Karnataka High Court
Sri Ratanlal vs Sri T G Sathish on 6 August, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
C.R.P.No.199/2012
BETWEEN:
Sri Ratanlal
S/o late Shankar Lalji
Aged about 43 Years
Proprietor : Ratan Enterprises
No.200/1, (Cellar Floor)
Chandra Building, Kumbarpet Main road
Bangalore - 560 002. ...Petitioner
(By Sri K.M.Prakash, Advocate)
AND:
Sri T.G.Sathish
S/o late T.K.Gopala Shetty
R/at No.791, 18th Main Road
20th Cross, Banashankari II Stage
Bangalore - 560 070. ...Respondent
(By Sri K.R.Ashok Kumar, Advocate)
This petition is filed under section 18 of Small Causes
Court Act, against the judgment dated 02.04.2012 passed in
S.C.No.2172/2011 on the file of the II Additional Judge, Court of
Small Causes, Bangalore, decreeing the suit for ejectment and etc.
This petition having been heard and reserved for order on
30.07.2012, coming on for pronouncement this day, the court
made the following:-
2
ORDER
The defendant has preferred this revision petition against the judgment made in S.C.No.2172/2011, which reads thus:-
"The suit of the plaintiff is decreed with costs.
The defendant is hereby directed to vacate and hand over vacant possession of the schedule premises to the plaintiff within 2 months from the date of this order.
The defendant is directed to pay the plaintiff a sum of Rs.4,070/- as arrears of rent for the month of April 2009 along with interest at the rate of 6% p.a. from the date of the suit till realisation.
The defendant is also directed to pay the plaintiff a sum of Rs.500/- per day by way of damages for wrongful possession from 01.05.2009 till the date of handing over of vacant possession."3
2. This revision petition was filed on 26.05.2012 and came up for admission on 29.05.2012. The learned counsel for petitioner submitted that revision petition may be disposed of by granting reasonable time to petitioner to voluntarily vacate possession of suit premises to respondent/landlord and further submitted that petitioner is willing to pay the market rent by way of damages for use and occupation of suit premises for the time to be granted to vacate suit premises. This court placing these submissions on record, passed following order on 29.05.2012:-
"Learned Counsel appearing for the petitioner submits that the revision petition may be disposed of by granting reasonable time to the petitioner to voluntarily vacate and to deliver vacant possession of the suit premises to the respondent/landlord. He submits that the petitioner is willing to pay the market rent by way of damages for the use and occupation of the suit premises for the time to be granted to vacate the suit premises. His submission is placed on record.
Emergent notice re.admission.
4The trial Court by the impugned judgment has directed the petitioner/tenant to pay a sum of Rs.500/- per day by way of damages for the period from 1st May 2009 till the date of handing over of vacant possession of the premises. This sum would come to Rs.5,40,000/-. In view of this, the petitioner is directed to deposit a sum of Rs.3,00,000/- (Rupees Three Lakhs only) for the present, with the trial Court within two weeks from today.
Ad-interim stay of execution of the impugned decree for a period of six weeks, subject to the petitioner depositing the aforesaid amount with the trial Court. If the petitioner fails to deposit the aforesaid amount with the trial Court within two weeks from today, this interim order of stay shall stand vacated without any further orders in that behalf. On deposit of Rs.3,00,000/- with the trial Court, the respondent/landlord is at liberty to withdraw the same; the withdrawal shall be subject to the result of this revision petition."
Thereafter, respondent (plaintiff) entered appearance through Sri K.R.Ashok Kumar, learned counsel. The 5 petitioner deposited a sum of Rs.3,00,000/- with the trial court. The matter was listed for admission on 27.07.2012. Again, time was granted at the request of learned counsel for parties. On 30.07.2012, with the consent of learned counsel for parties, the matter was taken up for final disposal and learned counsel for parties were heard.
3. The learned counsel for petitioner has made following submissions:-
I. The trial court did not have pecuniary jurisdiction to grant a decree for damages at Rs.500/- per day from 01.05.2009, till the date of delivery of vacant possession of suit schedule shop. The finding recorded by trial court that plaintiff is entitled to Rs.500/- per day by way of damages has no basis.
4. The learned counsel for petitioner has relied on following decisions:-
I. 2008(4) KCCR 2312 (in the case of Sri V.T.Jayavelu Vs. Sri Nisar Ahmed) 6 II. AIR 1966 Jammu & Kashmir 13 (in the case of B.K.Thapar & Others vs. Sudhir Kumar & Others) III. ILR 2011 KAR 229 (in the case of Abdul Wajid Vs. A.S.Onkarappa)
5. The learned counsel for respondent (plaintiff) has made following submissions:-
I. The pecuniary jurisdiction of court has to be determined on the date of presentation of plaint and not on the basis of relief granted in the suit. II. When plaintiff has placed satisfactory evidence to prove damages, defendant should have produced documents to rebut evidence on record. The learned counsel for defendant had not even cross-examined plaintiff.
6. The learned counsel for respondent-plaintiff has relied on a Division Bench judgment of this court, reported in 7 2006(2) AIR Kar.R.45 (in the case of B.Savithramma Vs. B.Rajagopala Naidu).
