has to be stated that the first principles with regard to jurisdiction of the Court state that any objection with regard to jurisdiction of the Court must be taken at the initial stage. The jurisdiction of the Court must be decided on the basis of averments made in the plaint only. The Appellate Court or the Revisional Court shall not allow any objection with regard to place of suing or competence of the Court with reference to pecuniary limits unless such objection was taken in the Court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. This is envisaged in Section 21 of C.P.C. But, whether this principle is applicable to a case where the inherent lack of jurisdiction of the Court is involved? Therefore, it is necessary to make reference to Section 8 of the Act, which actually determines the jurisdiction of Small Cause Courts. Section 8 of the Act reads as below :-
"8.Cognizance of suits by Courts of Small Causes. -
1) 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.: 18 :
1[(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 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 2[twenty five thousand rupees] shall be cognizable by a Court of Small Causes mentioned in the notification."
15. So, from section 8 (1) of the Act it becomes very clear that the Small Cause Courts can decide only those types of suits that are excepted in the Schedule in which there are as many as 34 types of suits that cannot be dealt with by the Small Cause Courts. Considering the facts of this case, the type of suit excepted from the cognizance of court of small causes is at Sl.No.4 of the Schedule. According to this, a suit for possession of immovable property or for the recovery of an interest cannot be tried and decided by the Small Cause Courts. But this exception is not applicable to the following three types of suits namely, : 19 :
a) the property has been let under a lease or permitted to be occupied by a 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 for the time being in force in respect of such lease, or the permission to occupy has been withdrawn.
16. The pleadings of this case make it very clear that the tenancy was determined by issuance of notice in accordance with law and therefore, the nature of the two suits prosecuted by the plaintiffs squarely falls within the purview of section 8 of the Act.
17. Further section 9 of the Act makes it very clear that the suits that can be tried and decided by the Act shall not be tried by any other court having jurisdiction within local limits of the jurisdiction of Court of Small Causes by which the suit is triable. Going by this section 9, the two suits filed by the plaintiff being within the pecuniary limits of : 20 : the Small Cause Courts should have been instituted there instead of a original suit being filed. Thus viewed, the two suits could not have been tried and decided by the court on its original side jurisdiction.
18. The learned counsel for the appellant has placed reliance upon the judgment of the Full Bench of this Court in the case of Abdul Wazid (supra). In para 98 of the judgment, it is held as below: -
"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 of KSCC Act does not lay down the correct law.
19. Though the question of reference to the Full Bench was in respect of jurisdiction of Small Cause Courts, vis a vis Civil Courts for entertaining the suits for ejectment of the tenant, but the Hon'ble Full Bench was constrained to issue a direction, which is as below:-
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"102. xxxxxxxxxxxx, 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 necessary 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."
20. Referring to this direction, the learned counsel for the appellant argued that the two suits here should have been transferred to Court of Small Causes, and this having been not done, the decrees are inherently void because of lack of jurisdiction and therefore the legality of the decree can be questioned even at the stage of second appeal. On this point he refered to the judgment of Bombay in the case of Asaram Bapu Waghmode (supra). There cannot be any dispute with regard to the position of law enunciated in this judgment. But here in this case, what needs to be further examined is merely for the reason that there did not take : 22 : place transfer of the suit by the original side to Small Causes jurisdiction, can it be said that the decree in the suits have become unexecutable and even cannot be questioned in the second appeal. This position is made clear by the Full Bench itself in para 104 of its judgment, which is as below:-
"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 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 : 23 : purpose of examining the correctness or otherwise of the decree but based solely on the question of jurisdiction.
21. On careful reading of this paragraph, I am of considered and definite opinion that this observation of the Full Bench is not only applicable to those decrees which had been passed before the Full Bench gave its verdict on the reference. But it is as much applicable to a suit for ejectment which remained untransferred and culminated into decree being passed by Civil Court without any objection being taken by defendant. Therefore, it has to be concluded that the defendant in this case having subjected themselves to the jurisdiction of the Civil Court without taking any objection to its jurisdiction cannot now say in the second appeal that the decree in two suits are inherently bad for want of jurisdiction of the Court which decided these two suits. The defendants have not been able to demonstrate as to how their interest has been prejudiced just because their suits were tried and decided by Civil Court. In fact, the defendants defended their case on a larger platform than the Small Causes Court. As has been held in the Full Bench in the case of Abdul Wazid (Supra), Small Causes Court is : 24 : also a Civil Court. Therefore, from this discussion, this point has to be answered in affirmative.
Substantial Question No. 2:
22. The appellants'/defendants' counsel argued that when the ejectment of a tenant is sought on the ground of non-payment of rent, the tenant can make payment of the rent during the pendency of the suit. Once this payment is made, the tenant cannot be evicted. He referred to Section 114 of the Transfer of Property Act (for brevity, "the T.P. Act"). He argued that in one case the defendant made an application under Section 114 of the T.P. Act and sent a cheque to the plaintiff for Rs.5,004/- towards arrears of rent. The Courts below have not considered this application at all. Thus, the decree passed against the defendants is not justifiable. He also placed reliance on the Hon'ble Supreme Court, in the case of R.S. Lala Praduman Kumar v Virendra Goyal (dead) by his legal representatives and others (AIR 1969 SC 1349). He also further submitted that even now the defendants are ready to pay the rent with arrears, cost and interest.
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23. The learned counsel for the plaintiffs/respondents, argued that Section 114 of the T.P. Act is applicable when eviction is sought only on the ground of non-payment of rent. The cases before the Court are different. Eviction of the defendants is sought not only on this ground but also for violation of other lease conditions. Moreover, the power that the Court can exercise under Section 114 of the T.P. Act is discretionary. When the defendants were chronic defaulters and when they offered no explanation for non-payment of rent for quite a long time, they cannot take shelter under Section 114 of the T.P. Act.
24. With regard to this argument it is to be stated that any payment of arrears of rent made by the tenants alongwith interest may be a ground for the Court refusing to decree the suit. The Court may relieve the lessee against the forfeiture of the lease. But as has been rightly argued by the respondents' counsel, this is discretionary power of the Court. The tenants cannot seek protection under this section having remained due in arrears of rent without any reasonable explanation for not making the payment of rent in accordance with terms of the lease. Section 114 of the T.P. : 26 : Act gives protection to the tenants who have bonafide reasons for being unable to make the payment of the rent. The chronic defaulters cannot seek protection. The conduct of the tenants plays an important role to seek equity under this section. In these cases, the defendants appear to be chronic defaulters. Both the Courts below have discussed this aspect of the matter. Therefore, this point has to be answered in affirmative.
Substantial question of law No.3 in R.S.A. No.855/2016:-
25. The plaintiff, in order to eject the defendant in O.S.No.48/2007, had earlier filed a suit O.S.No.128/2005 by giving a notice of termination of tenancy. Later on he withdrew the suit coming to know that the notice was defective. He just filed a memo to withdraw the suit. He issued a proper notice of 6 months and terminated tenancy and then filed a suit O.S.No.48/2007. It is the argument of the appellants' counsel that the first suit having been withdrawn by the plaintiff without seeking the leave of the Court for filing another suit on the same cause of action is : 27 : hit by Order XXIII Rule (1)4 of CPC. Hence, it is his argument that the second suit is not maintainable.
26. On the contrary the learned counsel for the plaintiff argued that the second suit is very much maintainable. Order XXIII Rule (1) 4 of CPC is not applicable because withdrawal of the suit in accordance with Order XXIII Rule (1) 3 of CPC is not applicable to the plaintiff's case in the circumstances made out. The cause of action for instituting a suit for ejectment is recurring in nature. The first notice issued to the defendant was found to be defective and therefore, the plaintiff withdrew the first suit. Then he issued proper notice, which actually gave rise to cause of action. So the second suit is very much maintainable.
27. Order XXIII Rule 1 sub-rule 3 CPC states that when there is a formal defect in the suit, and for this reason the suit has to fail or there are sufficient grounds for allowing the plaintiff to institute a fresh suit or a part of the claim, the court can permit the plaintiff to withdraw the suit on terms. The Court can also give liberty to the plaintiff to institute a first suit in respect of the subject matter of the suit. Sub- rule 4(b) states in case permission is not obtained, : 28 : the plaintiff shall be precluded from instituting any fresh suit in respect of such subject matter. So reading of these sub rules 3 and 4 together, makes it clear that a new suit can be filed on the same subject matter by obtaining permission of the Court at the time of withdrawing the suit. But question is whether permission is necessary for such type suits, which have recurring cause of action. A suit for ejectment of a tenant has a recurring cause of action. If the notice issued for the first time is found to be defective and for this reason suit has to fail, obtaining of permission of the Court is not necessary. A defective notice does not give rise to any cause of action. So, once the plaintiff notices this and withdraws his suit for issuing the notice once again properly, this properly issued notice gives rise to cause of action. The Trial Court has referred to a judgment in the case of K.R. Narayanaswamy v B. Francis Jagan [2001 (civil) 693 SC]. In this judgment the Hon'ble Supreme Court has held that Rule 1, sub-rule 4 of Order XXIII CPC would have no application in a proceeding initiated for recovery in a suit premises on the ground of bonafide requirement, which is a recurring cause. Though this judgment has been given in a case to which Karnataka Rent Control Act 1961 was : 29 : applicable, but this principle is very much applicable to suits for ejectment filed under the provisions of the T.P. Act. If the tenant or the lesssee is permitted to take this defence, the lessor will be permanently precluded from ejecting his tenant or lessee. Therefore, the argument of the appellant's counsel on this question fails and this point is answered in affirmative.
28. Having answered the above points it is necessary to refer to another point pressed by the appellants' counsel. While discussing on issue No.3 and 4 in OS. 51/2007, the Trial Court has observed that the valuation of cinema theater existing on the suit property shall be considered during execution proceedings. Indeed there is a clause in the lease deed that at the time of handing over of vacant possession of suit property, the plaintiff has to pay the building value, which has to be determined by the Panchayatdars. When this clause was brought to the notice of the Court, it did not agree with the submission of the learned counsel for defendants. The court held that during execution proceedings, valuation of the cinema theater would be considered. The learned counsel for the respondents : 30 : submitted before me that the Trial Court, which has to execute the decree cannot decide the valuation, as the valuation has to be done by Panchayatdars as per the lease deed. He submitted that this part of observation of the Trial Court be expunged.
29. The Trial Court certainly exceeded its limits in making the said observation. When the plaintiff did not seek a relief with regard to fixation of the value of the cinema theater building, the court cannot usurp the jurisdiction. When the contract provides for a different mode, i.e. by appointing panchayatdars for valuing the cinema theater building, the parties should adopt that mode. Therefore, the observation of the Trial Court concerning valuation of the cinema theater building during execution proceedings is expunged.
30. Consequent to findings on the substantial questions of law, both the appeal should fail and therefore, they are dismissed with costs.
Sd/-
JUDGE yan