7. In a decision reported in ILR 2011 KAR 229 (in the case of Abdul Wajid Vs. A.S.Onkarappa), a Full Bench of this court has held:-
CONCLUSIONS:-
1) The opinion of the Division Bench that Court of Small Causes can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which KR Act applies runs contrary to the provisions of said Act as such it does not lay down correct law. In respect of the premises to which KR Act is applicable, only the 'Court' specified under Clause (c) of Section 3 of KR Act alone is competent to make order for recovery of such premises on the landlord proving any one or more grounds enumerated therein.
2) In the context of jurisdiction of Small Causes Court, a suit for recovery of possession of immovable 8 property does not include a suit for ejectment as such, a suit for ejectment is distinct and different from suit for recovery of possession of immovable property or for recovery of any interest in such immovable property.
3) In the context of jurisdiction of Court of Small Causes to take cognizance of a suit for ejecment, recovery fo mesne profits would not amount to either recovery of an interest in the immovable property or determination or enforcement of any other right or interest in the immovable proerty, and the Court of Small Causes is competent to consider prayer for mesne profits against non-statutory tenant after termination/determination of lease subject to its pecuniary jurisdiction. The contrary view expressed by the Division Bench in this regard does not lay down correct law.9
4) 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, subject to its pecuniary limits, in respect of the premises to which KR Act is not applicable. The interpretation placed by the Division Bench in SAROJAMMA'S CASE, on Clause
(b) of Article 4 of Schedule to KSCC Act does not lay down the correct law."
In the case on hand, the trial court has held that petitioner-tenant was paying rent at the rate of Rs.4,070/- per month. Thus, annual rental was Rs.48,840/- and did not exceed pecuniary jurisdiction of Court of Small Causes.
It is true that respondent-plaintiff has prayed for damages, however he has not quantified the same with reference to period. Therefore, this prayer cannot be considered to determine pecuniary jurisdiction of court. 10
8. The determination of valuation of suit for the purpose of pecuniary jurisdiction shall be as on the date of filing of suit and it does not depend upon relief granted in the suit. Therefore, submission of learned counsel for petitioner that trial court did not have jurisdiction to grant relief of damages cannot be accepted. However, respondent-plaintiff is required to pay court fee for the purpose of executing decree for recovery of damages, if it is not so far paid.
9. The petitioner-defendant has adduced evidence and relied upon leave and licence agreement marked as Ex.P.8 to prove that he had entered into leave and licence agreement on 23.06.2010 with one Kaluram Devashi, in respect of adjacent premises.
10. The trial court taking into consideration that property given under leave and licence agreement is situate in the same locality with an area of 200 square feet and determined damages at Rs.500/- per day. Above all, the evidence of PW1 in proof of leave and licence agreement dated 23.06.2010 11 marked as Ex.P.8 has not been controverted by petitioner- tenant.
11. In a decision reported in 2006(2) AIR Kar.R.45 (in the case of B.Savithramma Vs. B.Rajagopala Naidu), a Division Bench of this court has held that defendant could have made efforts to secure documents of neighbouring adjacent building of locality to show that claim of damages by plaintiff is exorbitant and not based on the prevailing market rate in area in question. In the absence of not producing any such evidence in the case by defendant, it cannot be contended by him in appeal that fixation of damages on the basis of legal evidence produced by plaintiff is excessive. Therefore, submission of learned counsel for petitioner-defendant cannot be accepted.
12. In a decision reported in 2008(4) KCCR 2312 (in the case of Sri V.T.Jayavelu Vs. Sri Nisar Ahmed), this court has held that under the provisions of section 3(r) of Karnataka House Rent and Accommodation Control Act, 1961, a person whose tenancy is terminated continues to be a tenant. 12
In the case on hand, we are not dealing with the provisions of Karnataka House Rent and Accommodation Control Act, 1961.
13. In a decision reported in ILR 2007 KAR 4986 (in the case of Chikkamanchaiah Vs. H.Honnalagaiah), this court has dealt with the provisions of sections 45 and 27(2)(a)(r) of Karnataka Rent Act, 1999 and Rule 33 of Karnataka Rent Rules, 2001.
14. As already stated, at first instance, consideration of this revision petition is restricted for grant of time and payment of damages for the time to be granted to vacate suit premises by petitioner-tenant. Therefore, this decision has no bearing on facts of the instant case.
15. In a decision reported in AIR 1966 Jammu & Kashmir 13 (in the case of B.K.Thapar & Others vs. Sudhir Kumar & Others), it is held that the fact that landlord did not give any notice after expiry of lease calling upon tenants to take back 13 their security and to deliver possession, showed that landlord intended to continue the lease.
In the case on hand, petitioner has contended that he had paid security deposit of Rs.7,00,000/-. The learned trial Judge on appreciation of evidence adduced by petitioner has held that petitioner-tenant had paid security deposit of Rs.2,50,000/-. Therefore, this cannot be a ground to non- suit the respondent.
16. On reconsideration of the matter within the limited sphere indicated above, I do not find any merit in the submissions made by learned counsel for petitioner.
17. Therefore, I pass the following:-
ORDER The revision petition is dismissed, subject to following:-
I. The respondent-landlord shall pay requisite court fee on the relief granted by trial court regarding recovery of damages at the rate of Rs.500/- per day from 14 01.05.2009 till the date of delivery of vacant possession of suit schedule shop.
II. The respondent-landlord shall give deduction to security deposit of Rs.2,50,000/- paid by petitioner- tenant while recovering damages in terms of impugned decree.
Sd/-
JUDGE SNN